State of Punjab vs Jasbir Singh alias Kirni

V.K. Bali, J.

Bhajan Singh died of a minor scuffle between him and appellants, Jasbir Singh, Kamaljit Singh and Karnail Singh, who were tried for an offence under Section 302 read with Section 34 of the Indian Penal Code. The learned Addl. Seasons Judge, Hoshiarpur after resultant trial, acquitted them of the charge framed against them under Section 302 read with section 34 IPC but convicted Jasbir Singh and Kamaljit Singh under Section 323 IPC and sentenced them to undergo RI for one year and to pay a fine of Rs. 500/, in default whereof, they were ordered to further undergo RI for three months each. Since Karnail Singh was a juvenile, he was allowed benefit of probation as provided under the provisions of the Probation of Offenders Act. This order of the learned Additional Sessions Judge, Hoshiarpur, has given rise to two Crl. Appeals, i.e. Crl. Appeal No. 60DBA of 1991 preferred by the State of Punjab against acquittal of the appellants under Section 302 read with Section 34 IPC and Crl. Appeal No. 256SB of 1990 preferred by the appellants against their conviction under Section 323 IPC and Cri. Revision bearing No. 910 of 1990 preferred by Gurmit Ram for conviction of the appellants herein u/s 302/34 IPC. Crl. Revision aforesaid was ordered to be heared along with Crl. Appeal No. 60DBA of 1991. We, thus, propose to dispose of all these matters by this common judgment.

The facts leading to unfortunate death of Bhajan Singh were brought to the notice of the Police Station City Hoshiarpur by PW5 Gurmit Ram son of Amin Chand on March 8, 1990 at 7.40/8.05 P.M. Gurmit Ram stated that he was resident of Basi Khawaja and was posted as Basic Health Worker in the Health Department, Sub Centre, Chawni Kalan. On March 6, 1990, at about 3.15 P.M., when he returned to his house after attending to his duties, he heard an alarm of "Mar Ditta, Mar Ditta" (killed) raised by his nephew (brother''s son) Bhajan Singh from the roof of his house. Thereupon, he along with Pali Ram, his cousin, came on the roof of his house. There they saw that Kirni son of the Buta Singh, Ballu son of Buta Singh and Bhondu son of Avtar Singh were beating his nephew Bhajan Singh by giving fist blows and saying that they would teach him (Bhajan Singh) a lesson for flying pigeons. At this, both of them raised an alarm of "Na MaroNa Maro" (Don''t kill, don''t kill). While they were saying so, Ballu took two brickbats from the roof and gave blows with the same to Bhajan Singh. One of the brickbats hit him on his head and the other hit on the right side of his neck. All the aforesaid three persons had also dragged him on the roof, as a result of which he sustained multiple superficial abrasion marks on his person. Thereafter, the accused fled away while abusing. He brought his nephew downstairs and gave him first aid. Being minor injuries, he did not tell anyone except his brother Jit Ram. On March 7, 1990, as his condition deteriorated, they brought Bhajan Singh to the Civil Hospital, Hoshiarpur, but the doctor, after giving him medicine, sent him back home. On March 7, 1990 his brother Jit Ram had brought him to the hospital. On March, 8, 1990, as the condition of his nephew deteriorated, he and his brother Jit Ram were removing him to the Civil Hospital but Bhajan Singh died while entering the hospital. He further stated that Bhajan Singh had died due to injuries caused by the aforesaid three persons by giving beatings with brickbats and due to invisible injuries. They did not inform the police regarding the occurrence as it was the matter amongst the residents of the same vicinity and they thought that they would resolve the problem by mutual discussion.

With a view to substantiate its case, the prosecution examined Gurmit Ram and Palli Ram as PW5 and PW6 and they have broadly supported the prosecution version. Dr. Devinder Singh, Medical Officer, Civil Hospital, Hoshiarpur was examined as PW1. On March 8, 1990 at 3 p.m., he had conducted post mortem on the dead body of the Bhajan Singh and had found following injuries on his person:

"1. A reddish bluish abrasion 1.5 cm x 0.5 cm on the left side of the head, 5 cm from the front hair line and 8 cm above the left tragus.

A reddish bluish abrasion 2.5 cms x 0.5 cm on the right side of the neck, 3 cm from the midline of the front of the neck.

Multiple abrasions, reddish bluish in colour in the left mid scapular area in an area of 3 cm x 3 cm of the sizes of measuring 0.5 cms x 0.5 cm to 0.25 cm x 0.25 cm.

Reddish bluish abrasion 2.5 cms x 1 cm on the back of chest on right half over the anterior angle of scapula.

A reddish bluish abrasion 2.5 cms x 1 cm present on the posterior superior iliac supine of the left side.

A reddish bluish abrasion 0.75 cm x 0.5 cm on the left side of the chest in the 7th i.c.s on the anterior axillary line.

A reddish bluish abrasion 2.5 cms x 1.5 cms on the right buttock over middle of its lower border."

