Gurdev Singh vs State of Punjab

P.K. Jain, J.

This appeal is directed against the judgment and order dated November 19, 1993 passed by the Sessions Judge, Amritsar, whereby he convicted the appellant under Section 392 of the Indian Penal Code and sentenced him to undergo life imprisonment and to pay a fine of Rs. 2,000/, in default of payment of which to undergo further rigorous imprisonment for six months. His uncle coaccused Salwinder Singh has been acquitted by giving the benefit of doubt.

The prosecution case, in brief, is that on August 5, 1991 at about 8.15 p.m. Kuka Ram (PW1) along with his son Kalu Ram deceased was returning to his home after doing their usual daily labour work. When they reached near the house of Budha Singh, situated at the turning of the street, the appellant armed with a takua and Salwinder Singh alias Chhinda, who was empty handed, were found standing there. On exhortation given by Salwinder Singh, the appellant inflicted a takua blow on the head of Kalu Ram due to which Kalu Ram fell down and died on the spot. Both the appellant and his accomplice ran away from the spot. The motive for the said occurrence is stated to be that the appellant had forcibly taken away the daughter of Kuka Ram (sister of the deceased) but the incident was sorted out with the intervention of the Panchayat. However, Kalu Ram deceased continued to nurse a grudge on this score against the appellant.

On account of curfew during the night, Kuka Ram (PW1) started for the Police Station, Khemkaran, on the next morning when on the way near the Railway crossing he met the police party headed by ASI Balwant Singh who recorded the statement of Kuka Ram which is Exhibit PA. The ASI made his endorsement Exhibit PA/1 and sent the same to the Police Station, on the basis of which formal FIRExhibit PA/2 was recorded. ASI Balwant Singh along with the complainant and other members of the Police Party went to the spot; prepared inquest reportExhibit PB and sent the dead body for postmortem with his requestExhibit PE. He lifted bloodstained earth from the place of occurrence and converted the same into a sealed parcel.

On August 16, 1991, the appellant and his accomplice Salwinder Singh were produced before ASI Balwant Singh near the bus stand of Khemkaran, who then arrested both of them and interrogated them in the presence of Karnail Singh (PW7) and the other constables including Mehru Ram Constable. The appellant made a disclosure statement that he had kept concealed a takua in the chari field of Baba Harnam Singh of village Ratoke and could get the same recovered. His disclosure statement Exhibit PF was recorded and the thumb marked the same which was attested by Constable Mehru Ram and Karnail Singh. Thereafter the appellant led the police party to the said field and got recovered takuaExhibit P.1 which was found to be stained with blood. The said ASI then prepared the rough sketch (Exhibit PG) of the takua and thereafter converted the same into a sealed parcel. Scaled site plan of the place of occurrence was got prepared and the clothes of the deceased received from the hospital were taken into possession. After completing the investigation a chargesheet was filed.

Dr. Sham Lal Gupta (PW6) had performed autopsy on the dead body of the deceased Kalu Ram on August 6, 1991 at 11.45 a.m. who found following injury on it.

"Incised wound 10 cm. x 2 cms. on top of the scalp. Margins were clear cut. Bone was cut in the parietal region of the scalp.

On dissection the brain layers in parietal region and brain matter were cut. There was about 50 to 75 cc of clotted blood in the skull cavity. All the organs were healthy. Heart contained blood. Stomach contained small quantity of semidigested food. Small intestines contained digested food and large intestines contained faecal matter."

According to the said doctor the cause of death was due to shock and haemorrhage on account of the injury which was sufficient in the ordinary course of nature to cause death. The injury was ante mortem in nature and caused by a sharp edged weapon. The doctor handed over the reconstituted dead body, copy of the postmortem reportExhibit PD with pictorial diagram showing the seat of the injuryExhibit PD/1. The doctor had initialled all the papersExhibit PA, PB, PB/1 and PC and the brief facts received with the request for postmortem. In his crossexamination, he has stated that the weapon used in the crime had not been shown to him but the same could be a kirpan also. He has further stated that the semidigested food contained in the stomach revealed that the deceased might have taken his last meal four to five hours prior to his death.

