Kaka Singh @ Karam Singh vs State of Punjab

R.K. Nehru, J.

This order disposes of Criminal Appeal No. 348DB of 1992 and Criminal Revision No. 839 of 1992.

This appeal is directed against the judgment of conviction and order of sentence dated 4.8.1992 passed by learned Sessions Judge, Bathinda in Sessions trial No. 2 of 18.1.1991 whereby the appellant Kaka Singh @ Karam Singh, the only accused in this case, has been convicted under Section 302 IPC and sentenced to undergo life imprisonment and a fine of Rs. 500/ and in default of payment of fine to further undergo RI for one year. He has also been convicted for offence under Section 307 IPC and sentenced to undergo RI for four years and a fine Rs. 200/ and in default of payment of fine to further undergo RI for six months. He has further been convicted for an offence under Section 27 of the Arms Act and sentenced to undergo RI for one year. The sentences have been directed to run concurrently.

The occurrence is alleged to have taken place on 18.10.1990 at 10 p.m. in village Mandi Kalan, which is at a distance of about 6 miles from Police Station Ballianwali within district Bathinda where the case was registered under formal FIR, Exhibit PE/2, on 19.10.1990 at 1.00 p.m. on the statement Exhibit PE of Darbara Singh PW3 recorded by SI Kewal Singh PW8, in Civil Hospital, Bathinda at 11 a.m. on that very day. Special report was delivered to the Magistrate concerned on 20.10.1990 at 12 a.m. at Phul, which is at a distance of about six miles from the concerned police station.

The prosecution case in brief can be summed up thus.

Darbara Singh PW3, Piara Singh and Gurjant Singh are real brothers. They are residents of village Mandi Kalan. Darbara Singh and Gurjant Singh are joint in residence from that of their brother Piara Singh, who has got a separate residence. Master Labh Singh PW4 is a neighbour of Darbara Singh PW3 and only one house intervene between their houses. Accused Kaka Singh and Gulzar Singh deceased and Gurdev Singh are real brothers. Accused Kaka Singh and his brother Gurdev Singh are also neighbours of Master Labh Singh PW4.

On 18.10.1990, which was a day of Diwali festival a quarrel took place between Master Labh Singh PW4 and Kaka Singh accused at about 8.30 p.m. in front of the house of the former. Darbara Singh PW3 and his brother Gurjant Singh who were present there, pacified them. Thereafter accused Kaka Singh and Master Labh Singh PW4 went from their to their respective houses. However, after sometime Gurdev Singh @ Gulu, brother of accused Kaka Singh went on the roof of his house and started abusing Master Labh Singh PW4 who also in turn went up stairs on the roof of his house and got exchanged abuses so much so that they even threw stones at each other. Seeing this, Darbara Singh PW3 and his brother Gurjant Singh went in front of the house of Labh Singh PW4 and advised him that he being an educated person should not quarrel with Gurdev Singh. In the meantime Gulazar Singh deceased (who is also the brother of the accused) came there. He also advised Master Labh Singh PW4 not to enter into a dispute with Gurdev Singh. Labh Singh PW4 thereupon came down from the roof and stood in the lane where Gulzar Singh deceased, Darbara Singh PW3 and Gurjant Singh were also standing and they all started talking. There was an electric bulb burning in front of the gate of the house of Labh Singh PW4, being a day of Diwali festival, At about 10 p.m. accused Kaka Singh came there from the side of the village Phirni armed with his licensed. 12 bore DBL gun and on seeing them standing, raised a lalkara that he would teach them a lesson for helping Master Labh Singh PW4 and saying so the accused fired two shots from his gun hitting Gulzar Singh deceased on his back and Darbara Singh PW3 on his right arm, left knee and left hand. On receipt of fire shot injuries Darbara Singh fell on the ground. The accused then left the place of occurrence with his gun and went on the roof of the house of his brother Gurdev Singh situated on the back of the house of Master Labh Singh and again fired two shots from his gun hitting the wall near the ventilator of the house of Master Labh Singh PW4. Darbara Singh PW3 was removed to his house by his brother Gurjant Singh and Master Labh Singh PW4. Ranjit Kaur PW5, who found her husband Gulzar Singh deceased lying in an injured condition near the house of Master Labh Singh PW4, removed him to Civil Hospital, Rampura from where, on the advise of the doctor that his condition was serious, she removed him to Dayanand Hospital, Ludhiana where he remained admitted till he expired on 3.11.1990.

