Crl.Appeal No.661-DB of 2000 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl.Appeal No.661-DB of 2000
Date of Decision: December 8, 2009
1.Palwinder Singh @ Pinda s/o Gagdush Singh;
2.Iqbal Singh @ Satwinder Singh s/o Jagdish Singh, both residents of
Village Moranwali, Police Station Garhshankar, District Hoshiarpur.
.....Appellants
v.
State of Punjab
.....Respondent
Crl.Appeal No.666-DB of 2000
1.Gurtek Singh @ Teki s/o Joginder Singh;
2.Jaswinder Singh @ Manna s/o Gurdev Singh; and
3.Jaswinder Singh @ Binda s/o Balbir Singh; all residents of Moranwali,
Police Station Garhshankar, District Hoshiarpur.
.....Appellants
v.
State of Punjab
CORAM: HON'BLE MR.JUSTICE MEHTAB S.GILL
HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.H.S.Sandhu, Sr.Advocate with
Mr.Varun Walia, Advocate
for the appellants in Crl.A.No.661-DB of 2000.
Mr.R.S.Cheema, Sr.Advocate with
Ms.Tanu Bedi, Advocate
for the appellants in Crl.A.No.666-DB of 2000.
Mr.S.S.Gill, Additional Advocate General,
Punjab.
Crl.Appeal No.661-DB of 2000 -2-
RAM CHAND GUPTA, J.
1. Both the above mentioned appeals, i.e., Criminal Appeal
Nos.661-DB and 666-DB of 2000, are being decided by this common
judgment, as the same have arisen out of the same judgment of
conviction and order of sentence dated 22.11.2000 passed by the Court
of Sessions Judge, Hoshiarpur, vide which all the appellants-accused
were convicted for offences under Section 148 of the Indian Penal Code
(hereinafter to be referred as `IPC’) and 302 read with Section 149 of the
IPC and sentenced to undergo rigorous imprisonment for two years and
to pay fine of Rs.1000/- each, and in default of payment of fine to further
undergo rigorous imprisonment for two months each, for offence under
Section 148 IPC and further sentenced to undergo rigorous imprisonment
for life for offence under Section 302 read with Section 149 IPC.
2. Briefly stated, the case of the prosecution, as per statement
Ex.PG got recorded by Makhan Singh (PW5) son of Harbhajan Singh,
resident of Alipur, Police Station Garhshankar, on 10.3.1998 before
Mohinder Singh, Inspector, SHO, Police Station Garhshankar, runs as
under:
3. Makhan Singh, complainant, are five brothers and three
sisters. Two of his sisters, namely, Paramjit Kaur and Manjit Kaur are
married with Joginder Singh (PW8) and Tarlochan Singh, both sons of
Kashmir Singh, in Village Moranwali. About 3-4 days before the
occurrence, Gurtek Singh alias Teki, son of Joginder Singh, Jaswinder
Singh @ Manna son of Dev Singh, Iqbal Singh, Jagdish Singh and his
brother Pinda, Jasbir Singh son of Ajaib Singh and Balwinder Singh son
Crl.Appeal No.661-DB of 2000 -3-
of Balbir Singh had gone to the house of sister of Makhan Singh,
namely, Paramjit Kaur, and abused her and her husband and had also
broken house-hold articles regarding which compromise was to be made
before respectable persons of the village and hence, Makhan Singh
alongwith his younger brother Sukhjiwan Singh @ Sukhi (deceased) and
Joginder Singh, husband of Paramjit Kaur were going on scooter bearing
No.PB-24-3349 `Bajaj Chetak’ from village Moranwali to village Alipur
via Bhaura to bring father of Makhan Singh. Further according to him
when they reached about 200/300 meters short of Bein (Rivulet) on way
from Moranwali to Bhaura, it was at about 4.30 p.m. when Gurtek Singh
@ Teki, Jaswinder Singh @ Manna, Iqbal Singh and Jasbir Singh armed
with naked Kirpans and Balwinder Singh @ Binder and Pinda armed
with dangs emerged from the fields abutting the road and on seeing
them came on the road. Gurtek Singh @ Teki raised lalkara that
Joginder Singh and his wife’s brothers should not be escaped and he
gave kirpan blow on the head of Sukhjiwan @ Sukhi, who was driving
the scooter. Makhan Singh and Joginder Singh ran backwards to save
themselves. Within their sight Jaswinder Singh @ Manna gave kirpan
blow thrust-wise on the left thigh of Sukhjiwan @ Sukhi, who fell down
on the metalled road and while he was lying, Jasbir Singh gave him blow
with his kirpan, who raised his hand towards the blow and the blow hit
in between the fingers of his left hand. Iqbal Singh gave blow with his
kirpan thrust-wise on the groin of Sukhjiwan Singh @ Sukhi and he
started crying with pain. Balwinder Singh and Pinda gave blows with
their respective dangs to Sukhi and thereafter they ran away towards
Village Bhaura with their respective weapons.
