Subash Chander and others vs The State of Punjab

D.B. Lal, J.—This appeal is brought from the judgment of the Additional Sessions Judge, Jullundur, in a case under sections 302, 323 and 148 read with section 149 of the Indian Penal Code convicting Manjit Singh and four others under those counts and sentencing them to life imprisonment for the offence of murder. However, no sentence was awarded for the offence, of rioting and simple hurts caused by these accused.

The prosecution case was that Captain Manjit Singh, an army personnel, had gone on motor cycle on 26th October 1974 somewhere near the flour mill of Krishan Kumar and Shiv Kumar. Manjit Singh had teased some girls for which objection was taken by one Jagan Nath who was member of the Municipal Board. At that time, Narinder Kumar son of Shiv Kumar also arrived They were instrumental in causing some injuries to Manjit Singh and the latter was brought to the police station Being an army personnel, his career was at stake. He smelt of liquor and hence the police sent him for medical examination which was conducted by Dr. H.K. Sikand He found the contusions on the nose and upper lip of Captain Manjit Singh He also detected liquor smelling out of him. Jagan Nath instituted the police report, Exhibit P.M.M. The military police was also informed but subsequently a compromise was arrived at and their statements Exhibit P.B.B. were written. It appears Captain Manjit Singh took that incident some what seriously. According to prosecution, he was a relation of Devinder Singh Kaka who in turn was friendly to Dharam Pal accused Inspector of Supplies. Accordingly on 27th October, 1974 at about 2 P.M., Dharam Pal came to the flour mill of Krishan Kumar and Shiv Kumar whom he found talking. He asked them about the incident which took place on 26th October, 1974 and further remonstrated that Narinder Kumar had not behaved in a proper manner. Thereafter, Dharam Pal was stated to have gone back and after a few minutes Captain Manjit Singh, Subhash Chander, Dharam Pal, Davinder Sayal and Narinder Singh along with two others Sarabjodh Singh and Davinder Singh Kaka (since acquitted) arrived on three motor cycles and perhaps one scooter. Captain Manjit Singh was stated to be armed with pistol while Dharam Pal possessed an iron chain The other three possessed hockey sticks. Again Dharam Pal came forward and talked to Krishan Kumar and Shiv Kumar and stated that Captain Manjit Singh had arrived. No sooner did he do so than Narinder Singh gave a hockey stick blow to Shiv Kumar. Thereafter, Subhash Chander gave a hockey stick blow to Krishan Kumar. Davinder Sayal, the third accused, gave another hockey stick blow to Krishan Kumar. Due to the beating given by these three accused to Krishan Kumar and Shiv Kumar, some hue and cry was raised which attracted the attention of Narinder Kumar and Kulbhushan who, fortuitously, arrived from inside the house. Upon seeing. Narinder Kumar, Captain Manjit Singh gave a shout that Narinder Kumar was responsible and so saying he shot at him by his pistol and Narinder Kumar fell down fatally wounded. It was stated that thereafter captain Manjit Singh, made one or two blank fires to scare away the witness. All of them wanted to make good their escape and in the process Subhash Chander and Narinder'' Singh were held up, The others, however, escaped leaving their motor cycles and two turbans. Krishan Kumar immediately went to P.S. Jullundur Cantt. and instituted the first information report at 2.30 P.M. Narinder Kumar was rushed to Civil Hospital, Jullundur, where he died at 3.55 P.M. The special report reached the Magistrate on that very evening at 7.05 P.M. Dr H.K. Sikand examined the injuries on Shiv Kumar and Krishan Kumar at about 9.15 P.M. on 27th October, 1974. He found swollen shoulder, tenderness on the left palm and two abrasions over the knee cap and left foot-all simple on the person of Shiv Kumar. He further found tenderness and swollen area on the right wrist, one contusion, one lacerated wound and two scratches on the cheek and neck all simple on the person of Krishan Kumar. The two accused Subhash Chander and Narinder Singh, who are apprehended at the spot, ware also medically examined by the same doctor He found three lacerated wounds, two contusions and one abrasion all simple on the person of Subhash Chander while tenderness on the left leg and left shoulder, swelling on the left hand, one contusion and one lacerated wound all simple on the person of Narinder Singh. Kulbhushan was also given some injuries by the accused who are acquitted. Ho was also examined and it was found that he received one swelling, one contusion, and one abrasion all simple as a result of that beating. The postmortem examination of the dead body of Narinder Kumar was performed by Dr. Ashok Dhingra on 27th October, 1974 at 5 45 P.M. and one lacerated wound on the front of chest was found. The bullet was embedded inside. The lung was cut through and the death was due to that injury. Mohinder Singh S.I., who registered the case at P.S. Jullundur Cantt., went to the spot and recovered the three motor cycles, two turbans and some empties. He performed the inquest at the hospital. The three accused Devinder Sayal, Dharam Pal and Manjit Singh were arrested on 6th November, 1974, 7th November, 1974 and 18th November 1974 respectively. From the person of Subhash Chander, two live cartridges of pistol were recovered. On these facts and allegations, a case under sections 302, 323 and 148 read with section 149 of the Indian Penal Code was instituted against the five appellants and Sarbjodh Singh and Davinder Singh. The latter two were, however, acquitted.

