Gopal Singh and ors. vs State of Punjab

S. S. Grewal, J.

This appeal is directed against the order of Sessions Judge, Gurdaspur, dated 691986, whereby the present appellants were convicted under Section 326 read with Section 149 of the Indian Penal Code and barring Massa Singh who was sent to Reformatory School for a period of four years or till he attained the age of 18 years, whichever is less, the other appellants were sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 2000/ each. In default of payment of fine each of the appellant was sentenced to undergo further rigorous imprisonment for one year. The appellants were also convicted under Section 149 of the Indian Penal Code except Massa Singh each of them was sentenced to undergo rigorous imprisonment for two years. The substantive sentences of imprisonment were ordered to run concurrently. Out of the fine, if realised, Rs 5000/ was ordered to be paid to the legal heirs of Didar Singh deceased.

In brief facts of the prosecution case are that on 19th of January, 1986, at about 11 a.m. Didar Singh was present at his tubewell. Chanchal Singh left from the house which is near his tubewell on hearing alarm, and saw Gopal Singh and Massa Singh armed with sticks, whereas Jarnail Singh armed with a Kirpan. Karnail Singh armed with a Takwa and Swinder Singh armed with a Datar raising alarm to teach a lesson to Didar Singh. All the accused then took away Didar Singh to the house of Gopal Singh, Apprehending danger to the life of Didar Singh, his son Chanchal Singh left for the police station Dera Baba Nanak. On the way he met police partylin village. The tharke and made his statement on the basis of which formal first information report was subsequently registered. Accompanied by the police Chanchal Singh PW went to the house Gopal where only Charan Kaur wife of Gopal Singh accused was present. With the help of a key provided by her lock of the room was opened and Didar Singh injured was rescued. He was sent to Civil Hospital, Dera Baba Nanak. On the way Didar Singh died. Puran Singh was also present at the time when the accused party took away Didar Singh to the house of Gopal Singh accused. The postmortem conducted on the dead body of Didar Singh revealed presence of 10 injuries. All these injuries were caused with blunt weapons. Underneath the injuries on left arm, left and right forearms and lower part of. left thigh fractures were found. Most of these injuries were on hands or legs. On dissection of thorax there were fracture of 5th. 6th and 7th ribs on the left side and fracture of 7th and 8th ribs on right side, and, both lungs were also found lacerated. Death in the opinion of the, doctor was due to shock and haemorrhage as a result of said fractures and bleeding into the pleural cavity. After completion of the investigation the accused were challaned, tried, convicted and sentenced as stated earlier.

The learned counsel for the parties were heard.

The learned counsel for the appellants submitted that there is inordinate delay in lodging the first information report and that death having taken place within 2 hours of the occurrence as opined by Dr. H. S. Sandhu, PW 1, the occurrence did not take place at 11 a.m. as deposed to by Chanchal Singh PW. The fact remains that Didar Singh was forcibly taken away by the accused inside the house of Gopal Singh later accused from where Didar Singh received injuries and was (sic). Neither Chanchal Singh nor Puran Singh PWs who had not actually seen the occurrence could depose with any degree of certainty about the time when Didar Singh received injuries at the hands of the accused. Didar Singh was forcibly taken inside the house of Gopal Singh accused at about 11 a.m and on the basis of the statement of Chanchal Singh PW recorded at about 12.10 p.m. while they were on the way to the Police Station formal first information report was completed by 2.15 p m. and it reached the Duty Magistrate at Batala at 3.45 p m. In these circumstances the first Information report, in the instant case, has been lodged with, promptitude and delay, if any, has been adequately explained by the prosecution.

The medical evidence concerning the probable time between the death and receipt of injuries is only an approximate one. As already discussed the time of receipt of injuries was not even known to Chanchal Singh and Puran Singh PWs as they had not witnessed the injuries being given to the deceased. Thus the discrepancy, if any, concerning the time of occurrence has thus been cogently explained by the prosecution

The other argument advanced on behalf of the appellants that since no food was found in the stomach of the deceased, it can reasonably be inferred that the occurrence took place in the early hours of the morning and not at about 11 a.m., is without any substance. Chanchal Singh PW explained that Didar Singh did not take any food that day and had only taken tea prior to the occurrence. The medical evidence referred to above is not of that conclusive nature, which without any cogent basis, can be relied upon to disbelieve the testimony of Chanchal Singh and Puran Singh with regard to the time of occurrence when Didar Singh was forcibly taken away by the accused inside the house of Gopal Singh accused.

