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Judgment
Vijender Singh Malik, J.—Ranjit Singh and Kanwaljit Singh, Appellants alongwith their father Gurbachan Singh have filed this appeal against the judgment dated 20.03.2002 passed by learned Sessions Judge, Amritsar, convicting Ranjit Singh, Appellant, for an offence punishable u/s 302 of the Indian Penal Code and the remaining two Appellants namely Kanwaljit Singh and Gurbachan Singh for the said offence with the aid of Section 34 of the Indian Penal Code, Kanwaljit Singh, Appellant for an offence punishable u/s 307 IPC and the remaining two Appellants namely Ranjit Singh and Gurbachan Singh for the said offence with the aid of Section 34 of the Indian Penal Code and the order of sentence of the said date vide which the following sentences were awarded to them.
Ranjit Singh
302 IPC
Imprisonment for life and
to pay a fine of Rs.1000/-.
In default of payment of fine
to further undergo RI for six
months.
Kanwaljit Singh &
Gurbachan Singh
302/34 IPC
Imprisonment for life and
to pay a fine of Rs.1000/-
each.In default of payment
of fine to further undergo RI
for six months.
Kanwaljit Singh
307 IPC
To undergo rigorous
imprisonment for 10 years
and to pay a fine of
Rs.500/-. In default of
payment of fine, further
undergo RI for three
months.
Gurbachan Singh &
Ranjit Singh
307/34 IPC
To undergo rigorous
imprisonment for 10 years
and to pay a fine of
Rs.500/-each. In default of
payment of fine, further
undergo RI for three
months.
All the sentences were ordered to run concurrently.
The case set up by the police of Police Station Sarhali District Amritsar against the Appellants is as under:
Smt. Viro Kaur, resident of village Dargapur is the complainant in this case. Her husband Gurmej Singh died about 22 years back and after his death, she cohabited with Shabegh Singh, brother of her husband. She had one son named Gurdev Singh and a daughter named Manjit Kaur from her husband Gurmej Singh, whereas from the loins of Subegh Singh, Rajwinder Kaur, Gurbhej Singh and Tajinder Singh were born. There was marriage of the daughter of Pandit Gurdev Raj to be solemnised in the village on 22.01.2000. On the evening of 21.01.2000, there was Bhog ceremony of Akhandpath at the house of the said Pandit Gurdev Raj. Her sons Gurdev Singh and Gurbhej Singh went there for rendering services in the Bhog ceremony. Smt. Viro Kaur also attended the function alongwith her daughters namely Manjit Kaur and Rajwinder Kaur. After giving Shagan, Smt. Viro Kaur was returning to her house at about 9.00 PM. Ranjit Singh and Kanwaljit Singh sons of Gurbachan Singh were seen standing near her house. There was an electric bulb lit at the spot. On seeing the complainant Ranjit Singh told the complainant, addressing her as ''Bhabhi Ji'', that she should have some amorous talks with them. Gurdev Singh and Gurbhej Singh were following the complainant. They reached the spot and took ill of the indecent remark of Ranjit Singh, which resulted in some scuffle between Ranjit Singh and Kanwaljit Singh, Appellants on the one hand and Gurdev Singh and Gurbhej Singh, on the other hand. Gurbachan Singh Appellant, father of Ranjit Singh and Kanwaljit Singh also came there in the meanwhile and exhorted his sons(his co-Appellants) to catch hold of them and to teach them a lesson for their pride. Gurbachan Singh and his son Kanwaljit Singh caught hold of Gurdev Singh from his hair while Ranjit Singh, Appellant gave a knife blow to Gurdev Singh in the right side of his abdomen below the chest. He repeated the blow with knife, which hit Gurdev Singh on the left side of abdomen below umblicus. Gurbhej Singh tried to rescue his brother. Thereafter, Kanwaljit Singh took the knife from Ranjit Singh and gave a blow in the left flank of Gurbhej Singh. On the hue and cry raised by the complainant and others, the three Appellants ran away from the spot. Thereafter, the injured were shifted to Government Hospital, Sarhali for treatment where Gurdev Singh died. Gurbhej Singh in the meanwhile became unconscious and the doctor at Government Hospital, Sarhali referred him to Guru Nanak Dev Hospital Amritsar, for treatment.
