Sardara Singh and Another vs The State

P.D. Sharma, J.—Sardara Singh, Dalip Singh, Malkiat Singh, Niranjan Singh, Nahar Singh, Santa Singh, Geb and Lal were tried in the Court of the learned Additional Sessions Judge, Ludhiana, for offences punishable under sections 148, 302/149, 325/149 and 324/149, Indian Penal Code. The accusations against them were that they on the 13th August, 1959, in the area of village Khandoor, formed an unlawful assembly and in prosecution of the common object of such assembly committed murder by intentionally causing the death of Kehar Singh and gave injuries (grievous and simple) to Babu Singh, Milkhi, Mst. Bachni, Maghar and Gulwant Singh (P.Ws.). Dalip Singh, Malkiat Singh, Niranjan Singh, Nahar Singh, Geb and Lal were given the benefit of doubt and acquitted. Sardara Singh accused was convicted u/s 302, 324/34 and 325/34, Indian Penal Code, and Santa Singh accused was convicted under sections 302/34, 324/34 and 325/34 Indian Penal Code, and each of them was sentenced to imprisonment for life, six months and one year on the above three counts respectively. Sentences are to run concurrently. Sardara Singh and Santa Singh accused have appealed to this Court against the above order.

The facts of the case as alleged by the prosecution may briefly be narrated as hereunder:-

Geb and Lal accused are sons of Santa Singh accused, while Sardara Singh and Nahar Singh accused are his nephews. Dalip Singh, Malkiat Singh and Niranjan Singh accused are brothers of the son-in-law of Nahar Singh accused''s maternal uncle.

Kumari Sito (P.W.) aged 15 years, daughter of Babu Singh (P.W.) on 12 August 1959, went out to gather grass and in doing so entered the field of Gajjan Singh Sarpanch. Sardara Singh accused was in joint cultivation with the Sarpanch. He rebuked Kumari Sito for entering into his field. She returned home disappointed and reported the incident to her father. It so happened that on the following day at about 3-0 p.m., Sardara Singh accused casually passed in front of Babu Singh''s house when Babu Singh protested to him against his rude behaviour towards his minor daughter. Sardara Singh accused felt offended and left the place in disgust saying that he would properly deal with him. Soon after all the eight accused appeared in front of Babu Singh''s house when he was standing in his courtyard. Malkiat Singh, Niranjan Singh, Nahar Singh and Geb accused were carrying spears, Santa Singh and Lal accused were holding sticks in their hands, Sardara Singh accused was armed with a kirpan, and Dalip Singh accused carried a toki. They surrounded Babu Singh in his courtyard in a threatening manner. Babu Singh raised an alarm, which brought his two brothers, Kehar Singh deceased and Milkhi (P.W.), and also Kartar Singh, Rattan Singh, Karam Singh, Ram Baksh alias Ram Singh to the scene. They all pleaded in vain with the accused party not to harm Babu Singh. Sardara Singh accused dealt a kirpan blow on Kehar Singh''s head and Malkiat Singh accused gave a spear thrust in Kehar Singh''s left arm, as a result of which he fell down. Lal accused administered him a dang blow on his back even after he had fallen. The noise created by the fight attracted Mst. Bachni (P.W.), wife of Kehar Singh, Gulwant Singh P.W. 7 his son, and Maghar (P.W.), his nephew, on the spot. They tried to rescue Kehar Singh but in the effort received injuries-simple and grievous, at the hands of the accused, the details of which need not be given here except that Santa Singh accused gave a lathi blow on Babu Singh''s left foot and two more blows on Milkhi''s body, one hitting his head and the other his left leg. He also inflicted two injuries with the dang on Gulwant Singh (P.W.), one on his head and the other on his right hand. Milkhi (P.W.) used a toki in self defence which hit Sardara Singh accused. Similarly Gulwant Singh while protecting himself caused two injuries with a stick to Santa Singh. The accused then went away carrying their weapons with them. Kartar Singh and Karam Singh (P.Ws.) were left in the village to look after Kehar Singh who had become unconscious on account of the serious injuries received by him. He was subsequently removed to Dakha dispensary for treatment, where he reached in the early hours of the morning. Dr. Tejinder Singh (P.W.) examined him and also Babu Singh, Gulwant Singh, Maghar, Mst. Bachni and Milkhi (P.Ws.). The prosecution witnesses exhibited a large number of injury marks such as contused wounds, incised wounds and swellings over their bodies, the details of which have been given by the trial Judge in his judgment.

