JUDGMENT
A.N. Jindal, J.
1. Mohinder Singh and his sons Sharma Singh, Dalbir Singh, Kashmir Singh, and Kulwant Singh faced trial under Sections 302, 307, 326, 325, 148 read with Section 149 of the Indian Penal Code (hereinafter referred to as ‘IPC’) for murder of Hira Singh and causing injuries to Kala Singh and Piara Singh on the night of 21 -6-2003 in the area of village Fatechabad Khurd Police Station Ajnala. Consequently, vide judgment dated December 20, 2004 they were convicted for the aforesaid offences and were sentenced as under:
Under Sections 302/ Dalbir Singh accused was
149 sentenced under Section
302, I.P.C. and the other
accused under Section
302/149, I.P.C. to un-
dergo rigorous imprison-
ment for life and to pay a
fine of Rs. 2,000/- each.
In default of payment of
fine to further undergo rig-
orous imprisonment for
six months each.
Under Section 148, All the accused were sen
I.P.C. tenced to undergo rigor-
ous imprisonment for one
year.
Under Section 307/ Sharma Singh accused
149, I.P.C. was sentenced under Sec-
tion 307, I.P.C. and the
remaining accused under
Section 307/149, I.P.C.
to undergo rigorous
imprisonment for five years
and to pay fine of Rs.
1,000/- each, In default of
payment of fine to further
undergo rigorous Impris-
onment for three months
each.
Under Section 326/ Kulwant Singh accused
149, I.P.C. was sentenced under Sec-
tion 326, I.P.C. and the
remaining accused under
Section 326/149, I.P.C.
to undergo rigorous im-
prisonment for three years
and to pay fine of Rs. 500/-
each. In deault of payment
of fine to further undergo
rigorous imprisonment for
one month each.
Under Section 325/ Mohinder Singh accused
149, I.P.C. was sentenced under Sec-
tion 325, I.P.C. and the
remaining accused under
Section 325/149, I.P.C.
to undergo rigorous im-
prisonment for one year
and to pay fine of Rs. 100/-
each. In default of pay-
ment of fine to further un-
dergo rigorous imprison-
ment for 15 days each.
2. However, all the substantive sentences were ordered to run concurrently.
3. Piara Singh complainant was the owner in possession of 10 kanals of land including six marlas of land over which the accused were claiming a right and wanted to take forcible possession thereof regarding which they quarrelled with each other two times but the matter was got compromised,
4. On 21-6-2003 at 11 p.m. Piara Singh was returning to his house after irrigating his land. When he reached on the circular road of the village, the accused Dalbir Singh armed with barchha, Kashmir Singh armed with dang, Sharma Singh armed with sua, Kulwant Singh armed with axe and Mohinder Singh their father armed with dang way-laid him. Dalbir Singh exhorted for teaching Piara Singh a lessor for not giving them possession of six marlas of land. At this Kulwant Singh inflicted an axe blow on the side of his head. Mohinder Singh inflicted dang blow on his left shoulder. On hearing the hue and cry raised by Piara Singh, his brothers namely Hira Singh and Kala Singh were attracted who came at his rescue then Dalbir Singh inflicted a barchha blow hitting Hira Singh on the right side of his nose and eye. Consequently, he fell down, Sharma Singh inflicted a sua blow on Kala Singh, but as Dalbir Singh came in between, therefore, It landed on the left side of chest of Dalbir Singh. Sharma Singh gave another sua blow hitting the abdomen of Kala Singh, Kashmir Singh gave a dang blow hitting left leg of Kala Singh, On hearing the cries Puran Singh ex-sarpanch and his brother Gulzar Singh were attracted to the place of occurrence. Seeing them, the accused fled away with their respective weapons. Kashmir Singh shifted all the Injured to Civil Hospital, Ajnala but they were referred by the doctor to Guru Nanak Dev Hospital, Amritsar where they were medico-legally examined. Because of the seriousness of the injuries, Hira Singh could not regain consciousness and he ultimately died on 23-6-2003.
