Davinder Kaur and ors. vs Inder Singh and ors.

G. R. Majithia, J.—This regular Second Appeal is directed against the judgment and decree dated 17111987 passed by the District Judge, Faridkot. who on appeal reversed that of the trial Judge and dismissed the suit filed by the plaintiffs for compensation by way of damages for causing the death of Jagjit Singh.

The facts :

The appellants (hereinafter referred to as the plaintiffs) filed a suit for recovery of Rs. 1,11,000/ as compensation by way of damages against the respondents (hereinafter referred to as the defendants) for illegally causing the death of Jagjit Singh husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 5. Jagjit Singh deceased was a member of Panchayat of village Singhan Wala. The Sarpanch of the Panchayat filed an application seeking the ejectment of defendant No. 2 from a part of land out of Killa No. 617 which was in his illegal possession. On October 5, 1982, an application was moved before District Development and Panchayat Officer, Faridkot for restraining defendant No. 2 from raising any construction over the site alleged to be illegally occupied by him. On January 9, 1983, at 11 A.M. defendant No. 2 with the aid and connivance of defendant Nos. 1, 3 to 6 started raising a wall on the site in dispute. On learning about the same, the deceased who was a member Panchayat along with PWs Jagdev Singh, Tarlok Singh and Jaspal Singh went to the spot and asked the defendants not to raise the wall. Defendant No 2 abused him and exhorted other defendants to catch hold of him and teach him a lesson; whereupon all the defendants rushed towards their tractor standing close by and came armed. Defendant No. 1 Inder Singh was armed with a Takua, defendant No. 2. Baldev Singh was armed with Kasoli, while the remaining defendants were armed with lathis and all the defendants raised a lalkara and they attacked the deceased and PWs Tarlok Singh, Jaspal Singh and Gurdev Singh. Defendant No. 1 is alleged to have given a blow with the Takua which hit the deceased on the back side of his head Whereby he fell on the ground and became unconscious. PW Jagdev Singh came forward to save him but defendant No. 2 Baldev Singh gave a Kasoli blow to Jagdev Singh which hit on the right side of his head. Other defendants, namely, Mukhtiar Singh, Gulzar Singh, Nachhatar Singh and Ajmer Singh also inflicted injuries to the PWs. On a hue and cry being raised by the PWs, the defendants ran away with their respective weapons leaving their tractor at the spot PWs Jaspal Singh and Tarlok Singh brought Jagjit Singh and Jagdev Singh in their tractor trolley to Civil Hospitals Moga where they were medically examined. Jagjit Singh was referred to Charistian Medical College and Brown Hospital, Ludhiana where he died on the same day at 3 P.M. and the postmortem examination was conducted on January 10, 1983 by Dr. Suresh Kumar Aggarwal, who found that the death was as a result of the head injury which was ante mortem. The defendants were charge sheeted for offences under Sections 304/323/148/149/506 and 447 of the Indian Penal Code. The deceased was of 35 years of age at the time of his death. He is stated to be earning Rs. 25,000/ per annum from agriculture i.e. Rs. 20,000/ as a farmer and Rs. 5,000/ from dairy business. Plaintiff No. 1 is the widow of the deceased and is aged about 35 years while plaintiff Nos. 2 and 4 are the daughters of the deceased aged about 17 and 13 years respectively while plaintiff Nos. 3 and 5 are the sons aged about 15 and 11 years respectively. It is pleaded that because of the tortuous act of the defendants they were deprived of their right of education maintenance and support. The deceased would have lived a normal life of more than 30 years if he had not been killed by the defendants. The plaintiffs have claimed Rs. 1,10,000 as compensation and Rs. 1000/ as expenses incurred on funeral.

The defendants resisted the suit and denied the material allegations made in the plaint. It was pleaded that the disputed site was abadi deh. Defendant No. 2 purchased the share of one of the cosharers and constructed house on it. He brought a suit for permanent injunction restraining the deceased and others from interfering in his possession which was decreed. The stay order was granted by the District Development and Panchayat Officer on wrong premises. The defendant had completed the construction prior to the issuance of the stay order. It was pleaded that on January 9, 1983 defendant Nos. 3 and 4 started raising the walls on the site which was in their possession along with their brothers. The deceased was a hot headed person and he exhorted the villagers and members of the Panchayat to teach lesson to defendant Nos. 3 to 6 who had come from village Mothanwali and were raising illegal construction over the Panchayat land. They attacked defendant Nos. 3 and 4 with brick bats and other weapons and as a result thereto injuries were received by them. It is further pleaded that both the defendants ran towards the house of dafendant No 2 to take shelter. According to them, when the brickbats were being thrown on defendant Nos. 3 and 4 by the mob, it is just possible that the deceased was hit by one of the brickbits as a result of which his death was caused. It was denied that injuries were caused to Jagjit Singh as alleged, The deceased went from the place of occurrence to lodge the First Information Report to Police Station, Sadar Ghal Kalan on a scooter. He fell down from his scooter near village Bukanwala and as a result of which he might have received the head injury which was the cause of his death. It is also alleged that from there some people who knew him, removed him in a tractor trolley to village Sihghwanwala and from there to Civil Hospital, Moga. The presence of defendant Nos. 1, 2 and 5 at the spot was denied and it was pleaded that they were, falsely implicated. It was further pleaded that he was not earning anything and was in fact a burden on the family.

