CRIMINAL APPEAL NO. 686-DB OF 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
DATE OF DECISION: October 29, 2009.
Parties Name
Balkar Singh and another
..APPELLANTS
VERSUS
State of Punjab
...RESPONDENT
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS . JUSTICE. DAYA CHAUDHARY
PRESENT: Mr.D. S. Pheruman,
Advocate, for the appellants
Mr. D.S. Brar, D.A.G., Punjab,
for the respondent.
JASBIR SINGH, J.
ORDER.
Balkar Singh, appellant No. 1 (A-1) and his brother Major
Singh, appellant No. 2 ( A-2) have filed this appeal against judgment and
order dated November 20, 2001, vide which they were convicted for
commission of offence punishable under Section 302 read with Section 34
IPC, further for commission of an offence punishable under Section 452
IPC and also for commission of offence punishable under Section 324/34
IPC. Following order of sentence was passed against them:
“Taking into consideration, the facts and circumstances of the
CRIMINAL APPEAL NO. 686-DB OF 2001 -2-case, both the convicts named Balkar Singh and Major Singh
are sentenced to undergo R.I. for two years each and to pay fine
of Rs. 500/- each u/S 452 IPC and in default of payment of fine,
the defaulter will undergo further R.I. for two months. Both the
convicts are sentenced to undergo imprisonment for life each
and to pay fine of Rs. 1000/- each u/S 302/34 IPC and in
default of payment of fine, the defaulter will undergo further
R.I. for six months. Both the convicts are further sentenced to
undergo R.I. for 1 ½ years each u/S 324 /34 IPC. Both the
sentences were ordered to run concurrently.”
It was allegation against the appellants that they,on May 10,
1999, in furtherance of their common intention, caused injuries to Rani
wife of Wazir Singh, and Malkiat Singh(PW7) son of Wazir Singh. Smt.
Rani succumbed to her injuries on May 20, 1999.
Process of Criminal Law was put into motion on a statement
made by Malkiat Singh (PW7) on May 11, 1999, on the basis of which
formal FIR Ex. PH/3 was registered against the appellants at 12.05 PM, on
the above said date, under Section 324/34 IPC. The statement of Malkiat
Singh was recorded by S.I. Gurdial Singh (PW10), the Investigating Officer,
in the Civil Hospital at Gurdaspur.
Case of the prosecution, as noted by the trial Court in para No.
2 of its judgment, reads thus:
“The prosecution case as narrated in the charge-sheet filed u/S
173 Cr.P.C. at the hands of Station House Officer of Police
Station Dina Nagar is that on 11-5-1999, on receipt of questy
CRIMINAL APPEAL NO. 686-DB OF 2001 -3-message from S.H.O., P.S. City Gurdaspur, to the effect that
medico-legal reports of Malkiat Singh son of Wazir Singh, Smt.
Rani wife of Wazir Singh and Balkar Singh son of Dewan
Chand, residents of village Kairey had been received there
from the Civil Hospital, Gurdaspur, SI Gurdial Singh of Police
Station Dina Nagar along with HC Lakhwinder Singh,
Constable Mohinder Ram and Constable Parminder Kumar had
reached Police Station City Gurdaspur and after obtaining the
copies of the said medico-legal reports, they had reached Civil
Hospital, Gurdaspur. Applications were moved by the Sub
Inspector regarding fitness or otherwise of the said persons to
make the statement. Smt. Rani was opined by the doctor to be
unfit to make the statement, but Malkiat Singh was opined to be
fit to make the statement. Statement of Malkiat Singh son of
Wazir Singh was then recorded by SI Gurdial Singh. It was
disclosed by him that on 10-5-1999, at about 7 P.M., he
(Malkiat Singh), Balkar Singh, Major Singh and some other
persons were sitting in the out-skirts of the village on the bank
of the road on a bridge. One Inderjit Singh son of Shangara
Singh had reached there and Malkiat Singh had asked said
Inderjit Singh as to why he had got application filed against
him for a minor dispute that had occurred in the village.