5. On 23-6-2003 after receiving medicolegal reports of the injured in the hospital, SI A, D. Singh reached Guru Nanak Dev Hospital. Amritsar and after seeking opinion Ex. PB/1 regarding fitness of Piara Singh to make the statement, recorded his statement Ex. PA. He also collected the medico-legal reports of the other injured arrested Dalbir Singh and recovered Barchi from him. He also arrested Mohinder Singh and Sharma Singh accused on 27-6-2003 and recovered dang and sua respectively from them. He also prepared the Inquest report. The remaining accused were arrested by SI Hardev Singh (PW-13) on 1-7-2003. On completion of investigation, challan against the accused was presented in Court.
6. A charge against the accused under Sections 148, 302, 307, 326, 325, 323 read with Section 149, I.P.C. has been framed against all the accused, to which they pleaded not guilty and claimed trial.
7. On commencement of the trial, the prosecution examined as many as 17 witnesses. Piara Singh (PW-1) and Kala Singh are the injured eye witnesses. Piara Singh in his examination-in-chief deposed about the motive and also identified the accused. He further stated that the accused had caused injuries to them and Hira Singh. However, he refused to identify the weapons and also stated that the accused were having muffled faces.
8. Kala Singh (PW-2) while stepping into the witness box stated that on 21 -6-2003 at about 11 p.m. Piara Singh was coming from the fields after irrigating land. He heard a noise and consequently, he along with Hira Singh went towards the house of Veer Singh. He stated having suffered injuries at the hands of the accused, but, he refused to identify them. Faced with the situation prosecution declared him hostile but during the cross-examination, he admitted having made the statement before the police, wherein he had got recorded the facts involving all the accused including the weapons of offence which they were holding and the injuries which they had caused.
9. Puran Singh (PW 3) though deposed that he did not witness the occurrence yet he stated that on 21 -6-2003 he was present in his Dera, which is at a distance of 5-7 killas from his village. On that day he was informed by Shingara Singh that a fight was taking place between the accused party and the complainant party and when he came on the Circular Road near the house of Veer Singh son of Harnam Singh then he came to know that fight had already taken place before he reached there.
10. Gulzar Singh (PW-4) though has also not supported the prosecution case in toto but he has stated that on 21-6-1993 at about 11 p.m. Piara Singh was coming to the house after irrigating the land and they suffered injuries at the hands of some persons.
11. ASI Harjit Singh (PW-8) is a witness to the recovery of dang from Mohinder Singh and a sua from Sharma Singh accused on 27-6-2003.
12. Head Constable Charan Singh (PW-11) is a witness to the recovery of a spear (barchhi) from Dalbir Singh on 28-6-2003 in pursuance of the statement Ex. PB made by him.
13. Sub Inspector Hardev Singh (PW-15) and SI A. D. Singh (PW-17) are the investigating officers, who conducted the investigation from time to time.
14. Constable Hira Singh No. 1845 (PW-9), Constable Madvinder Singh No. 1787 (PW-12) and Head Constable Harpal Singh No. 1182 (PW-13) and Gurbhej Singh No. 1105 (PW-14) are the formal witnesses. Rishi Ram (PW-10) is the draftsman. He prepared the rough site plan of the place of occurrence Ex. PK.
15. As regards medical evidence, the prosecution examined Dr. Shailekha Mittal (PW 5). Junior Resident, Government Medical College, Amritsar. who examined Kala Singh injured on 22-6-2003 at 5.30 a.m. and found the following injuries on his person:
1. 1.5 x 1 cm cruciade shaped lacerated wound with fresh bleeding present on the front of left side of abdomen. 6.5 cms towards left and above umbilicus at 2.30 o’clock position from umbilicus, obliquely placed.
2. Patient complained of pain in left leg and no external marks present.
16. He opined that the duration of injuries was six hours and weapon used for these injuries was blunt. He proved the medico legal report Ex. PC. He kept the opinion regarding nature of injuries pending till the receipt of the report of x-ray examination.
