Ginder Singh and another vs State of Punjab

V.K. Bali, J.—By this common order we propose to dispose of Criminal Appeal bearing No. 308-DB of 1995 filed by Ginder Singh son of Bant Singh and his mother Manjit Kaur as also Criminal Appeal No. 203-DBA of 1996 filed by the State of Punjab against the order vide which in the same trial co-accused of the appellants Ginder Singh and Manjit Kaur, namely, Balbir Singh and Angrez Singh have been acquitted.

Ginder Singh and his mother Manjit Kaur were tried as mentioned above with their co-accused Balbir Singh son of Bant Singh and Angrez Singh son of Jeon Singh for an offence under S. 302 read with S. 34 of the Indian Penal Code as also under S. 201 of the said Code. Learned Sessions Judge in the resultant trial recorded a finding of conviction of appellants Ginder Singh and Manjit Kaur under S. 302 read with S. 34 of the Indian Penal Code and sentenced them to undergo imprisonment for life as also to pay a fine of Rs. 2000/- each or in default of payment thereof to undergo R.I. for six months. They were also convicted under S. 201 of the Indian Penal Code to undergo R.I. for a period of two years. Their co-accused Balbir Singh and Angrez Singh, as mentioned above, were acquitted of the same very charges.

First Information Report with regard to murder of Bant Singh was lodged by his brother Maghar Singh on 21-5-1994 at 5-10 a.m. which was recorded by S. I. Piara Singh PW. 6. Maghar Singh in his statement made before S. I. Piara Singh stated that he was resident of village Mansa Khurd. They were seven brothers eldest being Bant Singh who was residing at village Bhagi Bander for the last about 3 years. He had solemnised two marriages. Whereas first marriage was solemnised with Jangir Kaur daughter of Leekal Singh, resident of Nandgarh Katra, second marriage (kareva) was performed with Manjit Kaur daughter of Kartar Singh resident of Tahliwala Jatan. His first wife Jangir Kaur gave birth to two sons and one daughter. Out of them, eldest was Amarjit Kaur. Whereas younger to her was Balbir Singh and youngest to all was Jaswinder Singh. Amarjit Kaur was married with Nidhan Singh at Bhatinda and Jaswinder Singh was also doing labour work at Bathinda. Manjit Kaur gave birth to Virpal Kaur and Ginder Singh. Virpal Kaur was married with Angrez Singh resident of village Ummewala, Distt. Sri Ganga Nagar. His brother Bant Singh did not have cordial relations with his younger son Ginder Singh. For this reason Ginder Singh was residing at Bathinda. On the day of Baisakhi his brother Bant Singh had given beatings to his wife Manjit Kaur and on account thereof, there was a dispute in the house. A day before lodging the FIR he along with Makhan Singh Ex-Sarpanch, resident of Mansa Khurd had come to village Bhagi Bander at about 4 p.m. in order to settle the dispute where the son-in-law of Bant Singh, namely, Angrez Singh and Ginder Singh and Balbir Singh his nephews, his brother''s wives Manjit Kaur and Jangir Kaur were present in the house. Due to old age, the eye sight of Jangir Kaur had become weak. His brother Bant Singh came to the house at about 8 p.m. and enquired about his welfare. At that time an electric light in the courtyard was on. They started talking about the settlement of the dispute. It was about 9-30 p.m. During the course of settlement Ginder Singh and Bant Singh exchanged hot words and his brother Bant Singh stood up and started going to his room. Ginder Singh picked up a Gandhali lying nearby and gave two blows with the same on the head of Bant Singh which hit his head. Thereafter Angrez Singh took Bant Singh in his grip and Balbir Singh picked up a Soti lying there and a gave a soti blow on shin of right leg of Bant Singh. Ginder Singh gave one more blow with Gandhali to Bant Singh which hit him on the left car and back side of the ear. Balbir Singh gave a Soti blow which hit the right side of his head as a result of which his brother Bant Singh fell down. Makhan Singh and he himself raised an alarm, Na Maro, Na Maro (Don''t kill, don'' kill). When his brother Bant Singh was lying fallen, Angrez Singh continued twisting his left arm while Ginder Singh continues twisting his left knee. While Bant Singh was lying on the ground, Manjit Kaur and Balbir Singh continued giving blows thrustwise with their respective Sotis on the left leg and back side of left knee and Manjit Kaur kept on saying loudly that he should be taught a lesson for giving beatings to her. As a result thereof his brother sustained injuries on his left leg. They stepped forward to rescue him but the accused tried to attack them also. His brother Bant Singh succumbed to his injuries at the spot. Out of feat they ran away outside and informed Jangir Singh Sarpanch about this occurrence. After taking along Jangir Singh Sarpanch with them, they had come to lodge the report. The cause of grudge was that about a month back on the day of Baisakhi, his brother Bant Singh had given beatings to his wife Manjit Kaur and whole family was fed up from him. On account of this grudge, all the accused had connived with one another had committed the murder of Bant Singh by inflicting injuries to him.

