Mangal Singh vs State of Punjab

Sukhdev Singh Kang, J.

Mangal Singh has come up in appeal against the judgment dated October 30, 1984, of the leaned Sessions Judge, Patiala, whereby the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment of life and to pay fine of Rs. 1,000/ and in default of payment of fine to undergo rigorous imprisonment for a further period of one year. He has also been convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for one year. Both the sentences have been ordered to run concurrently. The appeal has been filed in the following circumstances.

Malwinder Singh, deceased of the case, was the only son of Mangal Singh appellant. He was employed as a Mechanic in the Punjab Roadways. Some three months after his marriage with Smt. Jagbir Kaur P.W.5, he left service and started the business of dairy farming. Mangal Singh appellant did not relish his idea and he was rather angry with Malwinder Singh for having given up Government service.

On March 17, 1983, at about 5/5.30 p.m. Smt. Jagbir Kaur, P.W. her brother Tarlochan Singh, P.W. 6, Malwinder Singh and Mangal Singh appellant were sitting in the hall of the house and were taking tea. Tarlochan Singh had come to see his sister. Malwinder Singh and Mangal Singh appellant started quarrelling. Mangal Singh stated that Malwinder Singh should not have given up Govt. service and starting keeping buffaloes and selling their milk. Mangal Singh started abusing Malwinder Singh. Malwinder Singh asked Mangal Singh not to do so. He further stated that whenever any of his relations came, the appellant started behaving in the same manner. The appellant replied that he will continue doing like that. Malwinder Singh then asked the appellant if he could not remain silent, he should go out. Mangal Singh left the room and brought a 12 bore gun from the adjoining room. He stood in the door of the hall and remarked that he was going to end the daily quarrels. On seeing the gun Jagbir Kaur and Tarlochan Singh PWs, stepped aside. The appellant fired a shot from his gun at Malwinder Singh, which hit on his right arm and right side of the chest. Malwinder Singh fell down on the floor. Tarlochan Singh rushed and caught hold of appellant''s gun, and raised the barrel upwards. Smt. Jagbir Kaur raised the cries `Mar Ditta, Mar Ditta,'' on which a number of person collected. Mangal Singh appellant became repentant and said that he had committed a blunder. Jagbir Kaur and Tarlochan Singh PWs. and Mangal Singh appellant, all the three, took Malwinder Singh to Rajindera Hospital, Patiala in a rickshaw. He was admitted to the Emergency Ward. Smt Jagbir was about to go to the police to report the matter when she met Assistant Sub Inspector Gursewak Singh, PW 18, outside the Emergency Department. She narrated the whole story. Her statement was recorded and after admitting it to be correct she signed the same. This happened at 8.25 p.m. The statement was sent to the Police Station and a formal first information report was recorded under Section 307 of the Indian Penal Code at 8.45 pm.

Malwinder Singh died at 10.45 p.m. His dead body was shifted to the mortuary. A.S.I. Gursewak Singh recorded the statement of Tarlochan Singh. He then along with Tarlochan Singh went to the spot. During spot inspection he discovered one empty cartridge just outside the door facing southwards, inside the room he noticed a pool of blood on the floor. There were pallet marks on the wall facing southern door. Some pallets and weds were found laying on the foot of the wall. The empty was picked up, converted into a sealed parcel and taken into possession. Blood was scrapped from the floor, put in a tin, sealed and then taken into possession. Similarly the pallets and weds were sealed and taken into possession. These articles were deposited in the police station.

On the receipt of the information regarding death of Malwinder Singh, Sub Inspector Raj Kumar, P.W. 17, changed the offence to one under Section 302 of the Indian Penal code and directed sending special report to the concerned authorities. He alongwith A.S.I. Gursewak Singh went to the Rajindera Hospital, Patiala and prepared inquest report on the death body of Malwinder Singh. He also prepared the injury statement. The body was despatched for post mortem examination. He went to the spot for verification of the investigation.

Doctor Sunder Singh P.W. 1, Emergency Medical Officer of Rajindera Hospital, Patiala, had medicolegally examined malwinder Singh son of Mangal Singh at 6.30 p.m. on March 17, 1983 and noticed the following injuries :

A lacerated wound 8.5 cm on the front of the right upper arm. Muscles were exposed and lacerated. Fresh bleeding from the wound was present on the outer side of the wound, there were multiple punctured wound with tatooing. Xray was advised as well as the Surgeon''s opinion.

A lacerated wound 5 cm x 3 cm, on the right side of the chest in its upper and lateral part, 3 cm lateral to the right nipple. Around this wound multiple punctured wounds were present with tatooing. Advised Xray and Surgeon''s opinion.

The doctor opined that the injuries were fresh, their nature could be determined after receipt of the Xray report. The injuries had resulted from a firearm.

Dr. Jagdish Parshad Goel, P.W.4, conducted autopsy on the dead body of Malwinder Singh at 1.30 p.m. on March 18, 1983 and found gun shot injuries. In the opinion of the doctor the cause of death was shock and hemorrhage due to the injury on the chest, which was sufficient in the ordinary course of nature to cause death.

On March 20, 1983, Om Parkash, Municipal Commissioner, produced Mangal Singh appellant before A.S.I. Gursewak Singh. The latter had his licensed gun with him. He was arrested. Gun was taken into possession.