Bhola Singh, SI/SHO of Police Station, Sarhali was present in the police station, when a writing was received from SMO Civil Hospital,Sarhali about the admission of Gurdev Singh in injured condition, followed by his death, as also of Gurbhej Singh, who had been referred to GND Hospital Amritsar. Bhola Singh, SI then reached Civil Hospital, Sarhali alongwith other police officials where he met Smt. Viro Kaur and recorded her statement Ex.PH. He had made his endorsement thereon recommending registration of a case and sent the same to Police Station Sarhali, on the basis of which Gurbans Singh, SI recorded the formal FIR. Special report of the case was also sent to Illaqa Magistrate and others through Bhupinder Singh, constable. Thereafter, Bhola Singh, SI went to the mortuary at Civil Hospital, Sarhali where the dead body of Gurdev Singh was kept. He had conducted the inquest proceedings. An application for conducting the post mortem examination of the dead body of Gurdev Singh was addressed to the doctor by Bhola Singh, SI. He seized blood stained bed sheet, on which Gurdev Singh was lying, converted the same into a sealed parcel and took the same into possession by way of recovery memo.
On 22.01.2000 Bhola Singh, SI reached the spot in village Dargapur and inspected the same. Thereafter, he prepared rough site plan of the place of occurrence. He also lifted blood stained earth from the place of occurrence, sealed it and took the same into possession vide recovery memo Ex.PK. He also recorded the statements of the witnesses. Thereafter, he went to the house of the Appellants but could not find them there. On return to the Police Station, the case property with seals intact was entrusted to the MHC.
On the same day, Bhola Singh, SI went to Guru Nanak Dev Hospital, Amritsar where Gurbhej Singh was taking treatment as in-door patient. On his application, the doctor, treating Gurbhej Singh, declared him unfit to make statement. After the post-mortem examination conducted by Dr. Brij Mohan, Medical Officer, Civil Hospital, Taran Taran, the clothes of the deceased were given to the accompanying police officials, who had produced the same before Bhola Singh, SI/SHO. The latter gave them in the shape of parcel and putting seal on the same, took them into possession by way of recovery memo Ex.PT. The same were also deposited with the MHC with seals intact.
On 23. 01.2000 all the three Appellants were arrested by Bhola Singh, SI/SHO from their village. On 24.01.2000 Ranjit Singh, Appellant was interrogated in the presence of the witnesses. He disclosed that he had kept concealed a knife under the bedding spread on the cot and offered to get the same recovered. His statement to this effect was recorded, which was thumb marked by him. Thereafter, Ranjit Singh led the police party to the said place and got recovered a knife. Sketch of the knife Ex.PU/1 was prepared and after giving it in the shape of parcel, it was sealed and was taken into possession by way of recovery memo Ex.PU/2. After recording the statements of the witnesses, offence punishable u/s 307 of the Indian Penal Code was added to the case with regard to the injuries received by Gurbhej Singh. The case property was again deposited with the MHC with seals intact. On completion of the investigation, challan against the Appellants was prepared by Bhola Singh, SI/SHO.
Learned Sessions Judge, Amritsar, vide his order dated 08.08.2000 found a prima-facie case against Ranjit Singh for an offence punishable u/s 302 IPC and for the said offence with the aid of Section 34 IPC against the remaining two accused and similarly against Kanwaljit Singh, accused for an offence punishable u/s 307 IPC and against the remaining two accused for the said offence with the aid of Section 34 IPC. To the charge so framed against the Appellants, they pleaded not guilty and claimed trial.