Inderjit Singh had stated that he had not got any such
application filed and he (Inderjit Singh ) had asked Malkiat
Singh as to who had told him that fact. Malkiat Singh had then
said that Balkar Singh was telling it. Inderjit Singh had then
CRIMINAL APPEAL NO. 686-DB OF 2001 -4-called Balkar Singh and some wordy- duel had taken place
between Inderjit Singh and Balkar Singh. The other persons of
the village sitting there had intervened and sent both of them to
their respective houses. That at about 7.30 P.M., he (Malkiat
Singh) was sitting in his house , when Balkar Singh armed with
drat and Major Singh armed with Kirpan had reached in the
street in front of his house. They had started giving abuses to
him and had given kicks on the outer door of the house. The
outer door was opened by Smt. Rani Devi, mother of Malkiat
Singh and she had requested them not to give abuses; that
Balkar Singh had given a blow with the Drat he was having
with him on the person of Smt. Rani Devi, his (Malkiat Singh’s)
mother; which hit her (Rani Devi) on the head in the left side.
Smt. Rani had fallen down. Hue and cry was raised by them and
Major Singh accused after trespassing into the house, had
given blow with the Kirpan on him (Malkiat Singh), which hit
him on the right thumb, when he had tried to ward off the blow
and Balkar Singh had given two blows with the Drat on him,
one of which hit on his head in the back side and the other near
the ear on the left side; that he (Malkiat Singh) had fallen down
in the court-yard of the house; that hue and cry raised by them
had attracted Mithu son of Pirthi Singh, who had rescued him
from the clutches of the accused persons; that both the accused
persons had fled away from the spot along with their respective
weapons; that he (Malkiat Singh) and Smt. Rani were rushed to
Civil Hospital, Gurdaspur.”
CRIMINAL APPEAL NO. 686-DB OF 2001 -5-
It is apparent from the records that the Investigating Officer –
SI Gurdayal Singh (PW10) , on receipt of intimation from the Hospital,
went there. He moved an application to know about fitness of Malkiat
Singh, to make a statement. Doctor gave a positive opinion, which led to
the recording of statement Ex. PH of Malkiat Singh (PW7). PW10 also
sought opinion of the Doctor regarding fitness of Smt. Rani to make her
statement. However, the Doctor declared Smt. Rani unfit to make the
statement vide report Ex. PB/1. As per record, on account of her serious
condition, the deceased was referred to Guru Nanak Dev Hospital at
Amritsar for treatment, where she died on May 20, 1999. As per evidence
on record, Smt. Rani was medico legally examined by Dr. Ramesh Mahajan
(PW2) on May 10, 1999, at 10.45 PM and he found the following injuries
on her person:
“Incised wound 15 cm x 3 cms present on the left side of the
head, 2 cms from mid line, extending from 4 cms behind the
anterior hair line upto the occipital region. Wound was bone
deep and bleeding profusely.”
Injury was declared grievous vide doctor’s opinion dated May
11, 1999. This witness on the same date also medico legally examined
Malkiat Singh (PW7) at 11.30 PM and found the following injuries on his
person:
“1. Incised wound 2 cm x .25 cm present behind left ear.
Wound was bleeding.
2. Incised would of 3 cms x 5 cm present on the left side of the
CRIMINAL APPEAL NO. 686-DB OF 2001 -6-scalp, 6 cms above left ear. Wound was bleeding.
3. Incised wound 1 cm x .25 cm present over the distal phalanx
of right thumb”
Injuries were declared simple in nature, the Doctor further
opined that those could be suffered by a friendly hand.
This witness had also medico legally examined Balkar Singh
(A-1) on May 11, 1999, at 12.45 AM and found the following injuries at her
person:
“1. Incised wound 6 cm x 1 cm in size over dorsal aspect of left
fore-arm, 3 cms above wrist joint. Wound was bleeding.
2. Incised wound 2.5 cm in size skin deep present over knuckle
of middle finger of left hand.
3. Incised wound 12 cms x 1.5 cm in size present over left
shoulder, starting 2 cms above junction of lateral and middle
third of clevical and extending back upto left scapular
region. Wound was bleeding.
