Kartar Singh and ors. vs State of Haryana

N.K. Kapoor, J.

This judgment shall dispose of Criminal Appeal No. 308 DB of 1989 as well as Criminal Revision No. 139 of 1990 as both of them have been directed against the same judgment of the learned Additional Sessions Judge, (Sonepat), dated 29th July, 1989, whereby Kartar Singh, Rajbir Singh, Rakesh Kumar and Jaibirappellants, were convicted and sentenced as under :

Name of the appellant Conviction Under Section Sentence

Kartar Singh Rajbir Singh, Rakesh Kumar and Jabir 307 read with Section 34 IPC Rigorous Imprisonment for three years and fine of Rs. 200/, each, in default whereof to undergo further Rigorous imprisonment for three months.

Rajbir Singh 302 IPC Rigorous Imprisonment for life and fine of Rs. 300/ in default whereof further Rigorous Imprisonment for three months.

Jabir 302 read with Section 34 IPC Rigorous Imprisonment for life and fine of Rs. 300/ in default whereof further Rigorous Imprisonment for three months.

The sentence of imprisonment awarded to appellants Rajbir Singh and Jabir were, however, ordered to run concurrently. By way of Criminal Appeal No. 308 DB of 1989 the appellants Kartar Singh, Rajbir Singh, Rakesh Kumar and Jabir have challenged their conviction and sentence whereas Criminal Revision No. 139 of 1990 has been filed by complainant Hoshiar Singh against the acquittal of Kartar Singh and Rakesh Kumar appellants under Section 302 read with Section 34 of the Indian Penal Code. Hoshiar Singh complainant has further prayed that adequate compensation be awarded to the legal hairs of Devinder Singh (deceased).

Prosecution story, in brief, is that on 11th July, 1988, Hoshiar Singhcomplainant along with Raj Singh and Sukhbir Singh was sitting on a cot in the street. At about 10 p.m. his son Surender came in the street for urination. Accused Kartar Singh and his sons Jabir, Rajbir and Rakesh Kumar took exception to the same whereupon Surinder replied that it was a thoroughfare. At this, Rajbir Singh and Jaibir accused, who were armed with Jailis, Rakesh Kumar who was armed with Balam and Kartar Singh who was armed with Lathi, came down upon Surender with their respective weapons. On hearing the alarm. Devinder Singh cousin of Surender reached the spot. Rajbir thrust Jaili in the chest of Devinder Singh while Jabir gave Jaili blow lathiwise on the head of Devinder Singh. Devinder Singh succumbed to the injuries at the spot. Hoshiar Singh, Raj Singh and Sukhbir Singh reached the spot. The accused then ran away from the spot with their respective weapons. Surender was removed to Delhi hospital by Raj Singh in an injured condition while Sukhbir remained with the deadbody of Devinder Singh which was brought into his house. Hoshiar Singh complainant went to the Police Station to lodge the report and on his report the case was registered and investigated.

SubInspector Rohtash Singh conducted investigation of the case. He prepared inquest report Exhibit P.C. at the spot. On 14th July, 1988, he arrested Kartar Singh, Rakesh Kumar and Rajbir Singh accused who, upon interrogation made disclosure statements Exhibits P.M, P.N., and P.Q respectively and in pursuance of their disclosure statements got recovered the weapons of offence. Accused Jaibir was arrested on 15th July, 1988 and upon interrogation he also made disclosure statement Exhibit P.J. and pursuant to the same got recovered Jaili. SubInspector Rohtash Singh lifted blood stained earth from the spot 12th July, 1988, in the presence of Sukhbir and Ramesh and took the same into possession vide recovery memo Exhibit P.1.

Dr. Sham Sunder Wedhwa (PW 1) conducted postmortem examination on the deadbody of Devinder Singh on 12th July, 1988, at 9.50 a.m. and found the following injuries on the dead body :

"1. One penetrating wound 2 x 1 cm x 12 cm margins and ends lacerated lying 1.5 cm below and lateral to left nipple. Clotted blood was present.

One penetrating wound 2 x 1 cm x 12.5 cm margin and end lacerated, 8 cm below and lateral to injury No. 1. Clotted blood was present. Both wounds were obliquely placed. On exploration, both wounds tracts were going upward, medially and posteriorally injuring to muscles left pluera and left lung and postero lateral surface of heart and pericardium. Pericardial and left pleural cavities were full of blood.

A lacerated wound 4 cm x 1 cm present over left parietal region, obliquely placed, 1 cm antero medial to left parietal eminence. Injury was scalp deep. Underlying bone was healthy and clotted blood was present."

