Salinder Singh vs State of Punjab

Harjit Singh Bedi, J.

Salinder Singh and his three sons Mehar Singh, Gurdip Singh and Kashmir Singh were committed to trial in the court of Sessions Judge, Ferozepur for offences under Sections 326 and 302 read with Section 34 of the Indian Penal Code on the following facts unfolded by Mohinder Singh P.W.2.

On 24.7.1992 at about 7.30 p.m. Mohinder Singh PW2 along with his son Kartar Singh (deceased) went to the shop of Mistry Sucha Singh to get his plough repaired. In the meantime, his elder son Pargat Singh, who lived separately though in the same village, came there. Seeing all three of them standing at the shop of Sucha Singh, Salinder Singh armed with a barcha, Mehar Singh and Kashmir Singh both armed with Kirpans and Gurdip Singh armed with Sotta came there. Gurdip Singh raised a lalkara that the complainant party be not allowed to escape and be taught a lesson for the dispute with regard to the water course. On this exhortation, Mehar Singh have a Kirpan blows to Kartar Singh which hit him on his left arm, Kashmir Singh gave a Kirpan blow to Pargat Singh which hit on his left palm and Salinder Singh gave a barcha blow to Kartar Singh on his left shoulder, whereupon he fell down and while he was lying on the ground Salinder Singh gave another barcha blow which hit him on his back whereas Mehar Singh and Kashmir Singh gave many blows to Pargat Singh on his left hand and arm. Mohinder Singh PW raised an alarm whereupon Harbhajan Singh whose house was nearby came running and the assailants left the spot with their respective weapons. Mohinder Singh PW thereafter arranged for a tractor and took the injured Pargat Singh and Kartar Singh and got them admitted at 11.20 p.m to the Mission Hospital, Ferozepur. Kartar Singh was examined and it was found that he had bled profusely and was in a state of shock and he was ultimately declared dead at about 1.42 a.m. the next morning i.e. 25th July, 1992. Leaving the dead body of Kartar Singh with Harbhajan Singh, Mohinder Singh left for the police station when he met Sub Inspector Baldev Raj PW6 near the bus stand Kawabora where his statement Ex.PD was taken down which formed the basis of the formal FIR Ex.PD/2, recorded by ASI Yadwinder Singh at 6.30 a.m. the same day at Police Station Ghall Khurd. The special report was also delivered to the Ilaqa Magistrate at Ferozepur at 10.30 a.m., the same morning. The cause of the incident as given by Mohinder Singh PW2 was that his water course has been demolished by Salinder Singh regarding which a matter was pending before the Canal authorities and that this had annoyed the accused party and had led to the crime.

The prosecution in support of its case examined Dr. Pritam Singh Sauna PW1 who had conducted the postmortem examination on the dead body of Kartar Singh and had found the following injuries on his person:

An incised wound 21 cm x 10 cm on both bones of the left forearm was sharply cut with the intervening muscles and main blood vessels of the left forearm was also cut and all the muscles on both sides of the bones were sharply cut obliquely in the direction of the wound with all the blood vessels sharply cut. The blood clot was present. The wound was situated on the posteromedial aspect of the left forearm and was 4 cm above the left wrist.

An incised wound 4 cm x 3 cm on the posterlateral side of the left forearm 5 cm above the wrist. The underbone radious was sharply cut. Fracture was present. On dissection blood clot was present with liquid blood.

An incised wound 2 cm x 1.5 cm on the left upper arm on the medial side of deltoid region 9 cm below the acrominial prominax. On dissection the periosteam of the underlying bone was sharply cut and the blood was oozing from the wound side.

An incised wound 3 cm x 2 cm on the back of right shoulder 8 cm below the acrominial prominax. On dissection the underlying bone scapula was partially cut. Fracture was present. The blood was oozing out from the wound.

An abrasion 3 cm x 0.5 cm on the right side of the neck in its upper part and was 7 cm away from the mid line from the neck. On dissection the hyoid bone was fractured on the left side corresponding to the injury. The contusion of the intervening tissue was present.

The doctor also found that there was a smell of alcohol from the contents of the stomach and opined that the cause of death was due to haemorrhage and shock as a result of the injuries which were sufficient to cause death in the ordinary course of nature.