Crl.Appeal No.661-DB of 2000 -4-
4. Makhan Singh, complainant and Joginder Singh PW
removed Sukhjiwan Singh @ Sukhi on the scooter to Civil Hospital,
Garhshankar, where Surinder Singh son of Bakhsha Singh r/o Chack
Phullu also met them, who got Sukhjiwan @ Sukhi admitted in the
hospital at 5.30 p.m. He was given treatment. However, he succumbed
to injuries at 6.20 p.m. on the same day.
5. On receiving information by Mohinder Singh, Inspector,
PW9, through wireless at 6.00 p.m., while he was present at bus stand of
village Rodmajara in connection with patrolling and checking, he
reached Civil Hospital and recorded statement Ex.PG of Makhan Singh,
complainant, PW5, and the same was completed at 8.00 p.m. on the same
day. He made his endorsement on the same as Ex.PG/1 and sent the
same to Police Station for registration of the case, on the basis of which
formal FIR Ex.PG/2 was recorded. Copy of FIR reached the Illaqa
Magistrate at 10.10 p.m. on the same day.
6. The Investigating Officer prepared the inquest report on the
dead body of the deceased and sent the same for postmortem
examination. He also visited the place of occurrence and prepared rough
site plan and lifted blood stained earth. He recorded statement of
witnesses. He arrested the accused. He recovered the weapons with
which injuries were caused by the accused, as per their disclosure
statements.
7. On completion of the investigation, report under Section
173 of the Code of Criminal Procedure (hereinafter to be referred as
`Cr.P.C.) was presented in the Court of Sub Divisional Judicial
Magistrate, Garshankar, who committed the case to the Court of Sessions
Crl.Appeal No.661-DB of 2000 -5-
vide order dated 1.6.1998.
8. One of the accused, namely, Jasbir Singh son of Ajaib
Singh could not be arrested and he was declared proclaimed offender.
9. Learned trial Court finding prima facie case charged all the
five accused for offences punishable under Sections 148 and 302/149
IPC, to which they did not plead guilty and claimed trial.
10. In support of the contention, the prosecution examined as
many as 9 PWs.
11. PW1 is Dr.Reeta Dhami, the then Medical Officer, Civil
Hospital, Garhshankar, who conducted postmortem examination on the
dead body of Sukhjiwan Singh @ Sukhi son of Harbhajan Singh of
Village Alipur and found the following injuries on his person:
“1. Incised wound 4 x 2 cm long on the left parieto
temporal region, 9 cm from the left eyebrow and 7 cm from
the left pinna. On dissection, underlying bone intact. Brain
and dura mater N.A.D.
2. Linear bruise 13 x .5 cm on the back of left side of
chest extending from midline to lower end of scapula .
3. Bruise 3 x .2 cm on the medial aspect of forearm,
left 9 cm from the wrist.
4. Incised wound 9 x 1 cm on the palmer aspect of the left
hand extending from middle of front of wrist to web space
between little finger and ring finger. Underlying muscles,
tendons, vessels and bones cut.
5. Incised wound 5.5 x 1.5 cm on the anterior lateral
aspect of the left thigh 18.5 cm above the knee. On
Crl.Appeal No.661-DB of 2000 -6-dissection underlying muscles and vessels upto bone were
cut. Clots were present.”