Kuka Ram (PW1) is the father of the deceased and an eyewitness. He has fully supported the prosecution version as narrated by him in the first information report. Gurbachan Singh (PW2) is the brother of the deceased. According to his testimony, he had joined his father and the deceased brother when they were returning to their home after their work and then the incident took place in his presence. He has corroborated the testimony of his father regarding the occurrence. Karnail Singh (PW7) was present when the appellant and his accomplice were arrested by ASI Balwant Singh and in whose presence the appellant was interrogated and his disclosure/statement was recorded and thereafter the appellant had led the police party and got recovered the takuaExhibit P.1 from inside the Chari field of Baba Harnam Singh of village Ratoke. Rishi Ram (PW8) is the Draftsman who had prepared the scaled site planExhibit PJ. ASI Balwant Singh (PW10) is the Investigating Officer.

In their statements recorded under section 313 of the Code of Criminal Procedure, both the accused denied the allegations of the prosecution and pleaded their innocence. In defence the accused persons examined four witnesses. S. Birinder Singh (DW1) is the Judicial Magistrate 1st Class, who was posted as such on August 24, 1991 at Patti. An application was moved before him on August 24, 1991 on behalf of the appellant for his medical examination. After giving notice to the State he had passed the order on applicationExhibit DW1/A directing for medical examination of the appellant. Shri B.S. Bhullar (DW2) is an Advocate. He had moved the application (Exhibit DW1/A) on behalf of the appellant. In his crossexamination he has stated that the party never came to him after passing of the said order. Dr. Jagjiwan Lal (DW3) is the Radiologist, Civil Hospital, Gurdaspur. He had conducted xray examination of the appellant on March 2, 1992 and prepared his reportExhibit DW3/A, which reads as under :

"Xray left forearm.

United fracture at the lower end of left ulna was seen. Probable duration of the injury was more than three months."

He has stated that in his opinion Gurdev Singh would be incapable of picking up anything with is right hand. In his crossexamination, he has stated that the injury could not have been caused less than three months. Right arm of Gurdev Singh otherwise worked but not properly. He admitted that before the fracture the hand was working properly. Puran Chand (DW4) is Upper Division Clerk PWD (Electrical Division), Madhopur. He had brought the summoned record kept with the Border Security Force regarding the work of installation of barbed wire. On the basis of the said record, he stated that on 5/6.8.1991 one Kuka Singh was an employee of the department but Kalu Ram son of Kuka Ram was not an employee with them. In his crossexamination, he has explained that Surinder Singh was the Contractor who had employed some persons in Ratoke area and the record was being maintained by the Border Security Force.

After scanning the prosecution evidence in depth, the learned trial Court placed reliance on the testimony of Kuka Ram (PW1) and Gurbachan Singh (PW2) having been corroborated by the recovery of takua (Exhibit P.1) and the Medical evidence, came to the conclusion that the prosecution had succeeded in establishing its case under Section 302, Indian Penal Code, against the appellants (sic).

We have heard the learned counsel for the appellant as well as the learned counsel for the State who have taken us through the record of the trial Court.

Shri H.S. Gill, learned counsel for the appellant, while assailing the order of conviction has taken up the usual plea that the FIR in this case was recorded at a later time than it is purported to be. The learned counsel has pointed out that Kuka Ram (PW1), father of the deceased and an eyewitnessness, has got recorded the time of occurrence as 8.15 p.m. in the FIR, whereas in his deposition, he has stated the same to be 7.30 p.m. It has been further argued that according to this witness, his thumb impression was obtained by the Police Officer at the place of occurrence which goes to show that the FIR was prepared after the place of occurrence was inspected by ASI Balwant Singh. It has also been pointed out that the special report in this case was delivered to the Judicial Magistrate, Patti, on August 6, 1991, at 2.45 p.m. In this context, the learned counsel also referred to the crossexamination of Dr. Sham Lal Gupta (PW 6), who had conducted postmortem over the dead body and who has deposed in his crossexamination that the semidigested food, contained in the stomach, revealed that the deceased might have taken his last meal 4 to 5 hours prior to his death, whereas according to Kuka Ram they had taken their meals at 12.00 noon.

