Gahli alias Gurdial Singh vs State or Punjab

S.S. Dewan, J.

Gurdial Singh alias Gahli alongwith his wife Smt. Gopalo was brought to trial for the murder of Kashmira Singh, before the Court of Session at Amritsar. The learned Additional Sessions Judge. Amritsar, by his judgment dated August 30. 1983 acquitted Smt Gopalo, but held the appellant guilty on the substantive charge of murder under S. 302, Indian Penal Code and sentenced him to life imprisonment and a fine of Rs. 2000/.

It is alleged that in front of the residential house of Gurdial Singh accused and Kashmira, Singh deceased. there was a common land, out of which a passage was carved The accused built a small wall on that passage with the intention to grab the same. It also caused obstruction to the complainant party''s passage over it (common land). It appears that the relations betwixt the two branches of the family were obviously strained. The prosecution story goes that on the fateful day i.e. on March 6. 1983, at about 10 a.m., Kashmira Singh demolished a portion of that wall. At about 5 p.m. Kashmira Singh came out of his house and found Gurdial Singh accused, armed with a Kahi and his coaccused Smt Gopalo, empty handed standing near the site of the demolished wall. Smt. Gopalo is stated to have exhorted his coaccused Gurdial Singh to teach Kashmira Singh a lesson for demolishing the wall. Gurdial Singh thereupon gave a Kahi blow on the head or Kashmira Singh, from its reverses side, as a result of which the latter fell down and became unconscious. This occurrence was witnessed by Smt. Pasho, wife and Pargat Singh son of the deceased. When these witnesses raised commotion, then the accused bolted away. Kashmira Singh was removed to the Civil Dispensary, Khem Karan where no Medical Officer was available. Jodha Ram, Dispenser, who was then present in the Dispensary, advised the witnesses to take him to the S.G.T.B. Hospital, Amritsar Kashmira Singh was admitted in the S.G.T.B. Hospital at about 10. 10 p.m. but on the following morning at about 6.20 a.m., he breathed his last. On receipt of intimation from the doctor, Assistant Sub inspector Satya Pal ment to the hospital and recorded the statement, Exhibit P K of Smt. Pasho which formed the basis of the formal First information Report, P.K/2, recorded at 5.30 p.m. on 7383. Assistant Sub Inspector Satya Pal held inquest and sent the dead body to the mortuary for autopsy. Thereafter, he went to the spot and prepared its visual Plan, Exhibit P.N./2 and also recovered bloodstained earth from there The accused were arrested on March 8, 1983.

Dr. Devinder Sharma. P.W. 3, conducted autopsy on the dead body of Kashmira Singh on March 8, 1983, at 1.30 p.m. and found the following injury.

A faint contusion 12 cm x 12 cm on the top of head in midline 11 cm from the root of nose.

On dissection a big haematoma was present under the scalp On further dissection, there was stellate fracture of the skull involving prontal, both and both temporal boneThere was a big subdural haematoma present over the middle part of left hemisphere of brain.

Death was opined to be due to shock and hemorrhage as a result of head injury which was sufficient to cause death in the ordinary course of nature. After necessary investigation, the accused were challaned and committed

The ocular account of the occurrence is that of the widow of the deceased, Smt Pasho, P.W. 5 and his son Pargat Singh, R W. 6. In a long and rambling crossexamination of these two witnesses nothing worth the name seems to have been elicited to belie their forthright and consistent testimony. Assistant SubInspector Satya Pal, P W. 17. is the only Investigating Officer in the case. In his statement under S. 313 Criminal Procedure Code, Gurdial Singh appellant admitted the fact that he alongwith his wife Smt. Gopalo was living in the neighbourhood of Kashmira Singh deceased, but denied the rest of the prosecution allegations against him. However, no defence evidence was adduced on his behalf.

The trial Court on the basis of the material placed before it convicted and sentenced the appellant as indicated above and hence the appeal at his instance.

Mr. Gopal Mahajan, learned counsel for the appellant, with his illimitable fairness virtually expressed his inability to pose any serious or meaningful challenge to the prosecution case The testimony regarding motive is both simple and natural and does not seem to have been even remotely dented by the sketchy crossexamination directed on the point. For the details reasons recorded by the trial Court in paragraph No. 14 of the judgment, we affirm its candid finding that the motive part of the prosecution case stood amply established on the record. The learned counsel for the appellant could offer not an iota of criticism to the ocular account of Smt. Pasho, P.W. 5 and her son Pargat Singh, P.W. 6. On an independent appraisal thereof also, we are wholly inclined to confirm the finding of the trial Court with regard to the eyewitness account being both clear and forthright as also cogent, consistent and convincing. The medical evidence to which detailed reference becomes unnecessary owing to the absence of any argument with regard thereto, is wholly consistent and directly corroborative of the ocular account. Dr. Devinder Sharma found a big subdural haematoma present over the middle part of left hemisphere of brain. Head injury was opined to be sufficient in the ordinary course of nature to cause death. The fact that the name of the appellant and the weapon used by him find mention in the first information report, which was lodged with promptitude, further strengthens the intrinsic reliability of the testimony of the eye witnesses in this regard. We agree with the trial Court that the evidence on the record proves beyond all reasonable doubt that it was Gurdial Singh who inflicted injury on the head of the deceased with a Kahi and the same proved fatal.

Mr. Gopal Mahajan, learned counsel for the appellant has contended that in the facts and circumstances of this case, Gurdial Singh can at best be said to have committed an offence under S.. 304, Indian Penal Code. In the present case there is no doubt that. the relations betwixt the parties were strained over the common land, out, of which a passage was carved, and the wall constructed a by the appellant om the common land was also demolished by the deceased on the same day. The appellant had given one Kahi blow to the deceased from its reverse side. Merely because the blow landed on the head of the deceased, it. would he hazardous to say that the appellant intended to cause that particular injury. The appellant had struck the deceased with the blunt side of the Kahi and this blow proved fatal after about 13 hours of the occurrence. One can only say that the appellant must be attributed the knowledge that he was. likely to "use an injury which was likely to cause death, Under'' these circumstances, in our opinion, the appellant is shown to have committed an offence under S. 304, Part 11, Indian Penal Code, and he must be convicted for the same.

In the result, the appeal partly succeeds. The conviction and sentence of the appellant under S. 302, Indian Penal Code, are set aside and instead he is convicted under S. 304, Part 11, Indian Penal Code and sentenced to 5 years rigorous imprisonment and a fine of Rs. 5000/, or, in default, to undergo rigorous imprisonment for 2 years. The fine, if realized, whole of it shall be paid to the heirs of the deceased