Mohinder Singh and ors. vs State of Punjab

A.S. Nehra, J.

This appeal is directed against the judgment dated 1371990 passed by the Additional Sessions Judge, Amritsar, by which the appellants have been convicted under Section 302 read with Section 34, Indian Penal Code, and sentenced to undergo imprisonment for life each and to pay a fine of Rs. 200/ or in default of payment of fine to undergo further rigorous imprisonment for one month each.

The facts of prosecution case, in brief, are as under :

Dial Singh deceased on 13111987 at about 7.00 p.m. heard catcalls (Changars) outside in the street. He along with his wife Swaran Kaur PW4 came out in the street and found Mohinder Singh, Sukha Singh and Nimma Singh, accused, armed with a dang each. They were raising catcalls and were saying who could stop them from doing so.Dial Singh requested them with folded hands not to raise catcalls (Changars). At this, Mohinder Singh accused exhorted that he (Dial Singh) be caught hold of and as to who he was to stop them from doing so. In the meantime, Sukha Singh gave dang blow to Dial Singh hitting him on his back. Mohinder Singh accused gave another dang blow on the head of Dial Singh. Swaran Kaur PW4 raised raula "mar ditta mar ditta" on which, Ajaib Singh was attracted to the spot. While Dial Singh was lying on the ground, Mohinder Singh accused gave another dang blow on his left wrist. Sukha Singh, Mohinder Singh and Nimma Singh, accused gave 56 blows with their respective weapons while he was lying on the ground hitting him on his right leg. Ajaib Singh PW5 and Swaran Kaur PW4 rescued the injured from the clutches of the accused who ran away, raising lalkaras along with their dangs. The injured was brought to the house for giving him firstaid, thinking that the injuries were not serious.

On 15111987, when the condition of the injured became serious, he was brought to the Civil Hospital, Ghariala, where he was medically examined by Dr. Jagjit Singh PW1 who, vide medico legal report Exhibit PA, found the following injuries on his person :

An abrasion 1 1/2 cms x 1/2 cm over the dorsal surface of the wrist joint of the left hand. Scab formation was present. Healing process started.

An abrasion 2 cms x 1/2 cm over the anterior medial surface of the right lower leg in its middle third. Scab formation was present. Exudate was present. Infection had set in.

An abrasion 1 cm x 1/2 cm over the anterior medial surface of right lower leg 2 cms below injury No. 2. Scab formation was present and infection had set in.

An abrasion 0.75 cm x 0.5 cm over the anterior medial surface of the right lower leg, about 2.5 cms below injury No. 3. Scab formation was present and infection had set in.

A vesicle 3 cms x 2 cms over the medioposterior surface of the right lower leg in its upper third.

A vesicle 2 cms x 11/4 cms over the medioposterior surface of the right lower leg. 1 1/2 cms below injury No. 5.

A vesicle 2 cms x 1 1/2cms over the medioposterior surface of right lower leg. 1/2 cm below injury No. 6.

A vesicle 8 cms x 1 1/2 over the medioposterior surface of the right lower leg 9 cms below injury No. 7.

A swelling 4 cms x 3 cms over the left parietal region of the skull just near the midline in its middle.

A bluish contusion 10 cms x 2 cms over the posterior surface of the lower part of the neck. The injury was kept under observation subject to Xray examination.

A bluish contusion 10 cms x 2 cms over the posterior surface of the left scapula in its upper part.

Injuries Nos. 1 to 8, 9 and 11 were opined to be simple in nature and injury No. 10 was kept under observation. According to the doctor, the probable duration of the injuries was within fortyeight hours and all the injuries were caused by blunt weapon. The injured was referred to the orthopaedic ward of the SGTB Hospital, Amritsar.

Head constable Swaran Singh No. 2901 (PW 7) along with police constable was present in the Grain Market, Ghariala, where Ajit Singh, Class IV employee of the Civil Hospital, Ghariala, produced the medico legal report Exhibit PA of the injured. Head constable Swaran Singh PW 7 went to the hospital. He moved an application Exhibit PB for recording a statement of the injured. After the doctor made endorsement Exhibit PB 2 that the injured was fit to make a statement, the Head Constable recorded statement Exhibit PD of the injured Dial Singh who thumbmarked the same admitting the correctness of the same. According to Head Constable Swaran Singh PW 7, since no cognizable offence was made out, he made out, he made endorsement Exhibit PD/1 and made an entry in the Daily Diary, vide report Exhibit PC.