Kehar Singh''s condition deteriorated further and he was removed to the hospital at Ludhiana, where he expired on 18th August, 1959. Dr. H.S. Dhillon (P.W.) performed the post-mortem examination on his dead body at 5-30 p.m., on 19th August, 1959, and observed the following marks of injuries:-

(1) Incised wound on right side of scalp parietal region 23/4"x1/3"x1/2" with cut in bone underneath antero posterior, 3" above the pinna of ear.

(2) Incised wound 3 1/2"x1/2" skin deep on left forearm back lower 1/3rd horizontal.

(3) Linear abrasion 9" long vertical on back of spine dorsal region middle and lower parts.

(4) Abrasion 1"x1" on outer side of left hip.

Death in the opinion of the doctor resulted from compression of brain due to fracture of skull. According to him the head injury was sufficient to cause death in the ordinary course of nature.

Sampuran Singh, Sub Inspector of Police, Dakha Police Station, on receipt of a report from Assistant Surgeon, in-charge, Dakha dispensary, went there and recorded the statement of Babu Singh (P.W.) at about 3-50 a.m. on the night between 13th and 14th August, 1959, and sent the same to the police station for registration of the case. He reached the spot on the morning of 14th August, 1959, and took into possession bloodstained earth from Babu Singh''s courtyard and sealed it into a parcel. Santa Singh accused was arrested the same evening and was examined by Dr. Tejinder Singh at the Dakha dispensary. Sardara Singh, Nahar Singh, Malkiat Singh, Dalip Singh and Lal were arrested on 15th August, 1959, from the bushes near a rajbah situate in the area of village Parnal. Niranjan Singh and Geb accused were arrested on 16th August, 1959 in the area of village Mullanpur. Sardara Singh accused also bore injury marks and so he was sent to Dakha dispensary for medical examination. He was interrogated and as a result made disclosure statement Exhibit P.AG and produced a bloodstained kirpan from a heap of chaff lying inside a kotha of his house. It was made into a sealed parcel. The Chemical Examiner and the Imperial Serologist found the bloodstains on the kirpan as of human origin.

The accused-appellants pleaded not guilty to the charge and added that Sardara Singh accused had been injured by Babu Singh and Milkhi (P.Ws.) at some other place as they suspected him of having illicit connection with their niece. Santa Singh accused is said to have suffered injuries when he went to the rescue of Sardara Singh. The defence version of the occurrence is indeed a cock and bull story and does not inspire any confidence. The learned Additional Sessions Judge very aptly dismissed it summarily.

Babu Singh (P.W. 3), Milkhi (P.W. 4), Gulwant Singh (P.W. 5), Bachan Kaur (P.W. 6), Rattan Singh (P.W. 8) and Karam Singh (P.W. 9), eye-witnesses, supported the prosecution story in all material particulars. The learned counsel for the accused-appellants led us through their statements in great detail but he could hardly bring out any points strong enough to doubt their credibility. Babu Singh, Milkhi, Bachan Kaur and Gulwant Singh bore injury marks as is evident from the statement of Dr. Tejinder Singh (P.W.), incharge, Dakha dispensary, who examined them soon after the occurrence. Their presence at the time of the assault cannot be doubted. Rattan Singh (P.W. 8) and Karam Singh (P.W. 9) are totally independent and disinterested witnesses. They also deposed in terms of the prosecution story. The learned Additional Sessions Judge relied on them and rightly too in coming to the conclusion that the accused-appellants committed the offences for which they were convicted because in this connection their depositions stood amply corroborated by other independent evidence of an unimpeachable character, such as the presence of bloodstains in Babu Singh''s courtyard, recovery of kirpan at the pointing out of Sardara Singh accused which on examination was found to be stained with human blood and lastly presence of injury marks on their bodies. The learned counsel for the accused appellants in his arguments was not able to explain away satisfactorily any of the above circumstances so firmly established against them. He, however, contended and strenuously that Santa Singh accused could not be said to have any intention of murdering Kehar Singh at the time of occurrence and further that Sardara Singh, accused should not have been convicted u/s 302, Indian Penal Code, when he Was not specifically charged for this offence, but was charged u/s 302/149, Indian Penal Code.