The prosecution has examined eleven witnesses during the course of trial whereas eight witnesses were given up as unnecessary. Thereafter learned Public Prosecutor for the State made statement on 10.11.2001 closing the prosecution evidence after tendering chemical report Ex.PV.
The accused were examined thereafter in terms of Section 313 Code of Criminal Procedure Ranjit Singh, accused denied the prosecution evidence put to him in the shape of questions. He has claimed himself to be innocent and to have been falsely implicated in the instant case. Similarly the remaining two accused have also denied the truth of the prosecution evidence put to them in the shape of questions and have claimed themselves to be innocent and to have been falsely implicated. However, no evidence in defence was led by the accused.
After hearing learned public prosecutor for the State, learned defence counsel and going through the evidence on record, learned trial court convicted and sentenced the accused as stated hereinbefore.
Feeling aggrieved against the judgment of conviction and the order of sentence rendered by the trial court, the instant appeal was filed by the Appellants.
We have heard Mrs. Baljit K. Mann, learned Counsel for the Appellants and Mr. K.D.S. Sidhu, learned Addl. A.G., Punjab, for the Respondent-State and have gone through the record of the case with their assistance.
Learned Counsel for the Appellants drew our attention to the FIR Ex.PH/2 as well as the statements of Viro Kaur, PW-6 and Gurbhej Singh, PW-7 to contend that the occurrence had taken place on account of sudden provocation.
According to her, the remark of Ranjit Singh, Appellant made to Viro Kaur, offended Gurdev Singh and Gurbhej Singh and they grappled with the Appellants namely Ranjit Singh and Kanwaljit Singh. According to her, on this provocation the occurrence took place and, therefore, the Appellants cannot be said to have been working with the intention to cause murder while giving knife blows to Gurdev Singh. She has further submitted that the relations between the family of Viro Kaur and Gurbachan Singh were cordial. According to her, Viro Kaur herself admitted in her cross-examination that Gurbachan Singh, Appellant used to treat her children as his own children and they had been on good visiting terms. According to her, this background would also help the Court in reaching the conclusion that the knife blows should not have been given by Ranjit Singh, accused with the intention of causing murder of Gurdev Singh and, therefore, the conviction of Ranjit Singh, accused and others for the offence punishable u/s 302 IPC cannot be sustained.
Learned Counsel for the Appellants has further submitted that Gurdev Singh and Gurbhej Singh had come after participating in the Bhog ceremony of the Akhandpath. According to her, they may have taken liquor over there and on account thereof under the influence of liquor, they had reacted violently to the remarks of Ranjit Singh, Appellant addressed to their mother. According to her, this sparked the occurrence and it is, therefore, not a case for conviction u/s 302 of the Indian Penal Code.
Learned Counsel for the Appellants has further submitted that it is unbelievable that the knife was taken by Kanwaljit Singh, Appellant from the hand of his brother namely . Ranjit Singh, Appellant after the latter had given two blows with it to Gurdev Singh. According to her, this story has been made just to involve Kanwaljit Singh, Appellant who had to leave India for abroad, a few days after the date of occurrence, as is admitted by Smt. Viro Kaur, complainant, PW-6 in her cross-examination.
Learned Counsel for the Appellants has further submitted that the evidence regarding involvement of Gurbachan Singh is very shaky and unbelievable. According to her, the evidence regarding ''Lalkara'' is also not consistent. She has further submitted that the ''Lalkara'', as alleged would only prove that Gurbachan Singh exhorted his sons to catch hold of Gurdev Singh and Gurbhej Singh and teach them a lesson for being proud. She has further submitted that Gurbachan Singh, who was not even present at the spot when Ranjit Singh and Kanwaljit Singh are said to have made indecent remark towards Smt. Viro Kaur, it cannot be believed that he was attracted to the spot and had raised lalkara. According to her, the role assigned to Gurbachan Singh in the occurrence does not stand proved from the prosecution evidence. She has further submitted that Viro Kaur, PW-6 has stated in her statement that Kanwaljit Singh Appellant caught hold of Gurdev Singh while Gurbhej Singh, PW-7 has stated that Gurbachan Singh had caught hold of Gurdev Singh. She has further submitted that under these circumstances, it cannot be said that Gurbachan Singh, accused was even present at the spot and, therefore, he deserved to be acquitted of the charges framed against him.
