Ujjagar Singh vs State of Punjab

Harphul Singh Brar, J.—This is an appeal against the judgment/order dated 13-12-1993 of the learned Sessions Judge, Sangrur vide which Ujjagar Singh (now appellant) has been convicted u/s 302, IPC and has been sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/-. In default of payment of fine, he was further ordered to undergo rigorous imprisonment for 4 months.

The prosecution case disclosed by Ishar Singh son of Sarwan Singh resident of Manna vide his statement Ex. PF reads as under :�

Ishar Singh stated that he was an ex-serviceman and did cultivation at village Manna. On 21-5-1989, at 10-00 a.m. he was present at his house, when Santokh Singh and Mohinder Singh sons of Bhag Singh who are related as cousins (uncle''s son) to me, were bringing earth to their house on their rehra (cart). Ujjagar Singh son of Kahan Singh told Santokh Singh not to pass the tyres of his rehri towards his side of the street, as 6 feet width of the street belonged to him. Santokh Singh replied that the streets had been got brick-lined by the village panchayat and as such, the street did not belong to anyone. The street belonged to the panchayat and as such he would not pass his rehra from that street if the Sarpanch asked him hot to do so. At this, they started exchanging not words and grappled with each other. He (Ishar Singh) along with some other persons of the village intervened and pacified them. Santokh Singh and Mohinder Singh again went away for bringing a Rehri (cart) full of earth. After that, Ujjagar Singh again hurled an abuse and said that they were stopping his drain water, but the water was still flowing towards that side. At this, Bhajan Singh son of Kaka Singh asked as to why he was hurling abuses. At this, they exchanged hot words with each other. Kulwinder Kaur daughter of Bhag Singh was dissuading Bhajan Singh from quarrelling. Then, Ujjagar Singh aforesaid threw a brick-bat from the roof of his house, which hit Kulwinder Kaur on the right side of her head. As a result of it, Kulwinder Kaur fell down. He and Gurnam Singh Sarpanch put Kulwinder Kaur in a car, brought her to Civil Hospital, Dhuri and got her admitted there. Ujjagar Singh had also raised similar dispute at the time of brick-lining of the street.

Ishar Singh got recorded this statement of his before A.S.I. Balbir Singh which was heard by him and signed by him in token of its correctness. A.S.I. Balbir Singh made his endorsement Ex. PA/1 and sent it for making entry in the roznamcha register. Statement Ex. PF of Ishar Singh was recorded by ASI Balbir Singh after the Senior Medical Officer, Civil Hospital, Dhuri opined vide Ex. PO/1 on Balbir Singh''s application Ex. PO that Kulwinder Kaur was unfit to make statement. On police request Ex. PS dated 21 -5-1989, the S.M.O. of Civil Hospital, Dhuri had also opined at 12-30p.m. vide Ex. PS/1 that Kulwinder Kaur was unfit to make statement. It was then that the statement Ex. PF of Ishar Singh was recorded by the police officer. Of course the ruqa Ex. PR regarding arrival of Kulwinder Kaur in Dhuri Hospital by S.M.O. to the S.H.O., Dhuri was sent in writing on 21-5-1989 at 11 -00 p.m.

When Kulwinder Kaur was on her way to C.M.C. Ludhiana under medical advice, she succumbed to her injury, on the way and thus, her dead-body was brought back to the Civil Hospital, Dhuri and post-mortem examination on the dead-body of Kulwinder Kaur was conducted by Dr. K.N. Sharma vide Ex. PC dated 22-5-1989 who opined therein that the sole head-injury on the body of Kulwinder Kaur was sufficient to cause death in its natural course and that this head-injury was in the form of intra-cranial haemorrhage, which was ante-mortem in nature. The offence was then converted into one under Sections 302, IPC by the Investigating Officer with the result that the formal FIR Ex. PT, which was recorded u/s 304, IPC on the basis of the statement of Ishar Singh P.W. was converted into one u/s 302, IPC.

After completing the formalities, challan was presented and the accused was charged u/s 302, IPC. The accused did not plead guilty and claimed to be tried.