The argument may be somewhat attractive on the face of it but a slight probe into it would show that it is without any substance. One should be mindful that Kuka Ram (PW1) and Gurbachan Singh (PW2) are not only illiterate rural persons but they also belong to the unskilled labour class. They cannot be expected to have exact knowledge about the various timings. Whatever timings have been given by Kuka Ram, the same are based on his guess work. In his crossexamination Kuka Ram has stated that at the time of occurrence it was already dark but this does not mean that there was pitch dark at that time so that he might not have been able to identify the assailant. It is not disputed that the appellant and his accomplice were very well known to this witness and his sons. Further, Kuka Ram has explained that on account of curfew in the night he could not go to the Police Station to lodge the report. This fact has not been questioned in the crossexamination of this witness. Therefore, it was natural for him to go to the Police Station on the next day as soon as possible. He met the police party at the railway crossing and his statement was recorded at 7.15 a.m. and on the basis of the said statement formal first information report was recorded at 7.50 a.m. The distance between the Police Station and Patti, where the special report was delivered to the Judicial Magistrate, is about 25 Kms. Therefore, it cannot be said that the recording of the first information report was delayed to implicate the appellant falsely. In his crossexamination, Kuka Ram had explained that he had thumbmarked one paper at the railway crossing and the other papers at the place of occurrence. Learned counsel for the appellant has then pointed out to the statement of Kuka Ram recorded during inquest proceedings wherein he stated that the dead body lying in the hospital for postmortem was that of his son Kalu Ram. On the basis of the said statement the learned counsel has argued that this statement was manipulated and the inquest report was also prepared later on. We are unable to agree with this contention. The obvious reason is that Dr. Sham Lal (PW6) has categorically stated that he had received the dead body along with police papers on 6.8.1991 at 11.30 a.m. and after conducting postmortem he returned the police papers including the inquest report. Therefore, the question of manipulating the inquest report later on could not have arised at all. Thus, this contention has no force in it and the same is hereby rejected.

Then it has been argued by the learned counsel for the appellant that neither the Investigating Officer made any inquiry regarding the motive alleged by Kuka Ram nor the Sarpanch or any other Member of the Panchayat or other respectable person from the village has been examined to prove that any such incident, as alleged, had taken place and the matter was patched up through the intervention of the Panchayat. This argument is devoid of any force. ASI Balwant Singh (PW10), the Investigating Officer, has specifically stated in his crossexamination that he had recorded the statement of Raj Singh Sarpanch in the zimini, but he did not record the statement of the daughter of Kuka Ram. Once the inquiry in the alleged motive was made by the Investigating Officer and the statement of Raj Singh Sarpanch was recorded in the zimini, there was no necessity to record the statement of daughter of Kuka Ram or to join her in the investigation. A girl or a woman, in the tradition bound nonpermissive society of our country, would be extremely reluctant to come forward and to depose about the same incident which is likely to reflect upon her chastity. Similarly, Kuka Ram (PW1) would not have made any such serious allegation against the appellant which might have reflected on the future of her daughter, unless it was true. In these circumstances, the testimony of Kuka Ram (PW1) and ASI Balwant Singh (PW10) is enough to prove the alleged occurrence wherein the appellant had misbehaved with the real sister of the deceased but the matter was patched up at the intervention of Raj Singh Sarpanch and others but still the deceased could not reconcile with the compromise and nursed a grudge against the appellant and on account of the said grudge he used to teach or misbehave with the appellant while passing by his side. These facts, proved on the record, gave sufficient motive to the appellant to attack the deceased.

The testimony of Kuka Ram (PW1) regarding his coming back to his house after doing his usual labour work is duly corroborated by the register maintained by the Border Security Force and brought by Puran Chand (DW4). The mere fact that the name of Kalu Ram deceased was not entered in the attendance register, is no ground to discard the testimony of Kuka Ram that he along with his deceased son was coming back to his house after his normal daily work. The simple reason is that the labour is hired by the Contractor and it so happens that some of the casual labourers are not put up on the musterroll. While appreciating the evidence of a witness, the approach of the Court should be whether the evidence of the witness read as a whole appears to have a ring of truth. Further, while judging the deposition of rural witnesses, the Court is not to apply the same standard of exactitude and consistency as for that of urban witnesses. Kuka Ram (PW1) and Gurbachan Singh (PW2) are admittedly illiterate villagers and belong to unskilled labour class. They cannot be expected to narrate the entire version from the very beginning to the end without some variations here or there which might be minor in nature. Both these witnesses have corroborated the material particulars of the prosecution case without any serious drawback or material discrepancies. Their testimony is further corroborated by the recovery of the takuaExhibit P.1 at the instance of the appellant. Their testimony is also corroborated by the medical evidence which goes to show that there was only a single injury on the head of the deceased, which could be caused by a sharpedged weapon i.e. a weapon like takuaP.1, which proved fatal in this case. Therefore, the learned trial Court was justified in placing reliance upon the testimony of these two witnesses without any hesitation. Thus, it stands established that it was the appellant who had given the takua blow on the head of the deceased at the place and time mentioned by these two eyewitnessnesses as a consequence of which, the deceased succumbed to the said injury on the spot itself.

