Mohinder Singh vs State of Punjab

S.C. Malte, J.

The appellant was convicted of the charge under Section 302 IPC and was sentenced to suffer imprisonment for life and fine of Rs. 2,000/, in default to suffer rigorous imprisonment for six months.

Briefly stated the prosecution case is as follows :

The appellant, Mohinder Singh, had a grievance that his wife had been abducted by the deceased Maghar Singh. Appellant Mohinder Singh, therefore, approached Head Constable Bhim Sain with a request to use his good office to settle the matter so that Mohinder Singh would get back his wife Hamiro. It may be mentioned that the use of good office of Head Constable Bhim Sain had been requested by the appellant because deceased Maghar Singh along with Hamiro (the abducted lady) were staying as tenant in one of the tenements owned by the said Head Constable. Head Constable Bhim Sain then agreed to intervene. That was on 14.5.1990 at about 6.00 p.m. Head Constable Bhim Sain then told appellant Mohinder Singh that he would accompany him and would try to settle the matter. Bhim Sain and Mohinder Singh were then to leave together towards the tenements where Maghar Singh was staying. Appellant Mohinder Singh, however, left a little bit early for going to the house of Maghar Singh. Bhim Sain followed him. When Bhim Sain was approaching to the house of Maghar Singh, he saw that in the street near the house of Maghar Singh, a grappling between Mohinder Singh and Maghar Singh had started. Hamiro was then seen trying to separate these grappling persons and was shouting for help. Bhim Sain then rushed to the spot. Meanwhile, one Hem Raj also arrived at the spot. These persons were trying to separate these grappling persons. Just at that time appellant Mohinder Singh took out knife from his pocket and gave 45 blows on the person of Maghar Singh. As a result of that, Maghar Singh sustained various injuries to which we will make a reference at a later stage. Maghar Singh fell down. Hamiro then fell on Maghar Singh in order to save him from further knife blows. In the course of that Mohinder Singh gave knife blows to Hamiro also and caused injuries on her left buttock etc, the details of which we will give later. Maghar Singh succumbed to injuries at the spot. Head Constable Bhim Sain with the help of others, caught hold of Mohinder Singh and thus detained him then and there. Thereupon Head Constable Bhim Sain proceeded to give his First Information Report and met Sub Inspector Har Kishan at Barnala Kainchain crossing, Sangrur while he was on patrol duty, at 7.30 p.m. On the basis of that report, offence under Sections 302 and 324 IPC was registered at about 7.45 p.m. Papers indicate that special report regarding the First Information Report was received by the Magistrate at 9.25 p.m. on the same day.

The appellant pleaded not guilty to the charge. On completion of evidence, appellant was questioned under Section 313 Cr.P.C. His case was that his wife Hamir Kaur alias Hamiro had been abducted by deceased Maghar Singh. He, therefore, had been to the house of the deceased to advise him and Hamir Kaur that she should return back. Thereupon Hamir Kaur and deceased Maghar Singh challenged the audacity of the appellant as to his courage to come over there. It was followed by attack on the appellant by Hamir Kaur and Maghar Singh who were armed with knife. The appellant claimed that he was injured by the knife blows given by both of them. He further claims to have struggled in order to save himself and in that effort, he per chance happened to catch hold of the knife from the grip of Maghar Singh (deceased). He, therefore, claims to have wielded the knife and caused injuries in self defence to protect himself. He claimed that neither Bhim Sain not Hem Raj were then present. Thus, according to him, he was falsely implicated at the instance of Head Constable Bhim Sain because deceased happened to be the brother of one Bhola Singh who is employed in the police department and happened to be the friend of Bhim Sain. The trial Court did not find favour with the defence. The appellant came to be convicted and sentenced by judgment dated 18.5.1994, delivered by the Additional Sessions Judge, Sangrur.