On 17111989 ASI Mohinder Singh PW 8 happened to be present for general patrolling at the Bus Stand, Chariala, where he received a message from constable Balkar Singh that Dial Singh injured has expired in the SGTB Hospital, Amritsar. Thereafter, PW 8 obtained copy of the Daily Diary report Exhibit PC and after making endorsement Exhibit PC/1, sent the same to the Police Station, Valtoha, where formal FIR Exhibit PC/2 was recorded. On the following day, he prepared inquest report Exhibit PF on the dead body of Dial Singh and sent the dead body for postmortem examination with inquest report Exhibit PG. The postmortem examination was conducted by Dr. S.P. Singh Sohal PW 9 who vide postmortem report Exhibit PL, found the following antemortem injuries on the dead body :

Swelling 4 cms x 3 cms on the right parietal region of the head, just right to the midline and its middle. On dissection, a haematoma was found under the scalp.

A bluish contusion 10 cms x 2 cms on the posterior surface of neck in its lower half and placed horizontally. On dissection, a big haematoma was found under the skin. On further dissection, there was fracture of the 4th cervical vertebrae and the spinal cord underneath and just above was found ruptured.

A bluish contusion 10 cms x 2 cms over the left scapular region in its upper half placed obliquely.

An abrasion 1 1/2 cms x 1/2 cm with partial scab formation present on the posterior aspect of left wrist joint.

An abrasion 2 cms x 1/2 cm with scab formation on the anteromedial aspect of the right leg in its middle.

An abrasion 2 cms x 1/2 cm on the anteromedial aspect of right leg 2 cms below injury No. 5.

An abrasion 3/4 cm x 1/2 cms below injury No. 6.

An abrasion 3 1/2 cm x 2 cms on the back of the right leg in its upper onethird towards the medial slide.

An abrasion 2 cms x 1 1/2 cms below injury No. 8.

An abrasion 3 1/2 cms x 2 cms on the posterior aspect of right leg, half cm below injury No. 9, more one its medial side.

An abrasion 7 cms x 1 1/2 cms on the back of the right leg placed vertically 11 cms above the right heel.

According to this doctor the death was due to injury to the spinal cord accompanied by fracture of the cervical spine which was sufficient to cause death in the ordinary course of nature.

Assistant Sub Inspector Mohinder Singh PW 8 thereafter went to the spot and prepared the visual site plan Exhibit PH. On 18111987, he took into possession the clothes of the deceased, which were produced by Head Constable Gurbax Singh. He arrested the appellants on 24111987 when they were produced before him by Mukhtiar Singh, Sarpanch of the village.

The prosecution, to prove its case, examined Dr. jagjit Singh PW 1 who medically examined the injured when he was admitted in the hospital. Head Constable Kuldip Raj PW 2 is a formal witness who recorded the daily diary report No. 7, Exhibit PC. Head Constable Gurbux Singh PW 3 is a formal witness whose affidavit was tendered in evidence. Swaran Kaur PW 4, widow of the deceased, is an eyewitness of the occurrence, who unfolded the prosecution story, as mentioned above, and she is corroborated by Ajaib Singh PW 5. Sarpanch Chanan Singh PW 6 stated that about 2 1/2 years prior to 531990, at about 8.30 p.m., Ajaib Singh told him that his brother Dial Singh had sustained injuries and, therefore, he (PW 6) should accompany him to his house, but he (PW 6) refused to accompany him during night because of prevailing situation in the village; that, on the next morning, he went to the house of Dial Singh but found that Dial Singh had been shifted to the Civil Hospital, Chariala; that he then went to the Civil Hospital, Chariala; that the doctor advised him (PW 6) to get the matter patched up between the parties, as the injuries were minor and not serious; that when he talked to Ajaib Singh about the compromise, Ajaib Singh replied that let the injured be recovered first and then he would talk about compromise; and that, later on, Dial Singh died. Head Constable Swaran Singh PW 7 is a witness who recorded the statement of the injured and made entry Exhibit PC in the daily diary register. Assistant Sub Inspector Mohinder Singh PW 8 is the Investigating Officer in this case. Dr. S.P. Singh Sohal PW 9 conducted post mortem examination on the dead body of the deceased, vide postmortem report Exhibit PL.

