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2008 DIGILAW 273 (PNJ)

Jaswant Singh v. State Of Punjab

2008-01-31

JAGDISH SINGH KHEHAR, SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction and the order of sentence dated 19.8.2003, rendered by the Court of Additional Sessions Judge, Ferozepur, vide which it convicted the accused, for the offence punishable under Section 302 IPC, and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5000/-, and in default of the payment of fine, to further undergo RI for a period of two years and acquitted him for the offence, punishable under Section 148 IPC. All other accused namely Latkan Singh, Mohinder Singh, Om Singh, Joginder Singh, Krishna Bai and Taro Bai were acquitted for the offences, punishable under Sections 302/149 and 148 IPC. 2. Mukhtiar Singh, complainant, filed a criminal complaint that on 6.9.1998, at about 10.00 A.M., that he, his father Kartar Singh, deceased, brother Paramjit Singh and his wife Pritam Kaur were present in his house in the area of Village Lamochar Khurd (West),Tehsil Jalalabad (West), Distt. Ferozepur. They had got a new bore dug, for the installation of a hand-pump, in their house, and the same had already been put into operation. Suddenly, from the side of the house of Balwant Singh, they heard the voices "Be caught hold, not allowed to go". At that time, small gate of his house, towards the street was open. When he went ahead, he saw that the accused were having bricks, in their hands, and while raising exhortations entered his house. His father stepped forward to stop them, Jaswant Singh hurled the brick held in his hand, which hit the right side of the head of his father. The remaining accused also hurled bricks towards them, as a result whereof, Kartar Singh, his father fell down and became unconscious. On account of the injuries, sustained by him, in the said occurrence, he died at the spot. When they raised an alarm, all the accused ran away. About the murder of his father, in the aforesaid occurrence, he gave information to the ASI, Police Post Ghubhaya. The ASI had registered FIR No. 188/98 dated 6.9.1998 under Sections 304 and 452 read with Section 34 IPC. The ASI reached the spot and took the dead-body of his father, into possession, and sent the same for post-mortem examination. Neither the Police had arrested the accused, nor any action was taken against them. The ASI had registered FIR No. 188/98 dated 6.9.1998 under Sections 304 and 452 read with Section 34 IPC. The ASI reached the spot and took the dead-body of his father, into possession, and sent the same for post-mortem examination. Neither the Police had arrested the accused, nor any action was taken against them. He approached the SHO of Police Station Sadar Jalalabad (West) and requested him to arrest and challan the accused. He also moved a number of applications, before the higher authorities, for the arrest of the accused and presentation of challan. The police, however, submitted a cancellation report which was accepted by the Court. 3. The motive for the occurrence, as narrated in the complaint was to the effect that the accused were their neighbourers. The sons of Mukhtiar Singh, complainant and Jaswant Singh, accused, had been studying together in a school of the Village. A few days, before the present occurrence the son of Jaswant Singh had given beatings to the son of Mukhtiar Singh. Wife of Mukhtiar Singh had complained about this, after going to the house of the accused. On making of the complaint, a quarrel had taken place, between the wife of the complainant, and the family members of Jaswant Singh. Jaswant Singh and his family members were having a grudge, against his family due to this reason. Jaswant Singh and Latkan Singh used to give threats, to kill them and had also been using bad language, for their children, and the ladies. About that act of the accused, he had moved an application, to the Officer Incharge, Police Station Sadar Jalalabad (West), but the police did not take any action against them. 4. When the case relating to the FIR which was got registered by the complainant with regard to the occurrence, was got cancelled by the police, left with no alternative, the aforesaid complaint was filed by the complainant. 5. After recording the preliminary evidence, the Judicial Magistrate 1st Class, Fazilka, found sufficient grounds for proceeding against all the accused, for the offences, punishable under Sections 304 and 452 read with Section 34 IPC. They were accordingly summoned. 6. 5. After recording the preliminary evidence, the Judicial Magistrate 1st Class, Fazilka, found sufficient grounds for proceeding against all the accused, for the offences, punishable under Sections 304 and 452 read with Section 34 IPC. They were accordingly summoned. 6. On their appearance, in the Court of the Judicial Magistrate, 1st Class, Fazilka, the accused were supplied the copies of statements of the witnesses, recorded during the preliminary evidence, complaint and other documents, as required by Section 208 Cr.P.C. Since the offence under Section 304 IPC, was exclusively triable by the Court of Sessions, the case was committed by the Judicial Magistrate, 1st Class vide order dated 8.5.2001. 