Gulab Singh vs State of Haryana

V.K. Bali, J.

Appellants Gulab singh and his two brothers, Mohan Lal and Sohan Singh and their distant relation, Som Nath, have been held guilty for intentionally causing death of Sukh Ram. Whereas, Sohan Singh appellant has been held guilty under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life, other appellants have been held guilty under Section 302 read with Section 34 IPC and also sentenced to undergo imprisonment for life vide order of conviction and sentence recorded by the learned Addl. Sessions Judge, Ambala, dated February 3, 1995. It is against this order of conviction and sentence that the present appeal has been filed.

Appellants are said to have killed Sukh Ram on March 18, 1990 at 8 or 9 p.m. at village Kaunkpur, in the fields of Avtar Singh. The FIR with regard to incident came to be recorded by Joginder Singh, SI, PW 8 on the statement made by Amar Nath, PW 6, real brother of the deceased. It was recorded at 1.10 a.m. (night) on March 19, 1990 at Police Station Sadar Ambala, stated to be 18 kms. from village Kaunkpur. No proper evidence with regard to delivery of special report to the Magistrate concerned has been led, even though it is clear from the endorsement made by the Addl. Chief Judicial Magistrate, on the FIR itself, that the same was received by him on March 19, 1990 at 5 a.m.

Learned counsel for the appellants in the present appeal has challenged the order of conviction and sentence to a limited extent. His two fold contention is that appellant Sohan Singh, who is stated to have caused the fatal blow to Sukh Ram, cannot be pinned down under Section 302 IPC and he can be held guilty at the most under Section 304 Part I of the Indian Penal Code and that in any case Section 34 IPC is not attracted to the facts of this case. We shall, thus, notice the facts of this case to the extent they so deserve on the limited challenge to the order of conviction and sentence.

The prosecution, with a view to bring home the offence against all the appellants, examined Dr. G.P. Saluja as PW 1 who had conducted post mortem on the dead body of Sukh Ram on March 19, 1990. He found following 18 injuries on his dead body :

"1. A lacerated penetrating wound 1/4 x 1/2" on the front of left leg, 3" below the knee joint. There was deformity of the leg. On cutting open, there was infiltration of blood if the subcutaneous and muscular tissue. There was fracture of both bones underneath. Whole of the leg below knee joint was contused and dark blue in colour. The wound was 1" deep.

A lacerated penetrated wound on the front of right leg 31/2" below the right knee joint. It was 1" deep.

A lacerated penetrating wound 1" x 1/2" on the front of right leg, 4" below injury No. 2. On cutting open, there was infiltration of blood in the subcutaneous in and muscular tissue.

Two obliquely placed contusions 3" x 1" on the right calf. Whole of the calf was swollen and contused. On cutting open, there was infiltration of blood in subcutaneous and muscular tissue. These were 3" below the knee joint.

There was a contusion 4" x 1" obliquely placed over the right thigh, 6" above the knee joint.

Contusion obliquely placed on the back and other side of right thigh 6" x 1" and was 3" outer to injury No. 5. On cutting open, there was infiltration of blood in subcutaneous and muscular tissue.

Reddish contusion 3 and 1/2" x 1" on the outer and right upper arm in its middle above the elbow joint.

Abrasion 1" x 1/2" with reddish crust formation on the back of right upper arm.

4 contusions of varying sizes on the outer side of right upper arm, 3" below the shoulder joint in an area of 4" x 3". On cutting open, it revealed infiltration blood in subcontaneous tissue.

Contusion 3" x 1" on the outer side of left upper arm at the insertion of deltoid muscle.

Contusion 3" x 1" on the outer side of left upper arm, 21/2" below injury No.10.

There was a lacerated panetrating wound 1/2" x 1/2" in the back of left upper arm, 91/2" above the elbow joint.

Lower 1/3rd of the left arm above the wrist joint, wrist joint and dorsum of left hand were contused. The injuries of the left arm showed infiltration of blood in subcutaneous and muscular tissue.

Abrasion 1" x 3/4" with reddish colour over the back of right side, 3" from middle over the iliac crest.

There was an abrasion 1" x 3/4" with reddish crust formation on the outer side of right thigh, 3" below the iliac crest.

There was an abrasion 6" x 1" on the right side of back starting at the level of inferior angle of shoulder blade and 3" from middle going downward and medially and lower border was 1" from middle.

There was multiple abrasion of varying sizes from 3" x 5" into 1" over the back on both the sides below the chest and above the anal groove. On cutting open, there was infiltration of blood in subcutaneous and muscular tissue.

There was diffused mild swelling on the left side of skull in the temporal region. On cutting open, there was haematoma in the subcutaneous tissue and further exploration revealed fracture of temporal and parietal bones. There was extra durahamatoma and there was rupture of superior sugittal sinus. The blood vessel in the grooves of gyri of brain were also congested. There was blood in the base of skull cavity also."