1617. Lastly, the learned counsel for the appellant laid great stress on the question as to what offence has been made out on the proved facts on the record. According to the learned counsel, only an offence under section 304 Part II, Indian Penal Code, is made out. Our attention has been drawn to the earliest version given by Ruka Ram in the first information report, wherein it is specifically mentioned that the conduct of the appellant having misbehaved with deceased in spite of a compromise got effected by the Panchayat. It is further mentioned that the deceased nursed a serious grudge over the said conduct of the appellant, who could not reconcile himself with the aforesaid compromise and always used unwarranted or undesirable language on seeing the appellant while passing by. Kuka Ram (PW1) has categorically stated in his deposition on oath that the appellant had forcibly lifted his daughter and took her away but the matter was sorted out with the intervention of the Panchayat yet his son (deceased) was angry on that score and so the appellant killed him. From a perusal of the impugned judgment it is evident that the learned trial Court, on the basis of the evidence on record, has come to the conclusion that the case fell within the ambit of Section 300, clause thirdly, of the Indian Penal Code, and as such convicted and sentenced the appellant under section 302 of the Code. Clause thirdly of Section 300, Indian Penal Code, has always been the subjectmatter of discussion before the apex Court. The basic judgment rendered by the apex Court is in the wellknown case of Virsa Singh v. The State of Punjab, AIR 1958 Supreme Court 465. One of the essential conditions for attracting clause thirdly of Section 300 of the Code was stated to be that there was an intention on the part of the accused to inflict that particular injury which was found to be sufficient in the ordinary course of nature to cause death and which proved fatal also. When only one injury is inflicted and even though it is shown to be sufficient in the ordinary course of nature to cause death, the question still arises that even though the accused had a chance and opportunity to inflict more injuries, yet he did not avail of it, can an inference be made that the intention was to cause death or to cause such bodily injuries as are sufficient in the ordinary course of nature to cause death, even though the medical evidence shows that the injury inflicted is sufficient in the ordinary course of nature to cause death. Merely because the injury is shown to be sufficient in the ordinary course of nature to cause death, no inference could be made that was the injury intended to be inflicted by the accused. In Jagrup Singh v. The State of Haryana, (1981)3 SCC 616, the accused had dealt a blow with a qandhala on the head of the deceased which resulted in his death. The apex Court, after looking into Virsa Singh''s case (supra) and analysing it threadbare held that having regard to all the circumstances of the case and the fact that the accused gave only one blow which proved to be fatal, yet the incident occurred on the spur of the moment which resulted in infliction of injury and this circumstance would exclude that the specific injury was intended to be inflicted, and, therefore, clause thirdly of Section 300 would not be attracted. Similar views were expressed by their lordships of the Supreme Court in Kulwant Rai v. The State of Punjab, (1981)4 SCC 245, and Jagtar Singh v. State of Punjab, (1983)2 SCC 342. In all these cases the conviction was converted to one under section 304, Part II, Indian Penal Code.

In the present case, it is the plea of the prosecution that the appellant had forcibly lifted the sister of the deceased and taken her away i.e. he might have tried to outrage the modesty of the sister of the deceased. This conduct, in our orthodox society, is of such a nature which disturbs all the members of the family of the female in question. It is the case of the prosecution itself that even though a compromise had been got effected with the intervention of the Panchayat, yet the deceased did nurse a serious grudge against the appellant, and he always used filthy or unwarranted language whenever he saw the appellant or whenever he passed by the appellant. On the day of occurrence, it cannot be said that the appellant had come prepared to commit the offence in question. It was just a sheer matter of chance that Kuka Ram and the deceased were coming back to their house after their daily work and they found the appellant at the turning of the street. In view of the above facts mentioned in the first information report and then repeated by Kuka Ram (PW1), it is evident that on seeing the appellant the deceased must have passed certain remarks which could not have been swallowed by the appellant. At that spur of the moment, the appellant gave one takua blow which landed on the head of the deceased and the same proved fatal. The appellant had the opportunity to give more takua blows to the deceased, but he ran away from the place of occurrence immediately after giving one blow. In these circumstances, clause thirdly of Section 300, Indian Penal Code, is not attracted in view of the law laid down by the Supreme Court in the decisions referred to above. So, we are of the view that the act in question of the appellant falls within the ambit of section 304, Part II, Indian Penal Code.

For the foregoing reasons, the appeal succeeds partly. The conviction and sentence of the appellant under section 302, Indian Penal Code, are set aside and instead he is convicted under section 304, Part II, Indian Penal Code. He is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/, or in default of payment of which to undergo further rigorous imprisonment for six months.