There is no doubt that the prosecution has all along been maintaining that the accused party went to Babur Singh''s house in order to chastise him for his rude and insolent behaviour towards Sardara Singh accused and obviously it could not have been their common-intention, to punish Kehar Singh and much less to kill him Sardara Singh accused for reasons best known to him opened the attack on complainant party by giving the fatal blow with his kirpan on Kehar Singh''s head. This is in the evidence of Babu Singh, Milkhi, Gul want Singh and Bachan Kaur (P.Ws). In the circumstance Santa Singh, accused indeed cannot be held responsible for the stray individual-act of Sardara Singh accused. The inference of common intention can never be reached unless it is a necessary inference deducible from the circumstances of the case. The trial Court, therefore, should not have convicted Santa Singh u/s 302/34, Indian Penal Code, and his order to this extent is not sustainable in law.

The other point made out by the learned counsel for the accused-appellants that Sardara Singh accused should not have been convicted u/s 302, when he was charged u/s 302/149, Indian Penal Code, is devoid of all merits and has to be ignored. In case, Willie (William) Slaney Vs. The State of Madhya Pradesh, each of the two accused W and R were charged u/s 302 read with section 34, Penal Code. The charge against W was as follows:-

That you, on or about the 12th day of February 1953, at Civil Lines, Jabalpur, went with your brother to the house of Mrs. Waters (P.W. 20) at about 7 P.M. and in furtherance of the common intention did commit murder by intentionally or knowingly causing the death of her brother D. Smythe and thereby committed an offence punishable u/s 302 of the Indian Penal Code read with section 34 of the Indian Penal Code.

An exactly similar charge with the necessary change of name was framed against the co-accused R. There was no separate alternative charge u/s 302, Penal Code against the accused. The Courts below held that accused W inflicted the fatal blow and held him guilty u/s 302, Penal Code while the other accused R was acquitted for absence of evidence against him.

Their Lordships of the Supreme Court observed, "That having regard to the nature of the charge framed an omission to frame a separate charge u/s 302, Penal Code against W was only a curable irregularity which in the absence of prejudice could not affect the legality of conviction u/s 302, Penal Code.'''' The two case (1) Nanak Chand Vs. The State of Punjab, and (2) Suraj Pal Vs. The State of Uttar Pradesh, relied upon by the learned counsel for the accused appellants in support of his plea were adequately explained and distinguished in Willie (William) Slaney Vs. The State of Madhya Pradesh,

In the instant case the charge u/s 302/149, Indian Penal Code, was in the following terms:-

That you, Sardara Singh, Santa Singh, Nahar Singh, Lal, Geb, Niranjan Singh Malkiat Singh and Dalip Singh, on or about the 13th August, 1959, in the area of village Khandoor, were members of an unlawful assembly, and in prosecution of the common object of which, viz., to commit the murder of "Keharoo deceased and to cause simple injuries to Babu, Milkhi, Mst. Bachni, Gulwant and Maghar P.Ws., three members of the said assembly viz., Sardara Singh, Malkiat Singh, and Lal committed the murder of Kehroo deceased by intentionally causing his death and you are thereby, u/s 149 of the Indian Penal Code, guilty of causing the murder of Keharoo deceased, an offence punishable u/s 302 of the Indian Penal Code, and within the cognizance of the Court of Session.

The above charge and the questions put to Sardara Singh accused during the course of his examination by the Committing Magistrate and the trial Court should not have left him in doubt that the prosecution intended to prove that he was responsible for the murder of Kehar Singh deceased. Applying the tests laid down by their Lordships of the Supreme Court in Willie (William) Slaney Vs. The State of Madhya Pradesh, his case has in no way been even remotely prejudiced simply because a charge u/s 302, Indian Penal Code, was not specifically framed against him by the trial Court. The omission is curable and cannot vitiate his trial in the Sessions Court.

For the above reasons, the appeal is accepted in part; while Santa Singh accused''s conviction and sentence u/s 302 read with section 34, Indian Penal Code, are set aside, the rest of the order of the learned Additional Sessions Judge is maintained.

R.P. Khosla, J.

I agree.