It is clear from the records of the case that the occurrence as per the prosecution version had taken place on 20-5-1994 at about 9-30 p.m. whereas the FIR came to be lodged on 21-10-1994 at 5-10 a.m. The special report with regard to the incident reached the Magistrate at Bathinda on 21-5-1994 at 7-30 a.m.

In its endeavour to bring home the offence against the appellants and the acquitted accused, prosecution examined Dr. Khem Raj Bansal PW. 1. He stated that on 21-5-1994 he conducted post-mortem on the dead body of Bant Singh and found following injuries on his dead body :-

Abrasion 7 cms x 1 cm on the right parietal region 5 cms above the upper border of the right ear pinna, obliquely placed. Clotted blood was present. On dissection, haemotoma was present underneath the skin and muscles.

Lacerated wound 51/2 cm x 3/4 cm bone deep on the parietal region in the mid lien between the parietal probutranches, clotted blood was present on muscles. Underlying bone was found fractured. Haematoma was present in the brain matter.

Lacerated wound 4.5 cm x 0.75 cm on the left parietal region, bone deep, 7 cms above the upper border of the left ear pinna. Clotted blood was present. On dissection haematoma was present underneath the skin and muscles. Underlying bone was found fractured. Haematoma was found in brain matter.

Incised wound 3 cm x 1 cm on the middle of the left ear pinna and adjoining mastoid region. Clotted blood was present. Cartilage of the ear pinna was found cut.

Lacerated wound 4 cms x 1 cm x 1/2 cm on the right tubial tuberousity. Clotted blood was present.

Abrasion 1 cm x 1/2 cm on the middle of the lateral surface on the right foot. Clotted blood was present.

Abrasion 2 cm x 1 cm on the front of the right knee joint. Clotted blood was present.

Contusion blue coloured 10 cms x 4 cm on the front of the left knee-joint. There was visible diffuse swelling on the knee-joint.

Contusion blue coloured 8 cms x 3 cms on the back of the left knee-joint.

Abrasion two in number each measuring 11/2 cm x 1/2 cm on the back of the upper part of the left leg adjoining the knee-joint.

In the opinion of the doctor, Bant Singh died due to shock and haemorrhage as a result of above-mentioned injuries which were sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was within few minutes and between death and post-mortem within 24 hours. He further stated that injury No. 4 could not have been caused by a single blow by a sharp-edge of Gandhali. Later he, however, stated that if Gandhali was used in such a manner that sharp edge hitting a part of the body comes grazing downward, then the possibility of injury of the nature of injury No. 4 could not be ruled out. In his cross-examination, he stated that except injuries 2 and 3, all injuries were simple in nature. PW. 2 Dr. Mohan Lal stated that on 2-6-1994 he had examined Manjit Kaur wife of Bant Singh and found that there was no apparent mark of injury. The patient was, however, complaining of pain in right knee and upper ridge of abdomen.