In the opinion of the doctor, the cause of death was due to shock and hemorrhage as a result of injuries to the vital organs, i.e. heart and lung, and all these injuries were ante mortem in nature and sufficient to cause death in the normal course of life.

Dr. P.K. Suneuja (PW 2) examined Surender Singh, injured on 11th July, 1988 at 11.50 p.m. and found the following injuries on his person :

There was incised penetrating wound of size 1 cm x 3 cm x depth not known over left side upper chest.

There was lacerated wound of size 8 cm x 2 cm x depth not known over left side upper chest.

Incised wound of size 1 cm x 3 cm x depth not known over right side upper chest.

Incised penetrating wound of size 8 mm x 2 mm x depth not over right side upper chest.

Clean lacerated wound of size 1 cm x 2 mm x 2 mm over left side dorsum of feet.

Incised wound of size 8 mm x 2 mm x depth not known over left side back of lower chest."

Injuries Nos. 1, 3, 4 and 6 were caused by sharp edged weapon while injuries Nos. 2 and 5 were caused by blunt weapon. No bone injury was seen.

After completion of investigation, challan against the accused was put in the Court.

At the trial, the prosecution examined Dr. Sham Sunder Wadhwa (PW 1), Dr. P.K. Suneja (PW 2), Dr. O.P. Thakur (PW 3), Hoshiar Singh (PW 4) Sukhbir Singh (PW 5), Surinder Singh (PW 6), Mange Ram (PW 7), Mohinder Singh Constable (PW 8), Lilu Ram Assistant Sub Inspector (PW 9), Anil Kumar (PW 10) and Sub Inspector Rohtash Singh, Investigating Officer (PW 11).

Statements of the accused were thereafter recorded under section 313 of the Code of Criminal Procedure in which they denied the prosecution allegations. Kartar Singh, Rajbir and Rakesh accused have stated that their Gher is located in front of their house. At that time Rakesh was coming out of the Gher after checking fodder and cattle, when Surinder armed with two pronged Jaili, Devinder Singh (deceased) armed with one pronged Jaili, Prem, brother of Surender injured and Virender, brother of Devinder Singh (deceased) armed with lathis came there. Surender and Devinder Singh gave one Jaili blow each to Rakesh. On hearing the alarm, Rajbir came out of the house and tried to save Rakesh from these persons. Rajbir tried to bring Rakesh and when they reached on the Chabutra of their house all the four persons gave beatings to Rajbir with their respective weapons. Kartar Singh accused also came out of the house. He lifted Jaili from Chabutra and in the meantime Surender and Devinder (deceased) gave Jaili blows to him which hit him from the blunt side. Kartar Singh accused gave Jaili blows to Surender and Devinder to save the lives of his two sons namely Rajbir and Rakesh and also to save himself. Then they went to Jakholi Primary Health Centre but the doctor was not available there. They then went to Civil Hospital, Sonepat on 12th July, 1988 at about 5 a.m. where they were admitted and medically treated. S.H.O., A.S.I. and other police officials came to Civil Hospital, Sonepat, on that day at about 9 or 10 a.m. They told these facts to the police who assured them that Surender etc. will be challaned for their wrong action. On 14th July, 1988, they were discharged from the Civil Hospital. They all including Jaibir appeared before S.H.O., P.S. Rai after the discharge. Jaibir accused was not present at the time of occurrence. All the recoveries have been falsely shown. Investigation is tainted. Jaibir accused in his statement stated that he was he was not present at the time of occurrence and has been falsely implicated. In defence, the accused examined Dr. H.K. Chhabra (DW 1) and Sub Inspector Vijay Pal Singh (DW 2).

We have heard the learned counsel for the parties and have carefuly gone through the entire evidence led in the case.

Eye witness account has been given by Hoshiar Singh (PW 4) complainant, Sukhbir Singh (PW 5), a collateral of deceased Devinder Singh and Surinder Singh (PW 6) an injured witness. Hoshiar Singh complainant while deposing in the Court has graphically narrated the whole occurrence and despite a lengthy cross examination nothing could be elicited by the defence counsel so as to discard his testimony. Much emphasis was laid by the defence counsel, while referring to the cross examination of this witness, upon the location of the place of occurrence, distance of various houses from one another, relationship of the witnesses with the deceased, manner and transport used to take the injured to the hospital and the like. Counsel, in support of his contention, drew our attention to some of the answers given by Hoshiar Singh (PW 4) in his cross examination. These may also be noticed as under :

"House of Sukhbir PW is at a distance of 110 yards from the house of Devinder deceased. Sukhbir resides wish his father Mange Ram. House of Mange Ram opens on the vacant land or ground lying and that ground is attached with another third street. That ground is having dimensions about 5060 yards x 5060 yards and that is belonging to Mange Ram...................