17. On the same day at 6.30 a.m. he medico legally examined Piara Singh and found the following injuries on his person:
1. 5.3 x 1 cm lacerated wound with red margins present on the front of forehead, obliquely placed. Inferior end started from middle of forehead which is 1.5 cms above nasion and it extends towards left side.
2. 4 x 3 cms reddish bruise present at the left shoulder region 6 cms medial to tip of shoulder.
18. He opined that probable duration of injuries was within six to 12 hours. Kind of weapon for injury numbers 1 and 2 was blunt. He proved the true carbon copy of this MLR Ex. PD. Pictorial diagram showing the seats of the injuries Exhibit PD/1.
19. Dr. Vijay Arora, (PW-6) who being the member of the Board of doctors again examined both the injured Piara Singh and Kala Singh. He examined injured Piara Singh (PW-1) on 24-6-2003 and found the following injuries on his person:
Patient was fully conscious, co-operative and well oriented to time, place and person at the time of examination.
1) A sutured wound 6.6 cms long with seven stitches intact was obliquely present on the centre and left side of forehead, 2 cms above nasion. Pus points were present and patient complained of pain in the forehead and head.
2) An abraided bruise, bluish black in colour and brownish scab present over the abraded area, measuring 11.5 x 5 cms was present on the front of left shoulder and left clabicular region. Diffused swelling was present around the injury. Patient complained of pain in the shoulder region. Injury Nos. 1 and 2 were kept under x-ray opinion and Surgeon’s progress/operation notes.
20. He opined that both injuries on the person of Piara Singh were grievous in nature. He proved the medico legal report of Piara Singh as Ex. PE.
21. On the same day at 3.05 p.m. Kala Singh was also examined by the Board of Doctors, who observed the following injuries on his person:
1. A sutured wound measuring 4 cms in length with 3 stitches intact c in shape was present on the left side of the abdomen 6.5 cms above and lateral to umbilicus at 2.30 o’clock position, pus points were present.
2. A sutured wound 17.5 cms long with 15 stitches intact was present vertically on left side of abdomen. 1 cm lateral to umbilicus.
3. A surgical stitches wound measuring 2 cms x 2 cms with a drain in situ was present on left side of abdomen 8.5 cms below and lateral to umbilicus at four and a half o’clock position.
4. Patient complained of pain in left leg externally no injury was visible. Movements of the left leg were restricted and painful. Local temperature was raised. Tenderness was present.
22. Injury No. J was declared by the Board as grievous in nature and was caused with the blunt weapon. Injury No. 5 was found to be the result, of blunt weapon. Injury Nos. 2 and 3 were found to be the surgical inflicted wounds.
23. PW-7 Dr. Manpreet Kaur, Junior Resident, College, Amritsar conducted autopsy on the dead body of Hira Singh on 24-6-2003 at 12.15 p.m. and made the following observations:
1) 3 x 1.5 cms incised stab wound was present on medial end of right upper eye lid, margins were found clean cut. underlying muscles were found cut. Fracture of root of orbit was present. Infiltration was present. Clotted blood was also present.
2) 2.5x 0.3 incised wound with clean cut margins elliptical shaped was present on right side of bridge of nose 2.5 cms distal to root of nose.
3) Diffused swelling was present around left upper arm over its posterior aspect.
24. Injury No. 1 was sufficient to cause death in the ordinary course of nature.
25. On completion of the prosecution evidence, when examined under Section 313, Cr. P.C., the accused denied all the incriminating circumstances appearing in evidence against them and pleaded their false implication in the case, They further stated that no such occurrence had actually taken place.
26. Despite the opportunity given to them they did not lead any evidence in defence.
27. On conclusion of the trial, learned Additional Sessions Judge, vide his judgment dated 20-12-2004 convicted and sentenced them in the terms as referred to above. Hence this appeal.