The defence of Subhash Chander and Narinder Singh appellants was that they had gone to witness the incident but they are beaten by others and implicated in this offence. The other appellants pleaded alibi and denied that they took part in the incident. However, it was admitted by Captain Manjit Singh that the prior incident did take place on 26th October, 1974. He was also medically examined. He was taken to the police station and injuries were inflicted upon him. However, he pleaded alibi for the incident of 27th October, 1974. Regarding his motorcycle which was recovered from the spot, his version was that the said motorcycle was left by him on 26th October, 1974 at the police station. The same motorcycle was implanted on him to suit the purpose of this case. Dharam Pal appellant also pleaded alibi and stated that he had visited Mowana and Bhagpat in Meerut district in connection with the lifting of quota of sugar and was away from Jullundur from 23rd October, 1974 up to 28th October, 1974. In that connection, he also produced several witnesses.

The prosecution in order to prove their case relied upon the eyewitness Krishan Kumar (P.W. 12), Shiv Kumar (P.W. 13), Kulbhushan (P.W. 14), and Sham Lal (P.W.15) and Jagan Nath (P.W. 16) came to state about the incident of 26th October, 1974. The two doctors H.K. Sikand (P.W. 1) and Ashok Dhingra (P.W. 3) came to prove the injuries. Mohinder Singh S.I. (P.W. 23) was the Investigating Officer.

The accused produced seven defence witnesses of whom the important ones were O.P. Jain (D.W 2), Sawtanter Kumar (D.W. 3) of the Civil Supplies Department, and P. Runthala (D.W. 4) of the Sugar Mills, Mowana, and Lahori Ram (D.W. 5) and Rattan Singh (D.W. 6) of the Sugar Mills, Bhagpat. They came to prove the alibi of Dharam Pal.

The learned Additional Sessions Judge believed the prosecution evidence and convicted the five appellants in the manner stated above. They have felt aggrieved of the decision and have preferred these three appeals (Nos. 1083, 1089 and 1140 of 1975) which are obviously interconnected and can be disposed of by one single judgment.

The prosecution case essentially depended upon the eye-witness account. We have carefully gone through the statements of Krishan Kumar (P.W. 12), Shiv Kumar (P.W. 13) and Kulbhushan (P.W. 14) who belonged to the family of the deceased as well as the statement of Sham Lal (P.W. 15). Besides the three witnesses being family members and hence they were naturally present at the time of the incident, the fourth witness Sham Lal (P.W. 15) is a close neighbor. The incident took place at 2 P.M. in broad daylight It was a busy locality of Jullundur town. There could not be a case of any mistaken identity. There is a rag of truth in the statements of these four witnesses. We do not find any justification not to believe their statements However, in that connection Sarvshri H.L. Sibal and Dara Singh, the learned counsel for the appellants, contended that the two factors would be worth mentioning, namely, the first information report that was recorded and the motive which related to the incident of 26th October, 1954. In respect of the first information report, the learned counsel referred to the statement of Krishan Kumar (P.W. 12), as this witness stated that he had gone to the police station but the Investigating Officer supplied him with the particulars of the other two accused whose names he did not remember. Another significant statement crops in:--