4. Incised wound 5 cms x 1 cm in size over right scapular
region. Wound was continuing as skin deep cut. 4 cms in
size supero laterally and 22 cms skin deep out infero
medially.
5. 2 cms x 1 cm incised wound present over right shoulder
joint.
6. 2 cms abrasion was present over right pinna, reddish in
colour.
7. 1 cm abrasion was present over back side of left pinna.”
CRIMINAL APPEAL NO. 686-DB OF 2001 -7-Injuries were declared simple in nature.
Post mortem on the dead body was conducted by Dr. Ashok
Chanana (PW3) on May 21, 1999, and he made the following observation
regarding injury to the deceased:
“An oblique stitched wound 16 cms long with 12 stitches intact
was present on the left side of the head in its centre. It extended
from the frontal to occipital region. On dissection, the margins
were clean cut with clotted blood between the margins.
Underlying tissue was infiltrated with blood. The underlying
left parietal bone was having a fracture with clean cut margins.
Clotted blood was present at the site. The underlying dura and
arachnoid matter were also cut. The corresponding portion of
the brain had become soft. The cranial cavity contained 120 cc
blood in the form of intracranial haemorrhage. The base of the
brain was compressed. The heart, stomach, small intestines and
bladder was empty. Large intestines contained faeces. The
injury was ante mortem in origin.”
This witness has stated that the death was the result of injury,
mentioned above, which was sufficient to cause death in ordinary course of
nature.
After registration of FIR, Investigating Officer went to the
spot, prepared a rough site plan (Ex PK) of the place of occurrence with
correct marginal notes. In the meantime, he also recorded statements of the
eye witnesses, i.e., Malkiat Singh (PW7) and Ravi Singh (PW8). Blood
CRIMINAL APPEAL NO. 686-DB OF 2001 -8-
-stained earth was removed from the spot, which was taken into possession
against a recovery memo. The appellant – accused was arrested and on a
disclosure statement made by Balkar Singh (A-1) , weapon of offence was
recovered. On completion of other formalities, final report was put in Court
for trial.
The appellants were charge-sheeted, to which they pleaded not
guilty and claimed trial. The prosecution produced ten witnesses and also
brought on record documentary evidence to prove its case. On conclusion of
prosecution evidence, statements of the appellants – accused were recorded
under Section 313 Cr.P.C. Incriminating material existing on record was
put to them. They denied it, pleaded innocence and false implication.
Balkar Singh , appellant, took up the following defence:
“I had gone to the house of Malkiat Singh empty handed to sort
out some misunderstanding about me. When I called him, he
opned the door and came in the street holding a naked Kirpan.
During argument he scuffled with me, when his mother Smt.
Rani tried to separate us and during the scuffle the Kirpan of
Malkiat Singh accidently hit Smt. Rani. I am innocent.”
Major Singh (A-2) said that he was not present at the place of
occurrence. The appellants also led evidence in defence.
The trial Court, on appraisal of evidence, as led by the parties,
found the appellants guilty , convicted and sentenced them, as found
mentioned, in earlier part of this order. Hence this appeal.
Counsel for the parties heard.
Shri D.S.Pheruman, counsel for the appellants, has vehemently
CRIMINAL APPEAL NO. 686-DB OF 2001 -9-
contended that the prosecution has made an attempt to suppress true genesis
of the crime. There is no explanation for injuries, received by Balkar Singh
(A-1) at the time of alleged occurrence. He further argued that the
prosecution has miserably failed to explain delay in recording the FIR. By
making reference to the site plan Ex. PK, he argued that the occurrence had
taken place in the street and not in the house of the deceased, as projected
by PW7. As such conviction and sentence, awarded to the appellants, under
Section 452 IPC was not justified. In the alternative, without conceding
anything, he argued that the conviction of Major Singh (A-2) by invoking
the provisions of Section 34 IPC was not justified. At no time, Major Singh
shared a common intention with Balkar Singh (A-1) to kill Smt. Rani. For
Balkar Singh (A-1), he argued that it was a case of free fight. Smt. Rani
was an intervener, may be, by accident an injury was caused to her, which
proved fatal. By stating as above, he argued that the appeal be allowed,
judgment and order under challenge be set aside and the appellants be
acquitted of the charges framed against them.