The pleadings of the parties gave raise to the following issues

(1) Whether the defendants inflicted injuries to Jagjit Singh predecessor in interest of the plaintiffs which resulted in the death of said Jagjit Singh O.P.P.

(2) To what amount, of damages, the plaintiffs are entitled ? O.P.P.

(3) Relief.

The learned trial Judge found issue No. 1 in favour of the plaintiffs. Issue No 2 was also found in favour of the plaintiffs and it was held that the plaintiffs were entitled to receive compensation in the sum of Rs. 81,000/ which was payable by the defendant.

On appeal the learned Distt. Judge held that the deceased had no right to ''go to the spot to prevent the defendants from raising the construction, since the Civil Court had already passed a decree for permanent injunction restraining the deceased and others from interfering in their peaceful possession over the suit property. He further found that the defendants acted in right of their self defence of property. He referred to the injuries on the person of the eyewitnesses and concluded that the injury on the person of the deceased could be the result of brickbat. He accepted the defence version.

The learned District Judge for reasons not apparent did not give the details of the evidence of what was stated by the eyewitnesses at the trial and why they should be disbelieved. The reference to the eyewitnesses was only with a view to observe that the death was caused as a result of brick bats. To say the least, this amounts to ignoring the evidence of material witnesses altogether and that by itself would be sufficient to vitiate the findings arrived at by the First Appellate Court. In this situation, this Court is left with no other alternative but to examine the evidence of the eyewitnesses to find out if it was worthy of any credence.

PW 2 Jaspal Singh is a resident of visage Singhanwala. He deposed on oath that he along with Jagjit Singh member Panchayat, Tarlok Singh PW 3 and Jagdev Singh PW 4 went to the spot to forbid Inder Singh and other defendants from raising the wall on the Panchayat land. He gave the detailed account of the occurrence. He stated that Inder Singh defendant gave a blow with a Takua from the reverse side on the head of Jagjit Singh deceased and as a result of the injury he fell down. Jagdev Singh advanced towards Jagjit Singh to save him but was given a Kasoli blow from the blunt side by Baldev Singh hitting him on his head. Mukhtiar Singh gave a lathi blow to Jagdev Singh on his head, Gulzar Singh gave a bang blow to Jagdev Singh on this left band. He was crossexamined at length with regard to the relation of the witnesses inter se and others. It was suggested to him that the injury on the head of Jagjit Singh was caused by a brick bat which was denied. It was also denied that Jagjit Singh proceeded to the Police Station Ghal Kalan to lodge the First, Information Report and that on his way he fell down and received injuries, He, of course, admitted that the accused were acquitted by the Sessions Judge after framing charge against them. PW 3 Tarlok Singh deposed on the same lines as that of PW 2 Jaspal Singh. Despite lengthy cross examination nothing was elicited in crossexamination to discredit his version given in the examinationinchief PW 4 Jagdev Singh reiterated what was stated by PW 2. An attempt was made to discredit the statement that he attended the Session Court in the criminal case against the defendants. He could not affirm or deny that he had appeared as a witness in the Session Court on November 21, 1983, May be that the witness tried to conceal something which he should not have done since the suggestion was vouchsafed by the documentary evidence. Nevertheless, it does not discredit his statement in examinationinchief. Nothing was elicited in crossexamination to discredit his statement in examinationinchief. The evidence of these witnesses received corroboration from medical evidence, PW I Dr. Jawahar Lal Aggarwal, Medical Officer, Civil Hospital, Moga, stated on oath that on January 9, 1983 at 12.10 P.M. he examined Jagdev Singh son of Puran Singh resident of village Singhanwala and found the following injuries :

Lacerated wound 1/2" x 1/4" x skin deep on the right side of the scalp, 3" from anterior hair line and 4" from right pinna. Fresh bleeding was present.