Out of the fear Darbara Singh PW4 was not taken to the Hospital during the night and it was on the following morning that Master Labh Singh PW4 alongwith Gurjant Singh took Darbara Singh PW3 in the car of Gamdoor Singh to Primary Centre, Balianwali. However, no doctor was available there and the Pharmacist who was present there issued a reference chit to the injured for being taken to Civil Hospital. Satpura, where he reached at 6.50 a.m on 19.10.1990 and on that very day at 8 a.m. he was medicolegally examined by Dr. Charanjit Garg PW1, who vide MLR, Copy proved as Exhibit PA, noted the following injuries on his person :

Lacerated wound 1/2 x 1/2 cm with inverted margins over the back of left hand, 5 cms away from wrist joint. Clotted blood was present. Advised xray left hand.

Lacerated wound 1/2x 1/2cm with inverted margins over the right upper arm 7 cms from elbow on its anterior medical side. Clotted blood was present (wound of entry).

Lacerated would with everted margins 3/4 x 3/4 cm over the right upper arm 10 cms away from elbow, on its lateral aspect. Clotted blood was present.

Lacerated wound 1/2 x 1/2 cm over the right upper arm in the axillary region with inverted margins. Clotted blood was present (wound of entry).

Lacerated wound 3/4 x 3/4 cm with everted margins over the right upper arm in the exillary region on its posterio lateral aspect. Clotted blood was present.

Lacerated wound 1/2 x 1/2 cm with inverted margins over the left chest on its back close and below the angle (inferior) of scapule. Clotted blood was present. (wound of entry).

Lacerated wound 3/4 x 3/4 cm over the back of left chest with everted margins, 12 cms away from injury No. 6 touching midline. Clotted blood was present. Injuries No. 2 to 7 were subjected to xray.

Lacerated wound 1/2 cm x 1/2 cm just above laterally on its lateral side. With inverted margins. Clotted blood was present (wound of entry).

Lacerated wound 3/4 x 3/4 cm over left knee with everted margins on the medical side. Clotted blood was present. Advised xray for injuries No. 8 & 9.

All the injuries were kept under observations, subject to radiological examination. The injuries were caused within a duration of six hours by means of a firearm.

On 19.10.1990, on receipt of VI message from SHO Police Station Rampure about the admission of Darbara Singh and Gulzar Singh in the hospital with gun shot injuries, SI Kewal Singh PW8 of police station Ballianwali went to the hospital where he learnt about the injured having been removed to Civil Hospital, Bathinda. He accordingly went to Civil Hospital, Bathinda where the doctor delivered to him MLR of Darbara Singh. This Investigating Officer after seeking the opinion of the doctor through application Exhibit PR about the fitness of Darbara Singh recorded his statement Exhibit PE and sent the same under his endorsement to Police Station Ballianwali, where the case was registered under formal FIR initially for offence under Section 307, IPC. He then went to the site of occurrence, prepared visual plan of the spot, lifted blood stained earth, besides two empty cartridges lying there near the electric pole in the street. The empties were seized and sealed under memo Exhibit PG. On 20.10.1990 this SI went to Dayanand Hospital, Ludhiana where Gulzar Singh had been referred for better medical treatment. He moved application Exhibit PV to seek the opinion of the doctor about the fitness of Gulzar Singh to make statement and after he was declared fit, his statement Exhibit PX was recorded by this SI, which ultimately was used as a declaration. On 3.11.1990 on learning that Gulzar Singh had succumbed to his injuries he added the offence under Section 302 IPC in this case and went to the hospital where the dead body of Gulzar Singh was lying. He held inquest proceedings on the dead body and despatched it for postmortem examination.

