Mehar Singh vs State of Punjab

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment and order dated 14.1.1987 passed by learned Sessions Judge, Ferozepur, who convicted the appellant under Section 308 of the Indian Penal Code and sentenced him to undergo R.I. for a period of five years.

The brief facts of the case as unfolded by the prosecution witnesses at the trial are that Mangh Singh PW is a member panchayat of Village Dhandi Qadim. On 7.8.1985 at about 7.00 p.m. he was going to his tubewell installed in his fields at Hitharwala. While so proceeding when he was close to the fields of Mohinder Singh, ExSarpanch, he saw that from the opposite side Kashmir Singh son of Gurian Singh was coming towards the village on his tractor. Dilawar Singh, Balwant Singh and Chand Singh residents of village Dhandi Qadim were sitting on the seats of the tractor while Jit Singh injured, Phalku Singh, Dial Singh son of Sona Singh and Mehar Singh accused were sitting on the cultivator of the tractor. Phalku Singh caught hold of Dial Singh with a Parna while Mehar Singh accused slowed down the speed of the tractor and gave a hockey blow to Dial Singh but the blow hit on the head of Jit Singh. On receipt of the hockey blow Jit Singh fell on the ground from the tractor and became unconscious. The accused also got down from the tractor and sat near Jit Singh, while Kashmir Singh etc. firstly drove the tractor away but then put the tractor in reverse gear and thereafter all of them went to the house of Jit Singh along with the tractor to give information. Mangh Singh PW went to his tubewell. Balwant Singh PW went to Ram Singh brother of Jit Singh and told him about the occurrence. With above broad allegations F.I.R. was lodged with the police on 12.8.1985 on the statement of Mangh Singh PW which was recorded by ASI Lal Singh.

Jit Singh was taken to Civil Hospital, Jallalabad where he was medico legally examined by Dr. S.S. Toor in 8.8.1985 at 2.00 a.m. Intimation regarding the admission of Jit Singh was sent to Police Station Jallalabad. On receipt of the copy of M.L.R. of Jit Singh, the police went to the hospital and ASI Lal Singh submitted application before the doctor in order to ascertain whether Jit Singh injured was fit to make a statement or not. He was declared unfit to make a statement. Then ASI Lal Singh recorded the statement of Ram Singh PW, brother of Jit Singh, wherein Ram Singh stated that some time prior to the occurrence there was a scuffle between Dial Singh and Jit Singh regarding some money and Dial Singh caused injuries to Jit Singh, but the matter was compromised.

ASI Lal Singh visited the spot and prepared rough site plan of the place of occurrence. He recorded the statements of the witnesses. Accused was arrested on 19.8.1985 and during the course of interrogation he suffered a disclosure statement and in pursuance of the same he got recovered a hockey from the specified place of concealment on 22.8.1985 which was taken into possession. On 28.8.1985 the injured was referred to P.G.I., Chandigarh for neurosurgery and on completion of the investigation of the case, the accused was challaned in the Court of Area Magistrate under Section 308 I.P.C. The learned Magistrate supplied the copies of the documents to the accused and vide commitment order dated 9.7.1986 the accused was committed to the Court of Session.

Vide order dated 12.9.1986, learned Sessions Judge, Ferozepur framed a charge against the accused under Section 308 IPC on the allegations that on 7.8.1985 at about 7.00 p.m. in the area of village Dandi Quadim he did an act, i.e. caused injuries to Jit Singh, with such intention and under such circumstances that if by that act he had caused the death of said Jit Singh he would have been guilty of culpable homicide not amounting to murder. The charge was read over and explained to the appellant, to which he pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined PW1 Dr. S.S. Toor, PW2 Mangh Singh complainant, PW3 Jit Singh injured, and PW4 ASI Lal Singh. The other witnesses were given up as unnecessary.

Statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. Accused denied those circumstances and stated that he was innocent.

In defence, accused did not lead any evidence and closed the case.

The learned trial Court for the reasons given in para Nos. 13 to 16 of the judgment convicted and sentenced the appellant in the manner stated above and aggrieved by his conviction and sentence, the present appeal.

I have heard Mr. R.S. Ghai, Senior Advocate on behalf of the appellant, Mr. Vikas Cuccuria, AAG on behalf of the State and with their assistance I have gone through the record of this case.

The learned senior counsel submitted at the first instance that the statement of Ram Singh, real brother of Jit Singh, was recorded by the police on 8.8.1985 in which he has tried to make out a case of accidental fall of Jit Singh when he allegedly fell on the ground from the tractor, whereas the police after obtaining the information of the doctor gave a twist to the story through Mangh Singh, who deposed that there was a dispute between Jit Singh injured on one side and Dial Singh of village Dakhli Dhandi Qadim on the other side and Jit Singh mustered the support of his companions including Mehar Singh, who was armed with a hockey and that when Mehar Singh in order to oblige Jit Singh tried to give a hockey blow upon Dial Singh, the rival of Jit Singh, the said hockey blow accidentally fell upon the head of Jit Singh. The learned senior counsel submitted that in view of the contradictory stands taken up by Ram Singh in Ex.DB and by Mangh Singh, on reliance should be placed on the present story of the prosecution vide which it has been said that Mehar Singh was allegedly responsible for giving the hockey blow on the head of Jit Singh. I am (do ?) not agree with the submission raised by the learned counsel for the appellant because the statement Ex.DB of Ram Singh dated 8.8.1985 may be accepted even on its face value and it cannot be acted upon for the benefit of the appellant because Ram Singh was never the eye witness of this case and he was never present at the place of occurrence nor he was one of the occupants of the tractor on which Mangh Singh, Jit Singh and Dial Singh were allegedly travelling. We have to depend upon the statements which have actually come before the trial court.

