Criminal Appeal No.78-DB of 2001 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Bhupinder Singh and others APPELLANT
VERSUS
The State of Punjab RESPONDENT
CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL
HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present:- Shri Vinod Ghai, Advocate for the appellants.
Shri Satinder Singh Gill, Additional A.G. Punjab.
MEHTAB S.GILL, J.
This is an appeal against the judgment/order dated 1.2.2001 of the
learned Additional Sessions Judge, Jalandhar, whereby he convicted Bhupinder
Singh son of Paramjit Singh, Paramjit Singh son of Gurdip Singh, Jaspal Singh son
of Paramjit Singh and Dial Singh son of Gurdip Singh under Section 302 read with
Section 34 I.P.C. and sentenced them to undergo imprisonment for life and to pay
a fine of Rs.5,000/- each, in default to further undergo RI for six months. They
were also convicted under Sections 323/34 I.P.C. and sentenced to undergo RI for
six months. Further, they were convicted under Section 324/34 I.P.C. and
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sentenced to undergo RI for one year and to pay fine of Rs.1000/- each and in
default to further undergo RI for 2 months.
The case of the prosecution is unfolded by the statement of
Sukhwinder Singh Ex.PL, given to SI Sukhdev Singh at Cinema Chowk G.T.Road,
Kartarpur. Sukhwinder Singh stated that he is a resident of Vishvakarma Market,
Kartarpur. He makes furniture in Vishkarma Market, Kartarpur. His residence is
at the back side of the shops. On 9.2.1999 he and his father Jai Singh, brothers
Malkiat Singh, Surinder Singh and Amarjit Singh who had come from Dubai, were
working in their shop. At about 12 noon Jaspal Singh alias Laddi son of Paramjit
Singh armed with a Kirpan, Bhupinder Singh son of Paramjit Singh armed with a
Dagger, Paramjit Singh son of Gurdeep Singh armed with a Datar and Dial Singh
son of Gurdip Singh armed with a Dang came out of their house situated on the
opposite side. Paramjit Singh raised a lalkara to catch hold of them, so that they be
taught a lesson, for stopping their generator. Thereafter Bhupinder Singh gave a
Dagger blow hitting the abdomen of Amarjit Singh on which Amarjit Singh, fell
down. Paramjit Singh gave a Datar blow, hitting on the left shoulder of Jai Singh.
Jaspal Singh alias Laddi gave a Kirpan blow hitting, below the left eye of Malkiat
Singh. Thereafter Dial Singh gave Dang blows hitting Surinder Singh, Malkiat
Singh and Jai Singh. An alarm was raised. Balwinder Singh son of Swaran Singh
resident of Vishvakarma Market, Kartarpur, reached the spot, who rescued them.
The motive for the commission of the offence was that Paramjit Singh placed the
exhaust of the generator towards the house of the complainant party. The smoke
of the generator used to enter their shop and house. Complainant had asked
Paramjit Singh to divert the face of the exhaust cylinder, but he instead got angry
with this and the accused caused injuries to the complainant party. The injured
alongwith Amarjit Singh were taken to the Civil Hospital, Kartarpur. Amarjit
Singh was referred to Civil Hospital, Jalandhar and he died at 9 p.m. on 10.2.1999.
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On the basis of this statement F.I.R. Ex.PL/1 was recorded on 10.2.1999 at 12.35
a.m. at Police Station Kartarpur. The special report reached the J.M.I.C. Jalandhar
on the same day at 6.05 a.m.
The prosecution to prove its case, brought into the witness-box
Dr.Kanwal Harpreet Singh Sekhon PW-1, Dr.Naresh Kumar PW-2, Dr.Dinesh
Kumar PW-3, Sukhwinder Singh PW-4, Malkiat Singh PW-5, Surinder Singh PW-
6, Jai Singh PW-7, Dalip Singh Draftsman PW-8, ASI Rattanjit Singh PW-9,
Sukhbir Singh PW-10, Dr.Gurpal Singh PW-11, Jaimal Singh PW-12, HC
Baljinder Singh PW-13, Gian Singh PW-14 and SI Sukhdev Singh PW-15.
Learned counsel for the appellants has argued, that there is a delay in
lodging of the F.I.R. Occurrence had taken place on 9.2.1999 at 12 noon in the
area of Vishvakarma Market which is only one furlong from the police station.
F.I.R. Ex.PL/1 came into existence on 10.2.1999 at 12.35 a.m. i.e. after a delay of
12 hours. Special report reached the J.M.I.C. Jalandhar at 6.05 a.m. on 10.2.1999.
The delay between the occurrence and the special report reaching the J.M.I.C. at
Jalandhar is 18 hours. No explanation has come from the side of the prosecution
regarding this delay.
Sukhwinder Singh PW-4 author of the F.I.R. Ex.PL/1 was not
injured. If he was present at the time of the occurrence, he would have first gone
to the police station and recorded his statement, if he had seen the occurrence.