The prosecution in support of its case, examined as many as seven witnesses and tendered into evidence the affidavits Exhibits PJ, PK, PL, and PM of Head Constable Ujjagar Singh, Constable Karam Singh, Constable Jagpal Singh and M.H.C. Jasbir Singh, respectively. The report Ex. PN of the Chemical Examiner was also tendered into evidence. PWs Gurnam Singh Sarpanch, Constable Ram Singh and S.I. Kans Singh were given up as unnecessary.

Dr. K.N. Sharma (P.W.1) stated that on 22-5-1989, he conducted the post-mortem examination on the body of deceased Kulwinder Kaur daughter of Bhag Singh of Village Manna, and he found the following injury on her body : --

A stitched wound 3 cm. x 1 cm. on the right parietal region, 7.5 cm. above and 4 cm. in front of the right ear.

On dissection of the skull, there was present ecchymosed blood against the site of the injury and on further dissection and exposing the scalp bone, there was present a fracture in the right parietal bone extending on to the left parietal bone. The fracture was continuing on the base of the skull on the right side. On opening the cranium, there was present a haematoma against the site of the fracture. The duramater was congested. On opening the duramater there was present ecchymosis on the brain matter. Rigor mortis was present and the injury was ante-mortem in nature and was sufficient to cause death in the ordinary course of nature.

The doctor (PW-1) was shown part of brick Ex. P. 1 and he opined that if the said brick, from a height, on the person of Kulwinder Kaur was hurled, the injury found on her person was sufficient to cause her death. He explained that the length of brick Ex. P1 was 7 inches-on the one side and 6� inches on the other side. The doctor could not opine that the patient would have been saved if she would have been referred for surgical treatment immediately.

The main case alleged against the accused was disclosed by Ishar Singh (PW. 2), Bhajan Singh (PW. 3) and Santokh Singh (PW-4).

Besides confirming the police version wilh regard to the actual infliction of head-injury to Kulwinder Kaur with a piece of brick by Ujjagar Singh, Santokh Singh (P.W. 4) explained that the place from where he and Mohinder Singh were bringing earth, was at a distance of 150 Karams from his house. He further stated that he was by the side of Kulwinder Kaur when she succumbed to her injury and that the dead-body of Kulwinder Kaur was brought by him and some other persons from Dhuri Hospital at 5-00 p.m. where the police had also arrived. In cross-examination, he also explained that Kulwinder Kaur had remained at Dhuri Hospital for one night and had started for Ludhiana from Dhuri at 10-00 a.m. on the next day.

P.W. 5 Kashmir Singh is a draftsman of Dhuri. He proved the scaled site-plan Ex. PG of the place of occurrence prepared at the instance of Ishar Singh P.W.

Balbir Singh A.S.I. (P.W. 6) proved the application Ex. PO, which he had made to the Medical Officer, Dhuri for his opinion and thereon, the doctor had opined vide Ex. PO/1, that Kulwinder Kaur was unfit to make statement. He stated that he had recorded the statement Ex. PF of Ishar Singh, which he had signed after admitting the same to be correct.

Pritam Singh (P.W. 7) had partly investigated this case. He stated that on 21-5-1989, on receipt of ruqa Ex. PR from Civil Hospital, Dhuri, he went there and on his application Ex. PS, the doctor had opined vide Ex. PS/1 that Kulwinder Kaur was unfit to make statement. He proved having recorded FIR Ex. PT/1 signed by him to be correct which was recorded on the basis of statement Ex. PT of Ishar Singh. He also proved the Inquest Report Ex. PB and stated that the bloodstained earth was lifted from the site of place of occurrence vide Ex. PJ and got attested by Bhajan Singh and Santokh Singh, PWs. He had prepared the site-plan Ex.PU with correct marginal notes. He further stated that the accused was produced before him by Jangir Singh of Village Kaur Seri on 28-5-1989 and he had taken him into custody. The only question asked from this witness during cross-examination was. which he denied, that he had completed his part of the investigation in a partial manner.

