Major Singh and others vs State of Punjab

M.L. Koul, J.

This appeal has been preferred by the appellants Major Singh, Gurmail Singh and Sukhdev Singh (hereinafter referred to as the accused) against their conviction and sentence under Section 302 read with Section 34 of the Indian Penal Code, recorded by the learned Addl. Sessions Judge, Bhatinda, vide order dated 2.7.1994, whereby on conviction they have been sentenced to undergo imprisonment for life and to pay a fine of Rs. 2000/ each; in default of payment of fine each of them was further ordered to undergo rigorous imprisonment for a period of six months.

The prosecution case at the trial was that the complainant Buggar Singh resident of village Kusla (PW1) along with Jagjit Singh (PW2) and one Nirmal Singh (given up by the prosecution as having been won over by the defence) on 8.9.1992 at 6.30 PM were standing on the phirni in front of the outer door of Nirmal Singh''s house while talking to each other about their domestic affairs. In the meanwhile his brother (deceased) Maghar Singh was going from the complainant''s house to his own house via phirni of the village and when he reached near the house of Gogu Singh son of Nand Singh, resident of his village, accused Gurmail Singh alias Golu armed with a Dang, his brother Major Singh armed with a Gandhali and his uncle (his father''s younger brother) Sukhdev Singh armed with a spear came out of the street from the village side. On seeing his brother, accused Gurmail Singh raised a lalkara saying that "catch hold of him and he may not go unhurt". On this lalkara Sukhdev Singh gave two barchhi (spear) blows to the deceased who raised both of his hands in self defence. One blow hit his right hand and other on his left hand. In the meanwhile the accused Gurmail Singh gave two dang blows to the deceased which hit him on his left arm. Major Singh gave him three blows with his gandhali on his head, as a result of which he fell down on the ground. while he was lying on the ground again all the three accused inflicted injures to him. The complainant and his companions raised alarm "Na Maro, Na Maro" and on seeing them the accused dragged the deceased in the house of Gurmail Singh where he was again beaten up. They did not go to the house of Gurmail Singh during night hours out of fear. They did not go to the Police Station as well because of abnormal situation prevailing those days to lodge the first information report.

In the morning i.e. on 9.9.1992 the prosecution witnesses complainant (PW1), Jagjit Singh (PW2) the other won over witness Nirmal Singh and Sarpanch Raghbir Singh went to the house of accused Gurmail Singh and found the dead body of the deceased lying in the courtyard of the house. After leaving Jagjit Singh and Karnail Singh near the deadbody, the complainant went to the Police Station along with Nirmal Singh to lodge a report. However, the ASI Jarnail Singh met them at the Bus Stand of Village Jagatgarh Bandar, where he recorded his statement (Ex.PA), which was sent to the Police Station, on the basis of which FIR (Ex.PA/2) was recorded by MHC Chanan Singh. Thereafter the Police swung into action and ASI Jarnail Singh along with the complainant and Nirmal Singh went to the village and seized the dead body; prepared the inquest report Ex. PB and then sent the dead body for postmortem examination.

On the completion of the investigation the accused were challaned before the court of law and stood chargesheeted for the offences under Sections 364, 342 and 302 read with Section 34 of the Indian Penal Code. On completion of the trial, all the three accused were convicted and sentenced under Section 302/34 IPC as mentioned above. However, they were acquitted for the charge under Sections 364/34 and 342 of the Indian Penal Code.

Heard Mr. H.S. Gill, Sr. Advocate, on behalf of the accusedappellants and Mr. Randhir Singh, Deputy Advocate General, Punjab, for the prosecution.

Un doubtedly, the death of the deceased is homicidal, which according to the prosecution has been caused by the accused due to illwill and the same according to the defence occurred for the deceased wanted to commit rape upon the wife of accused Gurmail Singh (namely Mohinder Kaur DW1) and her cries attracted the accused Major Singh on the spot who killed him to save the honour of his bhabi.

It is a settled proposition of law that the private defence pleaded by the accused plays no role in a murder case and it becomes insignificant to be taken note of, where such a case is proved on the cogent and unassailable evidence led by the prosecution.

In the instant case the unavoidable delay in lodging the report with the police although does not negate the whole prosecution story but all the more one cannot close its eyes and ignore the fact that the prosecution in any way got enough time to develop the story with regard to the commisison of the crime by the accused. It is in this context of the facts of the case, the evidence led by the prosecution is to be shifted and valued so as to separate the grain from the chaff and to come to the conclusion as to whether the conclusion arrived at by the trial court is fully established in convicting and sentencing the accused for an offence under Section 302/34 IPC or in the alternative they could be convicted and sentenced for some other offence than under Section 302 IPC.