28. We have heard Mr. D.S. Pheruman, learned Counsel for the appellants, Ms. Rita Kohli, Senior Deputy Advocate General, Punjab and have scanned the evidence with their able assistance.
29. Among all other contentions urged forward by the counsel for the appellants, it has been contended that there is a serious delay of two days in lodging the FIR, therefore, the same is fatal to the prosecution case.
30. Having pondered over the contention, we see no merit in the same. The occurrence took place on 21 -6-2003 at 11 p.m. wherein three persons namely Kala Singh, Hira Singh and Piara Singh were injured. Out of them Hira Singh having suffered fatal injuries remained unconscious and succumbed to his injuries on 23-6-2003. Out of two other injured persons, on 23-6-2003 at 3.55 p.m. Piara Singh made a statement to the police Ex. PA in the hospital on the basis of which FIR Ex. PA/3 was registered at Police Station Ajnala at 4.55 p.m. Special report reached the Illaqua Magistrate at 1.15 a.m.
31. Initially all the injured went to the Civil Hospital, Ajnala from where they were referred to Guru Nanak Dev Hospital, Amritsar where they were medico legally examined on 22-6-2003 at 5.30 a.m. and 6.30 a.m. respectively. Hira Singh remained unconscious till his death on 23-6-2003. The record reveals that the doctor at Civil Hospital, Ajnala and Amritsar were negligent in sending the ruqua to the police station from 21 -6-2003 to 23-6-2003 till Hira Singh died. The law was set in motion only when Sitar Singh son of Gokal Singh resident of Fatehwal Khurd presented the two medico legal reports Nos. SM/FF/104/03 of Kala Singh and SM/FF/105/03 of Piara Singh respectively before SHO SI Azad Davinder Singh. Since all the injured were lying admitted in the hospital out of whom one Hira Singh was struggling for life. In that situation, it could not be expected from them that they could themselves rush to the police station to lodge the FIR. They made their depositions immediately after SI A. D. Singh reached the hospital consequent to which the FIR was registered without any delay. No such nexus of the witnesses has been exposed or shown by the accused which have resulted into concoction of false version against them on account of the aforesaid delay in lodging the FIR. It is only unexplained and unwarranted delay coupled with the likelihood of tailoring the evidence to suit the prosecution that could ensure to the benefit of an accused is fatal. But, while scrutinizing the evidence as a whole, it emerges that the doctor at the Civil Hospital at Ajnala or Amritsar were responsible in informing late to the police but the fault on their part could not be shouldered on the complainant to throw away the case as he himself having suffered injuries was confined to the hospital and the other attendants must be busy in trying to save the life of the deceased. After all the efforts to save the life of Hira Singh were over on 23-6-2003 when he breathed his last, FIR was lodged, therefore, these two days delay in lodging FIR cannot be said to be unexplained.
32. It has next been vehemently contended that since the injured witnesses failed to support the prosecution case, therefore, the benefit should be extended to the accused.
33. Having given our thoughtful consideration to the contentions, we are not persuaded by the same. Out of the two injured eye witnesses examined in the case, Piara Singh PW has supported the prosecution case in material particulars but his testimony also appears to have been influenced or hired by some social influence or other reasons because though he has not fully supported the case yet he has proved the following facts:
(i) There was a dispute between the parties regarding the land. The accused wanted to snatch six marlas of land from them. The accused were irritated that he had cultivated the said land of which they were wanting possession.
(ii) On 21-6-2003 at 11 p.m. when he was returning from his fields after irrigating the said land and when he reached near the house of Veer Singh then the accused inflicted injuries to him, Kala Singh and Hira Singh. He has also named the assailants who are the appellants before us. He has further stated that Dalbir Singh had raised lalkara whereas Kulwant Singh had caused injuries to him. On hearing the noise when Hira Singh and Kala Singh came there and they also suffered injuries. During cross-examination, he denied if the accused did not cause any injuries and the suggestion given to him by the defence counsel reads as under:
It is incorrect to suggest that the accused did not cause injuries and it is wrong that 1 depose falsely.
