State of Punjab vs Balwant Singh

K.K. Srivastava, J.

This is an appeal by the State of Punjab against the Judgment and order dated 29th April, 1986, passed by Shri A.D. Singh Wasu, Additional Sessions Judge, Amritsar, convicting the respondentBalwant Singh under Section 304 PartII I.P.C, instead of Section 302 I.P.C. and instead of sentencing him at once to suffer imprisonment thereunder, he was extended benefit of Section 4(1) of Probation of Offenders Act, 1958 and ordered to be enlarged on probation for a period of three years subject to the conditions mentioned in the order as to the sureties to be filed on the grounds mentioned therein, and further keeping him under supervision within the provisions of Section 4 subsection (3) of the said Act.

The facts giving rise to this appeal, stated briefly, are that the offence took place on 7.2.1985 at about 7.30 p.m. in village Sirhali Mandan within Police Station Sirhali. In this occurrence, one Mohinder Singh was murdered. At the time of the occurrence, the deceased Mohinder Singh and his brother Bhira Singh and one Chanchal Singh, P.W. were standing under a behar tree in their own mohalla and talking to each other. The accused Balwant Singh and coaccused Amrik Singh, who has since been acquitted by the learned Additional Sessions Judge, arrived at the scene of the occurrence, from the side of a pucca road raising cat calls. The deceased is stated to have objected to this behaviour of the accused who also did not relish it and took ill of it. It is alleged that Amrik Singh grappled with Mohinder Singh, deceased, and Balwant Singh, the accused, who has been convicted by the learned Additional Sessions Judge, gave a kirpan blow to the deceased Mohinder Singh. The blow landed on the left upper arm of Mohinder Singh. It is alleged that kirpan blow was given with a heavy force. A hue and cry was raised by Bhira Singh and Chanchal Singh, both P.Ws. Both the accused persons are said to have made their escape good from the place of occurrence. The deceased Mohinder Singh, who had suffered injury was taken to the civil hospital at Kairon and was accompanied by P.Ws. Bhira Singh and Chanchal Singh. Mohinder Singh succumbed to his injuries immediately after reaching the hospital.

The Police recorded the statement of P.W. Bhira Singh, exhibit PH. A.S.I. Balwant Singh, P.W. 8, conducted the inquest proceedings and sent his endorsement exhibit PH/1 to the police station for registration of the case. F.I.R., exhibit PG was recorded by A.S.I. Chaman Lal. A.S.I. Baldev Singh entrusted the dead body of Mohinder Singh to constables Satwant Singh and Sarbjit Singh for post mortem examination with relevant papers. The aforesaid constables took the dead body of Mohinder Singh, deceased, along with relevant papers and samples and these were produced before Dr. Virinder Singh, P.W. 2 working as Medical Officer at civil hospital Tarn Taran, on 8.2.1985 at about 9.30 a.m. The dead body was duly identified by the aforesaid constables and the autopsy surgeon found the following injuries :

An incised wound 13 cm x 4 cm bone deep on the middle of left upper arm placed obliquely, 13 cm from the left acromion angle running downwards and medially upto 5 cm above the medial epicondyle. The skin, subcutaneous tissues, muscles, and blood vessels, nerves cut. Underlying bone was also cut partly. Brachial artery and vein were cut through and through.

An abrasion 3 cm x 2 cm on the front of left patella.

Injury No. 1 was caused by sharp edged weapon and injury No. 2 by a blunt weapon. The statement of Dr. Virinder Singh, P.W. 2 shows that the death was caused due to shock and haemorrhage as a result of injury No. 1, which was ante mortem and sufficient in the ordinary course of nature to cause death and the death of the deceased Mohinder Singh occurred within 2 to 3 hours of the injuries ante mortem sustained. Carbon copy of the post mortem report was proved as exhibit PD by the aforesaid autopsy surgeon, who also prepared pictorial diagram, exhibit PD/1 showing the seats of injuries. He also removed clothes from the dead body and sealed them in a packet which was sent to the police. The Investigating Officer of this case commenced the usual investigation during which he recorded the statements of the witnesses and prepared a site plan. Surjit Singh, Lambardar, produced both the accused respondents before A.S.I. Baldev Singh, P.W. 8, who arrested them and produced them before the Duty Magistrate on 10.2.1985. The respondentBalwant Singh made a disclosure statement to the effect that be had kept the weapon of assault i.e. kirpan underground in a room of his residential house which he could produce before the said A.S.I. and it was on the pointing out of the said accused that kirpan, exhibit P6 was recovered, the blade of which was stained with blood. The sketch of the blade was drawn and the same was sealed in a parcel and taken into possession vide seizure memo, exhibit PM, which was attested by the witnesses of the recovery. He also prepared a site plan of the place of recovery, exhibit PT. After completion of the investigation, the challan was filed against both the accusedrespondents and they were produced before the Ilaqa Magistrate, who committed the case to the Court of Sessions, where they were tried and a charge under Section 302 I.P.C. read with Section 34 I.P.C. was framed against both the accusedrespondents. The charge was read over to the accusedrespondents, who pleaded not guilty to the charge and claimed to be tried.

The prosecution at the trial examined Dr. Rajinder Singh, P.W. 1; Dr. Virinder Singh, P.W. 2; A.S.I. Chaman Lal, P.W. 3; Bhira Singh, P.W. 4; Chanchal Singh, P.W. 5; Amrik Singh, P.W. 6; Rishi Ram, Draftsman, P.W. 7; and A.S.I. Baldev Singh, P.W. 8, who prepared site plan of the place of occurrence.