Makhan Singh PW. 3 Sarpanch of village Mansa Khurd supported the prosecution version. He further stated that on 20-5-1994 when he had gone with Maghar Singh PW-4 in the house of Bant Singh they had continued talking up to 9 p.m. At about 9-00/9.15 p.m., there was verbal altercation between appellant Ginder Singh and his father Bant Singh. In his cross-examination, he stated that the first marriage of Bant Singh with Jangir Kaur was solemnised when he was living in village Mansa Khurd. The second wife of Bant Singh was also living with him in village Mansa Khurd for about ten years before he finally shifted to Bhagi Bander. He has seen photograph mark X-1 shown to him and stated that it was not possible for him to identify whether the male person shown in this photograph was Bant Singh deceased. He further stated that in the second photograph mark X-2, Bant Singh certainly appeared to be there along with some lady. He, however, could not identify the lady whose photograph appeared in mark X-2. He further stated that the lady did not belong to his village. He further stated that village Mansa Khurd was located in Police Station Balianwali and distance of village Bhagi Bander from Mansa Khurd was 20 Kms. The village Bhagi Bander was a very big village. No person from neighbourhood had arrived when the occurrence had started and when they had raised an alarm. They did not call any Sarpanch, member panchayat or any other respectable person for the purpose of settlement. All the accused had full faith and confidence in them and they told them that they would abide by their decision. He further stated that neither Maghar Singh nor he physically intervened to stop altercation between Bant Singh and the appellants. The house of Sarpanch was located at the western side of the village. They had gone there along with Phirni and distance was of one Kilometer from the house of the accused. They did not give any information to the persons living in the neighbourhood. The distance of house of Sarpanch from pucca road was about 100 Karams. PW-4 Maghar Singh, brother of the deceased and the first informant deposed in tune with the FIR lodged by him. In cross-examination he stated that in his police statement he had mentioned that after the occurrence when they went to the house of Sarpanch, he was not present and he came at 4.00 a.m. His attention was drawn to Ex. PF where this fact was not mentioned. He admitted that Bant Singh used to give beatings to Manjit Kaur and entire family was fed up with him. He identified his brother''s photo in photograph Exs. X-1 and X-2. He further stated that Jangir Kaur''s photo appear along with photo of his brother Bant Singh in Ex. X-1. He further stated that in photograph Ex. X-2, the lady shown was Manjit Kaur, second wife of Rant Singh. The trial Judge observed that photograph mark X-2 on the face of it is not of Manjit Kaur who was present before him and on inquiry from Manjit Kaur, she had revealed that the lady shown in X-2 was Bhagwan Kaur a low caste woman (Chamiari) of village Mansa Khurd. He further stated that he had not physically intervened to save his brother when the accused had given injuries to him. They did not go to call the persons from neighbourhood. The house of Sarpanch Jangir Singh was located at the bus stand of the village. There was present tempos, tongas and other vehicles at the bus stand. They remained in the house of Sarpanch for 3/4 hours and thereafter the Sarpanch arrived. The distance of the house of Sarpanch from the police station was about 4 Kms. They did not go to any Lambardar or Panch of the village to give information during the period of 3/4 hours for which they remained in the house of Sarpanch waiting for him. He admitted that no person from the village came to the house of Bant Singh from 4-00 p.m. up to about 9.00 p.m. when they were present before the occurrence. S. I. Piara Singh Investigating Officer was examined as PW-5. He detailed the steps that he had taken while investigating the case. In examination-in-chief he stated that on 1-6-1994 all the accused were produced before him by Jangir Singh Sarpanch in the police station. Appellant Ginder Singh was having a Gandhali with him at that time which was taken into possession after preparing sketch of Gandhali blade. In cross-examination he admitted that on the other three sides of the house of Bant Singh there were other houses. House of Sarpanch Jangir was located on the pucca road going from Bathinda to Talwandi Sabo. He did not know if the deceased was having any licence to keep a double barrel gun. He did not remember if any gun of the deceased at any time was deposited in the police station. He did not notice gun of the deceased or the cartridges any where.