The prosecution also tendered in evidence affidavit Exhibit PB of Constable Jai Pal, as the learned defence counsel did not crossexamine him.

When examined under section 313 of the Code of Criminal Procedure, Mohinder Singh appellant stated that he was a siri and does not know anything; that he was working at the tubewell and has been involved falsely in this case. Nimma Singh appellant, when examined under section 313 of the Code of Criminal Procedure, denied the prosecution allegations and stated that he is innocent and has been falsely involved in this case. Sukha Singh appellant also denied the prosecution allegations and stated that he is innocent and has been falsely involved in this case. However, no defence evidence was produced by the appellants when they were called to enter upon the same.

The first submission of the learned counsel for the appellant is that it is not proved that the statement of Dial Singh was recorded on 15111987, vide Exhibit PD, and that there is delay in lodging the first information report with the police as the occurrence took place on 13111987 at 7.00 p.m. To give strength to his argument, he has submitted that the witnesses Head Constable Kuldip Raj and Head Constable Swaran Singh PW7 are discrepant in their statements as regards making entry in the daily diary register, which goes to show that the statement of Dial Singh was not recorded on 15111987 but it was recorded on 17111987 when Dial Singh had died; and that this delay had given opportunity to the complainant to rope in innocent persons falsely on mistaken identity, because the injuries were received by Dial Singh somewhere else outside his house. The learned counsel for the appellants, in support of his argument, has relied upon Thulia Kali v. The State of Tamil Nadu, 1972 Crl. LJ 1296. At the outset, it may be mentioned that there is no dispute regarding the proposition of law laid down in Thulia Kali''s case (supra). It cannot be disputed that delay in lodging report affords an opportunity to the complainant party to take consent of the would be witnesses and to give colour to the original version. That is why, the Courts insist that delay in lodging first information report should be satisfactorily explained. In the instant case, the occurrence took place on 13111987 at about 7.00 p.m. The injuries were caused with a blunt weapon. The parties are Mazhbi Sikhs and must be illiterate persons. As per the version of the prosecution, the injured was kept in the house till 15111987 for treatment, thinking that there was no cause of worry in view of the blunt weapon injuries and it was only on 15111987 that the condition of the injured became serious and, therfore, he was brought to the hospital where he succumbed to his injures on 17111987. There is nothing unusual in it. After the injured was removed to the hospital, an intimation was sent to the police, on receipt of which Head Constable Swaran Singh PW 7 went to the Civil Hospital, Chariala. After making application Exhibit PB to the doctor, he recorded statement Exhibit PB of the injured. Since, according to the report of this witness, no cognizable offence was made out from the statement of the injured, he made endorsement Exhibit PD 1 and made an entry on 15111987 in the daily diary register, copy of which is Exhibit PC. Here, the question is whether this entry was recorded in the daily diary register or not on 15111987. No doubt, there is discrepancy in the statements of these two witnesses in as much as that, according to Head Constable Kuldip Raj PW 2, on receipt of the statement of Dial Singh by Head Constable Swaran Singh on 15111987, he recorded the entry in the daily diary register at 1.30 p.m. and he proved it copy as Exhibit PC, whereas Head Constable Swaran Singh PW 7, in the very opening line of his cross examination, stated that he recorded entry No. 7 in the daily diary register in his own hand, thereby contradicting Head Constable Kuldip Raj PW 2 on the point of making the report. This discrepancy in our opinion, is of little consequence. It is unimaginable that the daily diary register could be kept open till after 3.00 p.m. on 17111987 when the deceased died. The daily diary register was not summoned from the police station in order to confront this witness on the point of interpolation or addition having been made in the daily diary register by making ante dated entry. This single discrepancy is not sufficient to hold that the statement of Dial Singh was ante dated.

