Hardev Singh and others vs The State of Punjab

A.D. Koshal, J.—For the murder of Tej Kaur, a resident of village Shankar and for causing injuries to her son Kewal Singh (P.W. 7) with blunt and sharp-edged weapons three persons, namely Hardev Singh, aged 19 years, his brother Harjinder Singh, aged 16 years, and their friend Piara Singh, aged 25 years, all residents of the same village were jointly tried by Shri Surinder Singh, Sessions Judge, Jullundur They were charged, convicted and sentenced as per details given in the following table:

Name of accused

Offence with which charged.

Offence of which con-victed

Sentence

I (a) Hardev Singh

Under Section 302 of the Indian Penal Code

Under Part I of Section 304 of the Indian Penal Code.

Rigorous Imprisonment for five years.

(b) Harjinder Singh and Piara Singh

Under Section 302 read with Section 34 of the Indian Penal Code.

Nil

Nil

II (a) Harjinder Singh

Under Section 324 of the Indian Penal Code.

As charged.

Rigorous Imprison-ment for

one year.

(b) Hardev Singh and Piara Singh

Under Section 324 read with Section 34 of the Indian Penal Code.

As charged.

Rigorous Imprison-ment for one year each.

III a) Piara Singh

Under Section 323 of the Indian Penal Code.

As charged.

Rigorous Imprison-ment for six months.

(b) Hardev Singh and Harjinder Singh.

Under Section 323 As charged, read with Section 54 of the Indian Penal Code.

Rigorous Imprison-ment for six months each.

Against the judgment of the learned Sessions Judge which is dated the 22nd of November. 1968, the three convicts (hereinafter to be referred to as the appellants) have filed Criminal Appeal No. 1091 of 1968 which we are hereby disposing of along with Criminal Appeal No. 318 of 1969 instituted by the State of Punjab against the aquittal of Hardev Singh appellant of the charge u/s 302 of the Indian Penal Code and of his co-accused of one u/s 302 read with Section 34 of the Code.

The prosecution case may be stated thus. On the 14th of March, 1966, a case u/s 9 of the Opium Act was registered at Police Station Nakodar against Hardev Singh appellant on account of the possession by him of five kilograms of poppy-heads (first information report Exhibit P.M.). In the resultant case Hardev Singh appellant confessed bis guilt and was sentenced to pay a fine of Rs. 50/-. He suspected that lie had been apprehended at the instance of Kewal Singh (P.W. 7) At about 6 P.M on the 20th of February, 1968, Kewal Singh (P.W. 7) and his brother Harbans Singh (P.W. 14) were returning from their well to their house when Hardev Singh appellant hurled abuses at them as they passed by their havels saying that his prosecution for the possession of poppy beads had resulted from information suppled by Kewal Singh (P.W. 7) At that time Hardev Singh appellant also extended a threat that Kewal Singh would be killed The incident, however, came to close at the intervention of one Gurdas (a prosecution witness who was given up at the trial as having been won over).

On the next day, at about 7 P.M Kewal Singh (P.W. 7) was present at the shop of Hussan Lal (P.W. 8) in the latters company when Hardev Singh appellant passed by but returned after an interval of about 15 minutes, armed with a kirpan and accompanied by Harjinder Singh and Piara Singh appellants who were holding a takwa and a sota respectively. The appellants raised a lalkara which made Kewal Singh (P.W. 7) run away to his house followed by them. He was overtaken at a distance of 10 to 12 karams from the shop of Hussan Lal (P.W. 8) when Harjinder Singh appellant gave him a takwa blow in the head which made him fall to the ground. Tej Kaur deceased who had arrived at the scene in the meantime fell on her injured son in order to save him but was given a kirpan blow in the head by Hardev Singh appellant. Piara Singh appellant gave 2 or 3 sola blows to Kewal Singh (P.W. 7) whereafter the three appellants made good their escape.

The occurrence was witnessed by Kewal Singh (P.W. 7) and Hussan Lal (P.W. 8) as also by Baldev Singh, another brother of Kewal Singh (P.W. 7).

The two injured persons were removed to their house and then to the Rural Dispensary at Shankar where they reached at 9-30 P.M and were examined by Doctor B.K. jain (P.W. 4) who found Tej Kaur unconscious, vomiting, and bleeding from the nose and the mouth. She had an incised wound with the dimensions 3x1/2x1/2 located over the left parietal region. The bone underneath the wound was found fractured and the wound was sufficient in the ordinary course of nature to cause death.

Kewal Singh (P.W. 7) had an incised wound on the left parietal region, a swelling on the light upper arm, a contusion on the right fore-arm and a scratch at the base of the left thumb All these injuries were simple in nature.