34. No meaningful cross-examination was conducted upon this witness to shatter his testimony regarding time, place and manner of occurrence. The motive for causing the injuries has also not been challenged by the accused. The only challenge made by them is regarding their doubtful identity at the time of occurrence. But the witnesses are very close relations as Mohinder Singh accused is the uncle of the injured and the deceased whereas the accused are the first cousins of the injured. Therefore, there was no question of their doubtful identity.
35. From the tenor of his testimony, it appears that due to the passage of time wounds had been healed and due to outcome of some outside pressure he may be reluctant in supporting the prosecution case as a whole and tilted his mind towards the accused. But, under these circumstances, the Courts are under a legal obligation to exercise the discretion vesting in them in judicial manner by proper application of mind and keeping in view the attending circumstances of the case and appreciating if the witnesses are wholly unreliable, wholly reliable or wholly false. In order to reach such conclusion, the Courts should thrash the evidence to make assessment from the temper, attitude, tenor and tendency of the witnesses at the time of making depositions. We can well assess that this injured witness supported the prosecution case in all material particulars.
36. His testimony stands corroborated by the other injured eye witness namely Kala Singh (PW 2). The prosecution having failed to gel anything from his examination in chief, declared him hostile and cross-examined him. During the cross-examination, he admitted having made a statement to the police relating to the version as set up by the prosecution in the FIR lodged at the instance of Piara Singh. He further admitted that Hira Singh was also got admitted along with Piara Singh in the same ward. He also identified the accused who caused them injuries.
37. The mere fact that the witness has been declared hostile; did not support the prosecution case on some material points; fumbled or contradicted due to the cross-examination made by legally trained brains; for the reason of old age and due to fading of memory with the passage of time or other reasons, the Court is not rendered helpless or handicapped to evaluate such evidence. In such cases the Court is to scrutinize his testimony with anxious care and caution, and rely upon the part of his statement, if the said part is found to be creditworthy or stands strengthened or corroborated by any other evidence. This question regarding evaluation of such witnesses came before the Apex Court in case Gura Singh v. State of Rajasthan 2001 (1) RCR (Criminal] 122 : 2001 Cri LJ 487 wherein after relying upon two Apex Court judgments, observed as under:
There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh v. State of Haryana held that merely because the Court gave permission to the Public Prosecutor to cross-examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa it was observed that by giving permission to cross-examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy.
38. The mere fact that the witness has gone hostile, his testimony can’t be thrown in the dustbin. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him, his evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases, the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy.
39. In this material world, it has now become the order of the day that the blood has gone white and lost lives are least bothered or valued in comparison to temptations which they are given by the accused to save themselves from the guilt committed by them. With the passage of lime, grief goes to the air and is replaced by the material consideration. No doubt, fate of criminal case is based on the witnesses but character of the witnesses, these days, is withering away. Therefore, it is high time to make such stricter laws to check resiling of the witnesses so that the State machinery and the Courts may not be befooled and the public time may not go waste. Necessary steps need be taken against those who first shed their tears for redress of their grievances but go back track by making false excuses either due to threats, coercion, lures or monetary considerations at the instance of those who are vested with financial or political power. While protecting the witnesses from going hostile adverse or unfavourable, the Apex Court observed in case Zahira Habibullah Sheikh and Anr. v. State of Gujarat and Ors. 2006 (2) RCR (Criminal) 448 : 2006 Cri LJ 1694 held, as under:
“Witnesses” as Bentham said : are the eyes and ears of justice. Hence, the importance and primary of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice, to be come ultimate causalities. Broader public and societal interests require that the victims of the crime who are not ordinarily par ties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to a mockery.