12. She further deposed that all other organs were healthy and
that in her opinion the cause of death in this case was heamorrhage and
shock as a result of injuries no.4 and 5 , which were sufficient to cause
death in the ordinary course of nature and that all the injuries were ante
mortem in nature. She also deposed that probable duration between
injuries and death was within few hours and between death and
postmortem was within 24 hours. She had proved copy of postmortem
report Ex.PA, police request Ex.PB and the inquest report Ex.PC.
13. PW2 is Bal Kishan, the then Additional Ahlmad in the Court
of Additional Civil Judge, Sr.Division,Garhshankar, who deposed that as
per record accused Jasbir Singh was declared proclaimed offender on
19.8.1998.
14. PW3 is Kewal Singh, MHC and PW4 is Gurdev Singh,
Constable, who are formal witnesses and have tendered in evidence their
respective affidavits, Ex.PE and PF.
15. PW5 is Makhan Singh, complainant, on whose statement
Ex.PG, the present case was registered, as detailed above.
16. PW6 is Paramjit Singh, Draftsman, District Courts,
Hoshiarpur, who prepared the scaled site plan Ex.PH of the place of
occurrence on 24.5.1998.
17. PW7 is Tarlochan Singh, HC, who is also a formal witness
and who has tendered in evidence affidavit of his statement Ex.PJ.
18. PW8 is Joginder Singh son of Kashmir Singh, another eye-
witness of the occurrence, who corroborated the version of Makhan
Crl.Appeal No.661-DB of 2000 -7-
Singh, complainant.
19. PW9 is Mohinder Singh, Inspector, i.e., Investigating
Officer of this case, who recorded the statement of Makhan Singh and
investigated the case,
20. Statements of all the accused in terms of Section 313
Cr.P.C. was recorded in which they denied the allegations and pleaded to
be innocent.
21. Accused Gurtek Singh @ Teki and Jaswinder Singh @
Binda had taken the plea that they have been falsely implicated in this
case and accused Palwinder Singh @ Pinda and Iqbal Singh had taken
the plea that they have been falsely implicated in this case due to party
faction in the village. Accused Jaswinder Singh @ Manna son of
Gurdev Singh had taken the following plea:
“Kashmir Singh, father of witness Joginder Singh
connived with Amrik Singh, Harbishan Singh and Harbax
Singh alias Gurbax Singh sons of Surain Singh, resident of
Village Moranwali to grab the agricultural land of
Harbinder Singh Rai son of Tara Singh Rai. He filed a case
against the said Kashmir Singh and the said remaining three
persons, who are the real uncles of Harbinder Singh Rai.
This civil case, which was a suit for declaration and
permanent injunction, filed by said Harbinder Singh Rai
against the said persons, remained pending in the Court of
Civil Judge at Garhshankar. I was doing its Pairvi in favour
of Harbinder Singh Rai. A compromise was effected
between the parties, i.e., plaintiff and Amrik Singh,
Crl.Appeal No.661-DB of 2000 -8-Harbishan Singh & Harbax Singh, at last. So, the witness
Joginder Sngh and his other family members and relatives
were annoyed of it. The deceased is the real brother-in-law
of Joginder Singh. The present criminal case charged
against me is merely a case of accident, but in connivance
with the police it has been concocted to be a murder case
and has been foisted upon me. At the very initial stage, my
father complained this fact that it was a case of accident to
the higher authorities also. I have not been afforded
opportunity to cross-examine the doctor witness PW, who
had conducted the postmortem on the deceased. Thereafter
my application filed under Section 311 Cr.P.C. to recall the
said witness for her further cross-examination has also been
declined. So, the full facts relating to the factum of accident
in the eyes of medical science could not be brought on the
record. I am innocent and I have not committed the offence
charged against me.”
22. In defence accused examined six witnesses.
23. DW1 is Vinod Goyal, Clerk, Judicial Record Room,
Hoshiarpur, who could not bring the summoned record as the same was
burnt in the fire which broke down in June 1998.