At 12-36 A.M. on the same night, Doctor B.K. Tain (P.W. 4) informed the Nakodar Police about the arrival of the two injured persons at the Dispensary and in response to his message Assistant Sab-Inspector Gurdial Singh (P.W. 16) went to the Dispensary and found Tej Kaur unconscious. He recorded the statement (Exhibit P (sic) of Kewal Singh (P.W. 7), completing the same at 2-30 A.M This statement forms the basis of the formal first information report (Exhibit (sic)G / 2) which was registered at Police Station Nakodar in respect of offences under Sections 323, 324 and 307 read with Section 34 of the Indian Penal Code at 2-50 A.M.

The condition of Tej Kaur being serious, she was removed from the Dispensary at 3 A.M. and taken to the Civil Hospital, Jullundur, wherein she was admitted as an indoor patient on the 22nd of February. 1968, at 5.30 A.M.

The Assistant Sub-Inspector went to the spot on the morning following the occurrence and secured bloodstained earth from there.

Tej Kaur remained unconscious till her death which took place on the "4th of February, 1968, at (sic) 40 A.M. The autopsy was performed on the same date in the evening by Dr Gian Singh Rekhi (P.W. 5) who found that the inched wound sufferred by Tej Kaur had badly fractured the right parietal bore and had damaged the brain.

The appellants were not traceable till the 25th of February, 1968, when one of them, namely, Harjinder Singh surrendered himself in a Jullundur Court. The other two appellants were arrested by the Assistant Sub-Inspector on the 26th of February, 1968. On the same day Hardev Singh appellant made a disclosure in pursuance of which kirpan Exhibit P. 1 was recovered from inside a heap of bushes and grass lying in his havels Harjinder Singh appellant also made a disclosure on the 2nd of March, 1968, and take Exhibit P. 2 was recovered in consequence.

Kirpan Exhibit P. 1, was found by the Serologist to be stained with human blood.

Sixteen witnesses were examined at the trial in support of the prosecution case, three of them on affidavits. They included Kewal Singh (P.W. 7) and Hassan Lal (P.W. 8) both of whom gave the same version of the occurren"e as has been detailed above. Kewal Singh (P.W.-7) further testified to the motive part of the prosecution story and asserted that a day prior to the occurrence Hardev Singh appellant had abused him on the plea that he Kewal Singh) was instrumental in bringing about his (Hardev Singh''s) prosecution in respect of the poppy-heads referred to above. However, the witness denied that he had ever acted as informer against Hardev Singh appellant or that he knew what ultimately happened to the poppy head case. His brother Harbans Singh (P.W. 14) also supported him by deposing to the incident of the 20th of February, 1968, in which Hardev Singh appellant had hurled abuses at Kewal Singh (P.W. 7) for the avowed reason that the latter bad had the popy-heads in question recovered.

Assistant Sub-Inspector Gurdial Singh (P.W. 16) deposed to the details of the investigation in which he was supported by Ujagar Singh (P.W. 10) who claimed that the two disclosures and the consequent recoveries were made in his presence.

When examined in pursuance of the provisions of Section 342 of the Code of Criminal Procedure, Hardev Singh appellant admitted that he bad been fined Rs. 50/- on the basis of a confession made by him in the poppy-head case arising from first information report Exhibit P.M He and the other two appellants however, denied all the other allegations made against them by the prosecution and stated that they were innocent and that the prosecution witnesses had falsely deposed against them Piara Singh appellant further stated that about a month before the occurrence he had had a quarrel with Hussan Lal (P.W. 8) who had got him (Piara Singh appellant) falsely implicated in the present case.

The learned Sessions Judge was of the opinion that the recovery of poppy-heads from Hardev Singh appellant having taken place about two years before the occurrence, that recovery "could not give rise to a sudden eruption." However, he accepted the testimony of Kewal Singh (P.W. 7) that the latter had been involved in an altercation with Hardev Singh appellant on the 20th of February, 1968, and that that altercation provided the motive for the assault. He was further of the opinion that the depositions of the two eye-witnesses were fully reliable In this connection he took into consideration the facts that Kewal Singh P.W. 7 was found on the evening of the 2lst of February, 1968, to have on his person injuries which could not be self-inflicted or self sufferred, that the house of Tej Kaur deceased was located at a distance of only about 50 feet from the place of the occurrence and that neither of the eye witnesses had any motive to falsely implicate any of the three appellants. He rejected a contention raised on behalf of the appellants that the first information report was inordinately delayed and another that an inference adverse to the prosecution should be drawn from the circumstance that no more residents of the locality in which the occurrence took place had been produced as eye-witnesses. Takwa Exhibit P, 2 rot being bloodstained, its recovery was held to be of no consequence while that of kirpan Exhibit P. 1 which was found by the Serologist to be stained with human blood was considered by the learned Sessions Judge to have been fully proved and to provide corroborative evidence of the guilt of Hardev Singh appellant. In coming to the conclusion that the offence committed by Hardev Singh appellant in causing the fatal injury to Tej Kaur was one covered by Part I of Section 304 of the Indian Penal Code and not by Section 302 thereof, reliance was placed by the learned Sessions Judge on Harjinder Singh alias Jinda Vs. Delhi Administration, and in absolving Harjinder Singh and Piara Singh appellants of any constructive liability for that injury, the learned Sessions Judge observed:

It is well settled that in a case of an intervener as in the present occurrence there could be no common intention on the part of the other accused and hence Section 34 is not attracted " It was in these premises that the learned Sessions Judge convicted and sentenced the three appellants as aforesaid but acquitted them all of the charge of murdering Tej Kaur.

The first point raised by learned counsel for the appellants is that the first information report was considerably delayed. After a careful consideration of the relevant, facts, we find no substance in the contention. The occurrence is said to have taken place at about 7-30 P.M. and within two hours thereof both the injured persons had reached the Rural Dispensary located in their village The condition of one of them, namely, Tej Kaur was serious and it must have been the natural and first concern of her sons to save her life rather than to run about for the purpose of informing the police. As it is, the Assistant Sub-Inspector reached the Rural Dispensary as soon as he was apprised of the arrival of the two injured persons thereat through a telephonic message delivered at 12-36 A.M. and he lost no time in recording the statement of Kewal Singh (P.W. 7) after he bad learnt that Tej Kaur was unconscious. That statement was completed at 2-30 A.M. and, in our opinion, without any avoidable delay.

The next contention put forward on behalf of the appellants is that both the eye-witnesses ate interested in the deceased and are unreliable. We find no force in this contention either. Kewal Singh (P.W. 7) is no doubt a son of the deceased but then he himself un-doubtly received injuries during the occurrence and there is no reason at all why we should not accept his statement at its face value, supported as it is by the deposition of Hassan Lal (P.W. 8), a wholly independent witness. In support of the argument that Hassan Lal (P.W. 8) is an untrustworthy witness, reliance is placed on the tact that he never cared to report the matter to the police and it is urged that such would not have been his conduct if he had actually seen the occurrence. It is to be noted however, that Hassan Lal (P.W. 8) was not a relation of either of the victims of the occurrence and there is no reason why he should have felt interested in them to the extent of taking up the initiative in a matter which did not concern him personally. Admittedly he has his shop at a distance of only 10 or 12 karams tram the place where the deceased and her son received injuries and he is, therefore, a natural witness, it is no doubt true that he is a partner in a liquor shop which is being run at Nakodar and which, on his on showing, he visits every day This fact, however, dots not at all stand in the way of the acceptance of his testimony to the effect that every day in the afternoon he returns to village Shankar and sits at his shop. If he had taken up a false stand on this point, the appellants would not have found it difficult to establish from the testimony of numerous neighbours that he was absent from his shop when the occurrence took place or that it was usual for him to attend his Nakodar shop in the evenings He does not appear to be interested either in the prosecution or against the appellants and has, therefore, no axe of his own to grind by perjuring himself.

Stress is laid for the appellants on the fact that neither of the eye witnesses alluded to the availability of any source of light at or in the vicinity of the place of occurrence and it is contended that at about 7-30 P.M on the 21st of February, 1968, it must have grown so dark that it would be impossible for people to identify others unless a source of artificial light was available This contention is being raised for the first time and no attempt was made, while the eyewitnesses were under cross examination, to show that light was not available at the time in the vicinity of place of occurence. When the ocular testimony is to the effect that the culprits were identified the availability of artificial light must be presumed unless there is some circumstance negativing the stand. Had the two eye-witnesses been questioned on the point, they would surely have stated hew they were able to recognise the culprits. In the absence of any questions on the point, the omission on their part to mention the light cannot be construed in derogation of their testimony.

