State of Punjab vs Majhail Singh

V.K. Bali, J.

Whereas the State through Criminal Appeal No. 34DBA of 1993 calls in question the judgment of the learned Additional Sessions Judge, Hoshiarpur dated August 4, 1992 vide which accused Narinder Singh @ Kala, his real brother Mohinder Singh and father of these two accused Majhail Singh, even though convicted under Section 304 Part II read with Section 34 of the Indian Penal Code to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500/ and in default thereof to undergo rigorous imprisonment for three months for causing death of Kulwant Singh as also six months rigorous imprisonment under Section 323 read with Section 34 IPC (sentences to run concurrently) were acquitted of the main charge against them under Section 302 read with Section 34 of the Indian Penal Code, the accused aforesaid through a separate Criminal Appeal filed by them bearing No. 295SB of 1992 have challenged their convictions under Section 304 Part II read with Section 34 and Section 323 read with Section 34 of the Indian Penal Code as referred to above.

F.I.R. in this case was recorded on the basis of the statement made by Parkash Singh which was recorded by ASI Charan Singh, Police Station, Mahilpur. In his statement Ex. PF, Parkash Singh got recorded that he was resident of village Nangal Choran and was doing cultivation. He had land measuring 4/5 acres in the village. He had three children, eldest being a daughter Gurdip Kaur who was married. Younger to her is another daughter, namely, Kulwinder Kaur who was studying in B.A. Part I and younger to her was son Kulwant Singh alias Pappu who was studying in 10+2 in Government Senior Secondary School, Mahilpur. About six months back he had got purchased cloth worth Rs. 500/ on credit from Madan Cloth House, Mahilpur to Majhail Singh son of Chanan Singh on his surety. Majhail Singh did not return Rs. 500/ to the shopkeeper. On the date of occurrence i.e. June 30, 1991 at about 6.30 p.m. his wife Resham Kaur had asked Majhail Singh to make payment of cloth to the shopkeeper because he was demanding the same. At this, Majhail Singh hurled abuses to them. Her wife Resham Kaur, daughter Kulwinder Kaur, son Kulwant Singh and he himself were working in Haveli. He went ahead and while standing in his Taur (vacant site) he asked Majhail Singh as to why he was abusing them. At about 7.00 p.m. Majhail Singh son of Chanan Singh armed with a Lathi, Mohinder Singh son of Majhail Singh armed with a Datar and Kala son of Majhail Singh armed with a Takua attacked him. Majhail Singh gave a Lathi blow on his head. Mohinder Singh gave a Datar blow with its blunt side which hit below his left eye. He raised an alarm ''Mar ditta, Mar ditta'' (killed, killed). On hearing the same, his son Kulwant Singh alias Pappu came there. His wife Resham Kaur and daughter Kulwinder Kaur also came to the spot. After inflicting injuries to him, Majhail Singh, Mohinder Singh and Kalu caught hold of his son Kulwant Singh and inflicted latent injuries to him, as a sequel of which his son Kulwant Singh became unconscious. That all of them, however, raised an alarm ''Mar ditta, Mar ditta'' (killed, killed), as a result all the assailants ran away from the spot together with their respective weapons. After arranging conveyance, he alongwith Amarjit Singh alias Amba son of Kashmir Singh and Binder son of Ram Parkash Pandit, residents of Nangal Choran who had also come to the spot removed Kulwant Singh alias Pappu in an unconscious condition to Civil Hospital, Mahilpur for treatment. As his condition was serious due to latent injuries, the doctor referred him to Civil Hospital, Hoshiarpur. He was also medically examined. Formal F.I.R. Ex.PF/2 on the basis of the statement made by Parkash Singh came into being at 10.05 p.m. on June 30, 1991. Initially the F.I.R. was recorded under Sections 308/323/34 IPC but at 12.10 a.m. on the next date i.e. intervening night of 30th June and 1st July, 1991, the offence was converted under Section 302 of the Indian Penal Code. The Special Report reached the Judicial Magistrate, Hoshiarpur on July 1, 1991 at 10.00 a.m.