40. The crux of the law as discussed in the preceding paras is that in cases even if witnesses go hostile and are cross-examined by the Public Prosecutor then it is for the Court to consider in each case whether on account of such cross-examination and contradictions, the credibility of the witness stands shattered or if his testimony or part of it can still be believed. If on cross-examination of the witness it has not lost the confidence of the Court and his credit has not been completely shaken and if his testimony when read as a whole with care and caution and corroborated by other evidence on those material points satisfies the conscience of the Court to act upon his testimony then no embargo can be placed to disbelieve such witness merely on account of the fact that he has been declared hostile.
41. In this case Piara Singh (PW-1) has reiterated the prosecution version on material points and in the absence of cross-examination on those material points, we have no hesitation to believe him especially when the accused and the complainant are close relatives and there was no chance or reason to replace them by leaving the real culprits.
42. Similarly, the testimony of Kala Singh, who has admitted the accused as assailants, during the cross-examination and admittedly having made statement relating to the prosecution version before the police also cannot be thrown away, particularly when there is sufficient evidence on the record to corroborate the aforesaid injured eye-witness account.
43. Thus, we are fully satisfied that the prosecution has been able to prove the recovery of Barchhi from Dalbir Singh accused, sua from Sharma Singh accused, dangs from Mohinder Singh and Kashmir Singh accused which were used by the accused in the commission of crime.
44. ASI Harjit Singh (PW-8) has stated that Mohinder Singh got recovered dang Ex. P1 which was taken into possession by the investigating officer vide memo Ex. PJ Sharma Singh accused got recovered the sua vide disclosure statement Ex. PK. HC Charan Singh (PW-11) has corroborated the testimony of SI A. D. Singh, SHO, Police Station Ajnala (PW-17) by stating that accused Dalbir Singh got recovered a barchi concealed by him near the bridge in pursuance of his disclosure statement Ex. PB. SI Hardev Singh (PW-15) corroborated the statement of Sub-Inspector A. D. Singh (PW-17) when he stated that Kashmir Singh got recovered one dang Ex. PI which was taken into possession by the investigating officer vide memo Ex. PR.
45. SI A. D. Singh (PW-17) has also proved the disclosure statements as well as recovery memos of the weapons of offence recovered from the accused.
46. The medical evidence also lends corroboration to the case of the complainant party. After the occurrence at 11 p.m. they were immediately admitted in Civil Hospital, Ajnala from there they were referred to Guru Nanak Dev Hospital, at Amritsar and where they were medico legally examined within three hours. The injuries caused to Piara Singh (PW-1) and Kala Singh (PW-2) with the weapons as stated by Kala Singh during cross-examination tally with his oral version. The motive to cause death of Hira Singh and injuries to others has also been proved by Piara Singh and this piece of evidence has not been challenged by the accused during cross-examination. The report of Forensic Science Laboratory, Punjab Chandigarh, Ex, PBB vide which earth taken from the spot was found stained with blood also corroborates the fact that the occurrence happened at the stated place.
47. It would also be significant to mention that accused after the occurrence absconded and accused Dalbir Singh, Mohinder Singh and Sharma Singh were arrested on 26-6-2003 whereas the remaining accused were arrested on 1 -7-2003. No explanation is forthcoming as to why they absconded after the occurrence. No specific defence has been set up by the accused for implicating them in the case. Thus on conspectus of the entire evidence on the record we do not hesitate to hold that the complicity of the accused in the commission of the crime is proved to the hilt.