The accused were examined under Section 313 Cr.P.C. and their plea was one of the denial of the prosecution evidence and they suggested their innocence in this occurrence. The accused persons, however, did not lead any evidence in defence.

The learned Additional Sessions Judge after going through the evidence on record and hearing the learned counsel for the accused and the State, found the case of the prosecution proved against respondentBalwant Singh but not under Section 302 read with Section 34 I.P.C. He held that it was a case where Balwant Singh did not intend to cause the death of deceased, Mohinder Singh, with whom the altercation and quarrel had been picked up in the facts and circumstances mentioned above and that he had sufficient knowledge that the injury which was inflicted by him could prove fatal. Consequently, the learned Additional Sessions Judge convicted Balwant Singh under Section 304 PartII I.P.C. and looking to the antecedents and the surrounding facts and circumstances in which the offence was committed and also looking to the age of Balwant Singh, being below 21 years, held that it was desirable to extend benefit of Section 4 of the Probation of Offenders Act, 1958 and consequently, instead of sentencing him at once to suffer imprisonment, ordered him to be released on probation for a period of three years with further condition to file one surety for a sum of Rs. 5,000/ besides his bond in the same amount and also ordered that he should be kept under supervision as provided under Section 4(3) of the Probation of Offenders Act. He was ordered to be of good behaviour during the period of probation and as is the usual conditions in such matters, he was to be called upon to receive and suffer imprisonment for committing breach of any of the conditions imposed on him by the trial Court. As mentioned above, Amrik Singh was given benefit of doubt and was acquitted of the charge levelled against him.

The State feeling aggrieved against the judgment passed by the learned Additional Sessions Judge, Amritsar had filed this appeal on 8.9.1986. The appeal was admitted for hearing and notice was issued to the respondent, who is duly represented by his counsel Shri P.S. Hundal. The record of the case was summoned.

I have heard the learned State counsel Shri S.S. Dhaliwal, Deputy Advocate General, Punjab and Shri P.S. Handal, Advocate, for the respondent. I have also perused the judgment of the learned Additional Sessions Judge and the evidence recorded at the trial of the case. The learned Additional Sessions Judge had referred to the evidence of P.Ws. and found their testimony trustworthy in so far as the commission of offence by respondentBalwant Singh was concerned. The witnesses, who were relied on by the learned Additional Sessions Judge are Bhira Singh, P.W. 4, the real brother of the deceased Mohinder Singh and one Chanchal Singh, P.W. 5, being natural witnesses of the occurrence whose presence could not be doubted. The occurrence, as mentioned above, had taken place at 7.30 p.m. on 7.2.1985 i.e. after the sunset and it is not the case of the respondent that he was not known to the witnesses. The statement of these witnesses have also been perused and I do not find any discrepancy of the kind present in their statement which may discredit their testimony. It is also relevant to note that the appellantState has not challenged the findings recorded by the learned Additional Sessions Judge regarding the placing of reliance on the evidence of these witnesses. The respondentBalwant Singh did not file an appeal against his conviction and at least no such information is before this Court. The learned counsel for the respondent, Mr. Hundal, at the Bar, stated that no appeal was filed by respondentBalwant Singh. So far as the conviction of Balwant Singh under Section 304 PartII I.P.C. is concerned, I am of the considered opinion that the learned Additional Sessions Judge was fully justified in coming to the said conclusion. A single blow had been given in the assault. When objections had been raised to certain indecent behaviour of the accused persons who were of the age of the less than 21 or 20 years, the state of injury, as mentioned above, being the middle of left upper arm further cut the blood vessels and nerves and the underlying bone was also cut partly. Brachial artery and vein were cut through and through. The death under these circumstances was not intended by Balwant Singh and, therefore, it cannot be said that Balwant Singh attacked and assaulted Mohinder Singh with the intention of causing his death though he had the knowledge that in such an act, death was the likely result. In these circumstances, the ingredients of Section 304 PartII I.P.C. are fully covered and the learned Additional Sessions Judge had rightly convicted Balwant Singh, respondent, under Section 304 PartII I.P.C.

As regards the extension of benefit of Probation of Offenders Act, 1958, the theory of punishment, which we follow is one of reformative in nature and persons of tender age should as far as possible be not allowed to mix with the hardened criminals lodged in jails and with a view to give a chance to reform, accused Balwant Singh, who has been convicted, and who, had no previous conviction to his credit nor any of indecent behaviour which could disentitle him to be given such benefit, it was only appropriate that the trial Court enlarged him on probation as mentioned above. Persons of tender age are extended benefits of this kind. They are also benefitted for purposes of bail under Section 437 Cr.P.C. The society accepts the reformation of persons of tender age. They have a long way to go and enjoy the life decently. The State can possibly have no objection to the order of probation passed in this case as the record does not contain any material to show that respondentBalwant Singh was not such a person to whom such a benefit could be given or extended.

After carefully considering the entire matter, I find that the learned Additional Sessions Judge had rightly extended the benefit of Probation of Offenders Act and as the things stand today, on the date of hearing of this appeal, the period of probation of three years has passed long back. The order and judgment was pronounced on 29.4.1986. Today, we are in the year 1994. There is no such complaint that respondentBalwant Singh did not conduct himself in the manner in which he was asked to behave during the period of probation. The appeal against Balwant Singh has no merit. Amrik Singh''s acquittal has not been challenged.