Jassa Singh and Others vs State of Punjab

S.S. Grewal, J.—This appeal as well as Criminal Revision No. 1513 of 1986 filed by Balraj Singh, which at the time of admission was admitted with regard to compensation only shall be disposed of by one judgment as common questions of law and fact are involved.

Jassa Singh, aged 18 years, Beant Singh and 17 years and their father Baj Singh, aged 70 years, were tried by Sessions Judge, Gurdaspur, u/s 302/324/323/34 of the Indian Penal Code for intentionally committing the murder of Karam Singh and for causing injuries to Balraj Singh and Harpal Singh PWs in furtherance of their common intention. Vide order dated 11-8-1986 passed by Sessions Judge, Gurdaspur, all the three accused were convicted u/s 304 Part II read with Section 34 of the Indian Penal Code for causing the death of Karam Singh and each of them was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5000/- each. In default of payment of fine each of them was ordered to undergo further rigorous imprisonment for two years. Baj Singh accused was further convicted and sentenced to undergo rigorous imprisonment for six months u/s 324 of the Indian Penal Code for causing injuries to Balraj Singh PW whereas his co-accused Jassa Singh and Beant Singh were convicted and sentenced to undergo rigorous imprisonment for six months u/s 324 read with Section 34 of the Indian Penal Code. Baj Singh accused was further convicted and sentenced to undergo rigorous imprisonment for six months u/s 324 of the IPC for causing hurt to Harpal Singh whereas his co-accused were convicted and sentenced to undergo rigorous imprisonment for six months months u/s 324 read with Section 34 of the IPC. All the sentences of imprisonment were ordered to run concurrently. The period spent in custody by the accused during the investigation and trial was ordered to be set off against the substantive sentences awarded to the said accused. Aggrieved against the order of conviction and sentence passed by the learned trial Court, all the three accused namely Jassa Singh, Beant Singh and Baj Singh have filed the present appeal.

In brief facts relevant for the disposal of this appeal, as emerge from the first information report recorded on the basis of the statement of Kuljit Singh PW, brother of Karam Singh deceased are that on 8th of August, 1985 at about 6-30 p.m., he along with his brother Karam Singh and Balraj Singh and Harpal Singh was going towards the Dera of his uncle Mohinder Singh which adjoins their fields. Prior to that they were busy in removing waste grass from the paddy fields. As the aforesaid persons were at a distance of one Killa from the field of Karam Singh where Chari crop had been sown, Jassa Singh accused armed with a spear, Beant Singh accused armed with a sua and their father Baj Singh armed with a Toki came there from the side of their Dera, and, hurled abuses. Baj Singh accused raised a lalkara exhorting his other co-accused to catch hold of Karam Singh and teach him a lesson for passing through the boundary of their fields. On hearing alarm, Mohinder Singh also reached there from the side of his Dera. Beant Singh accused opened the attack and gave a sua blow hitting Karam Singh on his left armpit whereas spear blow given by Jassa Singh hit him nearly. On receipt of the said injuries Karam Singh fell down on the ground. Baj Singh accused then gave a Toki blow to Karam singh on his right elbow. At that stage Harpal Singh and Balraj Singh came forward to rescue Karam Singh. Baj Singh accused gave a Toki blow to Balraj Singh on his back and gave another blow from the reverse side of Toki to Balraj Singh on his left and fingers. Baj Singh accused gave another blow from the reverse side of his Toki to Balraj Singh on his bicep. Baj Singh also gave two blows with a Toki to Harpal Singh one on the left hand thumb and the other on the outer side of right wrist. On the alarm raised by the complainant party, all the accused ran away from the spot along with their respective weapons. Karam Singh died at the spot as a result of the injuries received by him. Leaving Mohinder Singh near the dead body, Balraj Singh and Harpal Singh accompanied by Surinder Pal Singh went to Civil Hospital, Qadian for their treatment, whereas, Kuljit Singh went and lodged the first information report with the police at 8-50 p.m. after covering a distance of 10 Kilometers. After completion of the investigation, all the three accused were tried, convicted as sentenced as detailed above.

The learned counsel for the parties were heard.

On behalf of the appellants, it was mainly contended that the testimony of Kuljit Singh and Balraj Singh two close relations of the deceased is not worthy of credence and that Harpal Singh, nephew of the deceased, who is alleged to have received injuries at the time of the occurrence was not produced by the prosecution and it would not be safe to place implicit reliance on the testimony of the two close relations of the deceased. It is true that Kuljit Singh is brother of the deceased and Balraj Singh is his brother''s son. The fact remains that Balraj Singh is a stamped witness and he received injuries at the hands of Baj Singh accused, when, he along with Harpal Singh came forward to save Karam Singh, whereas Kuljit Singh lodged the first information report with the police promptly within three hours of the occurrence after covering a distance of 10 Kilometers at night time. Balraj Singh and Harpal Singh were medically examined on the evening of the occurrence within five hours of the occurrence. Harpal Singh received two incised injuries on his left thumb and right wrist whereas Balraj Singh P.W. received two injuries one an incised wound 5 cm below the spine of left scapula, whereas, the other two injuries were on the left hand and right arm. The nature and extent of injuries of Balraj Singh and Harpal Singh clearly indicate that the same could be caused by direct blows as deposed to by the eye-witnesses in this case and the possibility that the said injuries could be self-inflicted or caused with a friendly hand seems to be quite remote. Harpal Singh the other injured is the nephew of the deceased and obviously he had been given up to avoid duplication of evidence. In view of the circumstances referred to above no adverse inference can be drawn against the prosecution for non-production of Harpal Singh P.W. that in case he had been produced he would not have supported the prosecution story.