48. Now coming to the offence, it has been vehemently contended that the accused had no common object to kill Hira Singh. From the tenor of the FIR, it appears that they never intended to kill Piara Singh against whom they had opened the attack at the very inception finding him alone because they stopped after causing two injuries to him. Out of five accused, except one injury caused by Dalbir Singh to Hira Singh, none of the accused caused him any injury and the injuries caused to Kala Singh are simple in nature and that Hira Singh died after two days of the occurrence. Therefore, they cannot be said to have intention to cause the death of Hira Singh. As such the offence does not fall within Section 304, Part II. I.P.C. The case opens with the story that the accused attacked Piara Singh only after finding him alone and PW Hira Singh and Kala Singh appeared later at the scene of occurrence. Hira Singh was caused only injury by Dalbir Singh, which proved to be fatal and none except him caused injury to Hira Singh and they went back after causing two injuries to Piara Singh and Kala Singh each. The deceased and the accused are blood relations. Under these circumstances, they cannot be said to have had any common object to kill Hira Singh. Consequently, their intention to cause death of Hira Singh also cannot be gathered so as to bring their case within clause ‘thirdly’ of Section 300, I.P.C. Consequently, the offence falls under Section 304. Part II, I, P.C. We find strengthened to our view from the Judgment delivered in case Dharam and others v. State of Haryana 2006 AIR SCW 6298 : 2007 Cri LJ 791 which reads as under:
The other question which now remains to be considered is as to what is the exact nature of the offence committed by the appellants. The injury, which proved to be fatal, is 10 cm x 3 cm x 3 cm on left parietal bone which fractured the underlying bone and pierced the brain matter. We do not propose to hold that such an injury, if caused, would not attract the provisions of Section 302, I.P.C. Nevertheless, the question which requires serious consideration is whether having regard to the peculiar circumstances in which the incident took place and the fact that the deceased and the appellants happened to be blood relations, this particular injury, which was found to be sufficient In the ordinary course of nature to cause death in the instant case, was an injury intended by the appellants. Having regard to the nature of the injuries sustained by both the closely related parties, we are of the view that the fatal injury was not inflicted with the intention to cause death or an injury likely to cause death of the deceased. We feel that in the very nature of things, the appellants could not have entertained any intention to cause death of their brother/ uncle. We are, therefore, of the opinion that the offence committed by the appellants would fall within the ambit of Section 304, Part-II, I.P.C.
49. Similarly, this case also unfolds the story of a quarrel between the two close relations in which all the accused did not cause injuries to Hira Singh and they except Dalbir Singh and Kulwanl Singh inflicted minor injuries to Piara Singh (PW-1) and Kala Singh (PW-2), therefore, the remaining three accused cannot be said to have any common intention or object to kill Hira Singh straightway. When they opened the attack Hira Singh was not present at the time of occurrence and they never anticipated that Hira Singh would also come and intervene. Therefore, the offence committed by the accused Dalbir Singh falls within Section 304, Part II, I.P.C.
50. Now coming to the offence committed by Kulwant Singh, it may be observed that both the accused namely Dalbir Singh and Kulwant Singh in furtherance of their common intention caused injuries on the vital organs of Hira Singh and Piara Singh, resultantly, Hira Singh had died whereas Piara Singh survived. Both were armed with the deadly weapons, therefore, case of both these accused could be segregated from the case of Sharma Singh, Kashmir Singh and Mohinder Singh who caused injuries on the non vital parts of the persons of Piara Singh and Kala Singh. As such both can be stated to have pre-planned to inflict grievous injuries to Hira Singh and Piara Singh whereas the remaining three accused who had inflicted injuries on the non-vital parts of the body of witnesses cannot be said to have shared common intention with the accused inflicting the fatal blows. A similar proposition arose before the Apex Court in case Ramashish Yadav v. State of Bihar 2000 Cri LJ 12 (SC) wherein their Lordships observed as under:
The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting attack. It can also be developed at the spur of the moment but there must be a pre-arrangement or premeditated concert. This being the requirement of law for applicability of Section 34, I.P.C., from the mere fact that the accused “RP” and “RY” came and caught hold of the deceased, whereafter “SY” and “SL” came with the gandasa (chopper) in their hands and gave blows by means of gandasa (chopper), it cannot be said that the accused “RP” and “RY” shared the common intention with the SY and SL. Consequently, accused “RP” and “RY” cannot be held guilty of the charge under Section 302/34, I. P.C. but the accused “SY” and “SL” did not commit the offence under Section 302/34, I.P.C. having assaulted deceased on his head by means of gandasa (chopper) on account of which he died.
