Gurdev Singh and anr. vs State of Punjab

S.S. Kang, J.

This appeal by two brothers Gurdev Singh and Hardev Singh is directed against the judgment dated July 28, 1983 of the learned Sessions Judge, Ferozepur whereby he has convicted and sentenced them as under :

Gurdev Singh To undergo imprisonment for life and to pay a fine of Rs. 1000/ in default R.I. for one year under Section 302 I.P.C. To undergo R.I. for two months under sections 323/34 I.P.C.

Hardev Singh To undergo imprisonment for life and to pay a fine of Rs. 500/, in default R.I. for six months under sections 302/34 I.P.C.

To undergo R.I. for two months under sections 324/34 IPC.

The sentences were ordered to run concurrently.

The facts may succinctly be stated thus. Milkhi Ram had built a Kotha in the Panchayat land. After some time he left the village and the Kotha was occupied by the Gram Panchayat. Mohinder Singh PW3 was not in possession of any residential house. He moved an application and the Gram Panchayat allotted the above mentioned kotha to him.

On the evening of January 10, 1983, Mohinder Singh PW3 and his son Maluk Singh brought their luggage to the Kotha. The house of Surjan Singh is adjacent to this Kotha. At about 7.30 P.M. Surjan Singh armed with a Gandasi, Gurdev singh appellant with a Barchha and Hardev Singh appellant with a Kirpan came inside the courtyard of Mohinder Singh''s house and asked him to remove the luggage. They proclaimed that since the Kotha and the site adjoin their house, they would not let any one to stay there. Mohinder Singh PW and his son told the assailants that the site and Kotha had been allotted to them by the Panchayat and they will not vacate it. The assailants got infuriated and started abusing them. Surjan Singh then gave a Gandasi blow which fell on the raised left hand of Mohinder Singh. On hearing the noise Kulwant Singh (the deceased of this case) and Santa Singh PW arrived there. Kulwant Singh told the appellants that the Panchayat had allotted the Kotha to Mohinder Singh and why were they asking him to vacate the same. Gurdev Singh appellant remarked that he would teach a lesson to Kulwant Singh for helping Mohinder Singh PW. He inflicted a Barchha blow in the abdomen of Kulwant Singh. Kulwant Singh bent and caught hold of the Barchha. Hardev Singh gave a Kirpan blow on the back of Kulwant Singh while Kulwant Singh was in a bending position. Gurdev Singh appellant pulled the Barchha with force and in that act injury was caused to the fingers of the left hand of Kulwant Singh who fell down on the ground. The assailants then went away taking their respective weapons. Santa Singh PW brought a Rickshaw and put Kulwant Singh in it and removed him to the hospital at Kot Ise Khan. On reaching there the doctor declared Kulwant Singh dead. Mohinder Singh got himself medically examined. On receipt of the ruqa from the doctor, A.S.I. Surinder Singh came to the Primary Health Centre Kot Ise Khan and recorded the statement of Mohinder Singh at about 10.30 P.M. on the basis of which a case was registered. The doctor handed over the medicolegal report of Mohinder Singh to him. Surinder SIngh A.S.I. then prepared the inquest report on the dead body of Kulwant Singh and sent the same for post mortem examination to Civil Hospital, Zira. S.I. Karnail Singh reached Primary Health Centre, Kot Ise Khan and took over the investigation from A.S.I. Surinder Singh. He visited the spot and recovered blood stained earth. He recovered lateron (sic) which was hanging by the door of the Kotha and the same was also taken into possession. He prepared the site plan. During investigation, Dalip Singh Sarpanch produced the register of the Panchayat indicating that the Kotha had been allotted to Mohinder Singh PW.

PW1 Dr. J.S. Gujral conducted autopsy on the dead body of Kulwant Singh on January 11, 1983 at about 9.45 A.M. and found four incised wounds on his body. In the opinion of the doctor death was due to haemorrhage and shock as a result of injury No. 1 which was sufficient to cause death in the ordinary course of nature. Injury No. 1 could have been caused with a Barcha and injuries Nos. 3 and 4 were possible by the grazing of the blade of the Barchha on the hand and injury No. 2 could result from a blow with Kirpan given by the assailant while the deceased was in a bending position.