Dr. U.S. Sooch PW2, who conducted the postmortem examination on the dead body of Gulzar Singh on 4.11.1990 vide postmortem report, copy proved as Exhibit PB, noted the following injury on the dead body of Gulzar Singh :

Circular partially healed wound 1/3" x 1/3" on the mid front of left upper arm.

Circular partially healed wound 1/3" x 1/3" and 2" behind and at the level of injury No. 1. On exploration a fibrous track was connecting injury Nos. 2 and 1.

Circular healed wound 1/3" x 1/3" and 2" below the middle part of left clavicle. On exploration the wound was muscle deep and was not communication with chest cavity.

Stiched wound 1/3" on the right scapular region.

Circular wound with partially healed margins just to the right of the mid line at the level of 10th and 11th thoracio vertebra. On exploration of the wound the wound was going horizontally causing fracture of 10th and 11th thoracic vertebrae with laceration of the membrances and spinal cord. Clotted blood was present inside. On further exploration a circular matallic piece was extracted from the vertebra and was sealed in a vial bearing one seal with impression of U.S.S. Sealed vial was handed over to the police. The stomach was healthy and contained 150 cc of fluid. All other organs were healthy.

In the opinion of the doctor the cause of death was due to injury to spinal cord caused by the firearm which was antemortem and sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was about 15 days and between death and post mortem was about 36 hours.

The accused was arrested on 30.10.1990 from near the bridge of canal minor in the area of village Mardi Kalan by ASI Gurcharan Singh PW6 where at that time this ASI is stated to have gone from patrolling in a government jeep. The accused was at that time is stated to be carrying his licensed Gun Exhibit P3 loaded with two live cartridges. The gun was unloaded and the same alongwith live cartridges Exhibits P4 and P5 were seized and sealed under memo Exhibit PM.

At the trial, the prosecution examined in all nine witnesses. Darbara Singh PW3 and Master Labh Singh PW4 were put forward to depose about the occurrence as also on the point of motive. PW1 is Dr. Charanjit Garg, who medicolegally examined Darbara Singh PW3 while PW9 is Dr. Joginder Gupta, who medicolegally examined Gulzar Singh deceased on 19.10.1990 at 3.15 a.m. in D.M.C. Hospital, Ludhiana. Dr. U.S. Sooch PW2 conducted the autopsy on the dead body of Gulzar Singh deceased. Ranjit Kaur PW5 is the wife of Gulzar Singh deceased and has deposed about her having removed him in an injured condition to the hospital. ASI Gurcharan Singh PW6 has deposed about his having arrested the accused on 30.10.1990 while PW8 is SI Kewal Singh, who is the main Investigating Officer in this case. The remaining prosecution witnesses are of formal character.

The accused in his examination under Section 313 of the Code of Criminal Procedure pleaded his innocence in the crime in the following terms :

"I am innocent. Baldev Singh @ Dev Singh tailor master of our village had a dispute with Mara Singh and I got Mara Singh released on bail in the security proceedings. Darbara Singh PWborrowed a loan of Rs. 25,000/ from deceased Gulzar Singh against a pronote and I was attesting witness of that pronote. Labh Singh PWis a party man of Darbara Singh PW. Ranjit Kaur PWwidow of GuIzar Singh is approved with me because I was keeping a strict watch on her when her husband Gulzar Singh was in the Army. Gulzar Singh was fired at by some unknown person from behind when the assailed was hiding himself behind the heaps of manure and dung cakes (Gheeras) in the darkness. Darbara Singh & Master Labh Singh, apprehending that I would lodge the FIR against them, they in consultation with Baldev Singh tailor master falsely roped me in this case. I was arrested from my house on 20.10.1990 with my licensed gun. The recovery of empty cartridges shown from the spot is a deliberate paddings."

The accused in his defence only tendered the certified copies of surety bonds Exhibits DE and DF.

The learned trial Judge on evaluating the evidence convicted and sentenced the appellant for the commission of offences under Sections 302 and 307 of the Indian Penal Code and under Section 27 of the Arms Act, in the manner as stated above.

We have heard the learned counsel for the parties and with their assistance have gone through the records of the case.

Before we take up the submissions of the learned counsel for the appellant. We will like to first of all mention some of the facts regarding which there is no dispute on record and the same are summed up thus.