24. DW2 is Anil Kumar Choudhary, Senior Assistant from the
office of Governor of Punjab, Chandigarh, who deposed that a complaint
was received from Gurdev Singh son of Chainchal Singh of village
Moranwali, District Hoshiarpur, which was sent to Principal Secretary,
Home Department, Punjab, for necessary action.
Crl.Appeal No.661-DB of 2000 -9-
25. DW3 is Kulwinder Singh, Constable, who brought
complaint sent by Gudev Singh son of Chainchal Singh regarding this
FIR, which was marked to SSP, Hoshiarpur, for enquiry.
26. DW4 is Amrik Singh, Ahlmad of the Court of JMIC,
Garhshankar, who has proved regarding filing of civil suit titled
Harvinder Singh Rai @ H.B.Rai, Advocate vs. Amrik Singh etc. in the
Court at Garhshankar.
27. DW5 is Dr.Harish Tuli, Professor and head of Department.
of Forensic Medicine, Govt. Medical College, Patiala, who deposed,
after going through the post mortem report, Ex.PA of Sukhjiwan Singh,
deceased, that injury no.1 is on the head and however, as per Doctor’s
report brain and pleura and bone were intact and that since rest of the
injuries are on non-vital parts of the body, so if prompt, efficient and
quality medical aid would have been given to the victim, the patient
could survive.
28. DW6 is Gurdev Singh, father of Jaswinder Singh @ Manna,
who had sent complaints to higher authorities regarding alleged false
involvement of his son Jaswinder Singh @ Manna in this case.
29. After hearing learned public prosecutor for the State and
learned counsel for the accused, learned trial Court came to the
conclusion that prosecution has been able to prove offences under
Sections 148 and 302 read with Section 149 IPC against all the accused
without any shadow of reasonable doubt and hence, it convicted and
sentenced the accused, as aforementioned, against which the present
appeals have been filed.
30. We have heard learned counsel for the appellants-accused,
Crl.Appeal No.661-DB of 2000 -10-
learned State counsel and have gone through the whole record carefully.
31. It has been argued by learned counsel for the appellants-
accused that as per case of the prosecution and as per depositions of
PW5 Makkhan Singh and PW8 Joginder Singh, they have given detail
account of the injuries allegedly caused by the accused and Jasbir Singh
who was declared proclaimed offender, to the deceased and that it was
alleged that accused Iqbal Singh caused injury with his sword on the
testicle of Sukhjiwan Singh deceased, however no such injury was
found by Dr.Reeta Dhami, PW1, who conducted autopsy on the dead
body of Sukhjiwan Singh and that no such injury has also been
mentioned in the bed head ticket, Ex.DA, and hence it is argued that
Iqbal Singh has been falsely implicated in this case.
32. It is further argued that as per case of the prosecution four of
the accused including Jasbir Singh were armed with swords and two of
the accused were armed with dangs and that all caused injuries to
Sukhjiwan Singh. However, as per medical evidence, as deposed by
Dr.Reeta Dhami, only five injuries were found on the person of the
deceased. It is further contended that injuries no.1, 2 and 3 are simple in
nature. As per medical evidence, death was caused due to injuries no.4
and 5, which are not on any vital part of the body. It is further argued
that even injuries no.2 and 3 are only bruises and the same are also not
on any vital part of the body. It is further contended that as per case of
the prosecution the injuries were given to the deceased even while he
was lying on the ground. It is further contended that no injury was found
on the groin of the deceased as deposed by PW5 Makhan Singh and
PW8 Joginder Singh. It is further contended that the approach adopted
Crl.Appeal No.661-DB of 2000 -11-
by learned trial Curt that Doctor did not properly conduct the
postmortem examination after close physical examination of the dead-
body cannot be said to be a legal one and that no such inference can be
drawn that the Doctor did not conduct the postmortem examination after
close examination of the dead body. Hence, it is argued that it cannot be
said that the object of the alleged unlawful assembly was to commit
murder of Sukhjiwan Singh. Hence, it is contended that no case for
offence under Section 302 read with Section 149 IPC is made out
against the accused.
