Chhota Singh vs State of Punjab

V.S. Aggarwal, J.

This is an appeal filed by Chhota Singh and Mal Singh appellants directed against the judgment and the order of sentence passed by the learned Sessions Judge, Faridkot dated 3.11.1986, By virtue of the impugned judgment, the learned trial court held the appellants guilty of the offence punishable under Section 304 Part II of the Indian Penal Code. By the subsequent order of sentence, each of the appellants was sentenced to undergo rigorous imprisonment for 5 years and fine of Rs. 2,000/. In default of payment of fine, they were to undergo further rigorous imprisonment for one year each.

The relevant facts of the prosecution case are that on 15.12.1985 at about 5.00 P.M. both the appellants were exchanging words with the female members of the family of Kulwant Singh. Chamkaur Singh deceased alongwith Kulwant Singh, Baldev Singh and Chanda Singh came there. They requested the appellants to refrain from doing so. Thereupon the appellants replied that they would teach them a lesson for helping the family of Kulwant Singh.

Appellant Chhota Singh picked up a brickbat and hit it on the chest of Chamkaur Singh. Chamkaur Singh tried to get back. Thereupon appellant Mal Singh gave a brickbat blow on the neck of deceased Chamkaur Singh. Both the appellants threw brickbats on Chamkaur Singh and he fell down. They made good their escape. The deceased was taken in a trolley to Civil Hospital, Moga. He was declared to be dead. Inspector Inder Singh then Officerin Charge Police Station City Moga received information from the hospital and went there. He recorded the statement of Chanda Singh. It was signed by Chanda Singh. On basis of it first information report was recorded. Inder Singh had drawn the inquest proceedings. The body of the deceased was sent for postmortem. It was conducted by Dr. Ramesh Kumar who found the following injuries on the person of the deceased :

"1. Abrasion 1 cm x 1 cm on the back of neck on its upper 1/3. On dissection, clotted blood was present in muscles. On further dissection, second and third cervical vertebrae were fractured and dislocated.

Abrasion 1 cm x 1 cm on the middle of sternum. On dissection, the clotted blood was present and sternum was fractured completely. Clotted blood was present in chest cavity.

Abrasion 2 x 1/2 cm on dorsal aspect of left hand 1 cm below the base of ring finger. On dissection, clotted blood was present.

Abrasion 1 cm x 1 cm on the front of left knee joint in its middle. On dissection, clotted blood was present on underneath tissues.

Abrasion 1 cm x 1 cm on left side of left buttock. On dissection, clotted blood was present.

Abrasion 3 cm x 1 cm on right iliac crest. On dissection, clotted blood was present."

In the opinion of Dr. Ramesh Kumar, the injuries were ante mortem and sufficient to cause death in the ordinary course of nature. Thereafter Inder Singh proceeded to the place of the incident next morning. He took into possession 16 brickbats Ex. P1 to P16 from the place of occurrence. Rough site plan was prepared. The appellants were arrested on 17.12.1985. The clothes of the deceased were taken into possession vide a recovery memo. On the basis of the other formalities, report under Section 173, Cr.P.C. was submitted.

The learned Session Judge on 15.3.1986 framed charge against each of the accused with respect to the offence punishable under Section 302/34 IPC. The appellants pleaded not guilty and claimed a trial. In support of its case, the prosecution had examined six witnesses. Inspector Inder Singh PW6 is the Investigating Officer while Dr. Ramesh Kumar PW4 had conducted the post mortem on the person of the deceased. The two eyewitnesses examined were Chanda Singh PW2 and Kulwant Singh PW3. the statement of the accused appellants were recorded in terms of Section 313, Cr.P.C. They denied that any such incident took place and pleaded their innocence. In defence one Gurbachan Singh DW1 was examined. He made a sworn testimony in court that he was incharge of Dhillon farm in Moga. At about 5.00 P.M. he had come outside the farm on hearing the noise. Brickbats were being thrown. Many person had collected. Chamkaur Singh deceased was present on the roof of the shop of Harjinder Singh. He fell down from the roof and received injuries. During crossexamination he testified that he had seen the deceased lying on the ground and not falling from the roof on the ground.