Lacerated wound 1/2" x 1/4" x skin deep on the right side of the scalp, 1/2" lateral to injury No. 1

Abrasion 3" x 314" on the front of left knee in the lower part. injuries No. 1 and 2 were kept under observation while injury No. 3 was simple. The probable duration was fresh and were caused by blunt weapon.

On the same day, he examined Jaspal Singh PW 2 and found the following injuries on his person

(1) Abrasion 5" x I" on the front of left, thigh in the lower half.

(2) Bluish discoloration at the tip, of right ring finger.

(3) Abrasion 114" x 1/4" on the dorsal aspect of the right index finger at PIP joint.

(4) Bluish discoloration of the tip of left indexfinger with bleeding from the nail bed.

All these injuries were caused by blunt weapon and were simple in nature PW 2 and PW 4 are the stamped witnesses and their presence at the spot cannot be disputed. PW I in his crossexamination stated that Injuries on the Orson of the deceased and PW 2 and PW 4 could be the result of brick bats. The testimony of PW I does not inspire confidence. He has not given any reason for coming to the conclusion that the injuries could be the result of brick bats. The basis on which he jumped to that conclusion is not forthcoming and this is made clear when reference is made to the evidence of PW 5 Dr. Madho C Deodhar, Medical Superintendent and Professor of Paediatric Surgery, in Christian Medical College and Brown Memorial Hospital, Ludhiana, who clearly stated that there was remote possibility of the head injury of the deceased being caused by a brickbat.

Dr. H.C.K. Joshiwas working under PW 5 who has since left the service of the Christian Medical College and was directed to prepare the injury report in respect of the deceased. The injury statement was prepared under his signatures. PW 5 gave the statement on the basis of injury report prepared by Dr. Joshi whose signatures he identified since the latter was working under him. He was crossexamined and it reaffirmed his statement in examinationinchief. Rather in crossexamination, the statement in examinationinchief was clarified by him. It will be useful to refer to the following portion of his statement in crossexamination.

"Q. I suggest that the injury on the person of Jagjit Singh could be as the result of brickbat.

A. Since there are three injuries on the person of Jagjit Singh, the injury may specifically be referred to in connection with the brick that before I answer definitely.

Q. I referred to the injury on the back of the head.

A. It is remotely possible.

I do not categorically disagree with Dr. H.S.K. Joshi''s opinion that this injury could be caused by a blow with the brickbat but being'' more experienced and more senior and being his teacher, I still stick to my answer that this injury could have been remotely caused by the brickbat. I did not examine Jagjit Singh personally. It is wrong to suggest that my observations is not accurate as I did not medically examine Jagjit Singh. The description given is enough for me to come to any conclusion."

The evidence of this witness was not referred to by the District Judge. His evidence belies the version of PW 1 Dr. Jawahar Lal Aggarwal who stated that the injury on the head of Jagjit Singh could be the result of a blow by a brick bat. This witness was categoric in his statement that injury on the back of the head of the deceased was remotely possible by a brick bat. The evidence of PW 1 cannot be accepted in the light of statement of PW 5 who is a Professor of Paediatric Surgery working in a renowned Hospital in this part of the country. His evidence has a ring of truth and deserves to ''be accepted. The evidence of this witness belies the version of the defendants that the injury on the head of the deceased could be the result or a brick bat. The defendants came with a positive version which remained unproved. To the contrary, the ocular and the medical evidence established that the injury on the head of the deceased was caused by defendant No. 1 who was armed with a Takua:. The plaintiffs version stands proved. The defendant did not succeed in establishing his defence version and even he could not probabilise it. Thus, I hold that the injury which proved fatal was caused by defendant No. 1. Other defendants abetted the crime and they are joint tortfeasors. Their presence stands established by the independent evidence of PW 2, PW 3 and PW 4.