In this Court on behalf of the appellant it was submitted that the appellant had been to Bhim Sain with a view to use his good office to prevail upon the deceased to return Hamiro, the wife of the appellant. On this es, it was submitted that the appellant, therefore, had not contemplated an untoward incident. It was further contended that as such the deceased appeared to have been annoyed on finding that appellant had approached his house with a view to take away Hamiro. On this premises, it was submitted that it stands to reason that the deceased was an aggressor and the appellant was left with no other alternative but to do something to save his life. These submissions of the counsel for the appellant do not appeal if one considers the evidence in totality. Since it was the case of the appellant that Hamir Kaur was his wife and was abducted by the deceased, he had also equally strong grudge against the deceased. The evidence of Head Constable Bhim Sain indicates that at about 6.00 p.m. on the day of incident, the appellant had approached him with a request to intervene in the matter. The evidence of Bhim Sain further indicates that on 10.5.1990, which is about four days prior to the incident, the appellant had been to him with a similar request for intervention to persuade the deceased to return Hamir Kaur. It, therefore, appears clearly that the appellant was also very much perturbed and annoyed on finding that deceased Maghar Singh had taken away Hamir Kaur. In the set of these circumstances, the grappling between the appellant and deceased Maghar Singh ensued when the appellant had been to the house of deceased Maghar Singh with a view to settle the matter regarding the return of Hamir Kaur. The evidence of Bhim Sain indicates that on the day of incident (that is on 14.5.1990), he came to his house at Sangrur after having attended the Court at Barnala. He came home at about 5.30 p.m. or 5.45 p.m. Shortly thereafter appellant Mohinder Singh approached him at about 6.00 p.m. with a request to intervene to settle the matter with the deceased. Bhim Sain agreed to intervene. The appellant appeared to be rather impatient in as much as he proceeded ahead of Bhim Sain, and by the time Bhim Sain proceeded towards the house of deceased, he found the appellant and deceased Maghar Singh grappling with each other and Hamir Kaur shouting for help. Bhim Sain then narrates that he then saw, Mohinder Singh giving knife blows on the person of Maghar Singh. Hamir Kaur fell upon Maghar Singh to save him; and in that effort sustained injuries which were later examined by the doctor, who testified these injuries as follows :

Incised wound on the left buttock, size 5 cm x 2cm x muscle deep. There was a corresponding cut to the salwar.

Incised wound on the right ring finger, size 2.5 cm x. 0. 1 cm x skin deep.

Abrasion on the right hand on the portion between right thumb and index finger.

The doctor further certified that these injuries No. 1 and 2 were caused by sharp edged weapon, injury No. 3 was by blunt weapon, and these were caused within 24 hours from the time of examination. Injuries to Hamir Kaur were examined by the doctor at about 10.55 p.m. on 14.5.1990. The presence of these injuries on the person of Hamir Kaur renders a sort of general corroboration to the prosecution case which indicates that these injuries were caused while Hamir Kaur fell on the deceased in order to save him from further knife blows. These injuries render a general corroboration to the testimony of Bhim Sain also who testifies that he saw Hamir Kaur had fallen on the person of the deceased to save him from further attack and in that attempt she sustained injuries due to knife blows by the appellant. Bhim Sain had testified accordingly and there is nothing in the crossexamination that would shake his testimony. It was, however, contended before us that the presence of Bhim Sain was improbable because he was then expected to be at his Police Station Bhadaur instead of at Sangrur where incident took place. It was contended that on 14.5.1990 Bhim Sain had admittedly been to Barnala in connection with a case before the Additional Sessions Judge. After he was free from there, he was supposed to return back to his Police Station at Bhadaur. Bhim Sain candidly admitted in his crossexamination that after attending the Court at Barnala, he came to Sangrur for which he had not obtained the prior permission from his superior. He further stated that he wanted to see his family members staying at Sangrur. Though it can be said that Bhim Sain had violated the rules of discipline inasmuch as he did not seek prior permission to go to Sangrur after attending the Court, for that reason alone, his presence at the scene of occurrence at Sangrur cannot be doubted. It is not unusual to find giving a liberal treatment to such rules pertaining to prior permission before an employee makes a detour to his home town in order to see his family members there. Such acts of violation are not strictly in keeping with the discipline. But such solitary breach is normally condoned with warning on the ground that these are minor in nature. The evidence of Bhim Sain clearly indicates that at Sangrur he has a house. His evidence further stood to the test of crossexamination in respect of the visit of the appellant himself on 10.5.1990 to request him to use his good office for settling the dispute regarding the abduction of Hamir Kaur. The evidence is also quite clear that deceased and Hamir Kaur were staying in one of the tenements belonging to Bhim Sain. All these circumstances if considered in the proper perspective would clearly indicate that the presence of Bhim Sain at the time and place of incident was quite natural and acceptable. Bhim Sain had no animosity against the appellant. There is nothing to indicate that Bhim Sain was out to involve the appellant falsely. On the contrary, the appellant had faith in Bhim Sain that his good office would prevail to settle the matter. To further substantiate the case regarding the presence of Bhim Sain at the scene of occurrence, the prosecution has placed on record Exhibit PR/1 dated 15.5.1990 which is an extract of register of Roznamcha in Police Station at Bhadaur. In that register there is an entry against the name of Bhim Sain which reads to indicate that Bhim Sain reported to that Police Station at 8.10 a.m. on 15.5.1990 after having attended the Court (on the previous day), and thereafter he joined the investigation in the present case. This entry in the Roznamcha in the Police Station is enough to indicate that the movements of Bhim Sain were recorded in the Police Station as early as possible. It also further indicates that superiors of Bhim Sain did not find any irregularity in the said entry and in the movements of Bhim Sain on 14th and 15th May, 1990. In the set of all these circumstances, we are of the opinion that the presence of Bhim Sain at the place and time of incident is amply established. He is not at all shaken in the crossexamination. His testimony further finds support from other pieces of evidence to which we now propose to refer.

