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2003 DIGILAW 376 (PNJ)

Desa Singh v. State Of Punjab

2003-03-05

SWATANTER KUMAR

body2003
Judgment 1. This appeal is directed against the judgment of conviction and order of sentence both dated 3-1-1989 passed by the learned Sessions Judge, Faridkot, vide which accused Desa Singh was found guilty of offence under Section 304, Part I of the Indian Penal Code and was ordered to undergo rigorous imprisonment for seven years and to pay fine of Rs. 2,000.00. In default thereof to further undergo rigorous imprisonment for one year. 2. The case of the prosecution on the basis of the record before the trial Court has been correctly noticed in the judgment under appeal, which reads as under :- "Case of the prosecution is that on 25-7-1987 at about 7 p.m. Gurdip Kaur PW and her son Jagdev Singh PW were coming to their house from the village pond with the cattle. When they reached near the water tap at a distance of about five karams from their house, then Gurdip Singh accused armed with a Gandasa, Desa Singh with a Baahi and Mansa Singh empty handed were found standing there and hurling abuses at random without name anybody, Gurdip Kaur asked the accused that why they were hurling the abuses and that they should allow them to pass in the street. Accused Mansa Singh pushed her that who was she to stop them from abusing, who fell down. Her husband Mathra Singh deceased came there, who enquired from the accused that what was the matter. Then Gurdip Singh accused gave a Gandasa blow on his head. Desa Singh accused gave a Baahi blow on the back of his head, who fell down. The accused then went away. The deceased was taken to Lambi hospital, where he expired after about one hour. He had been medically examined in the hospital and intimation was sent to the Police Station by the doctor. A.S.I. Gurdip Singh went to the hospital at 11 p.m. from the Police Station. He recorded the statement of Gurdip Kaur, Ex. P.H. and sent it to the police station with his endorsement Ex. P.H./1, on the basis of which F.I.R. Ex. P.H./2 was recorded. The A.S.I. prepared the inquest report Ex.P.E. and sent the dead body for post-mortem examination. S.I. Joginder Kumar took the investigation of the case at that very night from A.S.I. Gurdip Singh. He recorded the statement of Jagdev Singh. P.H./1, on the basis of which F.I.R. Ex. P.H./2 was recorded. The A.S.I. prepared the inquest report Ex.P.E. and sent the dead body for post-mortem examination. S.I. Joginder Kumar took the investigation of the case at that very night from A.S.I. Gurdip Singh. He recorded the statement of Jagdev Singh. He went to the place of occurrence and prepared the rough site plan of the place of occurrence Ex.P.J. After the completion of the investigation, the accused were sent for trial in this case." 3. The deceased was initially examined and treated by PW 1 Dr. Ajit Singh, who found the following injuries upon him :- 1) An incised wound 4 cms x 1/2 cm x 1 cm present obliquely on the back of the middle of the head. Wound was bleeding. 2) Reddish contusion 3 cms x 2 cms on the back of the lower part of the head. Swelling and tenderness was present." 4. Upon death of Mathra Singh, his dead body was subjected to post-mortem by Dr. Gurcharan Singh Bawa, PW 2, who referred to the injuries on the body of the deceased and also gave his opinion as under :- "I found the following injuries on the dead body:- 1) Stitched wound 4 cms long on the occipital region in middle and oblique in direction. 2) Contusion and swelling 3 cms x 2 cms on the occipital region, 3 cms below injury No.1. On dissection, there was haematoma beneath scalp and over the skull bone. There was depressed fracture of occipital bone extending to the right parietal region. There was haematoma over the surface of brain in occipital lobe. Stomach was healthy and contained semi digested food material. Small intestines were healthy and contained fluid and gases. Large intestines were healthy and contained faeces and gases. Bladder was empty. Heat (sic) was empty and healthy. All other organs were healthy." 5. There were two witnesses of the occurrence namely Gurdip Kaur, PW 4 and Jagdev Singh PW 5, wife and son of the deceased. The case of the prosecution was also corroborated by the other witnesses and evidence. On the other hand, the accused led no evidence in his defence. In his statement under Section 313, Cr.P.C. he pleaded false implication. 6. The case of the prosecution was also corroborated by the other witnesses and evidence. On the other hand, the accused led no evidence in his defence. In his statement under Section 313, Cr.P.C. he pleaded false implication. 6. The learned trial Court after appreciating the evidence properly, converted the offence under Section 304, Part I from 302 of the Indian Penal Code for which the accused was challaned and sentenced him as afore-noticed. 7. Learned counsel appearing for the appellant did not challenge the conviction of the accused on merit of the case, but primarily argued that keeping in view of facts and circumstances of the case and relying upon Division Bench judgment of this Court in the case of Gurdeep Singh V/s. State of Haryana, 1994 1 RCriR 190 and the judgment of the Hon ble Supreme Court in the case of Khanjan Pal V/s. State of U.P., 1990 3 RCriR 535, to contend that ends of justice would be met if the petitioner is convicted and left on already undergone punishment. 8. Learned counsel brought to the notice of the Court that the accused was a young man of 25 years at the time of occurrence, he has family responsibility, which include his two daughters and wife. Even during the long trial and pendency of the appeal father of the accused also expired. There was no common intention and in fact no intention on the part of the accused to kill the deceased. The occurrence took place at the spur of the moment and the injury was never repeated by the accused. He also pointed that the medical evidence does not indicate that the death occurred due to the injury caused by the accused. In fact, as per the statement of Dr. Gurcharan Singh Bawa, both injuries were sufficient to cause death in the normal course of nature. It is not disputed by the learned counsel appearing for the State that the above facts are correct. 9. Learned counsel for the appellant also stated that the accused has already undergone nearly two years and seven months which forms substantial part of the awarded sentence. 10. It is not disputed by the learned counsel appearing for the State that the above facts are correct. 9. Learned counsel for the appellant also stated that the accused has already undergone nearly two years and seven months which forms substantial part of the awarded sentence. 10. The circumstances afore-noticed and the law as laid down by the Hon ble Apex Court and the Division Bench of this Court, afore-referred, clearly indicate that where there was no intention on the part of the accused to commit murder of the deceased and the attended circumstances did not suggest any repeated assault by the accused, it would be a case falling under Section 304, Part I of the Indian Penal Code and a fit case that the conviction is upheld and punishment should be reduced to already undergone. 11. Keeping in view the totality of the facts and circumstances of the case and the law, referred to above. I am of the considered view that ends of justice would sufficiently met if the conviction of the accused appellant is sustained but period of awarded sentence is reduced to the period already undergone (two years and seven months). Ordered accordingly. 12. The appeal is accordingly partially allowed and disposed of.