I have got tractor and scooter also. I have also got bus (Lorry)...........

The place where Surinder was urinating is at a distance of doubt 100 feet from the house of Devinder deceased. That place where Surinder was urinating is at a distance of about 1415 feet from the Chabutra of the house of Kartar Singh."

As is now clear from the tenor of the cross examination, the emphasis was upon the place of occurrence mainly to contend that the said place was away from the house of Devinder Singh (deceased) and Surinder Singh (PW 6) and quite close to the house of the accused thereby intending to suggest that the occurrence did not take place in the manner alleged by this witness. In this view of the matter, the site plan assumes special significance. We have carefully examined the site plan prepared by Sub Inspector Rohtash Singh (PW 11) Exhibit PW 11/F, and the site plan prepared by Anil Kumar, Dratsman (PW 10) Exhibit PX. Both these plans are almost identical. These disclose the place of occurrence as well as the place from where the witness saw the occurrence. In the site plan Exhibit well PW 11/F place of occurrence is shown mark `A'' which is in front of the stair case of the house of Raj Singh. According to Surinder (PW 6) he came out of the house of Raj Singh to urinate in the street which was objected to by the accused ultimately leading to the death of Devinder Singh and multiple injuries to Surinder Singh (PW 6).

Presence of Surinder Singh at the house of Raj Singh cannot be said to be unnatural Raj Singh and Hoshiar Singh complainant are brothers from the mother side, i.e. their mother is the same whereas their fathers are different. A close perusal of the site plan further reveals that the house of the accused is in another street, though the distance between the place of occurrence and their house is between 14 to 15 feet. Thus, in view of this factual position, version as now set up by the appellants that occurrence took place in front of their house stands belied by the two site plans on record. Similarly the contention that the houses of Devinder Singh (deceased) and Surinder Singh are quite away from the place of occurrence loses significance for the reason that as per the deposition of Surinder Singh (PW 6) he came out of the house of Raj Singh to urinate in the street. Devinder Singh arrived at the spot on hearing the cries of Surinder Singh and it is how he had been inflicted injury ultimately resulting in his death.

The testimony of the eye witnesses i.e. Hoshiar Singh (PW 4) and Surinder Singh (PW 6) has been sought to be discredited on account of their relationship with the deceased. We find no merit in this contention of the learned counsel. The presence of these witnesses as well as of another eye witness Sukhbir Singh (PW 5) at the spot is well proved on record. Their statements are natural and inspire confidence.

Next objection was taken with regard to the delay in lodging of the First Information Report. Occurrence in this case took place on 11th July, 1989 at 10 p.m. whereas First Information Report was recorded on the next day at 6.30 a.m. The explanation given by the complainant is that whereas Devinder Singh died at the spot they were anxious to save the life of Surinder, who had suffered injuries at the hands of the accused party and accordingly were preoccupied in taking the injured to the hospital. This is how the delay in recording of the First Information Report has occurred in this case. We find this explanation worthy of belief.

The accused have come up with a version that the incident in fact took place in front of their house. According to the defence, Surinder Singh (PW6) armed with two pronged Jaili. Devinder Singh (deceased) armed with one pronged Jaili, Prem, brother of Surinder Singh, injured and Virender brother of Devinder Singh (deceased) armed with Lathis came at the spot. Surinder Singh and Devinder Singh gave one Jaili blow each to Rakesh accused. On hearing the alarm, Rajbir came out of the house and tried to save Rakesh from these persons. Kartar Singh accused also came out of the house. He was also given jaili blows by Surinder Singh and Devinder Singh (deceased). Kartar Singh accused, it is alleged gave Jaili blows to Surinder Singh and Devinder Singh in order to save lives of his two sons namely Rajbir and Rakesh and also to save himself. This defence version does not inspire confidence especially for the reason that the place of occurrence is not the one as alleged by the accused. As held in the earlier part of this judgment, as per both the site plans, the place of occurrence is just outside the house of Raj singh.

Lastly, the counsel addressed us with regard to the role played by each one of the appellants. Referring to the deposition of Dr. Sham Sunder Wadhwa (PW 1),the counsel drew our attention to the opinion of the doctor which reads asunder :

"The Jaili Exhibit P.1 shown is having the required distance between the prongs and the same can cause injuries Nos. 1 and 2 with a single blow."