PW3 Hamiro had testified that in the past she was married to one person named Chhota Singh. Her evidence indicates that she thereafter left her husband and joined the appellant. According to her testimony, she left the appellant because he had started illtreating her. She, therefore, started living with deceased Maghar Singh. It, therefore, clearly appears that the appellant was annoyed because Hamir Kaur thus left him. Evidence of Hamir Kaur further indicates that on the day of incident, appellant Mohinder Singh came near their house. Thereafter there was grappling between the appellant and the deceased. She claims to have tried to separate them. In the course of incident Mohinder Singh gave knife blows to Maghar Singh. She further describes the portion of the body of Maghar Singh thus attacked. Maghar Singh then fell down. She further claims that she fell upon Maghar Singh to save him from further assault. Thereupon appellant Mohinder Singh gave knife blows to her and caused injuries on her buttock and index finger. It may be recalled that these injuries had already been referred above. Presence of these injuries renders us a ring of truth in respect of the claim that these injuries had been sustained by her in the manner stated above. Hamir Kaur further testifies regarding the presence of Bhim Sain at the lime of incident. She further testifies that Bhim Sain and other persons caught hold of appellant Mohinder Singh and he was made to sit at the spot and was detained there. She further testifies that Bhim Sain thereafter left to lodge the report. Most of her crossexamination consists of the questions pertaining to her marriage and the claim by the appellant that she was the legally wedded wife of the appellant. In our considered opinion, the question regarding the legality or otherwise of the marriage or the fact of the marriage of Hamiro and appellant Mohinder Singh, has very little bearing on the merits of the case. The evidence on record and even the stand taken by the appellant, clearly establishes the fact that the appellant was annoyed on finding that Hamir Kaur had left him and started living with the deceased. That obviously had created tension between the two, and clearly appears to have provided provocation for the incident in this case. The testimony of Hamir Kaur in so far as it relates to the manner in which the deceased was assaulted by the appellant, has remained unshaken. Her presence at the scene of occurrence at the time of incident is also amply proved due to the unshaken testimony supported by the injuries on her person which clearly indicates that she sustained the injuries in the circumstances claimed by her. We, therefore, find nothing to disbelieve her testimony, The appellant has led evidence in defence, DW2 Jwala Singh and DW4 Jagga Singh to substantiate the case that Hamir Kaur was his legally wedded wife. As observed above, we find these pieces of evidence having little bearing over the main case of assault.

It was contended that there is no evidence to show as to who started the attack initially. On this premises it was contended that the defence put forth by the appellant that he acted in selfdefence, would be acceptable. These submissions also do not appeal us in the light of evidence on record. The evidence clearly shows that on 10.5.1990, the appellant had approached Bhim Sain with a request that he should prevail upon Maghar Singh in order that Hamir Kaur should return back to the appellant. The day of incident was the second attempt by the appellant to request Bhim Sain to intervene in the matter. It, therefore, stands to reason that the appellant was also annoyed by Hamir Kaur''s stay with deceased Maghar Singh. In the set of these circumstances, obviously the temper would raise high on the issue of stay of Hamir Kaur. The evidence further clearly shows that the incident in this case took place on a road in front of the residence of the deceased. It appears that in those summer days the deceased and Hamir Kaur had come out of the house during that evening and were sitting at the outer door of the house in order to get some breeze. They had not expected any untoward incident. On the other hand, the evidence clearly shows that the appellant had carried with him a knife. The knife with which the injuries were caused was of the size which was enough to cause injuries to kill a person instantaneously. In the context of the stand of selfdefence by the appellant, the nature of injuries found on the person of the deceased Maghar Singh also deserve due attention. These are :

Incised injury on the right side chest, 4 cm below and medial to the right nipple. Size 3 cm x 1 cm x muscle deep.

