Gurcharan Singh vs State of Punjab

Anita Chaudhary, J.—The appellants faced trial in FIR no. 99 dated 17.08.1998, registered at Police Station Mamdot, District Ferozepur, under Sections 307/452/324/323/34 IPC and were sentenced to the following punishment:-

The appellants have challenged their conviction and sentence imposed upon them in this appeal.

Reference to the basic facts is necessary in order to appreciate the submissions made on behalf of counsel for the appellants and the State counsel. A detailed reference to the prosecution evidence shall be necessary at a later stage.

Bohar Chand injured is a labourer. His wife Anaitan and six children reside in village Tibbi Kalan. On 17.08.1998 at 6:00 A.M., the entire family was at home. The allegations are that Gurcharan Singh @ Channa armed with a Kirpan, Puran Singh armed with a Gandasa, Mangal Singh armed with a Gandasa, Bakshish Singh armed with a Sumba, Joginder Singh armed with a rifle and Maura Singh entered the complainant''s house. Joginder Singh and Maura Singh raised a lalkara that Bohar Chand should be taught a lesson for stopping his wife Anaitan from lifting cow-dung from the house of Gurcharan Singh. Gurcharan Singh gave a Kirpan blow on the head of Bohar Chand. Puran Singh inflicted a Gandasa blow on the fore-head upon which Bohar Chand fell down. The family raised alarm. In the meanwhile, Mangal gave a gandasa blow on the upper part of the left arm of Bohar Chand. Joginder inflicted injuries on the right arm & back with the butt of the gun. On hearing the cries, Resham Singh, a neighbourer came running and all of them started crying for help and the accused ran away with their weapons. The motive indicated by the complainant was that Anaitan used to clean the house of Gurcharan Singh and Gurcharan had a evil eye on her and ten days earlier, she had stopped going for work. The accused were threatening both of them and had asked Anaitan to rejoin work and having failed to join work, the accused came and caused injuries to Bohar Chand.

On these broad allegations, the police investigated the case. The medical officer gave his opinion and challan was presented u/s 307/452/324/323/34 IPC, only against accused Gurcharan Singh, Puran Singh and Mangal. The remaining three were not challaned. The case was thereafter, committed and Anaitan recounted the entire case while appearing as PW 1 in the witness box. Thereafter, an application u/s 319 Cr.P.C. was moved for summoning the three additional accused and they were summoned to face trial. During trial, Anaitan and her husband Bohar Chand supported the prosecution. Dr. Renu Singla, Medical Officer who had examined Bohar Chand, found the following injuries.

Incised wound 1 1/2 cm x 1.5 cm. bone deep on the left fronto parietal region. It was 8 cm. from the left pinna and 4 cm. from the left eye brow. Fresh bleeding was present.

Abrasion 2, 1.5 cm. on the left side of forehead above the left eye brow.

Incised wound 8.5 cm. x 2 cm. bone deep on the outer and upper part of left arm near the shoulder. Fresh bleeding was present.

Incised wound 2 cm. x 1/2 cm. on the outer and lower part of the right arm closed to the elbow. Fresh bleeding was present.

Incised wound 4.5 cm. x 1.5 cm. on the left scapula. Fresh bleeding was present.

Dr. R.L. Janeja had conducted the x-ray examination on the body of Bohar Chand and had found fracture on the fronto parietal bone with no callus formation. He proved his report Ex. P-8. ASI Des Raj-PW 6 had carried out the investigation of the case and deposed about the steps taken by him.

After close of the evidence, the statement of the accused u/s 313 Cr.P.C. was recorded and all of them pleaded false implication. Gurcharan Singh accused deposed that he had never employed Anaitan and Bohar Chand had received injuries when he had gone out to answer the call of nature. The other accused made a statement that there was a party faction in the village. They were helping Maura Singh against Jujj Singh and Bohar Chand was supporting Jujj Singh, therefore, they had been falsely implicated.

In defence, the accused had placed the copy of the order Ex. D1 and D2.

The trial Court accepted the prosecution case and came to the conclusion that the ocular version given by the injured was consistent with the medical evidence. It noted that the discrepancies were just normal errors of perception and the accused had come to inflict injuries with a prior concert and there was a motive for all of them to inflict injuries and the trial Court convicted the accused under Sections 326/450/323/148/149 of the Indian Penal Code.

I have considered the submissions made on behalf of both the sides.