The learned trial court on appraisal of the evidence held that the defence version of the appellants was false. The testimonies of the eyewitnesses namely Chanda Singh and Kulwant Singh were accepted. Acting on their statements, the trial court held that prosecution has successfully proved its case beyond all reasonable doubt. But it was concluded that in the facts, instead of Section 302 IPC, the appellants had committed the offence punishable under Section 304 Part II of the Indian Penal Code. With these findings, the impugned judgment was pronounced, followed by the order of sentence mentioned above. Aggrieved by the same, the present appeal has been filed.

In the present case, there was no controversy raised about the cause of death namely as opined by Dr. Ramesh Kumar PW4 that it was as a result of the injuries received by deceased Chamkaur Singh. It had been opined that injuries No. 1 and 2 already referred to above were sufficient to cause death in the ordinary course of nature. There was no controversy also agitated that if facts are established, only Section 304 Part II of the Indian Penal Code would be attracted.

Learned counsel for the appellants urged that in the facts it cannot be held that the appellants had committed the said offence. According to him Chamkaur Singh fell down from the wall, received injuries and died.

To appreciate the said contention, reference can be made to the statements of the eye witnesses. Chanda Singh PW2 was the first eye witness and his examinationinchief reads :

"Chamkaur Singh deceased was my son. He used to reside with me. Our plot is in Tobha Nama Nandi, Moga. About eight months back, I alongwith Chamkaur Singh, Baldev Singh, Kulwant Singh were coming to our house after making the watt on the boundary of our plot. When we reached near the house of Kulwant Singh PW situated in basti Baggeana, then Chhota Singh and Mal Singh were exchanging hot words with females of the family of Kulwant Singh. Kulwant Singh asked them not to do so. Chamkuar Singh and Baldev Singh also told them not to hurl abuses and that they should settle their dispute while sitting together. Both the accused then said that they would teach a lesson to them for helping the family of Kulwant Singh. Chhota Singh accused gave brickbats on the chest of Chamkaur Singh. He tried to get back, then Mal Singh gave a brickbat to him hitting his neck''s back side. Both the accused then had been throwing the brickbats to them and hitting them i.e. the deceased and Baldev Singh. Only one injury had been caused to Baldev Singh in that manner. Chamkaur Singh fell down. I, Kulwant Singh and Baldev Singh tried to rescue him but the accused said that they would also cause the injuries to us."

He was crossexamined and admitted that his house is about 200 karams from the place of occurrence. He denied that the windows of the house open towards the place of occurrence or that the deceased was injured after falling from the wall of nearby house. PW3 Kulwant Singh the other eye witness with respect to the main incident stated :

"Chhota Singh accused is the son of Mal Singh accused. Mukhtiar Kaur is the wife of my brother Jaswant Singh. She married her niece to Chhamabu son of Gurnam Singh. Motherinlaw of Chinder Pal niece of Mukhtiar Kaur gave beating to her and she came to the house of my brother. Her motherinlaw also came there and abused Mukhtiar Kaur. Wife of Mal Singh Prito came to our house and abused my sisterinlaw Mukhtiar Kaur. Prito is related to Chhinder Kaur. About two hours of this occurrence, I was taken thereafter by Baldev Singh and Chamkaur Singh to their plot. This occurrence took place about 8 months back. I, along with Chamkaur Singh, Baldev Singh and Chanda Singh were coming back from that plot after making the watt. At about 5 P.M. when we reached near my house, both the accused Chhota Singh and Mal Singh were abusing my sisterinlaw Mukhtiar Kaur. I asked them that why they were abusing. Baldev Singh and Chamkaur Singh also had said to them that they should settle the matter calmly. Both the accused then said to the deceased Chamkaur Singh and Baldev Singh that they would teach them a lesson as they were helping me and my family. Chhota accused then gave a brickbat to Chamkaur Singh hitting on his chest by picking it up from there. Mal Singh also gave a brickbat hitting the deceased on the back of his neck. He fell down."

He was also crossexamined at length and added that no person from the neighbourhood had come to the place of occurrence. He further added that two brickbats had caused the injuries to the deceased. The defence version that the deceased fell down from the wall and received injuries was not accepted by the witness.