51. Similarly, in this case Dalbir Singh and Kulwant Singh had assaulted Hira Singh and Piara Singh on their face and head respectively. Therefore, they can be said to have shared common intention to cause death of Hira Singh and injury to Piara Singh. Therefore, the offence committed by Kulwant Singh falls within the purview of the Section 304, Part II, I.P.C. read with 34 of the I.P.C. Consequently, he is convicted under Section 304, Part II read with 34 of the I.P.C. and both are sentenced to undergo imprisonment for seven years and to pay a fine of Rs. 2,000/- and in default of payment of fine to further undergo rigorous imprisonment for three months each. However, keeping In view the fact that Sharma Singh and Kashmir Singh having caused minor injuries and having undergone 3 1/4 years and about two years and ten months respectively, are sentenced to imprisonment already undergone by them.
52. Mohinder Singh accused being the old man of 86 years; having caused injury on the non-vital part of the body and having undergone one year of sentence is also sentenced to imprisonment already undergone by him.
53. As regards Section 148, I.P.C., the necessary constituents for proving the offence are not made out. When we are holding that the offence under Section 149, I.P.C. is not made out, consequently, the offence under Section 148, I.P.C. also goes.
54. As an up-shot of the above discussion and the parts attributed to the appellants, the evidence led by the prosecution in support thereto, we partly accept the appeal in the above terms.
55. Before parting with the judgment, the matter which deserves to be observed is that no conflict can be raised with the fact that Courts have to ensure that the accused persons are punished and that the might or the authority of the State are not used to shield itself or its men or the accused. The justice delivery system over which the society reposes confidence should not be taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. We cannot also lose sight of the fact that justice delivery system is based on portable pillars of witnesses and if one slips or slides a little then victim keeps dazing helplessly and condemns his own pitable condition. Thus, in order to arrest such plight of the system the Courts have invariably settled that the Court should not sit to as a silent spectator, mute to the manipulations and prefer to be indifferent to sacrilege being committed to justice. It has been stated by Julia A. F. Cabney in : “Little things” as under:
Criminal trials should not be reduced to be mock trial or shadow-boxing or fixed trials. Judicial criminal administration system must be kept clean and beyond the reach of whimsical political wills and agendas and property insulated from discriminatory standards or yardsticks of the type prohibited by the mandate of the Constitution.
56. It is observed that in numerous cases after the years of pendency of the trial, the witnesses change places for variety of reasons, resultantly the investigating officers as well as the Courts are dodged for the reason that they refuse to support the case at the later stage and allow the accused of very heinous crimes to go scot free resultantly valuable time of the Court is wasted. In order to make a check lest criminal trial is demonstrated as mock trial or shadow-boxing or fixed trial and in the interest of keeping the Criminal Judicial administration system clean and beyond the reach of whimsical tainted versions resulting out of different considerations, we are looking forward for necessary amendments to be made by the Legislatutre to achieve the end. However, before the proposal is matured, we would like that the Courts supervising the investigation to direct the complainant in non compoundable cases especially in heinous crimes, where the private complainants are aggrieved, to produce the statements of the complainant in the shape of affidavit(s) duly attested by the Magistrate along with the remand papers so that the same could be treated as previous statements during the trial but it is made clear that these duly sworn affidavits would not be before or in the presence of the police officers. The statements shall contain:
(i) The brief allegations;
(ii) These have been made voluntary without any fraud, coercion or undue pressure or influence; and
(iii) These could be used as previous statements and could be used against him. In case complainant attaches any documents, the same would form part of the statement.
57. However, the aforesaid statement shall not affect any plea of bargaining in compounding process or any other provision repugnant thereto as contained in the Code or any other law for the time being in force.
58. On production of such affidavit(s) the same will remain in the custody of the Court and on production of the report under Section 173, Cr. P.C., it will form part of the same.
59. In case of non-furnishing of affidavit(s) in support of his case by the complainant, the Court may draw inference against such persons as circumstances permit on conclusion of trial.