When the circumstances appearing in evidence were put to the accused during his statement recorded u/s 313, Cr. P.C., he denied the same He alleged that he had been falsely implicated in this case on the ground of enmity with one Mukand Singh son of Sarwan Singh and as such. Ishar Singh P.W. had a grudge against him.

The accused in his defence, produced Karnail Singh (D.W. 1) who stated that Mukand Singh was the younger brother of Ishar Singh, P.W. He stated that Ujjagar Singh had purchased 1� A biswas of land on 27-1-1988 vide sale deed, the copy of which was Ex. D. 1, from Mukand Singh.

After considering all this evidence, the learned Sessions Judge, Sangrur convicted and sentenced the accused, as stated above. Hence this appeal.

Learned counsel for the appellant contends that the presence of Santokh Singh and Mohinder Singh at the time of alleged occurrence is doubtful and no reliance can be placed on the statement of Ishar Singh and Santokh Singh. This contention of the learned counsel is devoid of any force. Santokh Singh has deposed at the trial that the place from where the earth load of rehri was brought, was at a distance of 150 Karams and from this distance, Santokh Singh and Mohinder Singh could easily reach the spot with earth-load of rehri. Not even a suggestion was put to Santokh Singh (PW 4) as to why he and Mohinder Singh did not reach the spot as they had gone to bring earth load of rehri for the second time. Ishar Singh PW. was not even confronted with the specific portion recorded in Ex. PT in this connection. In this view of the matter, the presence of Santokh Singh and Mohinder Singh at the spot cannot be doubted. Omission in the FIR Ex. PT regarding the fact that Santokh Singh and Mohinder Singh returned to the spot after briging second earth load of rehri, does not detract the truthfulness of the statement of these witnesses. It has been next contended by the learned counsel for the appellant that it was not mentioned in the FIR Ex. PT as to which part of the body of Kul winder Kaur was hit by the brick-bat. The prosecution version that the brick-bat had fallen on the head of Kulwinder Kaur, was a concoction and an after-thought and has been introduced later in the statement Ex. PT of Ishar Singh. This contention of the learned counsel is without any force. There was only one head injury on the person of Kulwinder Kaur as a result of which she died. In statement Ex. PF of Ishar Singh which is corroborated by the sworn testimony of Santokh Singh and Bhajan Singh PWs, it has been clearly mentioned that the brickbat hurled by Ujagar Singh from the roof of his house had fallen on the right side of the head of Kulwinder Kaur. The oral evidence of the witnesses thus, finds corroboration from the medical evidence. It has come in the evidence of Dr. K.N. Sharma (PW 1) that there was only one head injury on the person of Kulwinder Kaur that proved fatal in this case and it was opined to be sufficient to cause death in the ordinary course of nature. The omission that it was not specifically said that the brick-bat fell on the right side of the head of Kulwinder Kaur, is of no consequence. The medical evidence thus, corroborates the ocular testimony of the eye-witness account.

It is further contended by the learned counsel for the appellant that the statement of Ishar Singh, Bhajan Singh and Santokh Singh should not be relied upon as they are relation witnesses. It is, no doubt, true that Ishar Singh, Bhajan Singh and Santokh Singh are cousins inter-se and Kulwinder Kaur deceased was the sister of Santokh Singh, but there is no bar to rely upon their evidence if it is otherwise reliable. At the most, the Court is expected to take caution in appreciating the evidence of the relation witnesses. In the case in hand, the presence of these witnesses was rather natural at the spot. The accused had a grouse about the brick-lining of the street in front of his house and passing of the rehri by Santokh Singh and Mohinder Singh on the front side of his house. Due to that reason, he first had a verbal altercation with Santokh Singh and Mohinder Singh and later, he left the street and went to the roof of his house from where he hurled a brick-bat measuring 7�" x 6" which hit the head of Kulwinder Kaur, as a result of which she ultimately succumbed to her injury in the hospital. Ishar Singh and Bhajan Singh PWs have no motive against the accused. Their sworn testimony is thus, reliable.