The injuries described by the doctor and fully detailed above, would reveal that seven injuries, i.e., injuries 1 to 6 and 15 were on legs or thigh. The other seven injuries were on arms or wrists. The same are injuries 7 to 13. Injuries 14 and 16 were on the back whereas injury No. 17 has been described as over the back on both the sides below the chest and above the anal groove. Injury No. 18 was on the head and in the opinion of the doctor, death was as a result of injury No. 18 which was sufficient to cause death in ordinary course of nature. All other injuries on the person of Sukh Ram were abrasions or contusions and learned counsel for the parties admit that all the said injuries were simple in nature but for injury No. 1. All the injuries were antemortem in nature. The probable time that elapsed between injuries and death was few hours and between death and post mortem within 24 hours. The doctor further stated that injury No. 18 on the person of deceased could be caused by blunt weapon including lathi. In his cross examination, the doctor stated that injuries 8, 14, 16 and 17 could be the cause of grappling and injuries 6 and 9 could be possible as a result of fall during grappling. PW2 ASI Balbir Singh stated that on April 27, 1990 he had recorded the statements of Ram Pal Patwari, MHC Mange Ram, UGC Munshi Ram and HC Santokh Singh under Section 161 Cr.P.C. PW3 ASI Suraj Bhan detailed the steps that he had taken while conducting investigation of this case. Ram Pal, PW4 only stated that on April 24, 1990 he had prepared scaled plan, Ex. PF at the spot. PW5 Gurnam Singh deposed with regard to disclosure statements made by the appellants and recoveries effected from them. Amar Nath, the first informant, who was examined as PW6, deposed in tune with the FIR lodged by him. PW7 Harbans Lal, another eye witness of the occurrence, supported the narration of events given by PW6. PW8 SI Joginder Singh, who too had partly investigated this case, detailed the steps taken by him during investigation of this case.

Appellants, when examined under Section 313 Cr.P.C., claimed themselves to be innocent having been falsely implicated in this case. They, however, led no evidence in defence.

With a view to appreciate the two fold contention of the learned defence counsel, it will be relevant to give narration of events, as detailed in the FIR, which was given by Amar Nath, PW6. He stated that they were two brothers. His younger brother Sukh Ram was employed with Ch. Harbans Lal resident of Malwa. His brother Sukh Ram used to go to attend his work in the morning and would return at 8/9 in the night. He was employed with Ranjit Singh resident of the village. His fields also adjoin to those of Harbans Lal. On that day, i.e. March 19, 1990, at 9 p.m. during night he was returning to his village after doing work in the fields. When he reached near the field of Jeet, resident of the village, he heard noise of `Maar Diya Maar Diya'' (killedkilled) from the vacant fields of Avtar Singh, upon which he reached the spot while running. Gulab Singh appellant, who was armed with Lathi, Mohan Lal, who was armed with Safajang, Sohan Singh, who was armed with a Lathi and Som Balmiki resident of village Durana, who was armed with Lathi, were beating his brother Sukh Ram with their respective weapons. Sohan Singh was saying that they should be taught a lesson for insulting a woman. He tried to rescue his brother from the clutches of Gulab Singh and others. He also raised an alarm in loud voice of `BachaoBachao'' (savesave). In the meantime, Shri Harbans Lal, owner also came there from the side of village Kanukpur, who also tried to rescue his brother Sukh Ram from the appellants but within his sight also, appellants herein continued inflicting injuries to his brother. He and Harbans Lal rescued his brother Sukh Ram from the clutches of appellants with great difficulty. Sukh Ram had fallen on the ground on receipt of injuries. The assailants went towards the fields along with their weapons. On hearing the noise, Ramesh Member Panchayat and other persons and womenfolk had also reached the spot. They brought Sukh Ram to their house after putting him on a cot. Thereafter tractor of Harbans Lal was arranged and after putting Sukh Ram in the tractor, he, his uncle Mam Chand and Prem Chand brought him in the Civil Hospital, Ambala City for treatment, where the doctor after examining him, declared him dead. He further stated that 1516 days back, Sohan Singh had told his uncle Mam Chand that Sukh Ram had insulted his wife. He and his uncle had gone to the village of Sohan Singh where Gulab Singh and Mohan Lal were also present. They told them that they would verify the above fact from Sukh Ram and if he was found guilty he would be asked to seek pardon from them and they might punish him as per their wishes but that day, they, in order to take revenge of insulting their woman, had killed his brother Sukh Ram by inflicting injuries to him with lathis and Safajang. He had come to the police station to report the matter after leaving Mam Chand and Prem by the side of dead body.