Learned Counsel for the Appellants has lastly submitted that the only injury caused to Gurbhej Singh is not enough to attract the provisions of Section 307 of the Indian Penal Code. According to her, it is not proved on the record that the injury allegedly caused on the person of Gurbhej Singh was dangerous to life. She has drawn our attention to the statement of Dr. Amarjit Singh, PW-3 , who has opined the injury of Gurbhej Singh to be dangers to life on the strength of the x-ray report and surgeon''s operation notes. According to her, the surgeon has no where mentioned the injury to be dangerous to life. She has further submitted that the prosecution has failed to lead sufficient evidence to support the conviction of the Appellants for any offence.
Learned Additional Advocate General, Punjab for the Respondent-State, on the other hand, has supported the reasons given by the learned trial Court and its finding of guilt recorded against the accused-Appellants vide the impugned judgment and the sentence awarded to them. According to him, the judgment is based on reliable evidence to which no exception could be taken.
Some indecent remark was made by . Ranjit Singh towards Smt. Viro Kaur. Her young sons namely Gurdev Singh and Gurbhej Singh were unable to tolerate the same and they rushed towards Ranjit Singh and Kanwaljit Singh to grapple with them. The question that would now arise is as to whether they had actually grappled with them or not. There is no injury at all reported by . Ranjit Singh and Kanwaljit Singh to have been caused to them by the deceased and the injured. Grappling would be the name given to the act of the injured and the deceased if they had reached Ranjit Singh and Kanwaljit Singh had touched them with a view to protest their remark. It might at that time that Ranjit Singh used the knife held by him. He did not give only one blow but repeated the same. The gravity of the injuries caused to Gurdev Singh could be assessed by the fact that he could not survive for long. Ex.PK the post-mortem report mentions the time of death of Gurdev Singh as 11.50 PM on 21.1.2000.
The injured survived for 2 hours and 50 minutes only after the receipt of the two blows. The vital organs affected by the blows and the intestines to which the blows were given, clearly rule out the possibility of the occurrence to have been sparked by a sudden provocation given by the injured and the deceased to the Appellants.
Although it has been suggested to Gurbhej Singh, PW-7 that he and his brother Gurdev Singh had taken liquor in the Bhog ceremony, yet he has denied the same. Although he has admitted in his cross-examination that liquor was being served on the occasion but it is not necessary that two young boys would have taken liquor on the occasion, attended by their mother also. Presence of liquor or even smell of alcohol was not noticed by the doctor in the cases of the deceased and the injured. Therefore, it cannot be believed that the reaction of sons of Smt. Viro Kaur would have been so violent to the indecent remark of the Appellant towards their mother that could give justification to Ranjit Singh to repeatedly use his knife on Gurdev Singh.