Incised injury 3 cm x 1 cm x penetrating into abdominal cavity. The right lobe of the liver was cut.

Incised injury, 3 cm x 1 cm x penetrating x abdominal cavity. The stomach was cut in its lower part.

Incised injury 3.5 cm x 1 cm x wound deep upto abdominal cavity. It was on the right side near umbilicus.

Incised injury on the left side of umbilicus Size 3.5 cm x 1 cm x abdominal cavity.

Incised injury 3 cm x 1 cm x muscle deep, situated on the left side chest between 9th and 10th ribs.

Contusion 5 cm x 3 cm on the front of the left fore arm.

Abrasion on the elbow, size 6 cm x 4 cm.

Abrasion on the right knee, size 5 cm x 3 cm.

The doctor further states that the death was as a result of shock and haemorrhage due to the injuries referred above. He further testifies that the above mentioned injury No. 2 was individually sufficient to cause death in ordinary course of nature. Same was the case in respect of injuries No. 3, 4 and 5, taken individually. He testifies further that injuries No. 1 to 6 could have been caused by the knife before the Court. It may be recalled that according to the prosecution evidence, which is unshaken, the appellant was apprehended at the spot along with the knife in question. Moreover, it may be mentioned here that even according to the appellant, as stated in his statement under Section 313 Cr.P.C. the knife in question had come in his possession per chance in the course of struggle to defend himself and he claims to have wielded that knife in self defence. It is contended that due to the attack by the deceased at the initial stage, appellant also sustained injuries. In the context of the stand taken by the appellant it would be worthwhile to refer to the injuries sustained by the appellant.

PW 2 Dr. Suresh Goel testifies these injuries as follows :

Incised injury on the right index finger at its base on the lateral side. Size 1.5 cm x skin deep.

Lacerated wound above the right eyebrow size 3 cm x 0.2 cm x scalp deep.

Lacerated wound on the left side of scalp, size 1 cm x 0.1 cm x scalp deep.

A look at these injuries would reveal that the injuries sustained by the appellant were of minor nature. It may be recalled that before the assault with the knife by the appellant, there was a grappling between the two. The lacerated wound No. 2 and 3, sustained by the appellant could have been caused during the course of that struggle. The incised injury to the index finger of the appellant could have been also caused by the sharp edge of the knife while holding it in the right hand in the course of assault. Further, the six incised injuries found on the person of the deceased clearly support the prosecution case. Besides that, the injuries sustained by Hamir Kaur also substantiate the prosecution case, as discussed above. On behalf of the appellant our attention was invited to certain rulings. In the case of Ram Deo Nibar v. The State of UP., 1968 CAR 314 (SC), their Lordships of the Supreme Court were considering a case wherein appellant was seriously injured by the complainant party armed with lathis and the pelting the brickbats. In the selfdefence the accused, while at a considerable distance, aimlessly fired from a gun without inflicting injuries to the vital part. Obviously, that case is totally inapplicable. In the other case of Deo Narain v. The State of UP., 1973 CAR 72 (SC), their Lordships of the Supreme Court were considering the case wherein the facts indicated that the accused had given only one spear blow on finding that his life was in danger because of the attack on him by persons armed with lathis, In the set of these facts, the Supreme Court observed that in the moment of excitement or disturbed mental equilibrium, it would be difficult to expect parties facing grave aggression to coolly weigh, as if in golden scales, and calmly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient to use force in selfdefence. In the present case, we find as many as six incised injuries out of which at least five would be fatal individually, as opined by the doctor. In another case of Mohan Singh v. State of Punjab, AIR 1975 Supreme Court 2161, their Lordships of the Supreme Court observed that the right of selfdefence need not be proved beyond reasonable doubt. As regards that proposition, there would not be any second opinion. The only question of fact would be as to whether in the present case, the right of selfdefence can be legitimately acceptable. In the case of Balbir Singh v. State of Punjab, 1976 CLR 383, the Division Bench of this Court was considering the case of an accused who had sustained serious injuries. In this case, we find that the injuries to the accused were not serious. Besides that, these injuries are capable of being attributable to the sequence of events indicated in the prosecution case itself. Obviously, the observation of their Lordships based on the set of facts in that case cannot be bodily lifted from there to make applicable to the present case having different set of facts. In the case of Sudarshan Lal v. The State of Punjab, 1981 C.C. Cases 38, the Division Bench of this Court was considering a case wherein there was a single knife blow on the left mandible angle causing the injury of the size of 3 cm x 1.5 cm. The deceased was also found to have consumed alcohol. The appellant had sustained ten abrasions on various part of his person, which included abrasions on the forehead, parietal region, back of the head, top of the head etc. In the set of these circumstances, their Lordships considered the question of right of self defence. Obviously, on facts that case is distinguishable. In the case of State of Punjab v. Jagir Singh, 1992(1) C.C. Cases 129, their Lordships of the Division Bench of this Court, took into consideration the stand taken by the accused coupled with six various circumstances and arrived at the conclusion that the presence of the eyewitnesses was doubtful. On considering the inherent improbabilities of the case in the light of circumstances narrated in that case, their Lordships found that the accused deserved acquittal because the evidence was not corroborated. Obviously, that case is inapplicable to the facts of the present case.