Appellant Ginder Singh when examined under S. 313 of the Code of Criminal Procedure stated that his father Bant Singh had married twice and they were grown up children. Bant Singh was not permitting him and his brothers to remain in the house as he was bringing one or the other woman to the house again and again in spite of their objections. His father used to give him beatings and also to his mother Manjit Kaur. On the day of occurrence, he had gone to see his mother and his father asked his mother as to why she was permitting him to come to the house. Her mother told him that there was no harm if he went there to meet them. His father started giving beatings to his mother Manjit Kaur and he objected to it. His father then tried to load his gun in order to fire at him. He lifted a Soti lying there and gave two Soti blows to him and when his father fell down he gave two more Soti blows and he died. He immediatedly went to the Sarpanch and asked him that he be produced before the police. In defence appellant Ginder Singh and others examined DW-1 Head Constable Piara Singh who stated that on 21-5-1994 he was posted as MHC at Police Station, Talwandi Sabo. A double barrel licensed gun of Bant Singh son of Kheta Singh of village Bhagi Bander was deposited in Police Station on 25-5-1994 along with licence and two cartridges. This weapon, the licence and cartridges were deposited with him by Sarpanch Jangir Singh and he had issued a receipt in this respect.

Before we might proceed any further in this case, it is relevant to mention that the learned trial Judge with regard to presence of the two eye-witnesses at the scene of occurrence concluded as follows :-

"Keeping in view the nature of evidence which has been led, I am inclined to disbelieve the case of the prosecution so far as presence of the two witnesses at the time of occurrence is concerned."

We have heard Mr. S. S. Sidhu, learned counsel representing the appellants in Criminal Appeal No. 308-DB of 1995 and Mr. S. S. Dhaliwal, Deputy Advocate General who represents the State of Punjab in Criminal Appeal No. 203-DBA of 1996 and with their assistance we have carefully gone through the records of the case. The findings of the learned Sessions Judge that the presence of the two eye-witnesses could not be believed apart, we have independently gone through the statements of Makhan Singh PW-3 and Maghar Singh PW-4 and are of the firm view that these witnesses were not present at the scene of occurrence. It may be recalled at this stage that these two witnesses belong to village Mansa Khurd stated to be at a distance of 20 Kms from the place of occurrence. Nothing at all is forthcoming from the prosecution evidence as to who had settled day and time for arrival of these two witnesses in the village of the accused to settle the issue. It is also not understandable as to how, a real brother of deceased Bant Singh and a Sarpanch from the place where his brother was residing could be an instrumental in bringing about a settlement in the dispute of the kind that was simmering between the parties. It is once again strange to note that none from the village of Bant Singh was joined to bring about the settlement. Appellant Ginder Singh is not residing in the village. It is also not known as to who had given date and time to him to be present in the village when PW-3 Makhan Singh and PW-4 Maghar Singh were to arrive to settle the dispute between the parties. It is true that PW-4 Maghar Singh is brother of deceased Bant Singh but it is rather strange to note that even though he recognised his brother in photograph X-2, he stated that the lady in the photograph along with his brother was Manjit Kaur, his second wife. If he did not know even the second wife of Bant Singh, it can well be imagined that he was hardly visiting his brother and if that be so, how could the appellants had full faith in them as is claimed. The presence of these two witnesses is also belied from the fact that even though the house of deceased Bant Singh is surrounded by number of houses, none from the vicinity was called at the time of occurrence or even after the occurrence. No one even was attracted to the house of Bant Singh when altercation was going on between the parties or thereafter. These witnesses also did not even intervene when Bant Singh was assaulted by the appellants and their co-accused. It is not a case where the accused were armed when they came to the house or might have armed themselves later on with lethal weapons. As per the prosecution case itself, a Gandhali that was lying in the house itself was picked up by appellant Ginder Singh with which injuries were caused to Bant Singh. Balbir Singh is also stated to have lifted Lathi whereas the other accused had only twisted the arms or legs of Bant Singh. No panch or any respectable person of village Bhang Bandar was informed of the incident. Only Sarpanch was approached and that too after a long time despite the fact that it is very clear that his house was not too far away from the place of occurrence. Makhan Singh PW-3 was not even able to recognise Bant Singh in the photograph Mark X-1. He, however, recognised him in photograph mark X-2 but again did not recognise the lady who was photographed along with Bant Singh. Looked from any angle, we are thus, of the considered view that these two witnesses were not present at the scene of occurrence. It is, rather strange that even though the trial Judge also doubted the presence of these two witnesses at the scene of occurrence and acquitted two accused, but appellants Ginder Singh and Manjit Kaur were still convicted. We are of the firm view that the prosecution did no bring sufficient evidence on the records which may prove involvement of the appellants in the commission of the crime.