My report was finished some five to seven minutes after the arrival of those accused in the police station

The witness further stated that when he started giving statement to the police, the Sub Inspector sent some police officers who brought those two accused to the police station From this statement of Krishan Kumar (P.W. 12), it was argued that the first information report was brought into existence during the course of investigation. The police had already arrived and only thereafter the details were supplied at the police station and the first information report was completed. Be that as it may, it will only lead us to discard the first information report, which we shall have to do in the interest of the accused. Much less to say, the first information report is not a substantive evidence ; it is a document no doubt important, being the first version of the prosecution case but it can only be used either for corroboration or for contradiction. In the instant case, it can be used for neither and as such we have to keep aside the first information report and it will be of no assistance to the prosecution The accused can certainly take assistance from that document inasmuch as it was not a spontaneous record of event, and some additions were made at the instance of the investigating agency. The question before us is : whether the four eyewitnesses should be discarded because of this defect found in the first information report ? No doubt, the four statements require somewhat greater scrutiny which we have done and we will again repeat that the four statements of Krishan Kumar and others appear to be convincing.

The learned counsel for the appellants then pointed out that the incident of 26th October, 1974 could not have afforded motive to perpetrate the attack and as such the eye-witness account should suffer from an initial drawback we do not think that say such inference can be drawn. On 26th October, 1974, as the statement of Jagan Nath goes, Captain Manjit Singh was sufficiently humiliated. Narinder Kumar had also given him a beating. The Captain Was found drunk and he was exposed before the police while his medical examination was conducted. The army personnel were informed. That further aggravated the situation. It was stated that the other accused were not his companions but there is a definite indication in the statement of Shiv Kumar (P.W. 13) that Dharam Pal accused himself stated before him that the accused Davinder Singh Kaka was a relation of the Captain and a friend of Dharam Pal. Two of the accused Narinder Singh and Subhash Chander were apprehended at the very sport. Their version that someone struck them and they were falsely implicated on the very day cannot be accepted. It is, therefore, evident that all these accused were companions and at any rate all of them came en masse as stated by the four eye-witnesses In fact: Dharam Pal came twice; once before when he had a talk with Shiv Kumar (P.W. 13) and Krishan Kumar (P.W. 12) and second time along with others. At that occasion also, he started the talk with Shiv Kumar (P.W. 13) followed by an attack by Narinder Singh appellant. The first information report, Exhibit P.M.M., did not disclose that Narinder Kumar had caused some injuries to the Captain but that fact was not required to be incorporated in the first information report. It is, therefore, evident that the motive was there for the Captain and his companions to arrive and to commit the assault.

The two appellants Subhash Chander and Narinder Singh received some injuries and these were explained by Krishan Kumar (P.W. 12) who very much stated that the crowd that assembled caused some injuries to these two accused who were apprehended at the spot. Therefore, in our opinion, explicit reliance will have to be placed upon the testimony of the four eye-witnesses Krishan Kumar (P.W. 12) and others.

Shri H.L. Sibal, the learned counsel, rather strenuous in urging the case in fovour of Dharam Pal appellant. It was stated that this accused was not present at Jullundur and produced alibi evidence which should have been believed. It was also stated that he did not cause injuries to any person. The learned counsel further pointed out that according to Shiv Kumar (P.W. 13), Davinder Singh Kaka, the acquitted accused, did state while going, that the fight should be stopped and that would be an indication to the fact that Dharam Pal too never wanted the assault to be made. In fact, the argument of the learned counsel was that the case of Davinder Singh Kaka and the case of Dharam Pal could not be distinguished.