It is also contended that the motive part of the prosecution story was not proved. On this point the main argument of learned counsel for the appellants is that before the 20th of February, 1968, Hardev Singh appellant had never complained of Kewal Singh (P.W. 7.) having acted as informer against him and that there was no reason why he (Hardev Singh appellant) should suddenly have taken into his head about two years after his conviction in the poppy-head case to find fault with the conduct of Kewal Singh (P.W. 7) who had actually not acted as the informer. This argument ignores the possibility of somebody having dinned into the ears of Hardev Singh appellant a day or a few days prior to the occurrence about the recovery of the poppy-heads in question having been effected at the instance of Kewal Singh (P.W. 7). Had the incident in which Hardev Singh appellant is said to have abused Kewal Singh (P.W. 7) and Harbans Singh (P.W. 14) not taken place, there would be no reason at all for Kewal Singh (P.W. 7) to falsely implicate the three appellants in the present case, whether or not the real culprits were known to him In this view of the matter, we have no hesitation in acting upon the testimony of Kewal Singh (P.W. 7) and Harbans Singh (P.W. 14) about the motive part of the prosecution case.

Learned counsel for the appellants challenges the conviction of Harjinder Singh and Piara Singh appellants on the ground that they had been falsely implicated. He brought to our attention the fact that in between themselves the two victims of the occurrence received only five injuries, and urged that the three assailants were really too many for the purpose of inflicting such a small number of injuries. We however, do not find ourselves in agreement with him the injuries are of two types and indicate with a high degree of probability that the appilants were more than one and then, if either Harjinder Singh or Piara Singh had not taken part in the occurrence, we see no reason why Kewal Singh (P.W. 7) would have accused them. We are of the opinion, which is in conformity with the finding of the learned Sessions Judge, that the testimony of the two eyewitnesses is fully reliable and that all the three appellants are proved to have taken part in the occurrence as per details giver, above.

Learned counsel for the appellants also assails the recovery of kirpan Exhibit P. 1 but we find it established from the testimony of Ujagar Singh (P.W. 15) and Assistant Sub-Inspector Gurdial Singh (P.W. 16) However, even of the recovery were to be ignored, the prosecution case is in no way weakened, proved as it stands from the eye-witness account of the occurrence.

We shall now take up a consideration of the appeal filed by the State on whose behalf the following two contentions have been raised:

(a) The offence committed by Hardev Singh appellant does not fall short of one u/s 302 of the Indian Penal Code and his coviction should be recorded accordingly in lieu of the one under Part I of Section 304 of the Code.

(b) Section 34 of the Code is applicable to the offence of ''Tej Kaur''s murder in so far as Harjinder Singh and Piara Singh appellants are concern d in as much as the same was committed in furtherance of the common intention of the three appellants. In any case, the appellants other than Hardev Singh must be convicted (in respect of the kirpan injury suffered by Tej Kaur) of an offence u/s 326 read with Section 34 of the Code.

Contention (a) must be accepted in view of the pronouncement of their Lordships of the Supreme Court in Virsa Singh Vs. The State of Punjab, , according to which the case of a fatal injury which is objectively found to be sufficient in the ordinary course of nature to cause death, would fall under Clause 3rdly of Section 300 of the Indian Penal Code proaided it is further shown that the infliction of that particular injury was intended. That the incised wound suffered by Tej Kaur was objectively in injury sufficient in the ordinary course of nature to cause death is a fact not only proved from the testimony of the autopsy Surgeon but also one which is not attacked before us on behalf of the appellants. This injury was given with a kirpan and it is no body''s case that Hardev Singh appellant while causing it intended to hit any part of his victim''s body other than the head and tint it was a matter of accident that the head of Tej Kaur presented itself to receive the blow. The force with which the kirpan blow was given is apparent from the depth to which the weapon penetrated it cut the parietal bone involved through and through and lacerated the brain. From the type of the weapon used, the force with which the blow was given and the part of the victim''s body which was hit, it is quite plain that the injury actually found on Tej Kaur was the injury intended. That injury is, therefore, fully covered by Clause 3rdly of Section 300 of the Indian Penal Code and the offence brought home to Hardev Singh appellant must be held to be murder rather than culpable homicide not amounting to murder.

Harjinder Singh v. Delhi Administration 1, and Chatra v. State AIR 1967 M.P. 217, on which reliance has been placed for the appellants are of no assistance to them. In both these cases it was found as a fact that the injury in question was not the injury intended, a situation which does not arise here in view of the above discussion.