Dr. Mrs. Manmeet Kaur, M.O., C.H.C. Mahilpur who was examined as PW1 stated that on July 1, 1991 at about 9.55 a.m. she had medically examined Resham Kaur wife of Parkash Singh and found the following four injuries on her person :

One lacerated wound with irregular margins over the middle of scalp measuring 2 cms x .5 cm x skin deep, 19 cms from root of nose, 15 cms from left ear''s lobule extending backwards, wound was placed horizontally, clots were present. Tenderness was present. There was no fresh bleeding. Xray skull was advised.

One diffused swelling over the anterior 1/3 part of left foot on dorsal aspect with no external mark of injury present. Tenderness was present.

One swelling over the dorsal aspect of right hand 6 cms. x 5 cms. Tenderness was present. The wound was 5 cms. below the lateral condyle of ulna. There was no external mark of injury.

Complaints of pain in left little finger of left hand. No external mark of injury. Movements of finger at the metacarpophlangeal joint were restricted and painful. Xray left hand was advised."

All the injuries were caused with blunt weapons and were simple in nature. She also examined Kulwinder Kaur and found following injuries on her person :

One diffused swelling on the right side of scalp 4 cms x 3 cms, 17 cms. from the root of the nose. 15 cms. from right ear lobule. Tenderness was present. There was no external mark of injury. Movements of both eyes were normal. Xray skull was advised.

One diffused swelling on posterior aspect of left scapula on upper 1/3rd. No external mark of injury was present.

Tenderness was present. Movements of left shoulder joint was restricted and painful. Xray left shoulder joint was advised.

Injuries were caused with blunt weapon but were declared simple in nature.

Dr. Inder Mohan Sood, M.O., Civil Hospital, Hoshiarpur, was examined as PW9. He had conducted postmortem on the dead body of Kulwant Singh alias Pappu. He had found following injuries on the dead body of Kulwant Singh :

"1. Reddish abrasion 10.5 cms. x 1 cm vertically placed on the outer surface of right lower limb (leg) in its middle.

2 abrasions of size 1 cm x .5 cms, 1.5 0.5 cm present on front of upper part of the left leg, reddish.

Abrasion reddish 4 cms. 1.5 cms. obliquely placed on the back of chest, 6 cms. from base of neck, was present.

Diffused swelling 6 cms. x 4 cms. present on the right parietal area, its anterior and 2 cms. from hair line, extending backwards. On dissection of scalp and skull, clotted blood was present underneath the injury. On further removal of clots, fracture of right parietal extending to right temporal bone. On further dissection of skull, lacerations of membrane and brain matter present. Clotted blood and fluid were present in cranial cavity.

Reddish abrasions 3 cms x 1.5 cms. over left buttock in its upper part.

Reddish abrasion 2 cms x 1 cm on front of right half of scrotum. On dissection congestion of testicle was present.

In the opinion of the doctor cause of death was due to shock and haemorrhage on account of the injury to brain which was sufficient to cause death in the ordinary course of nature. In crossexamination it was stated that the possibility that injury No. 4 was caused due to a fall on hard surface could not be ruled out. The eyewitness account was given by Parkash Singh, the first informant who was examined as PW3 and Kulwinder Kaur his daughter who was examined as PW4. Resham Kaur even though injured was not examined. There is no need at all either to make a reference to the statement of the accused made under Section 313 of the Code of Criminal Procedure or with regard to any other evidence as the sole contention in this case raised by either of the sides is with regard to the nature of offence. In so far as the veracity of the prosecution version as such is concerned, no arguments have at all been addressed either by the defence Counsel or by the Counsel representing the State. Whereas the contention of the learned Counsel appearing for the accused in support of their Criminal Appeal bearing No. 295SB of 1992 is that the accused could not be convicted even under Section 304 Part II as the offence made out in this case could not go beyond Section 323 of the Indian Penal Code, the obvious contention of the learned State Counsel is that the accused ought to have been convicted for an offence under Section 302 of the Indian Penal Code. We have heard the learned Counsel representing the parties and with their assistance gone through the records. We are of the view that contention raised by the learned defence Counsel that the accused could not be convicted for anything more than having committed an offence under Section 323 of the Indian Penal Code has merit and if that be so, obviously, the contention raised by the learned State Counsel has to be turned down being devoid of any merit.