33. On this point reliance has been placed upon State of Punjab
vs. Tejinder Singh and another 1995 Supreme Court Cases (Crl.) 987;
Parusuraman alias Velladurai and others vs. State of Tamil Nadu
1992 Supreme Court Cases (Crl.) 292; Karam Singh vs. State of
Punjab 1994 Supreme Court Cases (Crl.) 64; Rama Meru and another
vs. State of Gujarat AIR 1992 Supreme Court 969; Bawa Singh vs.
State of Punjab 1993 Crl.L.J. 49; Kartar Singh and others vs. State
of Punjab 1996 Crl.L.J. 1722; and Ranjha and another vs. State of
Punjab 1996 Crl.L.J. 3991.
34. Learned State counsel has not been able to rebut this
argument of learned counsel for the accused.
35. A careful perusal of testimony of Dr.Reeta Dhami PW1 and
the bed head ticket of the deceased, Ex.DA, shows that no injury was
found on groin of the deceased which was attributed to accused Iqbal
Singh by the witnesses. Hence, only inference which can be drawn is
that Iqbal Singh accused did not participate in the occurrence and that he
was not party to the common object of the unlawful assembly to cause
Crl.Appeal No.661-DB of 2000 -12-
injury to Sukhjiwan Singh @ Sukhi and that he has been falsely
implicated in this case.
36. Further only injury no.1 is on the vital part of the body and
however, the same is simple in nature and on dissection underlying bone
was intact and as per medical evidence death was caused on account of
injuries no.4 and 5, which are on non-vital parts of the body. Hence,
there is force in the argument of learned counsel for the appellants-
accused that prosecution has failed to prove that accused intended to
commit murder of Sukhjiwan Singh.
37. There are three types of culpable homicide under Indian
Penal Code. The first is defined in Section 300 IPC as murder and the
second may be termed as culpable homicide of 2nd degree which is
punishable under Ist part of Section 304 IPC and there is culpable
homicide of 3rd degree, i.e., culpable homicide punishable under IInd
part of Section 304 IPC.
38. Hence, taken into consideration the kind of injuries found
on the body of deceased in this case, as per medical evidence, as
described above, it cannot be inferred that the accused intended to
commit murder of Sukhjiwan Singh or that they intended to inflict such
an injury which in the ordinary course of nature was sufficient to cause
death. Hence the offence committed by other appellants-accused would
also come under Section 304 part I read with Section 149 IPC and not
under Section 302 read with Section 149 IPC .
39. In Tejinder Singh’s case (supra) except one injury on the
head, all other injuries were caused on non-vital parts of the body and
the head injury was only muscle deep. Hence in the circumstances of the
Crl.Appeal No.661-DB of 2000 -13-
case, both the accused were held liable to be convicted under Section
304 Part I read with Section 34 and not under Section 302 IPC.
40. Hence, in view of the above discussion, appeal filed by
Iqbal Singh, appellant-accused is accepted. Judgment of his conviction
and sentence is set aside and he is acquitted of the charges framed
against him.
41. However, conviction of accused Palwinder Singh @ Pinda,
Gurtek Singh @ Teki, Jaswinder Singh @ Manna and Jaswinder Singh
@ Binda for offence under Section 302 read with Section 149 IPC is
converted to offence under Section 304 Part I read with Section 149 IPC
and while setting aside their sentence to undergo life imprisonment for
offence under Section 302 read with Section 149 IPC, they are sentenced
to undergo rigorous imprisonment for six years each, for offence under
Section 304 Part I read with Section 149 IPC, while maintaining the
sentence passed for offence under Section 148 IPC by the trial Court.
However, both the sentences shall run concurrently and the
imprisonment already undergone by the accused during investigation,
trial and during pendency of this appeal after conviction shall be set off,
as provided under Section 428 Cr.P.C. With this modification in the
quantum of sentence, the appeals filed by Palwinder Singh @ Pinda,
Gurtek Singh @ Teki, Jaswinder Singh @ Manna and Jaswinder Singh
@ Binda are dismissed.
(Mehtab S.Gill) (Ram Chand Gupta)
Judge Judge
December 8, 2009
meenu
Note: Whether to be referred to reporter? Yes/No.