Contention (b) concerns the effect of Section 34 of the Indian Penal Code on the circumstances leading to the death of Tej Kaur. That section runs as follows:

When a criminal act is done by several persons, in furtherance of the common intention of all each of such persons is liable for that act in the same manner as if it were done by him alone." Now the provisions of this section clearly lay down that when several persons have a particular common intention, then each one of them is liable for any act done by any of them in furtherance of that intention. It is not necessary that the commission of such act must itself be specifically intened by everyone of them: all that is required is that the act must be such as can be shown to further the common intention. So all that is to be determined in the case of Tej Kaur''s death is as to whether the fatal blow was given to her in furtherance of the common intention of the three appellants which was admittedly to beat up Kewal Singh (P.W. 7) with weapons like kirpan, takua and sota. Assistance in this connection may be had from State of Bihar Vs. Lala Mahto and Others, , in which Ahmad, J., speaking for the Division Bench consisting of himself and Kamla Sahai, J., observed after a consideration of several authorities on the point:

Reading the section as it stands in my opinion, the act done in furtherance of the common intention of all includes in it three types of act; firstly, the act which is directly intended in between all the confederates; secondly the act which the circumstances of the case leave no doubt to conclude that though the act was not directly intended in between them but was taken by all of them as included in the common intention and thirdly, the act which any of the confederates commits in order to avoid or remove any obstruction or resistance put up in the way of the proper execution of the common, intention. In doing the third type of the act the individual doer may cause a result not intended by any other of the confederates "With these observations we respectfully agree and are of the view that the case of Tej Kaur''s death is covered by the third category of cases contemplated therein. It is no doubt true that when the appellants assaulted Kewal Singh (P.W. 7), the arrival at the spot of the deceased was not contemplated by any one of them so that there was no question of their having a specific intention of causing injuries to her. As soon as she tried to rescue her son by lying over him Hurdev Singh appellant struck her in the head with his kirpan. Hardev Singh''s act was clearly calculated to remove the obstruction put up by her in the way of the proper execution of the common intention of the three appellants and, therefore, to be covered by Section 34 of the Indian Penal Code, although the constructive liability of Harjinder Singh and Piara Singh appellants must be limited to the causing of grievous hurt with a sharp edged weapon to Tej Kaur and cannot be extended to her death - a result which they did not intend even in the case of Kewil Singh (P.W. 7) State of Bihar v. Lola Mahto 4 was followed with approval by a Division Bench of this Court consisting of Bedi J. and myself in Jiwan Singh v. The State Cr.A. 397 of 1966 Criminal Appeal No. 397 of 1966 decided on the 8th of August, 1968. which was also a case of an intervener being done to death by the culprits who had a common intention to kill quite another person. It was held that the provisions of Section 34 of the Indian Penal Code were attracted to the act of one of the culprits in doing the intervener to death, even though his confederates might not have intended to cause that death.

Kripal and Others Vs. State of Uttar Pradesh, is another case very much in point. There, the three accused in furtherance of their common intention began to beat two labourers with the handles of two spears and with a lathi. One Jiraj arrived at the spot and asked the accused why they were beating his labourers One of the accused hit him on the legs with the lathi Jiraj fell down and was stabbed with a spear neat the ear by one of the other accused, the third of whom then thrust his spear in the left jaw of Jiraj who died as soon as the accused last mentioned extracted the spear blade from the jaw. It was held by their Lordships of the Supreme Court that the common intention to kill Jiraj was not to be attributed to all the three accused who, however, could not escape liability for grievous injuries caused to the victim which had obviously been inflicted in furtherance of their common intention. It is no doubt true that Jiraj was himself beaten up by all the three accused but on principle there would be no impediment in the way of the applicability of Section 3l of the Indian Penal Code even if he had been assaulted by only one of the accused and had been done to death in consequence.

Our finding is that the first part of contention (b) is without substance but that its second part merits acceptance so that while Hardev Singh appellant is guilty of the offence of murder punishable u/s 302 of the Indian Penal Code for causing the death of Tej Kaur, the other two appellants are liable to be punished only for an offence u/s 3-6 read with Section 34 of the Indian Penal Code in respect of the injury suffered by Tej Kaur in the head as a result of a kirpan blow given to her by Hardev Singh appellant.

In the result we dismiss Criminal Appeal No. 1091 of 1968 and accepting the other appeal in part convert the conviction of Hardev Singh appellant under part I of Section 304 of the Indian Penal Code to one u/s 302 thereof and also convict the other two appellants of an offence u/s 326 read with Section 34 of the Code.

In lieu of the sentence of rigorous imprisonment for five years awarded to him by the learned Sessions Judge, Hardev Singh appellant is awarded the sentence of Imprisonment for life in respect of the offence of which he is convicted as just above mentioned, each of the other two appellants being sentenced to rigorous imprisonment for four years in respect of their conviction u/s 326 read with Section 34 of the Indian Penal Code recorded above. The conviction of the three appellants as otherwise recorded by the learned Sessions Judge and the sentences respectively imposed upon them by him are left intact with the direction that the latter shall run concurrently with those hereby awarded

Gopal Singh, J.

I agree.