Mr. Dhaliwal, learned counsel representing the State, however, contends that even if the prosecution case is discarded, conviction of the appellant Ginder Singh can still be upheld on the basis of confession made by him under S. 313 of the Code of Criminal Procedure. The relevant part of the statement made by Ginder Singh appellant on which reliance has been made to raise the contention as noted above reads thus :-

"My father Bant Singh had married twice and we were grown up children. He was not permitting me and my brothers to remain in the house as he was bringing one or other woman to the house again and again in spite of our objection. My father used to give me beating and also to my mother Manjit Kaur. On the day of occurrence, I had gone to see my mother and my father asked my mother as to why she was permitting me to come to the house. My mother told him that there was no harm if I went there to meet them. My father started giving beating to my mother Manjit Kaur and I objected to it. My father then tried to load his gun with a view to fire at me. I lifted a Soti lying there and gave two Soti blow to him. My father fell down and I gave two more Soti Blow and he died. Immediately I went to Sarpanch and told him the circumstances and he produced us before the police."

The learned Deputy Advocate General contends that even though it may be true that the statement of the accused under S. 313 of the Code of Criminal Procedure has to be either rejected as a whole or accepted as a whole and it is not permissible to accept only the part of the statement which involves the maker thereof and reject the one which absolves him of the commission of crime or projects a defence. He contends in alternative that even if the statement as reproduced is believed in toto it is a case where Ginder Singh appellant exceeded the right of self defence. We are in agreement with the later contention of the learned counsel noticed above. Even if it is admitted that Bant Singh was in the process of firing from his double barrel gun, it is the case of Ginder Singh appellant himself that after he had given him two blows, Bant Singh had fallen down. It is there after that he was inflicted injuries on his person. As per the statement made by the doctor, ten injuries were found on the person of Bant Singh. Assuming that the appellant Ginder Singh as per his statement recorded under S. 313 of the Code of Criminal Procedure had caused only four injuries and others were not caused by him, yet it is his own case that two injuries were caused when Bant Singh had fallen down. Surely, Bant Singh was not in a position to cause any harm to appellant Ginder Singh when he had fallen down. It is, thus, a case where Ginder Singh appellant exceeded the right of his self defence and therefore, has to be convicted under S. 304 Part II of the Indian Penal Code. Considering the totality of the facts and circumstances of the case, we hold him guilty under S. 304, Part II of the Indian Penal Code and sentence him to undergo R.I. for five years.

In view of what has been said above, whereas appeal filed by appellants Ginder Singh and Manjit Kaur bearing Criminal Appeal No. 308-DB of 1995 is partly allowed, Criminal Appeal No. 203-DBA of 1996 preferred by the State is dismissed. Appellant Manjit Kaur is acquitted of all the charges framed against her. Appellant Ginder Singh is held guilty under S. 304, Part II and sentenced to R.I. for five years. Manjit Kaur appellant if not required in any other case be set at liberty forthwith.

Order accordingly.