The delay in lodging the first information report with the police has been explained by PW1 Buggar Singh to say that due to abnormal situation of militancy those days prevailing in Punjab, no body was ready to accompany him from the licence holders to go to the Police Station for lodging the report with the police. One can easily even take the judicial notice of the fact that in those days generally people after the sun set in Punjab, used to remain in their houses doors closed inside due to fear of militancy and no body was venturing except the militants to leave the village in the night time. The complainant has explained his position in this regard explicitly that nobody accompanied him in the night to the police station to lodge a report with the police, as a result of which there was delay of 15 hours in lodging the report with the police, The other version of the complainant that as the terrorism was at its peak, therefore, he did not venture to go to the house of the accused and ask for the dead body, is not believable for the fact that the incident has taken place in the broad day light at 6.30 PM in summer season and he could easily contact his covillagers especially headmen of the village and see that whether the death of the deceased was instantaneous or not, or if he was alive could be provided with any medical aid whatsoever was possible and available at that time in the village to save him.

There is no evidence available on the record that the accused were knowing or aware that the deceased would passover that way at a particular time and were ready to pounce upon him with an intention to murder him.

There is no evidence available on behalf of the prosecution that any injury was sustained by the deceased on his body after receiving initial beating while he was dragged for a distance of 730 feet to the house of accused Gurmail Singh. The distance between point ''B'' to ''A'' is 730 feet as per the spot map Ex.PD and scaled site plan Ex.PE. Point ''B'' is the place where the deceased initially was beaten up by the accused in front of the house of one Gogu Singh. Point ''A'' is the place in the house of accused Gurmail Singh where the deceased died after receiving further beating from the weapons of offence held by all the accused. The eye witness were away from point ''B'' to ''D'' at a distance of 50 feet. The shoes and the parna had fallen away from point B towards point ''C'' at a distance of 7 feet.

In all probabilities the eye witnesses account recorded regarding the incident does not coincide three fold :

(a) That the complainant and his two companions who had assembled together on the phirni to discuss their domestic affairs found the deceased being injured by the accused in front of the house of one Gogu Singh (not examined as a witness by the prosecution) at Mark ''B'' shown in the spot map Ex. PD;

(b) the deceased passed through the phirni and the going to his house; and

(c) the accused abruptly reached there with weapons of offence and pounced upon him. They after giving him some beating dared to drag him in their house at a distance of 730 feet (without deceased receiving a skirmish on his body) with a motive to kill him in the full gaze of some people of the locality who might have assembled there to witness the occurrence.

Actually the deceased a short tempered Nihang and a drunkard was dealing in Narcotics and in this regard on the secret complaint of the accused Gurmail Singh he was arrested as admitted by PW1 in his evidence. In such circumstances of the case presumably it is likely that either he had developed a rapport with the wife of the said accused DW 1 Mohinder Kaur and went to her house to have infidelity with her or to ask the accused Gurmail Singh as to why he got him involved in a Narcotic case. In both the eventualities the accused who were inimical towards him for using a foul language against them and might have been suspecting his infidelity with DW1 finding an opportunity to attack him fell upon him and caused injuries on his person which ultimately resulted into his death.

The defence raised by the accused that in order to save the honour of his Bhabi DW1 who was attempted to be raped by the deceased, the accused Major Singh pounced upon him, private defence and killed him by causing injuries to him, is not probable or believable for the accused party did not venture to lodge a report with the police saying that the deceased had come to their house to commit rape upon the lady, as a result of which he was killed in private defence to save the honour and dignity of DW1. There is no evidence led by the prosecution to show that the deceased was owning any house in the locality if so was it placed anywhere around the place of occurrence. The said Gogu Singh or his any family member has not been examined as a witness to establish that initially occurrence took place in front of his house and the same culminated in the death of the deceased in the accused Gurmail Singh''s house. Although the deceased was seriously injured at Mark ''B'' but no blood spotted clay or article has been seized from that place to establish that initially occurrence took place there.

There is no doubt that the accused killed the deceased after giving him a severe beating with the weapons held by them. The recovery of the deadbody from their house in itself is a positive proof that the deceased was killed by the accused. In a case like the present where the plea of alibi has been raised and the deadbody of the deceased was recovered from the house of the accused, therefore, that ipsofacto is a proof that the accused killed him by committing his murder.