7. After the case was received by Commitment, charge under Sections 148 and 302 read with Section 149 IPC was framed against accused Jaswant Singh and the other accused, (already acquitted). It was read over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 8. The prosecution, in support of its case, examined Dr. Hans Raj, PW-1, Mukhtiar Singh, complainant, PW-2, Paramjit Singh, PW-3, and Resham Singh, Head Constable, PW-4. Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. 9. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was stated by Jaswant Singh, accused, that a brick had fallen from the parapet of the house of the deceased, which struck him and he fell down on the pipes lying, in his house. After investigation by the police, the case was got cancelled by the Senior Officers. Similar, plea was taken by Krishan Bai, accused, wife of Jaswant Singh. 10. Latkan Singh, accused, in his statement under Section 313 of the Code of Criminal Procedure, stated that he had contested the election of Sarpanch, against Boor Singh, who belongs to the party of the complainant. In that election, Boor Singh was elected as Sarpanch. Earlier to him, he was the Sarpanch of the Village. During his tenure, Amir son of Inderjit Singh had given an application, against him regarding embezzlement of the panchayat funds, which was filed after the enquiry. Due to this reason, he was falsely implicated. 11. In that election, Boor Singh was elected as Sarpanch. Earlier to him, he was the Sarpanch of the Village. During his tenure, Amir son of Inderjit Singh had given an application, against him regarding embezzlement of the panchayat funds, which was filed after the enquiry. Due to this reason, he was falsely implicated. 11. Mohinder Singh, Om Singh, Joginder Singh and Taro Bai (accused since acquitted) in their statements under Section 313 of the Code of Criminal Procedure, asserted that they had been falsely involved, in the instant case on account of being the brothers and wife of Latkan Singh, accused. 12. Krishna Bai, in her statement under Section 313 Cr.P.C., also asserted that she was falsely implicated. 13. The accused were called upon to enter on their defence but they did not produce any evidence, in their defence. 14. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced Jaswant Singh accused, and acquitted the remaining accused, as stated hereinbefore. 15. Feeling aggrieved, against the judgment of conviction and the order of sentence, the instant appeal, was filed by the appellant/accused. 16. We have heard the learned Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 17. The learned Counsel for the appellants at the very outset contended that the trial Court fell into an error in placing reliance on the evidence of the witnesses for recording conviction and awarding sentence to Jaswant Singh, especially when he had disbelieved the evidence of the same set of witnesses qua accused Latkan Singh, Mohinder Singh, Om Singh, Joginder Singh, Krishna Bai and Taro Bai, who were ultimately acquitted. He further contended that the ocular evidence was not supported by the medical evidence, as the brick could in all probability, only cause a lacerated wound and not the contusion, whereas injury No. 2 on the person of Kartar Singh, now deceased, was a reddish contusion, and not a lacerated wound. He further contended that since the ocular evidence was contradicted by the medical evidence, the trial Court was wrong, in relying upon the same. He further contended that since the ocular evidence was contradicted by the medical evidence, the trial Court was wrong, in relying upon the same. It was further contended by the learned Counsel for the appellant, that there was only a trivial motive, set up by the complainant and therefore, that could not be said to be sufficient to cause the death of Kartar Singh. He further contended that there was no intention on the part of the appellant to cause death of Kartar Singh, deceased. In the alternative, it was contended by the learned Counsel for the appellant, that at the most only an offence punishable under Section 304 Part II or 325 IPC, was made out, and no offence under Section 302 IPC was constituted, but the trial Court erred, in recording conviction and awarding sentence for the offence under Section 302 IPC. 18. On the contrary, learned Counsel for the respondents, contended that there was intention, on the part of the accused/appellant to cause the death of Kartar Singh, and the trial Court, rightly recorded conviction and awarded sentence for the offence punishable under Section 302 IPC. He further contended that the mere fact that the evidence of the witnesses was not believed by the trial Court in respect of the other accused, did not mean that the same could not be believed, so far as, the appellant was concerned. He further contended that there was a definite motive with the accused, to cause such injuries, on the person of Kartar Singh, as were sufficient to cause death, in the ordinary course of nature. He supported the judgment of conviction, and the order of sentence of the trial Court. 