The next limb of the argument advanced, by the learned counsel for the appellants was that in case the accused wanted to finish Didar Singh, they could have easily attacked him near his tubewell instead of bringing him to the house of Gopal Singh and that evidence produced in this regard by the prosecution is not worthy of reliance. The argument is devoid of any merit. Mere fact that the accused lifted and brought Didar Singh from his tubewell to the house of Gopal Singh accused and then caused injuries after bolting the door from inside cannot be said to be improbable. It seems that the accused party wanted to bring Didar Singh first to the house of one of the coaccused and then cause injuries so that at a later stage they could claim plea of right of private defence of person and property. It depended entirely on the minds of the accused who chose to bring Didar Singh into the house of Gopal Singh, Jarnail Singh, Karnail Singh and Massa Singh and then gave him injuries to teach him a lesson, instead of giving injuries to him at the tube well situated near the village abadi. In later case it would not be possible for the accused to raise plea of self defence.

The main argument advanced by the learned counsel for the appellants is that since no direct evidence has been produced by the prosecution to prove the injuries given to Didar Singh inside the house of Gopal Singh accused, the accused are liable to be acquitted. The argument is hardly tenable. It is true that there is no direct evidence concerning the manner in which the deceased received injuries at the hands of the accused party., The fact remains that after Didar Singh was forcibly taken away by the accused party inside the house of Gopal Singh accused while they were armed with deadly weapons, Chanchal Singh PW whose left hand was already imputed because of this handicap he did not make any effort to rescue the deceased from the clutches of the accused. Rather he left to lodge a report with the police and secured its help to rescue his father. Thereafter, when Chatichal Singh came with the police and went to the house of Gopal Singh accused, the same was found locked and its lock was got opened with the key, taken from the wife of Gopal Singh accused and mother of Jarnail Singh. Karnail Singh and Massa Singh accused. Didar Singh injured was rescued from the house of Gopal Singh and be died on the way to the hospital without making any dying declaration In the absence of any plausible explanation the aforesaid telltale circumstances leave no manner of doubt that Didar Singh received Injuries at the hand of the accused party after, he was forcibly taken to the house of Gopal Singh accused.

Puran Singh PW, whose tube well is only 3/4 Killas from the tube well of Didar Singh has given cogent explanation for his presence at the spot from where Didar Singh was taken away by the accused. Puran Singh PW thus cannot be dubbed as a chance witness. No other material contradiction worth the name has been pointed out in the testimony of Chanchal Singh and Puran Singh PW9 on the material aspects of the prosecution case. The nature and extent of injuries received by Didar Singh corroborates the version of Chanchal Singh and Puran Singh PWs. Mere fact that no injury. with any sharp edged weapon was found on the body of Didar Singh deceased can hardly be considered sufficient to disbelieve the testimony of Chanchal Singh and Puran Singh PWs concerning the presence and participation of Jarnail Singh, Karnail Singh and Swinder. Singh accused who were armed with sharp edged weapons. There is overwhelming evidence on the record that all the five accused including Jarnail Singh, Karnail Singh and Swinder Singh in prosecution of their common object came together while armed with deadly weapons and forcibly took Didar Singh from his tube well inside the house of Gopal Singh accused where he received injuries at the hands of the accused party and died as a result of the said injuries.

Taking into consideration the nature, extent and seat of the injuries as well as the fact that .,only sticks were used for causing injuries to Didar Singh and that Jarnail Singh, Karnail Singh and Swinder Singh who were armed with sharp edged weapons did not cause any injury with the said weapons, it is quite patent that the main object of the accused party was only to cause grievous hurt and not to commit the murder of Didar Singh. However, in view of the fact that no injury with sharpendged weapon was received by Didar Singh deceased conviction of the appellants under Section 326 read with Section 149 of the Indian Penal Code cannot be legally sustained. The prosecution has only been able to bring home charge under Section 325 read with Section 149 of the Indian Penal Code as well as under Section 148 of the Indian Penal Code against the appellants beyond any reasonable doubt and they are convicted accordingly

Lastly. it was submitted that the appellants who have already undergone agony of trial since January 1986 may be released on probation or the sentence of imprisonment awarded by the trial Court may be reduced. In view of the proved allegations that the accused party went to the tubewell of the deceased and forcibly took him to the house of Gopal Singh accused while they were armed with deadly weapons, there is no cogent ground to give the benefit of Probation of Offenders Act to the appellants. Gopal Singh, Jarnail Singh, Karnail Singh and Swinder Singh appellants are ordered to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2000/ each under Section 325 read with Section 149 of the Indian Penal Code. In default of payment of fine each of them shall undergo further rigorous imprisonment for six months. Conviction of the appellants under Section 148 of the Indian Penal Code is maintained. However, they are sentenced to undergo rigorous imprisonment for one year each. The substantive sentences of imprisonment shall, however, run concurrently. So far as Massa Singh appellant who has already been sent to Reformatory School by the learned trial Court (by now must have completed 18 years of age), is concerned, there is no need to change order concerning sending him to the Reformatory School except to reduce such period to two years, Out of the fine, if realised, the entire amount is directed to be paid as compensation to the widow of Didar Singh deceased

For the foregoing reasons, this appeal is partly allowed to the extent indicated above.