The complainant has rightly explained that due to militancy he was not able to lodge the report with the police in the night but easily such an unavoidable delay provided him sufficient time to give a tilt to the prosecution story that the deceased was initially injured by the accused in front of the house of Gogu Singh so as to show and establish that they had premeditated to commit his murder.

No injury was sustained by the deceased from dragging and all the injuries sustained by the deceased were as under:

Lacerated wound 5 cms. x 2 cm. on the left parietal region. Wound was bone deep. Underlying bone was fractured. Dura matter was lacerated, brain matter was lacerated. Clotted blood was present.

Lacerated wound 2 cm. x 1 cm. on the top of middle of scalp, scalp tissue deep. Clotted blood was present.

Lacerated wound 2 cm. x. 1 cm. on the right partial bone. Bone was scalp tissue deep and clotted blood was present.

Lacerated wound 5 cm. x 2.5 cm. on the Palmar aspect of right hand at the base of thumb. Clotted blood was present.

Incised wound 4 cm. x 1 cm. on the posterior aspect of elbow joint of right side.

Incised wound 3.5. cm. x 1.5 cm. on the posterior aspect of elbow joint of right side.

Incised wound 1.5 cm. x 0.5 cm. on the posterior aspect of right upper arm, wound was skin deep. Clotted blood was present.

Contused swelling 8 cms. x 6 cms. on the right upper arm in its middle.

Incised wound 4 cms. x 1.5 cm on the left hand and space between little and ring fingers muscle deep. Clotted blood was present.

Lacerated wound 2 cm. x 1 cm. and there was contused swelling around the wound. Clotted blood was present on the left forearm above the wrist joint. Underlying both bones were fractured.

Contusion reddish in colour 8 cms x 4 cms. on the lateral aspect of left upper arm 4 cms. below the shoulder joint.

Incised wound 4 cms. x 2 cms. on the right leg 8 cms. above the ankle joint. Underlying tibia was fractured.

Incised wound 1.5 cm. x 0.5 cm on the right knee joint skin deep. Clotted blood was present.

Incised wound 4 cms. x 1 cm. on the anterior aspect of left leg 3 cms below the knee joint.

Incised wound 4 cms. x 1 cm. on the middle of left leg on the skin, clotted blood was present.

Incised wound 5 cms x 1.5 cm. on the anterior aspect of the left leg 5 cms above the ankle joint. Clotted blood was present.

Incised wound 3 cms. x 2.5 cm. on the great toe of left foot and nail bed of the toe was missing. Clotted blood was present.

Reddish contused swelling 8 cms. x 7 cms. on the back of abdomen in its middle.

In this regard Dr. Rajinder Kumar Garg (PW3) in his expert medical opinion stated that the cause of death of the deceased was due to shock and haemorrhage. All the above injuries cumulatively were sufficient in the ordinary course of nature to cause his death. According to him no single injury individually was sufficient to cause the death of the deceased. The same ipso facto shows that the accused had no intention to cause the murder of the deceased but while giving beating to him jointly they caused his death.

No doubt P.Ws. 1 and 2 Buggar Singh and Jagjit Singh found the accused inflicting the injuries on the person of the deceased at a distance in the house of accused Gurmail Singh but could not say that he died instantaneously. Out of fear they did not go to the house of the accused till morning and therefore could not say as to at what time he died after receiving injuries from the accused. No single injury sustained by the deceased was individually in the ordinary course of nature sufficient to cause his death.

Two weapons of offence "Gandhali and Dang" seized in the case were recovered at the instance of the accused Major Singh and Gurmail Singh respectively and the same corroborates the fact that weapons of offence were used in the incident in inflicting injuries to the deceased. The defence story that the deceased had entered into the house of the accused Gurmail Singh with a spear to commit his murder and not finding him there attempted to commit rape upon his wife, does not hold good, firstly the said spear held by the deceased was not found by the police on the spot at Mark ''A'' where the deceased died and secondly the accused did not keep it in their possession to produce it before the police during the investigation of the case.

In view of the above discussion, it is held that all the three accused with the intention of causing such bodily injuries to the deceased caused 18 injuries on his body which cumulatively in the ordinary course of nature caused his death. Thus each of them instead of Section 302/34 IPC are convicted for an offence under Section 304/34 IPC and sentenced to undergo 10 years rigorous imprisonment. They shall also pay a fine of Rs. 2000/ each; in default of which shall further undergo rigorous imprisonment for six months.

With the said modification in conviction and sentence, the appeal stands dismissed.