Prayer made has vehemently been opposed by Shri D.S. Brar,
Deputy Advocate General, Punjab. He, by making reference to the
statements of PW7 and PW8, argued that a vivid eye -witness account of the
occurrence has been given by above named witnesses, which fully proves
guilt of the appellants – accused. He further argued that the first concern of
the family was to save Smt. Rani and give medical treatment to Malkiat
Singh (PW7), for which both were shifted to Civil Hospital, Gurdaspur.
Smt. Rani was unconscious. Malkiat Singh was also seriously injured. In
view of above, there may be some delay in getting the FIR recorded.
However, the same, in view of facts of this case, is not fatal to the case of
CRIMINAL APPEAL NO. 686-DB OF 2001 -10-
the prosecution. He further argued that both the appellants came armed to
the house of the deceased, caused injuries to her, without any provocation,
after entering the house. He prayed that in view of evidence on record,
judgment and order, passed by the trial Court, are perfectly justified. He
prayed that the appeal having no substance be dismissed.
As per case of the prosecution, on May 10, 1999, in the
evening both the appellants,fully armed, came to the house of the deceased
and started abusing her family members. When Smt. Rani opened the
door, Balkar Singh (A-1) instantaneously gave blow of Datar at her head.
Then both the appellants entered house of the deceased and caused injuries
to Malkiat Singh (PW7). Hue and cry raised by Malkiat Singh, attracted
the neighbours. The appellants ran away from the spot with their weapons.
As per evidence on record, deceased and injured Malkiat Singh were
immediately shifted to Civil Hospital, Gurdaspur, where deceased was
medico legally examined by Dr. Ramesh Mahajan (PW2) at 10.45 PM.
Thereafter, Malkiat Singh (PW7) was examined by the above said witness at
11.30 PM. As per evidence on record, Doctor immediately sent intimation
in that regard to the Police Station City Gurdaspur. Offence was committed
within the jurisdiction of Police Station Dina Nagar. The officials of Police
Station City Gurdaspur then sent information of the incident to the Police
Station Dina Nagar. Intimation of the occurrence was very prompt.
However, thereafter the Investigating Officer might have taken some time to
go to Gurdaspur. In view of medical evidence on record, facts, mentioned
above, and statements made by PW7 and PW8, it is clearly established that
there was no delay in recording the FIR. First concern of the family was to
CRIMINAL APPEAL NO. 686-DB OF 2001 -11-
save the injured. That process may have consumed some time, which
cannot be taken against the prosecution.
Medical evidence on record, coupled with statements made by
PW7 and PW8 and also stand taken by Balkar Singh (A-1), in his statement
recorded under Section 313 Cr.P.C., clearly establish that the occurrence
had taken place on May 10, 1999, in which injuries were received by Smt.
Rani deceased and Malkiat Singh (PW7).
Now it is to be examined as to whether occurrence had taken
place in the house of the complainant or outside in the street. PW7 in his
statement has stated that the blood had fallen down at the place where his
mother had received the injuries. As per site plan Ex. PK, which was
prepared by the Investigating Officer at the spot, the injury is shown to have
been caused to Smt. Rani in the street and to PW7, just in the door of his
house. Perusal of site plan clearly indicates that the appellants never
entered house of the complainant and as such their conviction under Section
452 IPC was not justified.
Examination of evidence further reveals that it was not a pre-
planned attack. It was a case of sudden fight between the parties. The
prosecution has miserably failed to give any explanation for the injuries,
received by Balkar Singh (A-1) at the same time, when injuries are alleged
to have been caused to the deceased and the complainant. Balkar Singh was
medico legally examined by Dr. Ramesh Mahajan (PW2) on May 11, 1999,
at 12.45 AM. Seven injuries were found at his person. PW7, In his
statement, on the basis of which FIR was recorded, has very vaguely
mentioned that at the time of occurrence, Balkar Singh (A-1) also received
injuries. It was also so stated by PW8 in his statement recorded under
CRIMINAL APPEAL NO. 686-DB OF 2001 -12-
Section 161 Cr.P.C. However, at the time of trial, both the witnesses took a
somersault and denied that any injury was received by Balkar Singh (A-1) at
the time of alleged occurrence. They have rather said that they had not seen
any injury on the person of above named accused. This Court feels that in
view of over-whelming evidence on record, stand taken by the complainant
party appears to be false. An attempt has been made to suppress real facts
of the occurrence. As per medical evidence on record, injuries to Balkar
Singh are proved on record. Those were of the same duration, in which
injuries, allegedly, were received by the complainant party. The
Investigating Officer behaved in a very strange manner. Investigation by
him was tainted. In his statement, he has admitted that he had received
medico legal report of Balkar Singh along with medico legal report of Smt.