The eyewitness account was given by Mohinder Singh PW2 and Pargat Singh PW3, the injured witness, PW6 SI Baldev Raj investigated the case whereas PW7 Dr. Rachard deposed regarding the admission of the deceased and the injured to the Mission Hospital on the relevant date. The prosecution case was thereafter put to the accused but they pleaded innocence and claimed trial. The trial court came to the conclusion that the prosecution had not been able to prove the case against the accused with regard to the charge under Section 326 IPC for the injuries suffered by Pargat Singh, whereas the involvement of Gurdip Singh too was not proved with regard to any offence. Having held as above, he acquitted Gurdip Singh in toto whereas acquitted the three accused for the offences mentioned above, but held them guilty for having caused the murder of Kartar Singh and accordingly sentenced them to imprisonment for life and a fine of Rs. 500/ each for the offence under Section 302 read with section 34 of the Indian Penal Code. Hence the present appeal at the instance of the three convicted accused.

Mr. M.L. Merchea, learned counsel for the appellants, has first and foremost argued that as per the first information report Kashmir Singh had caused injuries on Pargat Singh alone and as these injuries on the person of Pargat Singh had not been found to be proved and no State appeal having been filed to that extent, the participation of this accused was in doubt. In this connection he has relied on the findings of the trial Court. It is undoubtedly true that the accused have been acquitted for the charge with respect to the injuries on Pargat Singh but we nevertheless find that the reasoning given by the trial court was erroneous in this respect. Para 19 of the judgment of the trial court is reproduced below :

"It is fairly conceded by the State that no injury by sharp edged weapon has been caused by Kashmir Singh as alleged. Therefore, he is acquitted of the charge framed under section 326 IPC. Salinder Singh, Mehar Singh and Gurdip Singh are also acquitted of the charge under Section 326 IPC read with section 34 of the Indian Penal Code."

From a reading of the aforequoted paragraph, it is clear that the solitary ground for exonerating the accused for the offence under section 326 IPC was that no injury with a sharp edged weapon had been found on Pargat Singh and this had been fairly conceded by the State counsel, but we found from a reading of Ex.PV which is the medicolegal report of Pargat Singh that the trial court had misread this document as to the nature of the injuries on the said injured. The doctor who recorded the report had clearly noted that there was a lacerated wound on his left hand which was an incised wound and then went on to say that it was grievous in nature. It is therefore apparent that the statement made by the State counsel was not really accurate as the injury on the person of Pargat Singh was in fact an incised one and, at best, it could therefore be said that no case under section 326 IPC could be made out as no evidence to prove the gravity of the injury had been produced but it could not be said that there was no incised wound on his person. We are therefore of the opinion that merely because the accused stood acquitted for the offence under Section 326 IPC it could not be said that Kashmir Singh was not liable vicariously for the order offence.

Mr. Merchea has then argued that appellant Salinder Singh was an old man of 72 years of age and no injury with a spear had been found either on the deceased or on the injured Pargat Singh and in such an eventuality he was entitled to acquittal in the light of the observations of the Supreme Court in Mayappa Dhondanna v. State of Maharashtra, 1981 Supreme Court Cases (Crl.) 790. We have considered this argument carefully and find that his argument requires to be accepted. The positive case in the first information report as also in the course of the trial was that Salinder Singh was armed with a spear and he had caused injuries to the deceased with that spear, the assumption being that in the absence of any evidence to the contrary, the spear would have been used as a penetrating weapon. We however found from the medical evidence that all the injuries on the person of the deceased were incised and Dr. Pritam Singh PW1 was positive in his assertion that none of them was a penetrating wound. It has however been argued by the learned State counsel that the dimensions of injuries 1 to 4 indicated that they could well be caused by a spear. We have examined this argument and find that this does not appear to be correct. In injury No. 3 the doctor found that the bone underlying had been sharply cut whereas under injury No. 4, the underlying bone was also partially cut though a fracture was also present. We are of the opinion that if the bones were sharply cut or partially cut the probable weapon that could be used was a cutting weapon and not a penetrating one. We, therefore, find keeping in view the facts of this case, that the participation of Salinder Singh appellant appears to be somewhat doubtful.

Mr. Merchea then finally argued that as the injuries caused by Mehar Singh appellant were on nonvital parts of the body, a case under Section 304 Part II alone was made out. We have considered this argument and find that it cannot succeed. It will be seen from the injuries (Nos. 1 to 4) that a lethal weapon had been used with very great ferocity and not only were the bones cut but they were fractured as well. Moreover, injury No. 5 was in the middle front portion of the neck, wherein the doctor has found a fracture of the hyoid bone. The intention was therefore evident from the injuries caused. We accordingly partly allow this appeal; acquit Salinder Singh appellant of the offence alleged against him but dismiss the appeal qua the others.