As regards the alibi evidence, reference was made essentially to three witnesses. O.P. Jain (D.W. 2), the Assistant Accounts Officer, Civil Supplies Department, proved the letter dated 23rd October, 1974 deputing Dharam Pal to lift the quota of the Sugar from Mowana and Bhagpat. He proved another order dated 24th October, 1974 making somebody else charge of the duties of Dharam Pal. From these letters, it was inferred that Dharam Pal must have left Jullundur on 23rd October, 1974 or 24th October, 1974 for Mowana and Bhagpat Sawatantar Kumar (D.W. 3) of the Civil Supplies Department was also a witness to the same effect. P. Runthala (D.W. 4) is the Accounts Assistant of the Sugar Mills, Mowana According to him, Dharam Pal came to him on 26th October, 1974 to lift the quota of sugar. The witness was not prepared to give him the entire delivery and thereafter Dharam Pal came to him on 30th October, 1974. Reliance was placed on Exhibit D.W. 4/A, a letter written by Dharam Pal on 26th October, 1974 and given to the witness P. Runthala (D.W. 4) did not make any entry in his own records in respect of that letter. Whatever he stated in Court was from memory. Thereafter, Dharam Pal seems to have gone to Lahori Ram (D.W. 5) of the Sugar Mills, Bhagpat on 27th October, 1974 and gave an application to him Exhibit D.W. 5/B. In that application again Dharam Pal wrote that he would stay at Bhagpat for the night intervening 27th and 28th October, 1974. Thereafter, the quota was lifted on 28th October. 1974. Rattan Singh (D.W. 6), the transporter, stated that on 28th October, 1974 the sugar was lifted in his truck. He further stated that Dharam Pal came on 27th October, 1974. The alarming feature of the alibi evidence is, that it is so consistent right from 23rd October, 1974 to 28th October, 1974 and no lacuna is left anywhere, and a studied attempt is made to bring in documents and witnesses in support thereof The very artificiality of this evidence renders it weaker. Another significant feature is that in Exhibit D.W. 5/A, it is found written by Dharam Pal that he would be staying at Bhagpat during the night between 27th and 28th October, 1974 so that his presence at the Rest House of Bhagpat could be assured In that connection, however, it is to be noted that no entry whatsoever was made in the Rest House register. Similarly, no entry whatsoever was made of these letters in the books of the Sugar Mills and the two applications, Exhibits D.W. 4/A and D.W. 5/A, were drafted by Dharam Pal himself and by none else. Since this accused belonged to the Civil Supplies Department, he must have been known to these witnesses It was not difficult for him to have procured P. Runthala (D.W. 4) or the other two witnesses, Lahori Ram (D.W. 5) and Rattan Singh (D.W. 6). The learned Additional Sessions Judge did not place reliance on these witnesses. Similarly, we do not pay any reliance to this evidence Dharam Pal was armed with a chain. Although he did not cause any injury, yet that factor is immaterial. The case of Davinder Singh Kaka is on a different footing. Dharam Pal, on the other hand, took active part in the entire episode. It was he who came to Shiv Kumar and Krishan Kumar in the beginning and thereafter brought the Captain and his associates later on. It was he who opened the task by saying that the Captain had arrived. The attack followed thereafter. Therefore, Dharam Pal was rightly implicated as he was a member of the unlawful assembly.