The contention of the appellants was that the case was false and there was no motive for the accused to inflict injuries upon Bohar Chand. It was urged that the police had investigated the matter and had only challaned three of the appellants but since the complainant had named the other three, they were also summoned to face trial and the trial Court had not appreciated the evidence correctly and there were discrepancies which went to the root of the case and the witnesses had made improvements with a view to match the injuries with the MLR. It was urged that when the witnesses stepped into the witness box, they have stated that the injuries were caused from the wrong side of the gandasa. It was urged that the complainant had tried to involve a number of persons and the number of injuries given by the witnesses are more than what was found in the MLR. It was urged that the Investigating Officer did not collect scientific evidence nor the blood stained earth was lifted and the motive set up by the prosecution was not believable and there was party faction in the village and both sides were supporting opposite parties and they had been framed. It was urged that no injury with a butt of the rifle was found and the witness had made improvement during trial. It was urged that had any injury been caused with a ''Sumba'', it would have caused a punctured wound but no punctured wound was found and the evidence is contrary to the medical evidence. It was urged that the role attributed to Puran Chand also stands falsified. It was contended that there was a delay in lodging the FIR and the report is MLR oriented.

On the other hand, the State counsel supported the judgment and had urged that the incident had taken place in the house and the parties belong to the same village and there was no dispute regarding their identity and there is a possibility that the complainant would not have noted all the finer details as a large number of people had descended in his house in the early hours and the medical evidence provides corroboration and it is the broad spectrum that has to be seen and the trial Court had found the statement to be credible and the witnesses are wholly reliable.

Responding to the arguments, the counsel appearing for the appellants submitted that the motive alleged is such that it may cut both ways and it can provoke a victim to rope in as many members and the opposite faction as could be conveniently interwoven for the main fabric of the prosecution case and the evidence has to be sifted to find out the truth.

Before proceeding to look into the evidence, it is necessary to notice the allegations in the complaint. The incident took place at 6:00 AM. A report was lodged by Anaitan w/o Bohar Chand to whom the injuries had been caused by the appellants. Anaitan used to work in the house of appellant Gurcharan Singh. She stopped working and the allegations were that all the accused were armed with weapons except accused Maura Singh. They came to her house and bludgeoned her husband. The complainant went on to reveal that on hearing the cries, Resham Singh, a neighbour came running and then all the accused ran away with their weapons. The motive spoken of by the complainant was that Anaitan used to clean the house of Gurcharan Singh and he had developed an evil design and she had stopped going for work and the accused threatened both of them and had asked Anaitan to join work and as she had failed to go back, they had inflicted injuries. The police had challaned only three persons. Though, the complainant had named six of them but the remaining three were summoned after an application u/s 319 Cr.P.C. was filed.

The prosecution evidence consists of the statement of the complainant and her husband and the medical officers besides the police officials who had carried out the investigation. Anaitan-PW 1 had deposed that she used to sweep in the house of Gurcharan Singh and she had stopped working in their house 10 days earlier and they were threatening and compelling her to join her duties but since Gurcharan Singh had developed an evil eye, therefore, she did not go back for work. Anaitan had been working in the house of Gurcharan Singh for over a year. She used to tend to the cows and buffaloes and used to pick cow-dung. In return, she used to get food grains annually. According to Anaitan, the police had come to their house at about 3:00 PM and then her statement was recorded. Complainant had attributed injuries to all the accused.

Bohar Chand injured gave a similar statement as made by his wife. He stated that Joginder and Maura Singh raised lalkara and instigated the others to teach him a lesson for stopping his wife from working in the house. He had deposed that Gurcharan Singh inflicted a Kirpan blow on the left side of the head while Puran Singh inflicted a Gandasa blow from the reverse side which fell on his forehead, above the left eye-brow. He had stated that Mangal Singh inflicted a Gandasa blow on his shoulder, Bakshish Singh inflicted a Sumba blow on his right shoulder and on his back whereas Joginder Singh inflicted injury with the butt of his rifle. According to him, Resham Singh, their neighbour came running on hearing the noise and also witnessed the occurrence. He stated that he was taken to the hospital by Resham Singh, his wife and son. The witness was confronted with his statement Ex. D1 as there was no statement that Joginder had inflicted injuries with the butt of the rifle. He was categoric that he did not make any statement to the police on the first day of the incident. He stated that he had regained consciousness after about 20/22 days and his wife had told him that she had named all the accused.

It is evident from the record that the statement of Bohar Chand was recorded on 11.09.1998, after he was declared fit to make the statement.