At this stage, one can conveniently refer to the defence version. While it was suggested to the witnesses of the prosecution that the deceased fell from the wall, the solitary defence witness Gurbachan Singh on the contrary stated that the deceased fell from the roof of the adjoining house. It is patently clear that what is being floated by the appellants is inconsistent and untrustworthy. It has no legs to stand.

On the contrary the statements of Chanda Singh and Kulwant Singh clearly establish that it was the appellants who caused the injuries with brickbats resulting in the death of Chamkaur Singh. Those brickbats had been recovered and had been seized. In this view of the matter, there is no reason to reject the version of the prosecution.

Faced with this situation, the learned counsel urged that incident pertains to 12 years ago and the appellants have already undergone about 13 months sentence. Therefore, a lenient view should be taken. He pressed into service the principles of speedy justice and Article 21 of the Constitution of India.

In the case Smt. Maneka Gandhi v. Union of India and another, AIR 1978 SC 597, Article 21 of the Constitution of India was given a wide amplitude. It was observed :

"The expression `personal liberty'' in Art. 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Art. 19. Now, it has been held by this Court in Satwant Singh''s case (AIR 1967 SC 1836) that `personal liberty'' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law."

Thereafter in the case of Hussainara Khatoon and others v. Home Secretary, State of Bihar, Patna, AIR 1979 SC 1360 the Supreme Court added that though speedy trial is specifically mentioned as a fundamental right, it is implicit in the broad sweep and content of Article 21 of the Constitution. The Court held :

"We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597. We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be `reasonable, fair and just.''

The Full Bench of Patna High Court in the case Madheshwardhari Singh and another v. State of Bihar, 1990(3) RCR (Crl.) 302 (FB) : AIR 1986 Patna 324 went on to hold that speedy justice is not applicable only to trial but also to appeals and revisions that may be pending. In the facts of that case because of delay, the proceedings were quashed. In paragraph 54 it was held :

"It is the admitted position that the petitioner who is a public servant of gazetted rank has lain under the shadow of a criminal charge all this while which has wrecked his service career. It is not even remotely established that the delay in the investigation and the subsequent trial can at all be laid at the door of the petitioner. Indeed the boot is entirely on the other leg. The prosecution despite the closure of the case a number of times by the trial Court went up in revision and had the issue reopened. There has been no absconding or any other obstructive tactics by the petitioner herein which could even remotely point an accusing finger on him. On the facts no extraordinary or exceptional reasons for the delay could be pointed out by the prosecution and indeed the tardiness and nonchalance with which the prosecution has been conducted appear manifest on the record. It is thus plain that the case herein comes squarely within the rules enunciated above. The constitutional right to speedy trial by a fair, just and reasonable procedure now recognised under Art. 21 of the Constitution stands plainly violated. As has been authoritatively laid down in Maksudan Singh''s case, AIR 1986 Pat 38 (FB), the petitioner is entitled to an unconditional release and the charges levelled against him would necessarily fall to the ground. The petition is consequently allowed and the investigation and the trial against the petitioner are hereby quashed."

Close at heels came the decision in the case of S. Guin and others v. Grindlays Bank Ltd., AIR 1986 SC 289. In the cited case there was an inordinate delay. The accused had been acquitted. The appeal was pending in the High Court of Calcutta for 6 years. The Calcutta High Court felt that acquittal was improper and had ordered retrial. The Supreme Court concluded that keeping in view the inordinate delay, even if acquittal was improper, there should not be retrial. In paragraph 4 the Supreme Court held :

"Having regard to the inordinate delay of nearly six years that had ensued after the judgment of acquittal, the nature and magnitude of the offences alleged to have been committed by the appellants and the difficulties that may have to be encountered in securing the presence of witnesses in a case of this nature nearly 7 years after the incident. The termination of the criminal proceedings in that way would secure the ends of justice as it would bring about reconciliation between the management and the employees and also put an end to a stale criminal proceeding in which the public had no longer sufficient interest."