The next submission of the learned counsel for the appellants is that, taking opinion of the doctor is not a guarantee that the statement of the injures was actually recorded as per the version given by the injured. Admittedly, the mere taking opinion of the doctor is not a guarantee that the statement of the injured had been recorded. But, in this case, the recording of the statement is proved from the statement of Head Constable Swaran Singh PW 7 and recording of the same in the daily diary register as Exhibit PC. Dial Singh was injured by a blunt weapon and he has admitted in the hospital after two days of the occurrence and, on receipt of medicolegal report, his statement was recorded by Head Constable Swaran Singh PW 7. At that time, there was no apprehension of his dying or he was not in serious condition, because there is no medical report produced by the prosecution to this effect. Therefore, his statement was recorded as that of any other injured for initiating criminal proceedings against the appellants. Admittedly, his statement has not been countersigned by the doctor nor is it attested by any one or more persons out of those who happened to be present there. But, at the same time, it cannot be said that it was being recorded as the dying declaration of the injured who, later on, succumbed to his injuries. Dial Singh made his statement before his death, little knowing that it was his last statement. Therefore, there was no question of getting the statement countersigned by a doctor or any other person who could be present there at that time.

It was next submitted by the learned counsel for the appellants that Swaran Kaur PW 4 was contradicted by Ajaib Singh PW 5. Swaran Singh PW 4 stated that there is a private medical practitioner in the village who had been attending Dial Singh injured, where, according to Ajaib Singh PW 5, Dial Singh injured was not got treated from any medical practitioner in the village and that, however, they had been treating the injured themselves. No doubt, both these witnesses are discrepant on this point but this discrepancy is not sufficient to discard the statement of the injured. It is not material here whether the injured was got treated by a medical practitioner in the village or not and it is not relevant for the purpose of proving the guilt of the appellants. It is not disputed as to which medical aid was given to the injured at his home and by whom.

It was next submitted by the learned counsel for the appellants that, according to Swaran Kaur PW 4, she did not tell anything about the occurrence to the Head Constable and the Head Constable visited the SGTB Hospital, Amritsar, on the day when Dial Singh succumbed to his injuries. From this, the learned counsel for the appellants wants to infer that Swaran kaur PW 4 was not sure as to who was the assailant. But, again this submission of the learned counsel for the appellants has no force, because the attendants/relations of the injured are always particular in looking after the injured and making arrangements for his medical treatment and then telling about the occurrence to the police. According to Swaran Kaur PW 4, Head Constable Swaran Singh PW 7 visited the SGTB Hospital, Amritsar, on the day when Dial Singh succumbed to his injuries, which goes to show that the Head Constable might have visited the hospital before Dial Singh succumbed to his injuries or immediately thereafter and, therefore, Swaran Kaur PW 4 was not in a mood to tell as to who were the assailants, because there could be no more sad or agonizing moment to a woman whose husband is about to die or has died a little earlier.

The learned counsel for the appellants further submitted that Ajaib Singh PW 5 has stated that he narrated the entire occurrence to Assistant Sub Inspector Mohinder Singh, but the Assistant Sub Inspector did not record his statement at the police post, rather, the Assistant Sub Inspector told him that he would send some official to the hospital. He further submitted that, after staying for a night in the Civil Hospital, Chariala, they brought Dial Singh to the SGTB Hospital Amritsar, thereby going to show that the statement of the injured had not been recorded at that time. We not find any force in this submission, as it cannot be inferred from the above mention statement of the witness that the statement of Dial Singh had not been recorded. In fact, the statement has been fully proved to have been recorded on 15111987, vide Exhibit PD.

The learned counsel for the appellants has further argued that, according to Chanan Singh PW 6, Ajaib Singh PW 5 did not tell him (PW 6) as to who caused injuries to Dial Singh, thereby further showing that the names of the assailants were not known to Ajaib Singh and the appellants have been falsely implicated. We find no force in this contention as well. It is not in the statement of Chanan Singh that he had asked Ajaib Singh as to who caused injuries to Dial Singh.