19. No doubt, Mukhtiar Singh, complainant, PW-2, and Paramjit Singh his brother,PW-3, are related to each other. However, this fact alone could not be said to be sufficient to discard their evidence. Mukhtiar Singh, while appearing, as PW-2, stated that on 6.9.1998, when he, his wife, his father and brother were present in the house, at about 10.00 A.M., he heard voices from the side of the house of Balwant Singh "Be caught hold, not allowed to go". When he went ahead, he saw the accused holding bricks in their hands. His father stepped forward to stop them, when, Jaswant Singh hurled a brick held by him, which hit the right side of his head. When he went ahead, he saw the accused holding bricks in their hands. His father stepped forward to stop them, when, Jaswant Singh hurled a brick held by him, which hit the right side of his head. The remaining accused also hurled bricks towards them, as a result whereof, Kartar Singh, his father fell down and became unconscious. During the course of cross-examination, Mukhtiar Singh also stated that Jaswant Singh, accused had hurled the brick which hit the head of the deceased. The statement of Mukhtiar Singh, PW-2, was corroborated by Paramjit Singh, PW-3. However, only two injuries were found, on the person of the deceased. No injury on the person of Mukhtiar Singh and his family members was found. Had the remaining accused hurled the bricks, then injuries would have also been caused, on the person of Mukhtiar Singh and his family members. It was, under these circumstances, that the trial Court disbelieved the statements of both these witnesses, qua the remaining accused, and only found Jaswant Singh guilty, as it was the brick which was hurled by him that hit Kartar Singh resulting into injury on his head, leading to his death. It was held in Kesho Ram Bora v. State of Assam (AIR 1978S.C. 1096) that it is now well settled, that the principle of "falsus in uno falsus in omnibus" does not apply to criminal trials, and it is the duty of the Court to disengage truth from the falsehood, to sift grain from the chaff instead of taking an easy course of rejecting the prosecution case in its entirety merely on the basis of a few infirmities. Keeping in view, the principle of law, laid down, in the aforesaid authority, even if, the benefit of doubt was given to the remaining accused, by the trial Court, by not believing the statements of the prosecution witnesses qua them that did not mean that the same could not be believed qua Jaswant Singh. It, therefore, would not be correct to say that the trial Court, committed an error, in relying upon the evidence of the same witnesses for convicting Jaswant Singh, and acquitting the other accused. The submission of the learned Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 20. It, therefore, would not be correct to say that the trial Court, committed an error, in relying upon the evidence of the same witnesses for convicting Jaswant Singh, and acquitting the other accused. The submission of the learned Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 20. The next submission of the learned Counsel for the appellant, that the brick could in all probability, only cause the lacerated wound and not the contusion, it may be stated here, that Dr. Hans Raj, PW-1, who conducted the post-mortem examination, on the dead-body of Jaswant Singh on 6.9.1998 at about 5.00 P.M. found the following injuries on the same :- "1. A swelling measuring 7 cm x 4 cm on the right parie to temporal region. 2. A reddish contusion 3 cm x 2 cm on the right mandibular region. On dissection of injury No. 1 subperisoteal heamatoma was present. Right parietal and temporal bones fractured and depressed. Sub-dural haematoma was present. Dura matter was lacerated. Underlying brain matter was lacerated. The doctor opined that the cause of death in this case was shock and haemorrhage as a result of head injury i.e. injury No. 1 which was sufficient to cause death in the ordinary course of nature. The Doctor also opined that injury No. 1 and 2 were possible by brick batting." 20. The doctor also opined that both the injuries aforesaid could be possible by brick batting. Such an opinion given by the doctor, in his examination-inchief, was not challenged by the Counsel for the accused, during the course of his cross-examination. On the other hand, during the course of crossexamination, in reply to a question put by the Counsel for the accused, he stated that injuries No. 1 and 2 could not be possible as a result of falling of bricks from the top of wall of parapits of the roof of a house. It means that the accused also admitted that the injuries on the person of Kartar Singh could be caused by brick batting. There was, thus, no contradiction between the ocular and medical evidence. In this view of the matter, the submission of the learned Counsel for the appellant, being without merit, must fail, and the same stands rejected. 21. It means that the accused also admitted that the injuries on the person of Kartar Singh could be caused by brick batting. There was, thus, no contradiction between the ocular and medical evidence. In this view of the matter, the submission of the learned Counsel for the appellant, being without merit, must fail, and the same stands rejected. 