Mangal Singh vs State of Haryana

Harinder Singh Sidhu, J.—This criminal appeal has been filed against the judgment and order dated 21.08.2002/22.08.2002 passed by the Additional Sessions Judge, Fatehabad whereby the appellants have been convicted u/s 302 read with Section 34 IPC and have been sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each. In default of payment of fine, they are to undergo further rigorous imprisonment for one year.

Brief facts of the prosecution case which was set in motion by the statement of Joginder Singh son of Bishan Singh resident of Village Mehmhra are that the sister of the complainant Joginder Singh was married with Dalip Singh son of Jagga Singh resident of Village Bhoyepur, District Faridkot about 20 years ago. About 12-13 years ago, the said Dalip Singh migrated from village Bhoyepur to Village Mehmhra and started living there. He purchased some land for cultivation in nearby Village Nikuwana. Adjoining the house of Dalip Singh was the house of Pritam Singh son of Jaimla Singh. About one year prior to the incident, a quarrel had taken place between Dalip Singh and Pritam Singh and in the said quarrel, Satpal son of Pritam Singh had sustained injuries. Pritam Singh had filed a complaint against Dalip Singh, Jeeto Bai sister of Joginder Singh and wife of Dalip Singh, Joginder Singh and five others and regarding this the case was pending in the Court. Ever since this incident, both Pritam Singh and his wife Nihali Devi had been threatening Dalip Singh that they would take him to task. However to maintain peace Dalip Singh did not react to such threats.

On 25.08.1999, Jeeto Bai sister of the complainant and Nihali Devi had an altercation. At about 7:00 PM, the complainant had gone to the house of his sister Jeeto Bai and started chatting with her. Meanwhile, Dalip Singh brother-in-law of the complainant, after taking bath at tube-well and clad in only an underwear, was returning to his house through the street by the side of the house of Pritam Singh. When Dalip Singh reached in front of the room where fodder was stored in front of the courtyard of his house, then Nihali Devi, Pritam Singh and Mangal Singh son of Pritam Singh came from the back side. Pritam Singh and Mangal Singh were armed with lathis in their hands. Nihali Devi gave a Lalkara that today Dalip Singh be taught a lesson for causing injuries to Satpal. On hearing this, Dalip Singh turned back. Immediately, Mangal Singh gave a lathi blow on the head of Dalip Singh. Thereafter, Pritam Singh aimed a lathi blow at Dalip Singh and in order to ward off the attack, Dalip Singh raised his left hand and the lathi blow caused injuries on the thumb of the left hand and left eye of Dalip Singh. Dalip Singh fell down. The complainant and his sister Jeeto Bai raised noise of Bachao, Bachao and rushed to the rescue of Dalip Singh. All the three assailants ran away carrying their lathis with them. The complainant and his sister tended to Dalip Singh but he died after a short while. Thereafter, Mohinder Singh, brother of the complainant and other residents of the village reached the spot. Leaving them with the deceased, the complainant went to lodge the report with the police. The Investigating Officer reached the spot the same day, the scene of occurrence was photographed, inquest proceedings were prepared and postmortem of the dead body was conducted.

On 27.08.1999, when the Investigating Officer was near village Mehmhra, all the three accused were produced before him by one Pehalwan Singh also resident of the same village. They produced their weapons of offence, namely, lathis, which were taken into possession and recovery memo were prepared. After Investigation, report u/s 173 Cr.P.C. was prepared and all the accused-appellants were charge-sheeted u/s 302 read with Section 34 IPC.

The prosecution examined as many as 11 witnesses. Apart from the formal witnesses, the prosecution examined Dr. D.L. Bansal, SMO, Fatehabad (PW-5) who had conducted autopsy on the dead body of Dalip Singh. He deposed that the following injuries were found on the body of Dalip Singh:

Diffuse swelling in an area of 5 x 3 cm on left eye with reddish and bluish. On dissection infiltration of the blood underlying tissues.

A lacerated wound 3 x 1/2 cm on palmer aspect of left thumb distal felling with blood clots, obliquely placed. On dissection infiltration of blood underlying tissues.

Diffuse swelling on middle 3rd of skull both sides in an area of 3 1/2 inches x 2 inches. On dissection huge amount of blood comes out and there was fracture of parietal bone on right and left side with blood clots present on brain membranes and brain matter.