Learned First Appellate Judge observed in his judgment that the defendants acted in self defence of their property This observation cannot be sustained on close scrutiny of the evidence brought on the record. The judgments Exhibits D. 4, D. 5, D. 8 and D. 9 do not render any assistance to the defendants for the reasons it was admitted by the defendants in the written statement that the District Development and Panchayat Officer had restrained them from raising any construction on the disputed property. The order passed by the District Development and Panchayat Officer Exhibit PW 5/X indicates that the disputed site on which ownership right was claimed by the defendants was the property of the Panchayat and it was finally so held. The application was filed by the Gram Panchayat through its Sarpanch against defendant No. 2, under the Public Premises and Land (Eviction and Rent Recovery) Act, 1973. The District Development and Panchayat Officer found that the site belonged to the Gram Panchayat. The defendant''s version that it was given to him under gift by Tulsi Ram was not found to be correct for the reasons that a gift could only be made under the provisions of Section 123 of the Transfer of Property Act and since there was no gift in his favour and he could not refer his possession to a lawful title. It was held that he was in illegal possession and be was ordered to be evicted from the disputed property vide order dated 22nd December, 1983. Thus the District Development and Panchayat Officer in proceedings under the Public Premises and Land (Eviction and Rent Recovery) Act, 1973 for eviction of defendant No. 2 gave a firm finding that the site is a Shamilat deh and was not reserved for any common purposes or was used as such by the original owners. The Contention of defendant No. 1 that he had purchased a part of the property under registered sale deed dated March 31, 1980 and a part of it he got by gift from Tulsi Ram was negatived. Exhibit D. 5 on which a strong reliance is placed by the defendants was rendered in a suit filed by Lal Singh and others. The Civil Court granted a decree for permanent injunction that the ejectment of the defendants will not be made forcibly and illegally. The judgment was rendered on December 11, 1982 which was affirmed by the District Judge. The District Development and Panchayat Office exercising the power of the Collector under the Punjab Public Premises Act was the only competent authority to pass orders'' with regard to land which is stated to be Shamilat deh as defined under the Gram Panchayat Act. The Civil Court jurisdiction under Section 13B of the Gram Panchayat Act is barred for entertaining a suit where the dispute is whether the property vests or does not vest in the Gram Panchayat. Under the Gram Panchayat Act the competent authority was the Collector and the District Development'' and Panchayat Officer exercising the powers of the Collector passed the orders declaring that defendant No. 2 was in illegal occupation and the property in his possession validly vested in the Panchayat. The judgments Exhibits D. 5, D. 6, D. 7 and D. 8 do not render any help to the defendants because it was only held that the plaintiff in the suits ending in judgments Exhibit D. 5 to D 7 would not be dispossessed forcibly and illegally. The Panchayat had a valid order in its favour restraining the defendant No. 2 from raising any construction. The moment that order was brought to the notice of defendant No. 2, he should have restrained himself from making any construction. He persisted in making the construction despite an order passed by a competent authority and it cannot be suggested that he was acting in selfdefence of his property. The observation of the learned District Judge is not warranted by documentary evidence on the record. The finding recorded by the learned District Judge under issue No. 1 is consequently reversed.

The learned first Appellate Judge after reversing the finding of the trial Judge under issue No. 1 did not give any finding under issue No. 2 to say the least the learned appellate Judge has dealt with the matter in a perfunctory manner. The learned trial Judge on appreciation of the evidence found that the deceased was aged 35 years and had a well built and well nourished body. The father of the deceased is aged 60/65 years and was alive when the incident took place. Plaintiff Davinder Kaur stated on oath that the normal span of life in their family is 65 years and this receives corroboration from the fact that the father of the deceased who was aged 6065 years was admittedly alive on the date of the incident. But for the death caused as a result of the injuries inflicted by the defendants, the deceased could have enjoyed the span of his life upto 60 to 65 years. Plaintiffs No. 1 is a, widow, plaintiff Nos. 2 to 5 are the minor progeny of the deceased. The deceased was owner of 8/9 acres of land as evidence by the copy of the record ofrights Exhibit.P. 7. It could fetch him onannual income of not less than Rs. 30,000/ Even if he had worked as a labourer he would have earned a daily wage of Rs. 20/ and could earn Rs. 600/ per month or Rs. 7200/ per annum irrespective of his agriculture holdings. Even if the deceased spent Rs. 2200/ annually on himself be would have contributed Rs. 5000/per menses for the maintenance of his family. The annual dependency can safely be determined at Rs. 6000/. per annum. Multiplying it with a multiplier of 16 in consonance with the judgment rendered by this Court in Lachhman Singh v, Gurmit Kaur and others, AIR 1984 Punjab and Haryana, 501, the amount of damages works out to be Rs. 96,000/ PW 10 Davinder Kaur stated that she spent Rs. 1000/ as funeral expenses of the deceased to which amount the plaintiffs are entitled to. Thus the plaintiffs, are entitled to recover Rs. 97000/ by way of compensation from the tort feasors. The liability of the defendants is joint and several.

For the foregoing reasons the appeal is accepted, the judgment and decree of the first, appellate Court is set aside and that of the trial Court is restored with the modification that the plaintiffs are entitled to Rs. 97000/ (Ninety Seven Thousands) by way of compensation and not Rs. 81,000/ as held by the trial Court. In all other aspects the judgment of the trial Judge is maintained. The plaintiffs are entitled to the costs throughout. Counsel fee assessed at Rs. 1000/, (One Thousand).