The learned counsel for the appellant further contended that there was delay in lodging the First Information Report. According to him, the occurrence took place in the morning on 21 -5-1989, but the FIR was lodged on 22-5-1989 at 3-30 p.m. This contention of the learned counsel also does not find favour with us. Soon after the brick-bat hit on the head of Kulwinder Kaur, she became unconscious and was carried in a car to Dhuri Hospital by Ishar Singh and Santokh Singh. Information Ex. PR with regard to the arrival of Kulwinder Kaur in an injured condition in Dhuri Hospital was sent by the Senior Medical Officer, Dhuri to S.H.O., Dhuri at 1 1-00 a.m. on 21-5-1989 vide Ex. PR, on police-request Ex. PS. at 12-30 p.m. on 21 -5-1989 the S.M.O., Dhuri opined that Kulwinder Kaur was unfit to make statement. On the application Ex. PL of A.S.I. Balbir Singh, the S.M.O., Dhuri vide his report Ex. PO/1 on 22-5-1989 at 8-30 a.m., again declared that Kulwinder Kaur was unfit to make statement.

Dr. K.N. Sharma (P.W.1) was not questioned about the condition of Kulwinder Kaur. The S.M.O., Dhuri had immediately sent information Ex. PR regarding the arrival of Kulwinder Kaur in an injured condition in Dhuri Hospital to S.H.O., Dhuri at 11-00 a.m. on 21-5-1989, i.e. after one hour of the occurrence. It was rather a concern for the attendants to see that Kulwinder Kaur was given the proper medical treatment so that her life could be saved. In these circumstances, even if the delay has occurred in giving information to the police, it was of no consequence particularly when the eye-witness account is reliable and trustworthy and it has been held to be so.

The learned counsel for the appellant further contended that no case u/s 302, IPC is made out against the convict-appellant as he had no intention to cause any injury to Kulwinder Kaur. We find force in this contention of the learned counsel. If there was any quarrel, it was only between Ujjagar Singh and Sanlokh Singh or Mohinder Singh and not with Kulwinder Kaur. It has come in the evidence of Ishar Singh (PW. 2) that when Mohinder Singh and Santokh Singh again brought a rehri with earth on it in the street, Ujjagar Singh came out of the house and started giving abuses to them. In the meantime, Bhajan Singh son of Kakka Singh came there and asked Ujjagar Singh accused as to why he was giving abuses in the name of mother and sister. In the meantime, Kulwinder Kaur sister of Santokh Singh came outside in the street and asked the accused and Bhajan Singh as to why they were quarrelling with each other. Ujjagar Singh went on the roof of the kotha after taking a brick-bat, hurled the brick-bat from the Kotha which hit on the head of Kulwinder Kaur.

In these circumstances, we find that it was not the intention of Ujjagar Singh to hit Kulwinder Kaur, and if at all he had any grievance, it was against Santokh Singh. We find that the accused inflicted only one injury on the head of the deceased. Dr. K.N. Sharma (PW.1) who conducted the post-mortem on the body of deceased Kulwinder Kaur, found the following injury on the person of the deceased : --

A stitched wound 3 crn x 1 cm on the right parietal region, 7.5 cm. above and 4 cm. in front of the right ear. On the dissection of the skull, there was present ecchymosed blood against the site of the injury and on further dissection and exposing the scalp bone, there was present a fracture in the right parietal bone extending on to the left parietal bone. The fracture was continuing on the base of skull on the right side. On opening the cranium there was present a haematoma against the site of fracture. The duramater was congested. On opening the duramater there was present ecchymosis on the brain matter. Rest of the organs were healthy and normal.

The doctor has admitted in the cross-examination that if the extra-dural haemotoma is detected at a proper time, it can be treated by surgery, though he could not say that the patient could have survived, if she would have been referred for surgical treatment immediately.

In these circumstances, we find it difficult to hold that the accused intended to cause that particular injury to the deceased. It is not a case where clause (3) of Section 300, IPC is attracted. Therefore the offence committed would be culpable homicide not amounting to murder.

Accordingly, we partially accept this appeal, set aside, the conviction of the appellant u/s 302, IPC and convict him u/s 304, Part II, IPC and sentence him to suffer R.I. for seven years.

Subject to the above modification., this appeal is dismissed.