When examined as PW6, Amar Nath stated that all the appellants were armed with sticks except Mohan Lal, who was armed with a Safajang. Safajang is an instrument of cutting branches of trees used by an agriculturist and is a lathi with sharp edged iron fitted on one end. He further stated that whereas Sukh Ram was serving Harbans Lal, he was employed with Ranjit Singh and that fields of Harbans Lal and Ranjit Singh adjoin each other. On March 18, 1990 at about 9 p.m. he was present in the fields of Ranjit Singh and on returning to his village, when he came near the fields of Jit Singh, he heard the noise coming from the fields of Avtar Singh and then he went there and saw the occurrence. He further stated that 1015 days prior to the occurrence appellant Sohan Singh had come to the house of his paternal uncle Man Chand and had complained to him that Sukh Ram had teased his wife. PW7 Harbans Lal stated that he was the employer of Sukh Ram, who used to come in the fields in the morning and would leave the same in the evening for his house. He also gave the time of occurrence as 8.30 p.m. When he reached the spot, Sukh Ram was already lying on the ground and all the appellants had then given 57 blows to him. He also stated that Sohan Singh had given lathi blows on the left temporal region of Sukh Ram and that it is he alone i.e., Sohan Singh, who had exhorted others to teach a lesson to Sukh Ram for misbehaving with the ladies. He also stated in his examinationinchief itself that appellant Mohan Lal gave Safajang blows from its reverse side on the legs of Sukh Ram. From the evidence of the eye witnesses, i.e. PWs 6 and 7, it is not made out that the appellants knew that Sukh Ram would pass through the fields of Avtar Singh at about 8 or 9 p.m. on the eventful night. Harbans Lal, employer of Sukh Ram, has clearly stated that the time for returning Sukh Ram home was in the evening.

From the facts, as have been detailed above, learned counsel for the appellants vehemently contends that Section 34 of the Code cannot be attracted to the facts of the present case and if that be so, even Sohan Singh cannot be pinned down for an offence under Section 302 IPC, even though injury caused by him proved fatal and that at the most he can be convicted under Section 304 Part I of the Indian Penal Code.

We have given our thoughtful consideration to the contention raised by the learned counsel for the appellants but are of the view that even though Section 34 IPC may not be applicable to the facts of this case, Sohan Singh, who caused fatal injury to Sukh Ram, has still to be held guilty for committing the offence punishable under Section 302 IPC. The contention of learned counsel that Section 34 IPC is not attracted has, however, considerable merit. From the facts as have been fully detailed above, it would reveal that normal time of Sukh Ram coming home was in the evening and, therefore, it is reasonable to believe that the appellants had not confronted him by a design. It could well be a chance that at 8.30 or 9 p.m., Sukh Ram came in front of the appellants. True, all the appellants were armed but they were armed with such weapons which are originally (generally ?) carried by villagers. It is true that the first informant, while appearing as PW6, stated all the appellants, but for Mohan Lal, who was armed with a Safajung were armed with sticks but that is certainly an improvement made by him. In the FIR he clearly stated that they were armed with lathis. PW7 has, however, clearly stated that but for Mohan Lal, appellants were armed with lathis. The detail of injuries on the person of Sukh Ram, but for injury No. 18, were on nonvital parts i.e., legs, arms or back. They were all contusions or abrasions and ultimately came out to be simple injuries but for injury No. 1 which resulted into a fracture. Even though first three appellants are real brothers but the real motive to teach a lesson to Sukh Ram was entertained by Sohan Singh. A few days before the occurrence, his wife had been teased by Sukh Ram and as per the prosecution version itself, he was the one, who was exhorting others to teach Sukh Ram a lesson. In the facts and circumstances, as have been fully described above, this Court is of the considered view that provisions of Section 34 IPC cannot be attracted in this case. All the appellants, but for Sohan Singh, had caused injuries to Sukh Ram on his non vital parts and so much so insofar as Mohan Lal is concerned, even though he was armed with more deadly weapon than others, he was causing injuries to Sukh Ram from its reverse side. It may be recalled at this stage that he was armed with a Safajang. Had it been his intention to a cause death of Sukh Ram, there was no difficulty for him to have caused injuries to Sukh Ram from its right side and that too on the vital parts of his body. All the injuries, but for injuries 1 and 18 were simple in nature. Injury No. 1 was, however, again on the nonvital part of Sukh Ram i.e., legs. As mentioned above, the appellants met Sukh Ram by chance and not by a design. The normal time for Sukh Ram coming home was in the evening and not at night at 8.30/9 p.m. In any case, these facts create a considerable doubt with regard to participation of appellants, but for Sohan Singh, with regard to sharing of the common intention of appellants with Sohan Singh to intentionally cause death of Sukh Ram. They, however, certainly shared the common intention of their co appellant Sohan Singh to cause grievous hurt and, therefore, they can be convicted only under Section 325 with the aid of 34 IPC. Insofar as, however, Sohan Singh is concerned, he had a strong motive. His wife was teased a few days before the occurrence and he had remonstrated by lodging a complaint. At the time of occurrence, he, while exhorting others to teach a lesson to Sukh Ram, caused a lethal blow on the head of Sukh Ram, which injury ultimately proved to be fatal. There is absolutely no doubt in our mind that he wanted to intentionally cause death of Sukh Ram and translated his intention into action.

In view of the discussion made above, we partly allow this appeal. Whereas, order of conviction and sentence recorded against Gulab Singh, Mohan Lal and Som Nath, under Section 302/34 IPC is set aside, they are held guilty under Section 325/34 IPC. We are informed that these appellants have already undergone sentence for a period of 21/2 years. The interest of justice would be served if their sentence is reduced to the one already undergone by them. Insofar as appellant Sohan Singh is concerned, the appeal preferred by him has no merit and the same is dismissed, thus, upholding the order of conviction and sentence recorded by the learned Addl. Sessions Judge to that extent.