Rani and PW7. However, he did not take any action and made no attempt to
record statement of Balkar Singh (A-1), even after moving an application to
the Doctor to know about his fitness, to make a statement. Investigating
Officer has further authenticated that PW7 and PW8 had admitted that
injuries were received by Balkar Singh in the scuffle. Admittedly, Balkar
Singh (A-1) also remained admitted in the Hospital.
In view of facts, mentioned above, and taking note of injuries,
received by both the parties, it can easily be said that it was a case of sudden
fight between the parties. PW7 and the assailants were in scuffle. It
appears that Smt. Rani intervened to separate them and in that process, one
injury was caused by Balkar Singh (A-1) at her head, which proved to be
fatal. Injury was not repeated. Major Singh (A-2) made no attempt to cause
any injury to the deceased. Injury caused by A-2 to PW2 is on non-vital
part of the body and simple in nature, which makes it very clear that neither
CRIMINAL APPEAL NO. 686-DB OF 2001 -13-
Balkar Singh (A-1) nor Major Singh (A-2) had any intention, what to talk of
common intention, to kill Smt. Rani. As per evidence on record, in the
evening, some hot words had exchanged between Balkar Singh (A-1) and
Malkiat Singh (PW7). In view of the circumstances on record, stand of
Balkar Singh that he had gone to the house of Malkiat Singh to remove
some misunderstanding appears to be justified. This Court feels that in the
process of talking with each other, a fight might have ensued between them.
It was not a pre-planned attack, as projected by the prosecution.
In view of facts, mentioned above, Major Singh (A-2) can be
held liable individually, for his own act and he cannot be fastened with
vicarious liability for a criminal act, committed by his brother (A-1).
Against Balkar Singh also, it appears that the prosecution has
failed to make out any case under Section 302 IPC. As has been discussed
earlier, when Smt. Rani made an attempt to intervene in the scuffle, between
his son Malkiat Singh (PW7) and the appellants, she received one injury at
her head, which resulted into her death. As such, in view of facts of this
case, offence committed by Balkar Singh (A-1) would fall within the
provisions of Section 304, Part I IPC.
Accordingly, this appeal is partly allowed, conviction and
sentence against both the appellants under Section 452 and 302/34 IPC are
set aside. Balkar Singh (A-1) is held guilty for commission of an offence
punishable under Section 304, Part 1 IPC and sentenced to undergo rigorous
imprisonment for a period of ten years. Fine imposed upon him by the trial
Court is maintained. He is further held guilty for commission of offence
punishable under Section 324 IPC and sentence awarded to him by the trial
Court is affirmed. Both the sentences shall run concurrently.
CRIMINAL APPEAL NO. 686-DB OF 2001 -14-
Appellant Major Singh (A-2) is held guilty for commission of
an offence punishable under Section 324 IPC and his sentence is reduced to
the one , already undergone by him. However, with a view to settle equity
between the parties and by taking recourse to the provisions of Section 357
Cr.P.C. , Major Singh (A-2) is ordered to deposit an amount of Rs. 25,000/-
with the trial Court within a period of two months. On deposit so being
made, the amount be disbursed to legal heirs of the deceased, Smt. Rani,
forth-with. In case amount is not deposited , liberty is granted to legal heirs
of the deceased to recover the same by filing execution application before
the trial Court.
(JASBIR SINGH)
JUDGE
( DAYA CHAUDHARY)
JUDGE
October 29, 2009.
DKC