The second submission raised by the learned counsel for the appellant was that admittedly there were several persons travelling on the tractor, but nobody has been examined by the prosecution except Jit Singh and Mangh Singh and, therefore, implicit reliance cannot be placed on the statement of Mangh Singh and Jit Singh. This submission is again not acceptable to this Court because Jit Singh was none else but an injured witness. It is the categorical statement of Mangh Singh that he too was travelling along with Jit Singh and Mehar Singh appellant.

It was then submitted by the learned counsel for the appellant that in this case the offence under Section 308 IPC is not made out nor the offence under Section 325 IPC and at the most offence under Section 323 IPC is made out. In support of his contention Mr. Ghai submitted that as per the medical evidence there was no fracture underneath the head injury of Jit Singh. There was hardly any knowledge which is necessary to constitute the offence under Section 308 IPC and, therefore, the trial Court was not justified in recording the conviction under Section 308 IPC. This argument of Mr. Ghai is partly correct. I do not see any bony injury or fracture underneath the injury No. 2 of Jit Singh. I will discuss in the later portion of this judgment the statements of the three witnesses who have been examined by the prosecution. This court is, however, of the opinion that there was definitely knowledge on the part of the appellant when he wanted to give a hockey blow on the person of Dayal Singh but he missed the target and that very hockey blow hit on the sensitive portion of the body of Jit Singh. Section 308 lays down that whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both, and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years; or with fine, or with both. To our purposes the words "intention or knowledge and under such circumstances" are necessary. The hockey is a deadly weapon. It was aimed upon Dial Singh but it landed upon the head of Jit Singh. Now we have to see what was the affect of the injury which was suffered by Jit Singh. PW1 Dr. S.S. Toor medicolegally examined Jit Singh on 8.8.1985 and found the following two injuries on his person :

Arbrasion 5 cm x 3 cm on left side of face in between left eye and left ear.

Diffused boggey swelling over left temporal area 10 cm x 8 cm and extending upto left parietal area 3 cm above left pinna and 1 cm short of midline.

A reading of the statement of the doctor would show that both these injuries were kept under observation. The patient when brought to the hospital was unconscious. His right pupil was widely dilated and nonreacting to light. Left pupil was alightly (slightly ?) dilated but nonreacting to light. From the left ear and left nostril blood was coming out. The doctor further opined that the condition of the patient was not improving and his general condition was bad as a result of head injury. The patient went on deteriorating in his health and on the basis of injuries No. 1 and 2 the doctor declared that both these injuries collectively were dangerous to life. Further it has come in the statement of the doctor that the injured was discharged from the hospital but was advised to consult NeuroSurgery Department of P.G.I. as he had lost his memory and was confused even upto 28.8.1985 and was not fit to make a statement. The medical record rather shows that this patient remained unfit to make statement on several days i.e. on 12.8.1985, 18.8.1985, 20.8.1985 and 26.8.1985 from which there can be a clear indication about the condition of the patient. So much so injured Jit Singh appeared as PW3 and has categorically stated that it was the appellant who gave hockey blow on his head resulting in his fall. Further he stated that be became unconscious on receipt of the injuries and he regained consciousness after many days. He also stated that he developed forgetfulness because of the injury and even at the time of making the substantial statement on oath before the trial Court on 14.1.1987 he was not free from the affect of the head injury. There is an observation by the Presiding Officer as follows :

"The witness is not sharp in outlook and has made a statement from recollections."

The above would show that the injury No. 2 which has been suffered by Jit Singh was not only serious; not only grievous but it was even more than that. The doctor has opined that the collective effect of injuries No. 1 and 2 could be dangerous to life. The intention in this case must be missing on the part of the appellant because he never wanted to take the life of his own companion. His primary target was Dial Singh. The hockey blow landed accidentally on the person of Jit Singh. There could be a sufficient knowledge on the part of the author of the injury that if this hockey blow had landed even on the head of his companion, he could suffer the same consequences as were intended for Dial Singh. The statement of Jit Singh PW3 is corroborated by the statement of Mangh Singh PW2. This witness categorically stated that it was Mehar Singh appellant who was armed with hockey and he aimed the hockey blow upon Dial Singh but the same struck on the head of Jit Singh. In view of the direct statement of Jit Singh injured coupled with the statement of Mangh Singh PW2, I am inclined to hold that the appellant has committed the offence under Section 308 IPC.

It was lastly submitted by the learned counsel for the appellant that the sentence which has been awarded by the learned trial Court is very excessive. The offence under Section 308 IPC is punishable maximum upto seven years and it is a fit case where the provisions of Section 360 Cr.P.C. should be invoked. On the contrary, Mr. Vikas Cuccuria, AAG has opposed the request of the learned counsel for the appellant on the ground that a serious damage has been caused to the injured and, therefore, no grounds are made out for granting probation to the appellant.

I have already reproduced about the nature of injuries suffered by Jit Singh besides the opinion of the doctor. Jit Singh suffered in his memory. The grievous injury which he suffered is on the vital part of the body and, therefore, the benefit of Section 360 Cr.P.C. cannot be granted to the appellant.

In the alternative it was submitted by the learned counsel for the appellant that the appellant may be visited with leniency in the matter of sentence. I find some merit in the contention raised by the learned counsel for the appellant. The occurrence in this case had taken place in the year 1985 and the appellant is suffering the vagaries of the criminal proceedings for the last more than 14 years. The ends of justice, in the opinion of this court, will suffice if the substantive sentence of the appellant is reduced to one year