Accused Kaka Singh, Gulzar Singh deceased and Gurdev Singh are real brothers. They are neighbours of Darbara Singh PW3 and Master Labh Singh PW4. Darbara Singh PW3 and Gulzar Singh deceased had suffered fireshot injuries on the night of 18.10.1990 which was a day of Diwali festival and the deceased in fact had died on account of the fire shot injuries which were, antemortem and were sufficient to cause death in the ordinary course of nature.

Darbara Singh PW3 and Labh Singh PW4 are witnesses examined by the prosecution both on the point of motive as also about the actual occurrence. Both of them have given a consistent account in their deposition on all material details. The learned counsel for the appellant could not point out any dent in their deposition which may persuade us to doubt their truthful character as come in their evidence that on the day of occurrence the trouble started at about 8.30 p.m. when there was an exchange of abuses between the accused on one hand and Labh Singh PW4 on the other hand in front of the house of the latter when at that time Darbara Singh PW3 and his brother Gurjant Singh had intervened and pacified both of them whereupon Kaka Singh accused and Labh Singh PW4 went to their respective houses but after sometime Gurdev Singh (brother of the accused) started showing abuses at Labh Singh PW4 who then also returned the abuses so much so that they even exchanged brick bats against each other after going on the roof of their houses. However, Darbara Singh PW3 and his brother Gurjant Singh again came in front of the house of Labh Singh PW4 and advised him that he, being an educated person, should not join issue with Gurdev Singh and it is at this point of time that Gulzar Singh deceased (brother of the accused) also came there and he also advised Labh Singh PW4 not to enter into any controversy with Gurdev Singh. They further deposed that thereafter they alongwith Gulzar Singh deceased and Gurjant Singh stood in front of the house of Labh Singh PW4 and started talking and at that time Kaka Singh accused came there from the side of Phirni armed with his licensed up and raised a lalkara that he would teach a lesson to them for helping Labh Singh PW4 and the accused then fired two shots from his gun resulting in gunshot injuries to Darbara Singh PW3 and Gulzar Singh deceased.

The learned counsel for the appellant has assailed the testimony of Darbara Singh PW3 and Labh Singh PW4 on the grounds, firstly, that there was hardly any motive on the part of the accused to have acted in that manner, secondly, that possibility of mistaken identity of the accused could be very much there, it being odd hour of the night, thirdly, that there is a delay in lodging of the report with the police and lastly, the accused could not be attributed with the intention to cause the murder of Gulzar Singh deceased and in the circumstances, he could at best be held guilty under Section 304 PartI, IPC, for the death of Gulzar Singh.

On thoughtful consideration of the evidence and the circumstances on record, we are unable to find merit in any of the submissions raised on behalf of the appellant.

Regarding the contention of the learned counsel for the appellant that the motive as alleged by the prosecution to commit the crime on the part of the accused was to week, it maybe observed that in many cases, crimes are committed just on trivial or minor incidents and sometimes even without any motive or basis. Motive is always hidden in the heart of the accused and it is the accused only who knows best why he acted in a particular appear. In any case the presence or absence of motive on the part of the accused to commit the crime pales into insignificance where there is any eyewitnesses account and in case that account is found credible then the Court can certainly record a finding of conviction even in the absence of any motive on the part of the assailant to commit the crime. As earlier observed, we have not the testimony of Darbara Singh PW3 and Labh Singh PW4 who have given a very consistent account about the origin of the occurrence and also how and in what manner accused had come armed with his licensed gun and had retorted to teach a lesson to the complainant party for siding with Labh Singh PW4 and immediately thereafter he fired two shots from his gun.

There cannot also be any question of mistaken identity of the accused in this case. Both the parties are neighbours. They were known to each other very well. The testimony of Darbara Singh PW3 and Labh Singh PW4 that at the relevant time of occurrence artificial light was in existence cannot be doubted. The day of occurrence was a day of Diwali festival and the Court can take judicial notice of the fact that on this day people do illuminate their houses and even arrange artificial light outside their houses. It has come in the evidence of Darbara Singh PW3 and Labh Singh PW4 that the accused, before actually firing from his gun, had raised a lalkara that he would teach a lesson to the complainant party for siding with Labh Singh PW4. Parties being well known to each other, there could be no difficulty for the witnesses identity the accused both from his voice as witnesses to identify the accused both from his voice as well as with the aid of artificial light illuminated outside the gate of the house of Labh Singh PW4.