Both Malkiat Singh PW-5 and Surinder Singh PW-6 the injured eye-
witnesses were examined at 1.25 p.m. on 9.2.1999 at Civil Hospital, Kartarpur.
Dr.Kanwal Harpreet Singh Sekhon PW-1 has stated, in his testimony, that he sent
intimation to the police at 2.50 p.m. on 9.2.1999. The Investigating Officer
purposely and deliberately delayed recording the statement of Malkiat Singh PW-
5 and Surinder Singh PW-6 in connivance with the complainant party. It has come
in the evidence of Dr.Kanwal Harpreet Singh Sekhon PW-1 that both Malkiat
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Singh PW-5 and Surinder Singh PW-6 signed on the MLRs Exs.PB and PC
prepared by him of both these injured eye-witnesses. Jai Singh PW-7 was
examined at 4.15 p.m. on 9.2.1999 by Dr.Naresh Kumar PW-2 and he also signed
on his M.L.R. Ex.PG. This showed that the injured eye-witnesses were in a fit
state of mind for recording their statements, but the Investigating Officer in
connivance with the complainant deliberately delayed the recording of the F.I.R.
so that innocent persons be roped in.
Jaspal Singh appellant was also injured in this occurrence and was
examined by Dr.Naresh Kumar PW-2 at 4.30 p.m. on 9.2.1999, his M.LR. is
Ex.PH. No explanation has come from the side of the prosecution as to how did
appellant Jaspal Singh receive injuries on his person. In fact, the genesis of the
occurrence has been suppressed by the prosecution. It has come in evidence of the
Investigating Officer SI Sukhdev Singh PW-15 and in the evidence of Dalip Singh
Draftsman PW-8 who prepared the site plan Ex.PL, that the exhaust of the cylinder
of generator was fixed in the wall of the appellants and its smoke came out in the
street. Appellants had the right to instal a generator in their house and allow the
smoke to go into the open stret. In fact, it was the complainant party who were the
aggressors. The grudge for the commission of the offence was on the complainant
party. It was they who were aggrieved by the smoke coming into their house and
shop when the generator used to run.
Finally, learned counsel for the appellants has argued that even if we
take it that all the appellants were present, at the most it is a case under Section
304 Part-I I.P.C. The dispute was over the smoke coming out of the generator
installed in the house of the appellants. There was no previous enmity between the
parties. On the fateful day a small matter erupted into a fight where the
complainant party was injured and Jaspal Singh appellant also received injuries.
There is no previous enmity between the parties. It has come in evidence that
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before the injuries were inflicted, there was exchange of hot words. As per the site
plan Ex.PN, the occurrence took place in the middle of the road where both the
parties clashed with each other. One fatal blow was given by appellant Jaspal
Singh which unfortunately led to the death of Amarjit Singh son of Jai Singh
PW-7.
Learned counsel for the State has argued that there is no delay in
lodging of the F.I.R. The complainant party along with Sukhwinder Singh PW-4,
complainant was busy in taking care of Amarjit Singh deceased, Malkiat Singh
PW-5, Surinder Singh PW-6 and Jai Singh PW-7 who had been injured and were
in a serious condition. As per the application Exs.PE and PF, the Investigating
Officer SI Sukhdev Singh PW-15 wanted to record the statements of Malkiat
Singh PW-5 and Surinder Singh PW-6, but the doctor declared them unfit to make
a statement. The Investigating Officer was left with no other alternative, but to
record the statement of Sukhwinder Singh PW-4. Sukhwinder Singh was taking
care of his brothers and father.
The motive for the commission of the offence was that the cylinder
of the generator was facing towards the house and shop of the complainant party
for the last several months. They were asking them to fix the exhaust in such a
manner that its smoke does not come into their house and shop, as the smoke was
causing a nuisance to them.
The testimony of Malkiat Singh PW-5, Surinder Singh PW-6 and Jai
Singh PW-7 the injured eye-witnesses cannot be overlooked, as it was natural for
them to be in their house and going through the injuries on their person, it shows
that these cannot be self inflicted. They are stamped witnesses.
The injury on the person of Jaspal Singh appellant is a self-inflicted
injury, only to make out a case of self defence. Appellant Bhupinder Singh was
carrying dagger Ex.P2, Paramjit Singh datar Ex.P3, Jaspal Singh Kirpan Ex.P4 and
Criminal Appeal No.78-DB of 2001 -6-
Dial Singh Dang Ex.P5. They came out armed with deadly weapons.
Complainant party did not have any arms and had innocently gone, to ask them to
change the direction of the exhaust of their generator, but in this process they were
attacked and injured grievously. No case of self defence is made out. It is a case of
culpable homicide amounting to murder.
We have heard the learned counsel for the parties and perused the
record with their assistance.
