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2005 DIGILAW 1114 (PNJ)

Hoshiar Singh v. State of Punjab

2005-10-21

MEHTAB S.GILL, PRITAM PAL

body2005
JUDGMENT Mehtab S. Gill, J. - This is an appeal against the judgement/order dated 3.4.1997 of the Sessions Judge, Jalandhar whereby he convicted appellants Hoshiar Singh, Lakha Singh and Gurdip Singh under Sections 302/34 Indian Penal Code and sentenced them to undergo life imprisonment and to pay a fine of Rs. 1000/-, in default, to further undergo RI for three months. 2. The case of the prosecution is unfolded by the statement Ex.PA of Joginder Singh (deceased) made to ASI Pritam Singh at Civil Hospital, Nakodar on 26.3.1995 at 6 p.m. Joginder Singh stated that he is a resident of Village Raipur Arayian. His farm house is situated near the Bandh of the river. He does agricultural work. On 24.3.1995, he along with his mother Piaro Bai went to Sidhwan Bet in connection with some personal work. In the evening when they were coming back at 6 p.m., near the Dera of Amar Singh son of Gian Singh, they saw accused Hoshiar Singh son of Ballu Singh, Lakha Singh son of Ballu Singh and Gurdip Singh son of Balwant Singh son of Ballu Singh, all caste Rai Sikhs residents of Village Raipur standing on the Bandh of the river. The accused came forward and stopped his cycle. Joinder Singh alighted from his cycle and so did his mother. Hoshiar Singh who had a Parna (piece of cloth) in his hand, put it around the neck of the complainant. Lakha Singh and Gurdip Singh started giving fist blows on the face of Joinder Singh as a result of which he sustained a number of injuries on his face, nose and around his eyes. Joginder Singh along with his mother raised an alarm. Amar Singh son of Gian Singh came to the spot, on seeing him, all the three accused ran away. Complainants father Jagtar Singh had also reached the spot. A vehicle was arranged and complainant Joginder Singh was taken to Civil Hospital, Mehatpur. From there, complainant was referred to Civil Hospital, Nakodar. The cause of grudge was that a dispute regarding one Killa of land was pending in the local courts, between the accused and complainant Joginder Singh. Dr. Ranjit Kumar (PW-6) sent M.L.R. after examining Joginder Singh on 25.3.1995 to Police Station Mehatpur. From there, complainant was referred to Civil Hospital, Nakodar. The cause of grudge was that a dispute regarding one Killa of land was pending in the local courts, between the accused and complainant Joginder Singh. Dr. Ranjit Kumar (PW-6) sent M.L.R. after examining Joginder Singh on 25.3.1995 to Police Station Mehatpur. ASI Pritam Singh (PW-10) reached the Civil Hospital, Mehatpur and got the opinion of the doctor as to whether Joginder Singh was fit to make a statement. The doctor vide his report Ex.PG/1, declared Joginder Singh unfit to make statement. On 26.3.1995 ASI Pritam Singh again went to the Civil Hospital, Mehatpur where Dr. Ranjit Kumar (PW-6) gave a report in writing that Joginder Singh had been referred to Civil Hospital, Nakodar. ASI Pritam Singh then went to Civil Hospital Nakodar, where he took the opinion of Dr. Ashok Nanda (PW-2) who declared Joginder Singh to be fit to make a statement. 3. On the basis of statement of Joginder Singh, D.D.R. No. 22 dated 26.3.1995 Ex.PA/4 under Section 323/34 Indian Penal Code was recorded, as no cognizable offence was made out. Joginder Singh died on 6.4.1995. The offence under Section 323/34 Indian Penal Code was converted into Sections 302/34 Indian Penal Code and formal F.I.R Ex.PA/1 was recorded on 6.4.1995 at 10.45 a.m. Special Report reached the Illaqa Magistrate on 6.4.1995 at 12 noon. 4. The prosecution to prove its case, bought into the witness-box PW-1 ASI Harbhajan Singh, PW-2 Dr. Ashok Nanda, PW-3 Dr. A.S. Saini, PW-4 Amarjit Singh Patwari, PW-5 Gurmel Singh, PW-6 Dr. Ranjit Kumar, PW-7 Jagtar Singh, PW-8 Piaro Bai, PW-9 SI Harjit Singh and PW-10 ASI Pritam Singh. 