Gurdev Singh and Hardev Singh appellants along with their father Surjan Singh were produced by Gian Singh Sarpanch of Daulewala before the police on January 12, 1983. During the course of interrogation, they led to the recovery of different weapons. It is not necessary to recapitulate the facts relating thereto because the learned trial Judge has not relied upon the recoveries of the weapons. After a regular trial the appellants were convicted and sentenced as mentioned in the earlier part of the judgment while their father Surjan was convicted only under Section 304 I.P.C. and was released on probation. He has not filed any appeal.

Mohinder Singh PW 3 is a stamped witness. He had a sharpedged weapon injury. His presence is otherwise natural in his Kotha. Santa Singh PW4 is brother of Kulwant Singh, since deceased. Both of them were going together and happened to pass by the side of Mohinder Singh''s Kotha. The reason given by Santa Singh PW for his presence on the spot is also natural and plausible. Both these witnesses have given a detailed and consistent account of the occurrence.

The learned counsel for the appellants has not been able to point out any material contradiction or any other infirmity in their statements. The ocular testimony is fully supported by the medical evidence in the form of statements of Dr. J.S. Gujral, PW 1 and Dr. M.R. Chhabra PW 2. Dalip Singh PW 9 Sarpanch of the village has produced record to prove the factum of allotment of Kotha to Mohinder Singh PW.

From the evidence produced by the prosecution it is established beyond doubt that Gurdev Singh appellant give a Barchha blow in the abdomen of Kulwant Singh, deceased, while Hardev Singh appellant gave a Kirpan blow on his back when he was bending forward. Kulwant Singh died as a result of the injury inflicted by Gurdev Singh appellant. Mr. R.S. Ghai, learned counsel for the appellants, has vigorously argued that there was no previous enmity between the parties. Kulwant Singh came to the spot when the appellants and Mohinder Singh PW were quarrelling. The appellants did not know that Kulwant Singh will come to the spot. Kulwant Singh just intervened so that the appellants did not cause more harm to Mohinder Singh. It is in this situation that Gurdev Singh appellant gave a solitary blow to Kulwant Singh. The offence does not fall under section 302 I.P.C. It will be covered by the section 304 Part II, I.P.C. In support of his contention, he has relied upon a recent decision of the final Court in Gurmail Singh and others v. State of Punjab, 1982 Crl.L.J. 1946 in which it has been held :

"That it could not be said that accused G intended to cause that particular bodily injury which in fact was found to have been caused. May be, the injury inflicted may have been found to be sufficient in the ordinary course of nature to cause death. What ought to be found is that the injury found to be present was the injury that was intended to be inflicted. It is difficult to say with confidence in the present case keeping in view the facts that accused G intended to cause that very injury which was found to be fatal. In order to bring the case within Para III of S. 300 I.P.C. it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. Accused G had wielded a weapon like barchha. The injury landed on the chest and penetrated deep into the chest cavity. When accused G wielded a weapon like a barchha he must be presumed to know that he was likely to cause an injury which was likely to cause death. Undoubtedly, accused G is a very young man aged about 19 years. Having regard to all the circumstances and the facts it may be said that accused G is shown to have committed an offence under S. 304, Part III I.P.C. the sentence of five years'' rigorous imprisonment would be adequate sentence. His conviction for having committed an offence under S. 302 and sentence of rigorous imprisonment for life was set aside."

The ratio of this case fully applies to the fact of the present case. In this case Kulwant Singh unexpectedly arrived at the sense. The appellants had no enmity with him. His mere intervention provoked them. It cannot be said with any degree of certainty that Gurdev Singh intended to cause that very injury. Unfortunately the blow landed on a vital part of the body and resulted in death. On these facts it cannot be held that Gurdev Singh was guilty under section 302 I.P.C.

Respectfully following the dicta in Gurmail Singh''s case (supra), we partly allow the appeal, set aside the conviction of both the appellants under section 302 I.P.C. and convict Gurdev Singh appellant under Section 304 Part II, I.P.C. and sentence him to undergo R.I. for seven years. Hardev Singh appellant caused a Kirpan blow to Kulwant Singh, since deceased, when he was bending forward after receipt of a Barchha blow at the hands of Gurdev Singh appellant. This shows that he shared the common intention to cause death of Kulwant Singh. He is convicted under section 304 I.P.C. read with section 34 I.P.C. and sentenced to undergo R.I. for seven years. However, their conviction and sentence under sections 324/34 I.P.C. are maintained. It is further directed that sentences on both the counts shall run concurrently.

Appeal parttly allowed.