He stated that the cause of death, in this case, was due to the head injury at Sr. No. 3, which was sufficient to cause death in the ordinary course of nature. Joginder Singh-complainant appeared as PW-9. Jeeto Bai wife of deceased an eye-witness to the incident appeared as PW-10. Som Raj, Inspector/Investigating Officer appeared as PW-11.

On being examined u/s 313 Cr.P.C., the appellants pleaded that they were falsely implicated. They pleaded that in fact there were strained relations between deceased Dalip Singh and his wife Jeeto Bai and brother-in-law Joginder Singh-complainant as they had defrauded him of money got from sale of his 8 acres of land in his native village Bhoyepur and resultantly, the deceased was able to purchase only about 2 1/2 acres of land in Village Nikuwana. The deceased always wanted to go back his native village but was stopped from doing so by Jeeto Bai and Joginder Singh. On the day of the occurrence, deceased Dalip Singh gave beatings to his wife Jeeto Bai who called her brother Joginder Singh and an altercation ensued in which the deceased Dalip Singh was injured and he died due to the injuries. He was intentionally not taken to Hospital by Jeeto Bai and Joginder Singh and a false case was registered against the appellants. However, no evidence was led by the accused in their defence.

Based on the consistent testimony of prosecution witnesses, especially PW-9 Joginder Singh and PW-10 Jeeto Bai, learned trial Court held that it is established that on the instigation of accused Nihali, accused Mangal Singh and accused Pritam Singh caused injuries to Dalip Singh, who succumbed to the injuries immediately thereafter. The ocular evidence was fully corroborated by the medical evidence on record. The motive for occurrence i.e. previous dispute between the parties and the immediate provocation being the altercation that had taken place between Nihali Devi and Jeeto Bai on the day of occurrence was also held established. Accordingly, all the accused were convicted for the offence punishable u/s 302 read with Section 34 IPC.

Learned counsel for the appellants has contended that only the lalkara has been attributed against Nihali Devi, which is a very weak kind of evidence. He contended that there is a tendency to rope in even innocent persons of the rival party. Even as per the prosecution case, Nihali Devi was not armed with any weapon and she did not cause any injury to deceased Dalip Singh. He further contended that common intention to commit murder is not established from the evidence on record.

He has further contended that offence punishable u/s 302 IPC is not attracted. From the facts of the case, offence punishable only 304 Part II IPC would be attracted at the most. Accused Mangal Singh and Pritam Singh were armed with lathis, only, which is not a deadly weapon. One blow, each, has been attributed to accused Mangal Singh and Pritam Singh. They have not repeated the blow and thus, it cannot be inferred that the accused persons had any intention to kill Dalip Singh.

To the contrary, the learned State Counsel has urged that the intention to kill is manifest as the blows were aimed at the head of the deceased. While Mangal Singh managed to hit the deceased on his head, the deceased was able to successfully ward off the second blow by raising his arm resulting in injuries to his left eye and left thumb. She has pleaded that Nihali Devi shared the common intention with the other accused and is similarly placed.

Heard learned counsel for the parties and have gone through the record.

In the totality of the facts and circumstances of the case, there appears to be merit in the contention of learned counsel for the appellants. Only a lalkara has been attributed to accused Nihali Devi. She is not said to be armed with any weapon and did not cause any injury to deceased Dalip Singh. Beyond a lalkara, she is not alleged to have aided the other accused in causing injuries to deceased, in any manner. There was earlier history of animosity between Jeeto Bai (PW-10) and Nihali Devi and an altercation had taken place between the two on the day of occurrence as well. In these circumstances, false implication of Nihali Devi cannot be ruled out. Accordingly, her conviction cannot sustain.

Regarding the other accused-appellants Mangal Singh and Pritam Singh, it has come on record that they were only armed with lathis. One blow each has been attributed to them. They did not repeat the blow. From this evidence, it cannot be inferred that they had any intention to cause the death of Dalip Singh.

In view of the above, the appeal is partly accepted. The judgment of conviction and order of sentence is set aside qua Nihali Devi and she is acquitted of the charges. So far as other two appellants, namely, Mangal Singh and Pritam Singh are concerned, their conviction u/s 302 read with Section 34 IPC is set aside and instead they are convicted u/s 304 Part II IPC and ordered to undergo rigorous imprisonment for 7 years. The fine is increased to Rs. 1 lac, each, to be paid to the widow of deceased Dalip Singh as compensation. The fine be deposited in the Court of CJM, Fatehabad within three months, failing which, they shall further undergo RI for one year.