Shri H.L. Sibal thereafter contended with a great insistence and learning that the object of the unlawful assembly was not to commit the murder of Narinder Kumar. The learned counsel in that connection relied upon certain cogent circumstances which were by far important and seemed to have been missed by the learned trial Judge. It is evident, none of the appellants, while they went to the flour mill, inquired about Narinder Kumar nor did they wait for his arrival. After Narinder Kumar made his appearance, none else challenged him. This would indicate that the common object of the unlawful assembly was to beat Krishan Kumar and Shiy Kumar. It is further evident Dharam Pal cams and met Krishan Kumar and Shiv Kumar only He protested for the Incident of 26th October, 1974. At that time, no one knew that Narinder Kumar was present at the house or at the shop. Thereafter, Dharam Pal went back and brought the Captain and others. The accused came armed with hockey sticks and at any rate the evidence does not indicate that it was even known to the ether appellants that the Captain was armed with a pistol. No one could anticipate that Narinder Kumar would be available. There was no prior information that the Captain or the other appellants would be attacking Narinder Kumar. It is also evident that the pistol was not used at any time before the arrival of Narinder Kumar. However, he was given one hot by the Captain, and none else shouted that he should be beaten or fired at. It was a solitary reaction of Captain Manjit Singh. He shouted at Narinder Kumar and fired at him. The others did not attack Narinder Kumar. In fact injuries were caused by the three accused on the person of Krishan Kumar and Shiv Kumar. All these circumstances leave no doubt in our mind that the Captain as well as his companions went with the avowed object of beating Krishan Kumar and Shiv Kumar and to start the episode with the lodging of the protest It could even be that while Dharam Pal was talking with Krishan and Shiv Kumar, some heat was exchanged and Narinder Singh opened the attack. At any rate, Narinder Kumar was not in the picture not could his presence be contemplated from before. All of them never came to attack Narinder Kumar but to teach a lesson to his family members whom Dharam Pal had seen before hand. Therefore, the object of the unlawful assembly was to lodge a protest or to cause simple injuries by hockey sticks to Krishan Kumar and Shiv Kumar and not to Narinder Kumar. It was only later on that Narinder Kumar came out whom none could expect from before. The Captain lost control over himself upon seeing him. He gave a shout and the pistol fire was made. That was the individual action of the Captain for which he would be held liable. The other members of the unlawful assembly neither had a prior informant on nor the prior determination of causing injury to Narinder Kumar. The object of the unlawful assembly was confined to the injuries caused to Krishan Kumar and Shiv Kumar and the further development that took place was due to the solitary action of Captain Manjit Singh, In this connection, Shri Sibal relied upon the observations of the Supreme Court in Shambhu Nath Singh and Others Vs. State of Bihar, , which appears to be very pertinent to the case in question:--

Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. But ''members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly.

The circumstances pointed out above decidedly indicate, in our opinion, that the community of the object was consistent up to a certain point and that was to beat Krishan Kumar and Shiv Kumar. For that community of object each and every appellant shall be punished. Beyond that, the firing incident related to the single act of Captain Manjit Singh and he will be held responsible for that act.

Shri Bains learned Assistant Advocate General for the State of Punjab, referred to Chandrika Prasad Singh and Others Vs. The State of Bihar, . In that case, the accused were members of unlawful assembly and most of them attacked the injured and thus indulged in overt acts and although some had not assaulted, there was a common object and all were punished u/s 148 of the Indian Penal Code. The entire gamut of the case was based on a different set of circumstances. With respect to their Lordships, the ratio of the authority in Shambhu Nath Singh''s case'' (supra) would be applicable in the instant case.

It is, therefore, evident that with the aid of section 149, all these appellants would be held guilty for the offence u/s 323. They can also be held guilty for the offence of rioting but the offence u/s 302 read with section 149 of the Indian Penal Code cannot be imputed against them. Excepting Captain Manjit Singh, all the other tour appellants would be acquitted of that offence.

Shri Dara Singh thereafter contended for Captain Manjit Singh that he had no motive to commit the offence; that he could not be identified at the spot and that, if at all, he committed the assault in exercise of the right of private defence. We have given our anxious consideration to the argument of Shri Dara Singh but we are reluctant to accept his contention. About the motive, we have already stated that the Captain was very much injured in his feelings. Dharam Pal being a friend of his relation took the initiative. The four eye-witness categorically stated that all of them arrived in a group and assaulted Shiv Kumar and Krishan Kumar. It is obvious that the Captain had a grievance against Narinder Kumar; when the latter arrived, he got infuriated and fired the shot As regards the identity of Captain, there cannot be any doubt as the incident took place in broad-day-light. Where was the necessity of a test identification? Besides Shiv Kumar, the other three eye-witnesses had already seen the Captain at the police station on 26th October, 1974. The motor cycle of this accused was found lying at the spot. His explanation that the motor cycle was left at the police station on 26th October, 1974 and was implanted later on cannot be accepted. Shiv Kumar (P.W. 13) stated during the investigation that Narinder Kumar, the deceased, and Kulbhushan advanced towards the Captain and then he fired. Kulbushan (P.W. 14), however, explained the situation. He gave the following statement:--