The doctor further stated that there was a tear over the posterior surface of jejunum and in his opinion the cause of death in this case was due to shock resulting from peritonitis and injury to the jejunum which was sufficient to cause death in the ordinary course of nature. The doctor, however, in crossexamination stated that there was no corresponding external sign of violence to jejunum on the dead body and all the injuries on the dead body including injury to the jejunum could also have resulted from a fall. As mentioned above, after resultant trial, whereas the learned Addl. Session sJudge found the prosecution version to be true but, on the basis of medical evidence and other circumstances, the appellants were held to have committed an offence under Section 323 IPC and not under Section 302 read with Section 34 IPC with which they were charged. Thus, the only question that deserves consideration in this case is as to whether on the basis of medical evidence and other attendant circumstances, the appellants can be held guilty under Section 302 read with Section 34 IPC. learned Addl. Sessions Judge discussed the matter and observed as follows:

"The next question which falls for determination is as to what offence the accused have committed. The learned counsel has contended that the accused had no intention or knowledge to murder Bhajan Singh and the very fact that they came unarmed shows that the occurrence had taken place on the spur of the moment and was not premeditated and, thus, the accused did not intend to cause death of the deceased or such injury which may be sufficient in the ordinary course of nature to cause his death or injuries likely to cause death and, therefore, at the maximum, the accused can be held guilty under Section 323 IPC for causing simple hurt to Bhajan Singh. In support of his contention, the learned counsel has relied upon Jani Shaikh v. State of Maharashtra, 1970 CAR 40(SC). On the other hand the learned Addl. PP argued that the accused had given fist blows on the abdomen of Bhajan Singh which was a vital part of the body and, therefore, they must be posted with the knowledge that the death was likely to result and they are as such guilty under Section 304 Part II of the Indian Penal Code and not under Section 323 IPC.

In my considered opinion, in the facts and circumstances of the present case, it is not possible to reach a firm opinion that the accused can be attributed the knowledge that the death was likely to result by giving mere fist blows to the deceased in the abdomen. It is not disputed that the accused were unarmed. No one witnessed the origin of the occurrence. The eye witnesses only went over the roof of the house on hearing the shouts of "Mar Ditta, Mar Ditta", raised by Bhajan Singh. The occurrence had resulted due to flying of pigeons and it in all probability must have been a sudden affair. The accused in the circumstances could not have intended to cause the death of the deceased or intended to cause him injuries sufficient in the ordinary course of nature to cause his death or to cause such injuries which were likely to cause his death. It is very rarely that if a man is given fist blow on the abdomen that he dies. Rather there was not even an external mark of injury on the abdomen and it is thus doubtful that any forceful fist blow was dealt on the abdomen. In these premises, in my opinion, it is difficult to impute knowledge to the accused that the death was likely to result as a result of the fist blow given on the abdomen of the deceased.

The Medical Officer had also not found any of the injuries inflicted by the accused as grievous. There is also no evidence to indicate as to who gave the fatal injury. Therefore, the accused can only be held guilty for their individual acts of causing simple hurt to Bhajan Singh under Section 323 IPC."

We have heard learned counsel for the parties and have gone through the records of the case with their assistance. We are of the opinion that the judgment recorded by the learned trial Judge suffers from no infirmity whatsoever. This was a small scuffle between young boys over a very minor and insignificant issue. All the appellants were empty handed and the injuries given by them to the deceased were fists and blows. It is absolutely unfortunate that one of the blows suffered by Bhajan Singh fell on some vital part of the body resulting into his death after two days. Even the eye witnesses had not thought it to be serious matter and had rather chosen to get the same settled amongst themselves. The patient was not taken to the hospital and when ultimately taken, after some initial medical aid, he was sent back home. The doctor attending on him also never thought that it was a case of serious injuries on some internal part of body of Bhajan Singh. The appellants cannot be attributed either motive to kill or an act by which it was likely that the death would ensue. The case, thus, neither falls under Section 302 nor 304, Part I and II. The learned Session Judge has rightly held the appellants guilty under Section 323 IPC. There is, thus, no substance in the appeal preferred by the State, bearing No. 60DBA of 1991, and the same deserves to be dismissed. So ordered.

Insofar as appeal preferred by the appellants is concerned, one of the appellants Karnail Singh, who was of tender age, has since been let off on probation. In the facts and circumstances of this case, we are of the view of that appellants Jasbir Singh and Kamaljit Singh also deserve the same treatment, even though they were somewhat more in age at the time of commission of crime, as concededly they were first offenders and it was a small scuffle without there being any intention to cause any serious damage to Bhajan Singh. We, thus, order release of the appellants Jasbir Singh and Kamaljit Singh also on probation under the provisions of the Probation of Offenders Act in the same manner as their coaccused Karnail Singh was ordered to be released, on their furnishing personal bonds in the sum of Rs. 10,000/ with one surety in the like amount for good behaviour for a period of one year. They are also placed under the supervision of the District Probation Officer during this period. They are further directed to appear before him within one month from today. The appeal preferred by them is, thus, partly allowed. Whereas, order of conviction recorded by the learned Addl. Sessions Judge is upheld, the sentence awarded to them is converted to that as mentioned above.

There is also no substance in the Crl. Revision No. 910 of 1990 preferred by Gurmit Ram which deserves to be dismissed. So ordered.