The ocular account as far as presence and participation of Beant Singh and Baj Singh accused during the occurrence is concerned finds independent corroboration from the medical evidence on the record. Beant Singh had opened the attack and gave a Sua blow near the left armpit of Karam Singh. This aspect of the case finds ample corroboration from the medical evidence on the record which shows presence of two wounds, one penetrating and the other a punctured wound on the left lateral aspect of the chest. Dr. Ashok Kumar P. W. 3, who conducted autopsy on the dead body of Karam Singh opined that one of these injuries could be caused with a Sua.

The second injury on the chest of the deceased no doubt is attributed to Jassa Singh accused with a Spear, the fact remains that the dimensions of both these injuries are the same and the doctor had neither probed the depth of the wounds while describing injuries in the post-mortem report, nor specifically mentioned that edges of the wounds were clean cut. At a later stage, it is only mentioned in the report that on dissection of these injuries, the wound after passing through and through the subcutaneous tissue, intercostal muscles overlying pleura entered the left lower lobe of the lung causing two wounds in lung, one measuring 3x1.5 cm and the second 2x2 cm in the lung parenchyama. In case injuries had clean cut margins, normally the doctor concerned was expected to mention this fact, particularly when one of the injuries is alleged to have been caused by a blunt pointed weapon and other by a sharp pointed weapon. In view of the aforesaid infirmities in the medical evidence concerning the seat, nature and extent of injuries, it seems quite probable that both these injuries could be caused by a Sua and not by a Spear.

Another significant aspect of the case is that three of the fingers of Jassa Singh accused got crushed in an earlier incident while Jassa Singh was operating a thresher. Dr. Ashok Kumar did state that Jassa Singh accused can hold the spear as the grip would be between the thumb and index finger even though the distal phalanx of the right middle finger is amputated and both middle and distal phalanges or ring and little fingers are also amputated. The doctor admitted that a person having normal hand uses all the fingers to grip a weapon. In view of the disability referred to above, it seems highly improbable that Jassa Singh accused would be in a position to cause injury to Karam Singh with a spear. No effort was made by the prosecution to such clarification from the eyewitnesses about the manner in which Jassa Singh accused was holding spear when he allegedly caused injury on the left side of the chest of the deceased. None of the two eyewitnesses produced in this case who were close relations of the deceased deposed either that Jassa Singh was a left hander, or that Jassa Singh was holding the spear with his both hands when he allegedly attacked Karam Singh and caused injury on the left side of his chest. All these circumstances cast grave doubt about the truthfulness of the prosecution story as far as presence and participation of Jassa Singh accused during the occurrence is concerned. In this part of the country there is an unfortunate tendency to rope in innocent with the guilty and as an abundant caution giving the benefit of doubt, I hereby acquit Jassa Singh accused.

Taking into consideration the fact that the place of occurrence is hardly at a distance of one Karam from the field of Baj Singh accused; the occurrence took place as the accused party did not want Karam Singh and other members of the complainant party to pass through their fields as well as, the fact that the occurrence took place inside the field of Karam Singh and not in the field of Baj Singh accused and also other facts and circumstances of the case, particularly that the complainant party was not armed, the learned trial Court had rightly observed that the accused were not entitled to claim right of private defence of property.

Keeping in view, the over all circumstances of the case and the fact that the accused acted on the spur of moment as well as the nature and extent of injuries received by the deceased, the learned trial Court which had the added advantage of watching the demeanour of the witnesses, had rightly convicted and sentence Beant Singh and Baj Singh accused u/s 304 Part 11 read with Section 34 of the IPC.

Since Harpal Singh injured did not appear in the Court and deposed about the manner in which he received the injuries at the hands of the accused, it would not be proper and safe to convict either of the accused in respect of the injuries received by Harpal Singh during the occurrence. Conviction and sentence of Baj Singh u/s 324 of the Indian Penal Code and that of Beant Singh u/s 324 read with Section 34 of the Indian Penal Code in respect of the injuries caused to Harpal Singh is accordingly set aside. The conviction and sentence of Baj Singh accused by the trial court u/s 324 of the Indian Penal Code and that of Beant Singh u/s 324 read with Section 34 of the IPC for voluntarily causing hurt with sharp edged weapon to Balraj Singh P.W. are maintained.

However, taking into consideration the fact that the accused had undergone agony of trial for about one year before the trial Court and their appeal remained pending in this Court for the last about seven years and also the fact that there was no previous enmity between the parties and the occurrence took place on the spur of moment over a trivial matter, the sentence of imprisonment u/s 304, Part II of the IPC is reduced from seven years rigorous imprisonment to five years rigorous imprisonment. Sentence of fine imposed by the trial Court is maintained but in default of payment of fine the accused shall undergo further rigorous imprisonment for one year instead of two year.

Learned counsel for Balraj Singh P.W. submitted that the learned trial Court had erred in not awarding compensation u/s 357 of the Code of Criminal Procedure while passing the judgment and that compensation in respect of Karam Singh deceased may be granted to his nearest legal heirs. The learned counsel for the appellants stated at the bar that the complainant party had already received compensation under the Fatal Accidents Act in respect of death of Karam Singh and that the appellants have already filed R.S.A. 428 of 1992 against the compensation awarded against them which is pending in this Court. In view of these patent facts there is no need to pass any specific order concerning compensation as the matter had already been decided by the Civil Court, under Fatal Accidents Act.

For the foregoing reasons, the appeal is partly allowed as indicated above and the revision petition is dismissed.