I did not state to the police that when I and Narinder Kumar advanced towards Manjit Singh Sahota, he fired at Narinder Kumar. I meant by this that we had come out of the house towards Manjit Singh. It is wrong to suggest that I and Narinder Kumar had come out of the house carrying lathis.

It is manifest Krishan Kumar and Shiv Kumar were being assaulted and an alarm was raised. Narinder Kumar deceased and Kulbhushan being youngsters must have run up to save them. The Captain and his companions themselves brought a situation so as to assault them. If Narinder Kumar made some advance towards the Captain while be was obviously unarmed, where was the occasion for the Captain to fire at him in exercise of right of pirate defence? The entire set up of the prosecution case belies the defence of assault in exercise of right of private defence.

Shri Sibal in the last, solicited for the release of the appellants under Probation of Offenders Act, 1958. It is abundantly clear that Manjit Singh was guilty of nefarious activity of eve-teasing one day before the occurrence. He was found in drunken state and collected the remaining appellants being his companions They came armed with hockey sticks and an iron chain. They attacked Krishan Kumar and Shiv Kumar and during the same transaction Captain Manjit Singh fired a shot at Narinder Kumar and finished him to death. As such, the character and antecedents of the offenders as well as the circumstances in which the offence was committed do not make it expedient that any one of them should be released on probation of good conduct. We do not consider it desirable to deal with them under any provisions of the Probation of Offenders Act, 1958.

The upshot of all that we have stated above is that the Captain Manjit Singh was liable for the offence u/s 302 of the Indian Penal Code for causing the murder of Narinder Kumar. He is liable for the offence u/s 323 read with section 149 for the injuries caused to Shiv Kumar and Krishan Kumar The other appellants are liable u/s 323 for the injuries caused by them respectively to Krishan Kumar and Shiv Kumar. They shall be further liable u/s 323 read with section 149 for the injury caused being members of the unlawful assembly. All of them would also be liable for the offence of rioting which could not be armed with a deadly weapon and as such the offence u/s 147 would be attracted.

Criminal Appeal No. 1140 of 1975 of Captain Manjit Singh Sahota is dismissed and his conviction and sentence u/s 302 of the Indian Penal Code is maintained He is further convicted u/s 323 read with sections 149 and 147 and is sentenced to six months rigorous imprisonment under each count. The three sentences to run concurrently.

Criminal Appeal No. 1088 of 1975 filed by Subhash Chander, Dharam Pal, Davinder Sayal and Narinder Singh is allowed in so far as the offence u/s 302 read with section 149 is concerned and they are acquitted of that charge However, Subhash Chander, Narinder Singh and Davinder Sayal are convicted u/s 323 for causing injuries to Krishan Kumar and Shiv Kumar and they are each sentenced to six months rigorous imprisonment. All these four accused are further convicted u/s 147 and sentenced each to six months rigorous imprisonment. All the terms of imprisonment have to run concurrently. Thus Criminal Appeal No 1088 of 1975 is dismissed for the offences other than u/s 302 read with section 149 and their convictions and sentences for these offences are modified and awarded as stated above.

Criminal Appeal No. 1089 of 1975 filed by Subhash Chander under the Arms Act is dismissed because the two live cartridges were recovered from his possession for which he was rightly convicted.

All these five appellants are acquitted of the charge u/s 148 of the Indian Penal Code. The four appellants Subhash Chander, Dharam Pal, Davinder Sayal and Narinder Singh are on bail and they have to surrender forthwith to serve oat the sentence.