No doubt as contended by the learned counsel for the appellant, there is a delay in the lodging of the report with the police but we are of the view that delay, in the circumstances on record, has been satisfactorily explained by the prosecution and it cannot be taken to be fatal to the prosecution case. Darbara Singh PW3 and Labh Singh PW4 have deposed that after the occurrence they could not dare to go out of their house to report the matter to the police as they were scared of the accused. These witnesses could very well apprehend danger to their lives looking to the background in which the accused had come there armed with a firearm and he not only extended a threat to them but also executed it inaction by firing at them from his firearm. It is proved from the evidence of Dr. Charanjit Garg PW1 that Darbara Singh PW3 reached the hospital in an injured condition at 6.50 a.m. and he had started his examination at 8 a.m. on 19.10.1990. The testimony of Darbara Singh PW3 and Labh Singh PW4 recording the occurrence even finds corroboration from the evidence of Ranjit Kaur PW5, wife of the deceased, who has deposed that the deceased had sustained injuries at about 10 p.m. on the day of Diwali festival and he was found lying in an injured condition near the house of Labh Singh PW4 from where he was removed by her and Gurdev Singh first to Primary Centre, Rampura, from where, on the advise of doctors they had taken him to D.M.C. Ludhiana. It is proved from the evidence of Dr. Joginder Gupta, PW9 that the deceased had reach DMC, Ludhiana on 19.10.1990 at 3.15 a.m. where he remained under treatment as indoor patient till he died on 3.11.1990 at 3.45 a.m. No challenge has been made by the defence either to the testimony of Ranjit Kaur PW5 or the evidence of the doctor. The injuries as found on the person of Darbara Singh PW3 and Gulzar Singh deceased could not be fabricated. It is not conceivable that the complainant party would involve the accused falsely in this case and would leave the real culprit unpunished. Evidence of Darbara Singh PW3 and Labh Singh PW4 is very much credit worthy and there is no scope to doubt their truthful character. Their evidence is of clinching nature, thus proving that it is the accused and accused alone who had caused firearm injuries to Darbara Singh PW3 and Gulzar Singh deceased in the manner as deposed by them.

Lastly, the learned counsel for the appellant contends that assuming the allegations of the prosecution as correct, the accused could not be held guilty under Clause III of Section 300, IPC for the death in question because in case he had infact intended to cause the murder of the deceased he would have fired from his gun from a close range and not from a distance of 15 Karams from the target. However, we are not impressed with this contention of the learned counsel for the appellant.

We would like to observe that whether it is a case of homicide or murder, overall circumstances or record have to be looked into. The basic authority on the point is Virsa Singh v. State of Punjab, 1958 SCR 1495 and the test laid down therein for the application of Clause III of Section 300 IPC has now been universally accepted. It was held in that case that merely because there is absence of evidence or reasonable explanation to indicate that the assailant did not intent to inflict a particular injury sufficient to cause death would not be a ground to conclude that he did not intend to inflict that injury resulting in death. The circumstances in which the accused had acted in firing from his gun causing injuries to the deceased would lead to no other inference than the one that he in fact intended to inflict that injury which was sufficient to cause death in the ordinary course of nature.

In view of the above discussion, we maintain the conviction and sentence of the appellant for offences under Section 302 IPC and under Section 27 of the Arms Act recorded by the trial Court. We also maintain the conviction of the appellant under Section 307 IPC but we reduce the sentence of four years RI awarded by the learned trial Court on that court to two years RI.

With the above modification on the point of sentence qua the offence under Section 307 IPC the appeal otherwise fails and is dismissed.

Criminal Revision No. 839 of 1992 filed by the complainantpetitioner for enhancement of sentence of fine finds no merit and the same is accordingly dismissed.