Injury No. 3 on the person of Devinder Singh (deceased) was caused by Jaibir appellant. This injury has been found by the doctor to be simple. As regards Kartar Singh and Rakesh Kumar appellants. They have admittedly not inflicted any injury on the person of Devinder Singh. Accordingly, the counsel contended that, in fact, one grievous injury was caused to Devinder Singh by Rajbir. It being a case of single blow and the same being not premeditated according to the counsel, would fall within the ambit of Section 304 Part II of the Indian Penal Code. We have examined the matter carefully. Injuries Nos. 1 and 2 on the person of Devinder Singh (deceased) have been caused on the vital parts of the body though by a single blow. this action of Rajbir Singh appellant appears to be premeditated and thus, would fall within the ambit Clause Thirdly of Section 300 of the Indian Penal Code. For this view, we are fortified by the decision of the Supreme Court in Jai Prakash v. State (Delhi Administration), 1991(1) Recent criminal reports 439 : Judgments Today 1991 (1) SC 288.

The question which now remains for consideration is as to whether all the appellants had the common intention to cause injuries to Surinder Singh and Devinder Singh (deceased). For this a brief reference to the version as given in the First Information Report is relevant. As has come on record, there was some alteration between Surinder Singh and the appellants. The appellants had protested that Surinder Singh should not urinate in the street whereas Surinder had explained that being a thorough fare the accused party possibly could not raise any such objection. It was there upon that all of them went inside their house, picked up Jailis, Balam and Lathi and gave blows to Surinder singh, who raised an alarm and thus attracted Devinder Singh(deceased) and others to the spot. Thus, whereas common intention to cause injuries to the complainant party is clearly discernible, but the same cannot be said in respect of causing the death of Devinder Singh.

To invoke the aid of Section 34 of the Indian Penal Code, it is to be shown that the criminal Act complained against was done by one of the accused persons in furtherance of the common intention of all of them.The Supreme Court in the judgment reported as Shankar Lal Kacharabhai and ors. v. The State of Gujrat, AIR 1965 Supreme court 1260, cited with approval the observations of the Privy Council in Mahbub Shah v. King Emperor, AIR 1945 PC 118. This authority laid down the following conditions for the applicability of Section 34 of the Indian Penal Code :

"To invoke the aid of Section 34successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the Act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section pre arranged plan,and to convict the accused of an offence applying the section it should be proved that criminal act was done in concept pursuant to the prearranged plan. As has been often observed, it is difficult, if not impossible, to procure direct evidence to prove intention of an individual inmost cases it has to be inferred form his actor conduct or other relevant circumstances case."

It is, thus,clear that the criminal act mentioned in Section 34 of the Indian Penal Code is the result of the concerted action of more than one person and if the said result was reached in further intention, each person is liable for the result as if he had done it himself.

Examining the facts in the light of the above referred judicial pronouncement, it comes to light whereas all the accused persons had the common intention of causing injuries, but all of them did not entertain common intention to cause the death of Devinder Singh.Some what similar case came up for consideration before the Supreme Court in Kripal and others v. State of Uttar Pradesh, AIR 1954 SC 706. After referring to the relevant provisions of Section 34, the following observations were made therein :

"............................Therefore, the only common intention that can be attributed to all the three appellants insofar as the assault on Jirajis concerned is the common intention to beat Jiraj also with the weapons in the hands, which were likely to produce grievous injuries. In this view therefore, all the three would be guilty in respect of their assault on Jiraji for an offence under Section 326 IPC, while Bhopal alone would be guilty in respect of the offence under Section 302 IPC. It follows from that the conviction of both Kirpal and Sheoraj under Section 302 IPC must be set aside but that of Bhopal has to be maintained."

Devinder Singh died on account of injuries Nos. 1 and 2 caused by Rajbir Singh appellant Accordingly we maintain the conviction and sentence of Rajbir Singhappellant under section 302 of the Indian Penal Code, but acquit Jaibir appellant of the charge under section 302 read with Section 34 of the Indian Penal Code.

The offence committed by Kartar Singh, Jaibir and Rakesh Kumar appellants would fall within the ambit of sessions 323and324read with Section 34 of the Indian Penal Code and they are convicted accordingly, As regards sentence under these sections, Jaibir appellant has remained in custody for a period exceeding three years where as appellants Kartar Singh and Rakesh Kumar remained in custody for about there to four months because they were granted bail during the pendency of this appeal. Keeping this views, we award the sentence to Jaibir, Kartar Singh and Rakesh Kumar appellants under Sections 323 and 324 read with Section 34 of the Indian Penal Code,to the extent they already remained indetention.

On perusal of the facts of this case we find that no case under Section 307read with Section 34of the Indian Penal Code is made out against the appellants. We accordingly set aside their conviction and sentence on this count.

This appeal is allowed to the extent indicated above. Consequently, Criminal Revision No. 139 of 1990 is hereby dismissed.