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[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 261 OF 2006
Gurdial Singh & Ors. .....Appellants
Vs.
State of Punjab .....Respondent
WITH Criminal Appeal No. 878 of 2007
HARJIT SINGH BEDI,J.
1. The appellants herein, Gurdial Singh now aged 85 years,
his brother Bakshish Singh, now aged 70 years, and Darshan
Singh now aged about 35 years were brought to trial and
convicted for offences punishable under Section 302/34 etc. of
the IPC and sentenced to life imprisonment by the Trial Court.
The High Court dismissed the appeal filed by them and the
matter is before us after grant of special leave.
2. The facts are as under:
3. A drain carrying the village sewage ran across the house
of Gurdial Singh appellant. He attempted to divert the course
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of the drain away from his house towards the house of Buta
Singh deceased. A civil suit was accordingly filed by Buta
Singh against Gurdial Singh for restraining him from
constructing the new drain. It appears that the appellants
had a grudge against Buta Singh and his family on that
account. At about 8 a.m. on the 10th September 1995, as
Buta Singh and his brother Gurbachan Singh were going
towards their fields, they were way-laid in front of the village
Gurdwara by Gurdial Singh, Bakhshish Singh, Darshan
Singh, the appellants herein, and in addition Amrik Singh,
Joginder Singh, Kulwant Singh and Balwant Singh. Gurdial
Singh was armed with a Gandasi whereas the others were
armed with Dangs. As the accused were taking measurements
for the construction of the drain, Buta Singh raised an
objection on which Gurdial Singh raised a lalkara exhorting
the others to teach a lesson to Buta Singh. Gurdial Singh
then gave a Gandasi blow on the head of Buta Singh whereas
the other accused attacked Buta Singh with their dangs. PW5
Kulwinder Kaur, daughter-in-law of Buta Singh witnessed the
occurrence. She raised an alarm which attracted her husband
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PW-7 Gurmeet Singh. Kulwant Singh and Darshan Singh
gave injuries to him. PW Kulwinder Kaur also intervened but
was chased away by Gurdial Singh, Balwant Singh, Amrik
Singh and Joginder Singh and after entering her house
Joginder Singh gave a dang blow on her left upper arm and
when Mohinder Kaur, sister of PW Gurmeet Singh attempted
to intervene Gurdial Singh gave a gandasi blow from its
reverse side on Kulwinder Kaur and Balwant Singh and Amrik
Singh caused dang blows to Kulwinder Kaur. Chint Kaur, wife
of Buta Singh was also inflicted injuries by Gurdial Singh.
The injured were thereafter removed to the hospital and
information about their admission was conveyed to the police
post. PW11 Rajesh Kumar, ASI also received the Medico-legal
reports in respect of Buta Singh, Gurmeet Singh, Chint Kaur,
Mohinder Kaur and Kulwinder Kaur in the Police Station. The
ASI immediately reached the hospital and moved an
application at 11.30 a.m. to find out if the injured were fit to
make a statement. The doctor opined that they were unfit to
do so. The ASI again went to the hospital at 8.30 p.m. and
moved another application as to the fitness of the injured and
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the doctor reiterated that Buta Singh and Gurmeet Singh
were unfit to make their statements but Kulwinder Kaur,
Mohinder Kaur and Chint Kaur were found fit for the purpose.
The ASI then recorded the statement of Kulwinder Kaur and
on its basis the First Information Report under Section 307
etc. of the IPC was registered. The injured were also medically
examined and it was found that Gurmeet Singh had 8 injuries
in all, with injury No.1 being caused by a sharp edged weapon
and injury No.2 being grievous in nature. Chint Kaur was
found to have two simple injuries, Mohinder Kaur one simple
injury and Kulwinder Kaur three simple injuries. The doctor
also examined Buta Singh at 11.20 a.m. and found two
injuries on his person;
1. A lacerated wound 3.5 cm x = cm x bone
deep on the left side of the scalp 8 cm
lateral to the mid-line and 5 cm behind the
anterior hair line. Bleeding was present.
2. A lacerated wound 2 cm x = cm x bone
deep on the left side of the scalp 3 cm
lateral to the midline and 5 cm medical (sic)
to injury No.1. Bleeding was present.