Mangal Singh accusedappellant was challaned, tried, convicted and sentenced as mentioned in the opening part of the judgment.

It has been contended by Mr. Harbans Singh, Senior Advocate, learned counsel for the appellant, that the two eye witnesses namely Smt. Jagbir Kaur, PW5 and her brother Tarlochan Singh PW6 had not witnessed the occurrence and had made false statements. We have not been impressed with this argument. Despite an unnecessarily long crossexamination nothing has been brought out in the statements of these two witnesses which may indicate that they were not present in the house at the time of the occurrence. Even Dr. Sunder Singh, P.W.1, who had medicolegally examined Malwinder Singh at 6.30 p.m. has stated in his statement that Malwinder Singh had been brought to the hospital by Smt. Jagbir Kaur PW and Mangal Singh appellant. This was possible only if Jagbir Kaur were present in the house at the time of the occurrence. Smt. Jagbir Kaur and Tarlochan Singh PW6 have given a very plausible explanation for the presence of the latter in the house at the material time. There is nothing to reject this assertion of the two eye witnesses. It was also sought to be argued that the medical evidence contradicts the occular version. This was possible only because the two eye witnesses had not witnessed the occurrence. We do not find any merit in this submission. There is no contradiction between the medical evidence and the statement of the eyewitnesses. It is true that Dr. Sunder Singh noticed tatooing around the wounds and to suggests that the shot had been fired from, a range of 5/6ft. However, the witnesses have not stated that the appellant had fired at Malwinder Singh from a greater distance. It was urged by the learned counsel for the appellant that in the site plan the distance between the place from where the short was fired and the place where the victim was sitting is shown to be 15 ft. it is well recognised that the marginal notes on the site plan are not substantive evidence. They at best can be treated to be the previous statements of the witness on whose directions the site plan is prepared, the statements can be used to corroborate or contradict the deposition of a witness. They are not in themselves sufficient to discredit the witness without confronting him/her with these notes on the site plan. That has not been done in this case. There is no other contradiction between the medical evidence and the testimony of the eyewitness. Medical evidence rather supports them.

It was then argued by S. Harbans Singh that it was a sudden affair, there was no illwill between the parties. The deceased was the only son of the appellant, who is a retired Government servant and is aged 60 years. The circumstances of the case clearly indicate that the deceased offered a grave provocation to the appellant. The prosecution witnesses have admitted that Malwinder Singh and the appellant quarreled and that the former told the latter to leave that place. It was in this situation that in the heat of the moment Mangal Singh appellant picked up the gun and fired at Malwinder Singh. The offence does not fall within the purview of Section 302 of the Indian Penal Code, but will be covered by Section 304 Part (II).

We find merit in this contention. Mangal Singh is an old and mature man of 60 years, he has retired from Government service, Malwinder Singh was his only son. He had left Government service and took up the mundane profession of dairy farming, which was not commensurate with the status of the family. Mangal Singh appellant had expressed his displeasure on this conduct of Malwinder Singh deceased. It seems that while the family was taking tea, this matter again cropped up, Malwinder Singh and Mangal Singh quarrelled. It is alleged that Mangal Singh abused Malwinder Singh. It is difficult to believe `that Malwinder Singh did not hurl unbearable abuses at Mangal Singh. Witnesses have deposed that Malwinder Singh asked the appellant to go out. Perhaps the deceased had used very strong language to convey his feelings. It is mentioned that he had observed that Mangal Singh was in the habit of insulting him in the presence of his relations. This time also the brotherinlaw of Malwinder Singh was present. In his presence Mangal Singh appellant criticised his son''s decision to leave service and adopted the lowly profession of dairy farming. This may naturally have angered Malwinder Singh. He seems to have reacted very strongly and abused his father right in the presence of the latter''s daughterinlaw and her brother. Because of sudden quarrel and heat of passion the appellant picked up the licensed gun and fired at his son Malwinder Singh. Immediately thereafter the appellant felt sorry. He repented over what he had done and with the help of Smt. Jagbir Kaur, PW, removed the injured to the hospital. All these facts unmistakably establish that Mangal Singh appellant had no intention to cause the death of his only son Malwinder Singh. He on account of the provocation supplied by the deceased and in the heat of the sudden quarrel, fired a shot. He did not take undue advantage of the deceased. He also did to act in a cruel manner. However, Mangal Singh could very safely be attributed the knowledge that by firing a shot with his gun at Malwinder Singh, he was likely to cause such bodily injury as was likely to cause his death. So the offence of the appellant squarely falls under section 304, Part (II) of the Indian Penal Code. However, keeping in view the penological ethos of the day and conscious of the tragic reality that the idea of having killed his own son must be gnawing at the very conscious of the appellant and he must have been cursing himself all the time for what he had done. Unwittingly, we feel that imprisonment already undergone (more than two and a half years) by the appellant and a fine of Rs. 1,000/ and in default further imprisonment for 6 months shall meet the ends of justice in this tragic case, which has resulted in the ruination of not only two lives, but two families. However, his conviction and sentence under section 27 of the Arms Act is maintained and that he has already undergone. We order accordingly.

The appeal is partially allowed as indicated above. Mangal Singh appellant shall be set at liberty.