The next submission of the learned counsel for the appellants is that no offence under section 302, Indian Penal Code, is made out against the appellants and that only the offence under section 304, Part II, Indian Penal Code, is made out and, in support of his argument, he has relied upon Brij Mohan alias Binda v. State of Punjab, 1983 All India Criminal Law Reporter 618; State of Karnataka v. Siddappa Basanagouda Patti and another, 1990 Criminal Law Journal 1116; and Gurmail Singh and ors. v. State of Punjab 1982 Criminal Appeal Reporter 318 (SC).

A perusal of the statement of Dr. Jagjit Singh PW 1 shows that as many as eleven injuries were caused to the injured. Injury No. 10, at the time of medicolegal examination, which corresponds to injury No. 2 found at the time of the postmortem examination, proved fatal. According to Dr. S.P. Singh Sohal PW 9, who performed the postmortem examination on dead body of Dial Singh, death was due to injury to spinal cord accompanied by fracture of the cervical spine, which was sufficient to cause death in the ordinary course of nature. This is a case where repeated blows were given one after the other and as many as eleven injuries were caused. Therefore, the intention is to be gathered from the number of injuries given by way of repeated blows. It is not a case where single injury was given without any intention to cause death. The instant case is distinguishable from Brij Mohan alias Binda''s case (supra). In that case, the deceased and the appellants were young men full of anger and having no sense of toleration and it was found by this Court that the appellant had no business to ask the deceased as to why he had come to his Mohalla, but the deceased also gave an irresponsible reply to an otherwise innocuous question, i.e., he had come to take the `Doli'' of his sister. In that case, it was also in evidence that the appellant and the deceased also grappled together at the time of the occurrence and blows were given to the deceased and, therefore, these circumstances, the offence under section 302, Indian Penal Code, was converted to that under section 304, Part II, Indian Penal Code. Similarly, in the case of State of Karnataka v. Siddappa Basanagouda (supra), oral altercation took place between the deceased and the accused two three days prior to the incident; that the deceased entered entered the house of the accused, committed the trespass and picked up quarrel with the two accused; that there was no clear evidence as to how the occurrence originated; and that blood was found inside the house of the accused and on the threshold, thereby indicating that the deceased received injuries in the house and he then came out on the road and fell down. In that case, the prosecution had suppressed the genesis and the origin of the occurrence and, therefore, the accused were held liable to conviction under section 304, Part II, and not under section 302, Indian Penal Code it being an offence of culpable homicide not amounting to murder. The case of Gurmail Singh (supra) is also distinguishable from the facts of the case in hand. In that case, the dispute was between Bogha Singh and Gura Singh on the one hand and the accused on the other; Tej Singh deceased was nowhere in the picture; there was no enmity against the deceased; there could not have been a passing thought of causing injury to Tej Singh. Tej Singh was attracted to the spot on hearing the commotion and he tried to intervene to save Gura Singh and Bogha Singh; and Tej Singh was given blows by Sardul Singh and Gulab Singh, accused. Thus, in that case, there could be no intention to cause the death of Tej Singh, but, in the present case the appellants came to the spot duly armed with weapons, raising catcalls (Changars) and exhorting to catch hold of Dyial Singh; and they caused him a number of injuries maliciously and vindictively with the intention of causing his death. Therefore in our opinion, the appellants have been rightly convicted under section 302 read with section 34, Indian Penal Code, by the trial Judge.

The learned counsel for the appellants further submitted that Mohinder Singh and Nimma Singh, appellants, are not liable to be convicted under section 302 read with section 34, Indian Penal Code. We do not find any merit in this submission also, because all the appellants came due armed with weapons and caused injuries with the intention of killing Dial Singh. They caused as many as eleven injuries one after the other. The statement of Ajaib Singh PW 5 shows that when he came to the spot, all the appellants were causing injuries to Dial Singh with their respective weapons when Dial Singh was lying on the ground. Since all the appellants came to the spot together with the intention of killing Dial Singh and they also went away together after causing the injuries, therefore, Mohinder Singh, Nimma Singh and Sukha Singh, appellants, have been rightly convicted under Section 302 read with section 34, Indian Penal Code.

In view of the above mentioned discussion, there is no merit in this appeal and the same is dismissed.