Here is a case where three accused were sent up to face trial but three additional accused were summoned by the trial Court. There is one injured and the only other witness to support his statement is his wife who is the eyewitness. Though, Bohar Chand had named Resham as a witness but he was not examined. According to the complainant, the number of assailants were large and the incident had occurred in the village. The evidence has to be examined to find out whether there is a distinct possibility of any innocent person being falsely included with the guilty. Invariably, when such an incident occurs and the parties are known to each other and there is no dispute regarding identities and the defence raises the plea of rival factions and points out to discrepancies in the ocular version and the medical evidence, the question would be whether to reject the entire evidence on the sole ground that it is of partisan nature or to separate the grain from the chaff. One cannot shut eyes to the realities of rural lives in our country. If, the evidence has to be rejected as a whole, it would be easy and large number of accused would go unpunished and it would be an easy course to chart. Simultaneously, it is to be borne in mind that in such a situation as it unfolds in the case before me, there could be a possibility of naming every member who was present there even though he had not participated in the occurrence but may be a curious spectator. Whenever an occurrence takes place, a good number of people appear on the scene not with the view to participate in the occurrence but to watch the incident as a spectator but that would not be treated as leading to a conclusion that the person concerned was present as a member of the unlawful assembly. Vicarious liability can be attached to every member of the unlawful assembly, if that member participates in the commission of the offence by overt act or knows that the offence is likely to be committed by any member of the unlawful assembly. If the prosecution can prove that any member had by his overt act participated then he would be member of that unlawful assembly.

It appears that in this case there are discrepancies in the version given by the witnesses and that is the ocular account and the medical evidence and therefore, the truth has to be found as the evidence consists of only the statement made by Anaitan. Bohar Chand had received a grievous injury on the head with a Kirpan and it would not have been possible for him to note the details. Bohar Chand had stated that he had fallen unconscious and had gained consciousness after 22 days.

Bohar Chand had deposed that his wife had told him that all the six persons had been named by her and he had stated that she had named all six of them. The first injury was caused by Gurcharan Singh with a Kirpan. The second injury was with a Gandasa on the forehead. The third injury was attributed to Mangal Singh again with a Gandasa on the shoulder. Maura Singh was stated to be empty handed. He did not inflict any injury. Two injuries were attributed to Bakshish and Joginder. Bakshish is said to have inflicted an injury with Sumba. The MLR does not show that such injury matches the description. If the injuries had been caused with a Sumba then there would have been a punctured wound but the MLR does not show and thus the evidence is contrary to the medical evidence. The injured and his wife had also attributed an injury to Joginder Singh with the butt of a rifle but there was no corresponding injury with the butt of the gun.

There is considerable force in the submission made by the appellants that there was no injury in the medical record which can be attributed to Bakshish and Joginder. Maura Singh had only raised a lalkara. If all the six persons had come, the injuries would have been more in number. It is difficult to accept that each one of the accused rained blows one after the other upon Bohar Chand.

There is no explanation why the prosecution failed to examine Resham Singh who was the only independent eyewitness. The FIR was lodged after a delay. It is a case where the complainant has indulged in improvements and has tried to involve all the persons who were supporting Gurcharan Singh. In these circumstance, benefit of doubt can be given to those accused whose role the prosecution has been unable to prove, as there is some substance in the submission of the counsel for the appellants. The trial Court was in error in placing implicit reliance on the evidence of PW 1 and PW 2. The statement cannot be said to be totally credible and reliable as their version does not get total support from medical evidence.

On analysis of the evidence, it is found that the prosecution had been able to bring home the guilt of appellant Gurcharan Singh, Puran and Mangal but they had been unable to prove that Bakshish, Joginder and Maura Singh had participated in the assault or that they were members of the unlawful assembly. The question of vicarious liability would not arise. It would not be possible to confirm the conviction and sentence awarded to them, therefore, the conviction and sentence awarded to Bakshish Singh, Joginder and Maura Singh is set aside and they are acquitted of the charges.

It stands amply proved that the appellants Gurcharan Singh, Puran Singh and Mangal Singh shared common intention and in furtherance thereof caused injuries to PW 2 Bohar Chand. Gurcharan Singh caused injury with Kirpan and made himself individually liable for an offence u/s 326 IPC. Further injuries have been attributed to Puran Singh and Mangal Singh which come within the ambit of Section 323 IPC. Since three of them shared common intention, they are liable to be convicted with the aid of Section 34 IPC in respect of the offence committed by each of the accused in furtherance of common intention. Hence, the conviction of appellants Gurcharan Singh, Puran Singh and Mangal Singh u/s 149 IPC is altered to Section 34 IPC with no modification in the sentence awarded by the trial Court. The sentence awarded by trial Court to all three of them is affirmed as under:-

All the aforementioned sentences shall run concurrently. Period of detention already undergone during investigation and trial shall be set off as provided u/s 428 Cr.P.C.

The appeal is partly allowed. The accused are presently on bail. They are directed to surrender before the Chief Judicial Magistrate, Ferozepur within 15 days, failing which CJM, Ferozepur would issue warrants to secure their presence and send them to jail to undergo the remaining part of the sentence. Lower Court record be sent back.