These feelings of tremendous agony to the accused had been noted with concern by the Supreme Court in the case State of Andhra Pradesh v. P.V. Pavithran, AIR 1990 SC 1266. In paragraph 7 the Court held :

"7. There is no denying the fact that a lethargic and lackadaisical manner of investigation over a prolonged period makes an accused in a criminal proceeding to live every moment under extreme emotional and mental stress and strain and to remain always under a fear psychosis. Therefore, it is imperative that if investigation of a criminal proceeding staggers on with tardy pace due to the indolence or inefficiency of the investigating agency causing unreasonable and substantial delay resulting in grave prejudice or disadvantage to the accused, the Court as the protector of the right and personal liberty of the citizen will step in and resort to the drastic remedy of quashing further proceedings in such investigation."

However, the Court hastened to add that in certain cases delay in investigation and obviously subsequent trial is harassment. Taking note of that in paragraph 8 it was observed :

"8. While so, there are offences of grave magnitude such as diabolical crimes of conspiracy or clandestine crimes committed by members of the underworld with their tentacles spread over various parts of the country or even abroad. The very nature of such offences would necessarily involve considerable time for unearthing the crimes and bringing the culprits to book. Therefore, it is not possible to formulate inflexible guidelines or rigid principles of uniform application for speedy investigation or to stipulate any arbitrary period of limitation within which investigation in a criminal case should be completed."

At this stage, it becomes necessary to refer to the judgment of the Supreme Court in the case of Abdul Rehman Antulay etc. v. R.S. Nayak and Anr., : 1992(2) RCR (Crl.) 634 : 1992(1) All India Criminal Law Reporter 1 . The right of speedy trial was recognized but at the same time it was considered that when the accused themselves delay the trial, they cannot take the advantage of the prolonged trial that may occur. In paragraph 85 the Apex Court held :

"It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are :

Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it anytheless the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.

Right to Speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. That is how, this Court has understood this right and there is no reason to take a restricted view.

The concerns underlying the right to speedy trial from the point of view of the accused are :

(a) the period of remand and preconviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration period to his conviction;

(b) the worry, anxiety, expense and disturbance to his vocation and peace resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or nonavailability of witnesses or otherwise.

At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Nonavailablity of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is who is responsible for the delay ? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as per proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation."

Subsequently, in the case of Bharat Prasad Gupta v. State of West Bengal, 1995(3) Recent Criminal Reports 643 the accused had been held guilty of the offences under the Drugs and Cosmetics Act, 1940. The trial and proceedings had continued for two decades. The Supreme Court reduced the sentence to the one already undergone and in paragraph 7 it was held :

"7. After the conviction of the appellant was upheld by the High Court, he filed a special leave petition in this Court. He furnished proof of surrender dated 10th July, 1990 and notice was thereafter issued in the SLP. The appellant was admitted to bail by an order of this Court dated 3rd August, 1990 but he was actually released on bail only after the modification of the bail order dated 3.8.1990 by an order dated 9.9.1990, made by this Court. The appellant had also remained for some period in custody during the trial and as an undertrial. During the period the appellant had remained on bail, it is not disputed before us, he has not in any way abused the concession of bail or indulged in any objectionable activity. The appellant has been on bail since 1990. He was on bail during the trial and during the pendency of the appeal in the High Court as well. Keeping in view the peculiar facts and circumstances of this case and the comparatively small quantity of allopathic medicines recovered from his dispensary and the fact that the proceedings have continued for almost two decades, in our opinion, the interest of justice would be met by maintaining his conviction as recorded by the Trial Court and upheld by the High Court but reducing the sentence of imprisonment to the period already undergone by him. We make an order accordingly. The bail bonds of the appellant shall stand discharged."

These precedents clearly show and establish that right of speedy justice is a fundamental right. It would bring within its sweep even the period spent in appeal. However, if an accused himself is delaying and adopting tactics in this regard, he will not be entitled to take the advantage of his own wrong to play the tune of speedy trial. Otherwise, if there is an inordinate delay, it would be a mitigating circumstance.

In the present case, the appellants have already undergone more than 13 months of imprisonment during the course of trial and some time while the appeal was pending in this Court. The occurrence pertains to 12 years earlier. While they were on bail, there is nothing to indicate that any such event has taken place which may prompt this Court to take a serious view. Therefore, it is a fit case where the sentence should be reduced to the one already undergone.

For these reasons, the appeal fails and is dismissed. The order of the trial court is modified and the sentence is reduced to the one already undergone.