A brief reference to the defence evidence would also be necessary. The evidence of DW1 Gurdev Singh was led by the appellant to support his case of selfdefence. He testifies that a quarrel between the appellant and the deceased ensued. He further testifies that the deceased had a knife with him whereas the appellant was without any weapon. He claims that deceased Maghar Singh gave a knife blow on the right arm of the appellant. Here it may be mentioned that injury on the right eyebrow of the appellant is described as lacerated injury. A knife blow, purporting to be a blow with the sharp edge of the knife, would cause an incised wound. DW1 Gurdev Singh further testifies that a lady came forward to attack appellant Mohinder Singh, and thereafter Mohinder Singh started running. On perusal of his testimony, it is clear that even according to this evidence, the appellant could flee away after having received an injury to the eyebrow. It is not indicated that the appellant had to resort to a knife blow to the deceased in order to save himself. On perusal of the evidence, it is clear that his testimony is of no use to support the case of the appellant. The other piece of evidence pertains to testimony of DW 1 Jwala Singh, who testifies regarding the marriage of appellant and Hamiro. As observed earlier, the fact of marriage in this case has very little bearing over the incident. All that can be said is that Hamir Kaur who was living with the appellant, later on left him and came to stay with the deceased. The evidence of DW 3 is insignificant because it pertains to some sale deed executed by Hamir Kaur. That has no bearing over the incident of assault in this case. Evidence of DW 4 is also led in support of the fact of marriage of Hamir Kaur and the appellant. We thus find that the defence evidence in this case has very little bearing on the facts, and is in capable of creating an element of doubt regarding prosecution evidence.

We, therefore, find no substance in the appeal and the same is hereby dismissed.

However, before parting with this judgment, we would like to observe that the learned Additional Sessions Judge totally forgot to consider the other charge under Section 324 IPC which pertained to the injuries caused to Hamir Kaur. The charge framed against the appellant was in respect of offence under Sections 302 and 324 IPC. The judgment pertains to the conviction under Section 302 IPC only, and there is no discussion regarding the offence under Section 324 IPC. Since the State has not preferred appeal, it would not be now possible to consider the charge under Section 324 IPC. All the same, we would like to say that such accidental omission in the judgment could have been avoided if the learned Additional Sessions Judge had taken care to frame suitable points for consideration, and if he had recorded finding on each of those points. We find that the lower Courts generally do not frame any point for determination while writing judgments in the criminal cases. The attention of the lower Courts is, therefore, invited to the provisions contained in Chapter XXVII of the Code of Criminal Procedure. Clause (b) of Section 354 of the Code states that the judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision. (Emphasis supplied). Moreover, we would like to emphasise that the provisions of all these sections in Chapter XXVII of the Code should be carefully read and applied by the lower Courts while writing judgments. We generally find that these provisions are totally ignored by the lower Courts. In the present case, the Court should have framed suitable points for determination, keeping in view the charges framed against the accused and keeping in view the necessary ingredients to prove those charges.

Against each of those points, the finding should be recorded. The findings should be supported by reasons to be followed soon after the points for determination are mentioned in the body of the judgment. On finding that these provisions given in the Code of Criminal Procedure are generally ignored by the trial Courts, we direct that this judgment should be circulated in all the Sessions Divisions with a direction to the Sessions Judges to invite the attention of the Judges in his Sessions Division to the observations made in this judgment with a view to follow these instructions in future.

JUDGMENT accordingly.