5. Learned counsel for the appellants has stated that the statements of Jagtar Singh (PW-7) and Piaro Bai (PW-8) under Section 161 Criminal Procedure Code were recorded after the death of Joginder Singh. Joginder Singh died in the Civil Hospital, Nakodar on 6.4.1995. Nowhere has it been stated by Joginder Singh deceased in his statement Ex.PA that he was thrown down from the Bandh of the river. In his statement Ex.PA, all that has been stated, is that appellant Hoshiar Singh put a Parna (piece of cloth) around the neck of the deceased, while the other appellants Lakha Singh and Gurdip Singh gave fist blows on his face. In his statement Ex.PA, all that has been stated, is that appellant Hoshiar Singh put a Parna (piece of cloth) around the neck of the deceased, while the other appellants Lakha Singh and Gurdip Singh gave fist blows on his face. It is after the post-mortem report Ex.PC, that the Investigating Officer realized, that the 7th vertebra of the spinal cord of the deceased was injured, and the story of Joginder Singh deceased being thrown down from the river Bandh was then made. It was after this the two alleged eye-witnesses Jagtar Singh (PW-7) and Piaro Bai (PW-8) stated before the Court that Joginder Singh was pushed down from the Bandh. 6. No evidence has come forward regarding any court cases pending between the parties. Neither any judgment has been put on record, nor the name of the Court where the court cases were pending, has been stated by the prosecution witnesses. 7. Finally, the learned counsel for the appellants has argued that at the most, case of the appellants falls under Section 323 Indian Penal Code He has relied upon a judgment of the Honble Supreme Court in Jani Gulab Shaikh v. The State of Maharashtra, 1970 C.A.R. (SC) 40. 8. Learned counsel for the State has argued that the statement of Piari Bai (PW-8) was recorded on 6.4.1995, as she was more worried in looking after the health of her son than to give her statement to the police. She did not come into contact with the Investigating Officer, till 6.4.1995. He has further stated that D.D.R. No. 22 which was recorded on 26.3.1995 (Ex.PA/4) cannot be looked over, as the version given in D.D.R. No. 22 is fully corroborated by Jagtar Singh (PW-7) and Piaro Bai (PW-8). The Investigating Officer did not record the statements of Jagtar Singh (PW-7) and Piaro Bai (PW-8) as that time the offence was under Section 322/34 Indian Penal Code which is non-cognizable. It is only on 6.4.1995 when Joginder Singh died that the offence was converted into Section 302/34 Indian Penal Code It is thereafter that the statements of Jagtar Singh (PW-7) and Piaro Bai (PW-8) were recorded. Statement of Joginder Singh deceased Ex.PA was recorded at Civil Hospital, Nakodar on 26.3.1995 at 6 p.m., after he became fully conscious. Jagtar Singh (PW-7) and Piaro Bai (PW-8) have corrobotated the dying declaration Ex.PA made by Joginder Singh. 9. Statement of Joginder Singh deceased Ex.PA was recorded at Civil Hospital, Nakodar on 26.3.1995 at 6 p.m., after he became fully conscious. Jagtar Singh (PW-7) and Piaro Bai (PW-8) have corrobotated the dying declaration Ex.PA made by Joginder Singh. 9. We have heard the learned counsel for the parties and perused the record with their assistance. 10. Joginder Singh deceased made statement Ex.PA to ASI Pritam Singh (PW-10) on 26.3.1995 in Civil Hospital, Nakodar at 6 p.m. On 24.3.1995 and 25.3.1995, he could not record his statement as Dr. Ranjit Kumar (PW-6) has opined, that the patient was semi-conscious and did not respond to the superficial stimuli. ASI Pritam Singh (PW-10) moved an application before Dr. Ranjit Kumar (PW-6) of Civil Hospital Mehatpur on 25.3.1995, as to whether Joginder Singh was in a fit condition to make a statement or not. The doctor vide his report Ex.PG/1 stated that the patient feels difficulty in clearly speaking due to injuries in his mouth, so he is unfit to make statement. Joginder Singh deceaseds statement Ex.PA was then recorded on 26.3.1995. It was on the basis of this statement, that D.D.R. No. 22 Ex.PA/4 was ordered. Offence being under Sections 323/34 Indian Penal Code, the Investigating Officer did not proceed any further. Joginder Singh died on 6.4.1995 and it is thereafter that the Investigating Officer ASI Pritam Singh (PW-10), recorded the statements of Jagtar Singh (PW-7) and Piaro Bai (PW-8). The dying declaration Ex.PA gets corroboration from the testimony in Court of Jagtar Singh (PW-7) and Piaro Bai (PW-8). 