It is not disputed that but for the deceased Kulwant Singh alias Pappu, the other three, two of whom were examined as PW3 and PW4 Parkash Singh and Kulwinder Kaur have only simple injuries on their person. In so far as Kulwant Singh is concerned but for injury No. 4 all other injuries on his body were found to be simple. It is only injury No. 4 which was grievous in nature. It is well made out from the reading of the F.I.R. lodged by Parkash Singh that the deceased Kulwant Singh was attracted to the scene of occurrence when alarm of ''Mar Ditta'' ''Mar Ditta'' (killed, killed) was raised. He was not there when the accused are said to have attacked the complainant party. It is further made out from the reading of the F.I.R. that no accused in particular has been assigned either injury No. 4 or any other injury that was found on the dead body of Kulwant Singh. All that has been said in the F.I.R. is that the accused had caught hold of his son Kulwant Singh and inflicted latent injuries to him as a sequel of which his son had become unconscious at the spot. That no specific injury was attributed to anyone and, in fact, only fist and kick blows were given to the deceased is further made clear by the deposition made by the injured eyewitnesses, namely, Parkash Singh PW3 and Kulwinder Kaur PW4. PW3 Parkash Singh in his examinationinchief stated that "My son Kulwant Singh then stepped forward to rescue me. All the three accused felled him on the ground and started giving injuries to him. "I laid myself on my son to save him." Even in examinationinchief he nowhere stated that the accused gave injuries with their respective weapons which they were carrying at the time of occurrence. In his crossexamination he stated that, "it is, however, correct that they may have given the fist and kick blows to the deceased." The fact that the deceased was given only fist blows and kicks is further made clear by the deposition made by Kulwinder Kaur PW4 who in her examinationinchief itself stated, "the accused then felled my brother on the ground and then the accused gave fist blows and kick. However, no weapon was used in causing injuries to my brother." Not only from the F.I.R. but from the deposition of the two injured eyewitnesses PW3 and PW4, it is, thus, quite apparent that the deceased was given fist and kick blows and that the weapons with which the accused were armed were not used in any manner whatsoever. It could not be disputed during the course of arguments that provisions of Section 34 of the Indian Penal Code could not be attracted in causing death of Kulwant Singh who was not even present at the spot when the accused attacked the complainant party. Once common intention to cause the death of Kulwant Singh is ruled out, the prosecution could bring home the offence under Section 323 only against the accused. Since neither in the F.I.R. nor in the deposition of the eyewitnesses injury No. 4 has been specifically attributed to any one, in view of this Court none of the accused can possibly be convicted under Section 302 of the Indian Penal Code. However, causing of simple injuries as were found on the person of injured witnesses as also the deceased is certainly proved. The deposition made by the eyewitnesses who as mentioned above were themselves injured in the same incident could not be even remotely challenged during the course of arguments. The accused are, therefore, certainly guilty of having caused simple injuries to eyewitnesses as also to deceased Kulwant Singh. On that count they are held guilty under Section 323 read with Section 34 of the Indian Penal Code on both heads separately i.e. for causing injuries to the witnesses as also the deceased. Even though we have held that the accused are guilty of having committed an offence under Section 323 read with Section 34 of the Indian Penal Code, it is not a case where they should be let off very lightly. They caused multiple injuries to Parkash Singh PW3, Kulwinder Kaur PW4 and Resham Kaur. Not only that Parkash Singh was attacked but anyone who came to rescue him whether his daughter or son were not spared and so much so out of three accused one of them certainly caused serious injury on the person of Kulwant Singh who later died. The accused are, thus, convicted and sentenced to undergo R.I. for six months for causing injuries to the injured eyewitnesses and to one year for having caused injuries to Kulwant Singh. Sentences to run concurrently. They shall also pay a fine of Rs. 1,000/ each to Parkash Singh PW3. In default of payment of fine, they will further undergo R.I. for three months.

In view of the discussion made above whereas State Appeal bearing No. 34 DBA of 1993 is dismissed, the appeal preferred by accused bearing No. 295 SB of 1992 is partly allowed.