Dr. Amarjit Singh, PW-3 has stated about two wounds found on the person of Gurbhej Singh, PW-7; one is alleged to have been caused by Kanwaljit Singh, accused and the other is a surgical wound, which was made for repairing the internal organs of Gurbhej Singh. Dr. Armarjit Singh, PW-3 has specifically stated that on receipt of x-ray report and from the operation notes of the surgeon, he gave his opinion on 03.02.2000 that injury No. 1 of Gurbhej Singh was dangerous to life. The submission of learned Counsel for the Appellants that this evidence is not sufficient to prove the injury to Gurbhej Singh as dangerous to life and to further attract the provisions of Section 307 of the Indian Penal Code, to the acts of the Appellants, is liable to be rejected for the simple reason that the said doctor has not been questioned at all on this part of his statement. It shows that his entire statement has been accepted by the defence because the opportunity given to the defence for cross-examination was allowed to slip out. Now there is no reason for us to believe that surgeon''s report was not sufficient for Dr. Amarjit Singh, PW-3 to declare injury No. 1 of Gurbhej Singh to be dangerous to life. The injury had been caused by a sharp edged weapon and as per Ex.PC the bed head ticket of Gurbhej Singh, the said injury had cut the colon, which was repaired by the doctor and a drainage tube was put in the stab wound. The peritoneal cavity was washed and stitching was done. The patient remained in the hospital till 05.02.2000. In the absence of a challenge from the side of the defence to the above said medical evidence, the submission of learned Counsel for the Appellants cannot be accepted. The blow had affected the internal organs, which were repaired, drainage tube was put and it shows that the injury was dangerous to life. The evidence on record shows that if immediate medical help would not have been made available to Gurbhej Singh, he could also have died. Therefore, it cannot be said that the finding recorded by the trial court against Kanwaljit Singh, Appellant with regard to offence u/s 307 IPC is unjustified.
Another aspect that remains to be considered is about the knife changing hands. It is not improbable that Kanwaljit Singh, Appellant took the knife from the hands of his brother and gave blow with it to Gurbhej Singh, who had come to intervene between Ranjit Singh and Gurdev Singh. There is no law that such thing could not happen in the circumstances of this incident.
The main aspects which are yet to be considered are ''Lalkara'' and the aspect of common intention which would attract the provisions of Section 34 of the Indian Penal Code. The Lalkara alleged in the FIR to have been raised, is not sought to be improved at the trial. It is for catching hold of Gurdev Singh and Gurbhej Singh, to teach them a lesson for being proud. It cannot be inferred from these words that the exhortation was to kill the injured and the deceased. Common intention does not require premeditation to occur. It could be formed at the spot. It has to be seen as to whether Ranjit Singh and Kanwaljit Singh acted on any such lalkara. It has to be noticed from the statements of Vero Kaur and Gurbhej Singh, PW-6 and PW-7 respectively that the former had assigned the role of catching hold of Gurdev Singh to Kanwaljit Singh accused while the latter assigned this role to Gurbachan Singh. The question now is whom to believe and whom not. Even if the presence of Gurbachan Singh at the spot and his raising the alleged lalkara is believed, the same cannot be held sufficient to infer that all the three accused were acting with the common intention to kill Gurdev Singh or causing an injury dangerous to life to Gurbhej Singh.
For these reasons, we do not find the prosecution to have been able to prove the guilt of Gurbachan Singh, Appellant for any of the offences with or without the aid of Section 34 of the Indian Penal Code. It has been found that all the three Appellants were not working with the common intention of causing death. Therefore, Ranjit Singh and Kanwaljit Singh, accused-Appellants would become responsible for their individual acts only. In these circumstances, the conviction of Kanwaljit Singh and Gurbachan Singh for an offence punishable u/s 302 read with Section 34 IPC and that of Gurbachan Singh and Ranjit Singh accused-Appellants for an offence punishable u/s 307 read with Section 34 of the Indian Penal Code cannot be sustained. Their conviction for the said offence is, therefore, set aside and they are acquitted of the charge framed against them. The conviction of the Appellant namely Ranjit Singh for an offence punishable u/s 302 of the Indian Penal Code and that of Kanwaljit Singh, accused-Appellant for an offence punishable u/s 307 of the Indian Penal code is found to be well established by the prosecution in their evidence. Their conviction for the said offence is, therefore, upheld. The sentence awarded to Ranjit Singh for the offence punishable u/s 302 IPC is, therefore, maintained. However, the sentence awarded to Appellant Kanwaljit Singh for the offence punishable u/s 307 IPC being on the higher side, is reduced to rigorous imprisonment for a period of five years.
Accordingly, the appeal is partly allowed.