11. Learned counsel for the appellant has laid much stress on the aspect, that in their statements before the Courts these two witnesses i.e. Jagtar Singh (PW-7) and Piaro Bai (PW-8) have stated that Joginder Singh deceased was pushed from the Bandh. Joginder Singh deceased did not state in his dying declaration Ex.PA that he was pushed down from the Bandh. We cannot overlook the fact that in the dying declaration Ex.PA, it has been stated by Joginder Singh that the appellants gave him fisst blows, on his face, nose and eyes. This is corroborated by the medical evidence prepared by Dr. Ranjit Kumar (PW-6), wherein a number of injuries are shown on the ear, eye-lid, nose, lip and neck. We cannot overlook the fact that in the dying declaration Ex.PA, it has been stated by Joginder Singh that the appellants gave him fisst blows, on his face, nose and eyes. This is corroborated by the medical evidence prepared by Dr. Ranjit Kumar (PW-6), wherein a number of injuries are shown on the ear, eye-lid, nose, lip and neck. When the deceased was being hit by fist blows by the three appellants, it is at that time that he fell down from the Bandh and on rolling down from the Bandh which was 20 to 25 feet high, he received injury No. 6, as pointed out by Dr. A.S. Saini (PW-3) i.e. on the 7th vertebra of the spinal- cord. Dr. A.S. Saini (PW-3) has further stated that this injury is possible if a hard substance is struck against the body, or the body is struck against a hard surface. The spinal-cord injury was the result of the deceased falling from the Bandh and the spinal-cord hitting a hard object like a stone. 12. Motive for the commission of the offence has been brought out in the dying declaration Ex.PA and in the statements of Jagtar Singh (PW-7) and Piaro Bai (PW-8). Court cases were pending between both the parties. Due to this grudge, the appellants who are closely related to each other, attacked Joginder Singh when he was coming along with his mother on a cycle from Sidwan Bet. No suggestion to the contrary has been put to the witnesses qua the assertion made by these witnesses i.e. Jagtar Singh (PW-7) and Piaro Bai (PW-8) that court cases were not pending between the parties. Both these witnesses have categorically stated and further in the dying declaration Ex.PA, it has been categorically stated by Joginder Singh that there is a dispute of one Killa (acre) of land between the complainant and the appellants. 13. The judgement cited by the counsel for the appellants in Jani Gulab Shaikh v. The state of Maharashtra (supra) does not apply to the case in hand. In the cited case (supra), the deceased when he was passing near the shop of the appellants, uttered some words which were not to the liking of the accused. Accused came out of his shop and warned the deceased not to abuse. Inspite of that, the deceased who was in a drunken condition, kept on abusing the accused. In the cited case (supra), the deceased when he was passing near the shop of the appellants, uttered some words which were not to the liking of the accused. Accused came out of his shop and warned the deceased not to abuse. Inspite of that, the deceased who was in a drunken condition, kept on abusing the accused. Accused then pushed the deceased, whereby he received a head injury and later on succumbed to that injury. The Honble Supreme Court held that due to the drunken condition of the deceased and while falling, he could not avoid his skull from hitting the road. Appellant was convicted under Section 323 Indian Penal Code, and not under Section 304 Part-II Indian Penal Code 14. In the case in hand, appellants on seeing the deceased coming, stopped him and started giving him fist blows on his face. In the process when he was giving injuries, he was pushed from the Bandh. While rolling down from the Bandh, he accidentally received a spinal injury by striking against some hard substance. Appellants did have the knowledge that by pushing down the deceased from the Bandh, which was 20-25 feet high, deceased could die, but they did not have the intention to kill him. If they had the intention to kill him, they would have been armed with some deadly weapon. They could easily have picked up a lathi or heavy stone from the palace of occurrence, with which they could have hit the vital part of the deceased. 15. Case of the appellants falls within the ambit of Section 304 Part-II Indian Penal Code 16. Conviction of the appellant is modified from Section 302/34 Indian Penal Code to Section 304 Part-II Indian Penal Code Sentence of the appellants is also modified from life imprisonment to RI for six years. Fine shall remain the same. 17. With the above observations and modification in conviction and sentence, appeal is dismissed. 18. Appellants, if on bail, are directed to surrender before the C.J.M., Jalandhar to undergo the remaining part of their sentence. Appeal dismissed.