21. The next question that arises for consideration is, as to whether, the accused committed an offence, punishable under Section 302 IPC, or 304 Part II IPC. Mukhtiar Singh, PW-2 when appeared, in the Court, in his cross- examination, admitted that Jaswant Singh, accused, hurled a brick which hit the right side of the head of the deceased. Even, in para No. 2 of the complaint, he in clear-cut terms, stated that Jaswant Singh hurled a brick, which hit the right side of the head of his father, as a result whereof, he died. There was no strong motive, with the accused, to cause such an injury, on the person of Kartar Singh, which could result into his death. The motive set up by the complainant was too trivial, to prompt the accused, to cause the death of Kartar Singh. Even if, some quarrel had taken place, with regard to the dispute, between the children, sometime ago, that could not be said to be a sufficient motive to cause the death of Kartar Singh. It appears that, on account of quarrel, over the children, a brick bat was hurled by Jaswant Singh. At the time of hurling the brick bat, or a piece thereof, he did not intend to cause injuries on the head of the deceased, which could result into his death. It could not be said that the case of the accused fell within clause thirdly of Section 300 of the Indian Penal Code, as he did not hurl a brick with an intention of causing bodily injury to the deceased knowing that the bodily injury intended to be inflicted, was sufficient, in the ordinary course of nature, to cause death. However, Jaswant Singh, while hurling a brick towards Kartar Singh had the knowledge that, if the same hit the vital part of the body of Kartar Singh, it may cause death, but without any intention to cause death or to cause such injury, as was likely to cause death. However, Jaswant Singh, while hurling a brick towards Kartar Singh had the knowledge that, if the same hit the vital part of the body of Kartar Singh, it may cause death, but without any intention to cause death or to cause such injury, as was likely to cause death. Had he struck the brick by coming near Kartar Singh, targeting his head, it would have certainly been said that he had the intention to cause such injury, as was sufficient to cause death in the ordinary course of nature. At the most, Jaswant Singh, appellant committed an offence punishable under Section 304 Part II of the Indian Penal Code. He did not commit any offence punishable under Section 302 IPC. A perusal of the fact of Ujjagar Singh v. State of Punjab 1997 (1) RCR (Crl.) 224 (P&H) decided by a Division Bench of this Court reveals that a brick bat hurled by accused, from the roof of his house, fell on the right side of the head of the deceased, that proved fatal, as a result whereof, he died and the doctor opined that the injury was sufficient to cause death, in the ordinary course of nature. The injury was 3 cm x 1 cm on the right parietal region, 7.5 cm., above and 4 cm in front of the right ear. In thesecircumstances, it was held that only an offence, punishable under Section 304 Part-II IPC, was made out, and no offence punishable under Section 302 IPC, was made out. The facts of the aforesaid authority, are almost similar and identical to the facts of the present case. In this view of the matter, the submission of the learned Counsel for the appellant, to this effect, that at the most, an offence, punishable under Section 304 Part-II of the Code of Criminal Procedure, is constituted being correct, is accepted. The trial Court was wrong in recording conviction and awarding sentence to the accused for the offence punishable under Section 302 IPC. 22. No other point, was urged, on behalf of the learned Counsel for the parties. 23. In view of the above discussion, it is held that the judgment of conviction and the order awarding sentence, for the offence, punishable under Section 302 IPC, rendered by the trial Court, are not based on the correct appreciation of evidence, and, law on the point. 23. In view of the above discussion, it is held that the judgment of conviction and the order awarding sentence, for the offence, punishable under Section 302 IPC, rendered by the trial Court, are not based on the correct appreciation of evidence, and, law on the point. The judgment of conviction, and the order awarding sentence for the offence, punishable under Section 302 IPC., are liable to be set aside and the appellant is liable to be convicted for the offence, punishable under Section 304 Part II IPC and sentenced accordingly. The appeal is, thus, required to be partly accepted. 24. For the reasons recorded hereinbefore, the appeal is partly accepted. The conviction recorded by the trial Court and the sentence awarded by it, to the accused/appellant, for the offence punishable under Section 302 IPC, are set aside, and the accused/appellant is convicted for the offence punishable, under Section 304 Part II IPC, and sentenced to undergo RI, for a period of seven years, and to pay a fine of Rs. 5000/-, and in default of payment of fine, to further undergo RI for a period of one year.