The doctor also kept the injuries under observation and
opined that injury No.1 could be caused from the reverse side
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of a Gandasi. He also opined that both the injuries were
grievous in nature. Buta Singh expired at the 7.30 p.m. on
the 17th September 1995 and his body was subjected to a
post-mortem examination and the two injuries, noted above,
were found thereon. On the completion of the investigation,
all seven accused were charged for offences punishable under
Sections 148,302, 323 and 324 read with Section 149 of the
Code. They pleaded not guilty, and were brought to trial. The
trial court relying on the evidence of PW5, PW7 and PW10, the
injured three eye witnesses, held that the prosecution story in
so far as the three appellants was proved beyond doubt, but
the other accused, namely Amrik Singh, Joginder Singh,
Kulwant Singh and Balwant Singh were entitled to benefit of
doubt and they were accordingly acquitted. The plea of the
right of private defence and that, if at all, the case fell within
the ambit of Section 304 Part II read with Section 34 of the IPC
was repelled. An appeal was thereafter taken to the High
Court by the three appellants. The appeal was dismissed,
leading to the present proceedings.
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4. The learned counsel for the appellants has argued that in
the light of the fact that Bakhshish Singh appellant had
received an injury in the same incident which had not been
explained by the prosecution, the prosecution story itself was
in doubt and the accused-appellants were entitled to acquittal
on that basis. It has also been pleaded that the trial court had
found that four of the accused were not involved in the
incident and it was thus apparent that the present case was
one of false implication on account of animosity between the
parties over the construction of the drain. It has finally been
pleaded that there was absolutely no evidence to show that the
appellants had an intention to commit murder as the Doctor
had opined that the two injuries on Buta Singh had been
caused by the reverse side of the Gandasi whereas the other
injuries on the person of the PW’s had been caused with dangs
and as such the case fell under Section 304 Part II and not
under Section 302 of the IPC. The learned State counsel and
the complainant’s counsel have, however, controverted the
stand and pointed out that the trial court and the High Court
had given categorical findings that the appellants were
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involved in a case of murder and had attempted to take the
law into their hands and attempted to construct the drain
despite the injunction order made by the Civil Court.
5. We have heard the learned counsel for the parties and
gone through the record very carefully. We are of the opinion
that no fault can be found with the conviction of the
appellants in the light of the fact that the prosecution story
rests on the evidence of three injured witnesses. The incident
is virtually admitted by both sides although in different
circumstances as the appellants’ claim was that Bakhshish
Singh had suffered injuries at the hands of the Gurdial Singh
and others and that the prosecution had suppressed this part
of the story. This plea has been rejected by the trial court as
well as the High Court holding that the injuries suffered by
Bakhshish Singh could not be related to the present incident.
We are therefore of the opinion that the conviction of the
appellants is fully justified on the facts of the case. We,
however, feel that a case under Section 302 of the IPC is not
spelt out. It is clear from the prosecution story that the
incident happened all of a sudden when Buta Singh objected
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to the construction of the drain by Gurdial Singh and others in
violation of an injunction order in operation. Buta Singh was
apparently attacked as he was making his way to his fields
when he objected to the taking of measurements as a prelude
to the diversion of the drain. The evidence shows that some
altercation took place on which the three appellants Gurdial
Singh armed with a Gandasi and the other two with dangs
caused injuries to Buta Singh and the PWs. We, however, see
that the weapons used were in fact implements of common use
which are normally carried by villagers all over India and they
do not reflect any prior intention on the part of the accused to
commit murder. It also appears that Gurdial Singh had used
the Gandasi from its blunt side as would be clear from the
evidence of the doctor. PW4 who had examined Buta Singh
on the 11th September 1995 in the Dayanand Medical College
Hospital, Ludhiana. He opined that both the injuries on the
deceased had been caused by a blunt weapon. We, therefore,
find that if the appellants had intended to murder Buta Singh,
there was nothing to stop Gurdial Singh from using the
Gandasi from its true side as that would have made it a much
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more effective weapon. We are, therefore, of the opinion that
the appellants are liable for the offence under Section 304 Part
I read with Section 34 of the IPC. We are told by the learned
counsel that they have already undergone about 5 years of the
sentence. In the light of this fact, and keeping in view the age
factor of Gurdial Singh in particular, we feel that the ends of
justice would be met if the appellants are imposed a sentence
of 5 years R.I., under Section 304 Part I read with Section 34
of the IPC, the other parts of the sentence being maintained as
it is. With this modification in the impugned judgments, the
appeals are dismissed.
……………………………….J.
( HARJIT SINGH BEDI)
……………………………….J.
( P. SATHASIVAM )
…………………………………J.
(CHANDRAMAULI KR. PRASAD )
January 24, 2011.
New Delhi.