The occurrence had taken place at 12 noon on 9.2.1999. Statement
Ex.PL, of Sukhwinder Singh PW-4 was recorded by SI Sukhdev Singh PW-15 at
Cinema Chowk G.T.Road, Kartarpur, on the basis of which F.I.R. Ex.PL/1 came
into existence on 10.2.1999 at 12.35 a.m. at Police Station Kartarpur. Special
report reached the J.M.I.C. Jalandhar, on the same day at 6.05 a.m. There is a
delay of 12 hours in recording of the F.I.R .Ex.PL/1 and a delay of 18 hours in the
special report reaching the J.M.I.C., Jalandhar. Amarjit Singh deceased died on
9.2.1999 at 9 p.m. i.e. after 9 hours of the occurrence. Sukhwinder Singh PW-4
author of the F.I.R. was the only one who was not injured while his brothers i.e.
Amarjit Singh deceased, Malkiat Singh PW-5 and Surinder Singh PW-6 were all
injured along with his father Jai Singh PW-7. It was natural for complainant
Sukhwinder Singh to first attend to his injured brothers and father and then to
come and report the matter to the police.
As per Dr.Kanwal Harpreet Singh Sekhon PW-1, Malkiat Singh
PW-5 and Sukhwinder Singh PW-6 were examined at 1.25 p.m. on 9.2.1999 and
thereafter MLRs Exs.PB and Ex.PC were prepared. Amarjit Singh was examined
at 1.20 p.m. on 9.2.1999 and his M.L.R. Ex.PA was prepared.
Dr.Naresh Kumar PW-2 examined Jai Singh PW-7 and prepared his
M.L.R. Ex.PG at 4.15 p.m. on 9.2.1999 from the time of occurrence till 4.15 p.m.
Sukhwinder Singh PW-4 was in the hospital and looking after his brothers. ASI
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Rattanjit Singh PW-9 moved an application before the Medical Officer to record
the statement of Malkiat Singh PW-5 and Surinder Singh PW-6 and as per the
doctor’s opinion Exs.PE and PF, they were not fit to make statement.
Though both Malkiat Singh PW-5 and Surinder Singh PW-6 did
sign on the MLRs Exs.PA and PB, but merely signing would not show that they
were in a fit state of mind to make their statements. It is the doctor’s opinion
which is final at that moment of time whether the patient is fit to make a statement
or not.
We are of the considered opinion that there is no delay in lodging of
F.I.R. Ex.PL/1. The name of the appellants is mentioned, the weapon of offence is
given. Appellant Bhupinder Singh was carrying dagger Ex.P2, Paramjit Singh
datar Ex.P3, Jaspal Singh Kirpan Ex.P4 and Dial Singh Dang Ex.P5. The injuries
inflicted have also been explained.
The motive for the commission of the offence was that the
appellants had installed a generator in their house and the cylinder (exhaust) of the
generator was fixed in a wall of the appellants’ house. The smoke emitted went
into the street and then entered the house of the complainant.
As per site plans Exs.PN and PL along with the statements of Dalip
Singh Draftsman PW-8, the exhaust of the generator was in the wall of the
appellants. The generator was also installed in the house of the appellants. A
street separated the house of the appellants and the complainant party. It has come
in the evidence of Malkiat Singh PW-5 and Surinder Singh PW-6 that before the
fight took place, there was exchange of hot words. The occurrence as per the site
plans Exs.PN and PL has taken place in the middle of the road. As there was
resentment from the side of the complainant party regarding the exhaust of the
generator, this resulted in a full-fledged fight, on the fateful day between the
appellants and the complainant party. Appellant Jaspal Singh also received
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injuries.
Apart from the grievance of the smoke coming out from the cylinder
of the generator, there is no previous enmity between the parties. Appellant Jaspal
Singh was injured in the occurrence. He was examined by Dr.Naresh Kumar
PW-2 and his M.L.R. Ex.PH was prepared. Appellant Bhupinder Singh gave one
injury i.e. a dagger blow to Amarjit Singh, but that injury was so serious, that it
proved fatal, which culminated in his death. Unfortunately the small intestine of
the deceased got cut and due to excessive haemorrhage it led to shock and cardio
respiratory failure which caused the death of Amarjit Singh.
With the above discussion and observations, we are of the
considered opinion that the case of the appellants falls within the ambit of Section
304 Part-I I.P.C. i.e. culpable homicide not amounting to murder. Conviction of
appellants is modified from Section 302 I.P.C. to Section 304 Part-I I.P.C.
Sentence of the appellants is also modified. Appellant Bhupinder
Singh son of Paramjit Singh is sentenced to undergo RI for 10 years, Jaspal Singh
son of Paramjit Singh is sentenced to undergo RI for 4 years, Paramjit Singh and
Dial Singh sons of Gurdip Singh are sentenced to undergo RI for 3 years. Fine
shall remain intact.
With the above modification in conviction and sentence of the
appellants, appeal is dismissed.
( MEHTAB S.GILL )
JUDGE
(JITENDRA CHAUHAN)
August 31, 2009 JUDGE
GD
WHETHER TO BE REFERRED TO REPORTER? YES/NO
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