Research › Search › Judgment

Punjab High Court · body

2010 DIGILAW 3130 (PNJ)

Malkiat Singh v. State of Punjab

2010-11-22

M.JEYAPAUL

body2010
JUDGMENT M. JEYAPAUL, J. (ORAL) 1. All the six accused, who were convicted for the offences under Sections 147, 364 read with Section 149 and Section 304 Part II of the Indian Penal Code and were sentenced to undergo one year rigorous imprisonment for the offence under Section 147 and 5 years rigorous imprisonment each for the other two offences, have preferred the present appeal. 2. The case of the prosecution as narrated by the witnesses is as follows: a) The 1st accused Malkiat Singh and 2nd accused Kashmir Singh are the sons of 6th accused Pritam Singh. The 3rd accused Gurmit Singh, 4th accused Lashkar Singh and 5th accused Maninder Singh are the sons of brother of the 6th accused Pritam Singh. PW3 Parkash Kaur is the complainant in this case. She is none other than the wife of the deceased Kapoor Singh. The house in the filed of the complainant is adjacent to the residential house of the 6th accused Pritam Singh. There is a manure pit located on the eastern side of the street running in front of the filed house of both of them. Both the families used to stock their manure in the said the manure pit separately. As Pritam Singh, the accused in this case, claimed exclusive possession over the manure pit, a quarrel arose between the two families. b) On 28.05.1999, at about 6.15 a.m., PW3 Parkash Kaur along with the deceased Kapoor Singh proceeded to their house in the field to milch the cows. All the accused came to the filed house of PW3 and started beating the deceased Kapoor Singh. Thereafter, they dragged him to the courtyard of their residential house and tied Kapoor Sing to a tree with the help of a string and all the accused delivered fist blows and kicks on Kapoor Singh. With the help of other people, Kapoor Singh was rescued. A panchayat was convened, but the decision taken to compromise the matter was not accepted by the deceased. c) On 30.05.1999, at about 2.00 p.m., Kapoor Singh died due to internal injuries in his stomach. On the basis of the complaint given by PW3 on 30.05.1999, a case under Sections 304, 342, 148 and 149 of the Indian Penal Code was registered as against all the accused. d) Dr. Anoop Kumar PW1, Dr. Prem Singh PW2 and one Dr. On the basis of the complaint given by PW3 on 30.05.1999, a case under Sections 304, 342, 148 and 149 of the Indian Penal Code was registered as against all the accused. d) Dr. Anoop Kumar PW1, Dr. Prem Singh PW2 and one Dr. H.L.Mehmi conducted post mortem examination on the dead body of Kapoor Singh. They found that there was no external visible mark of injury on his dead body. On dissection of abdomen, it was found that the peritoneum was congested. There was also one dark congested patch on the anterior aspect of peritoneum measuring 10 cm x 8 cm. The peritoneal cavity contained light brown colour fluid mixed with the digested food particulars. On the lower part of ileum, there was a perforation measuring 2 cm in diameter with light brown colour fluid coming out of it. All other abdominal visceras were found congested. On dissection of the neck and chest, trachea, larynx and pharynx were found containing light brown colour fluid. Light brown colour fluid also came out from the lungs on squeezing. The doctors PW1 and PW2, who formed part of the team, opined that asphyxia due to aspiration associated with peritonitis due to perforation of the small intestine was the cause of death. The perforation could be the result of blunt trauma to abdomen. e) PW7 continued to investigate the matter and having completed the remaining part of the investigation, filed a final report as against all the accused under Sections 147, 304 read with Section 149 and 364 read with Section 149 of the Indian Penal Code. 3. The Trial Court, having adverted to the ocular evidence of PW3 who is none other than the wife of Kapoor Singh the deceased in this case, in the background of the medical evidence, convicted and sentenced all the accused as stated supra. 4. The learned senior counsel appearing for the accused appellants would submit that there has been a delay of 2 days in lodging the first information report. PW3 has taken sufficient time to concoct a case as against all the accused. PW4 and PW5, cited and examined by the prosecution, had turned hostile to the case of the prosecution. The evidence of PW3 is found to be contradictory to the medical evidence. PW3 has taken sufficient time to concoct a case as against all the accused. PW4 and PW5, cited and examined by the prosecution, had turned hostile to the case of the prosecution. The evidence of PW3 is found to be contradictory to the medical evidence. The Trial Court failed to take note of the evidence of PW4 that there was a scuffle between the deceased and the 6th accused. No specific attack was attributed to any of the accused by PW3. The prosecution has come out with a artificial version that all the accused were totally unarmed throughout the occurrence. The injuries alleged to have been caused by the accused on the person of the deceased were not the direct cause for the death of the deceased. Therefore, the accused would not have had any knowledge that such an assault would lead to the death of the deceased. At best, the accused could be convicted only for the offence under Section 323 and not under Section 304 Part II of the Indian Penal Code, he would further submit. 5. Per contra, the learned Deputy Advocate General for the State would submit that the ocular testimony of PW3 cannot be simply ignored. The medical evidence also would establish that the internal injuries caused by the accused had led to asphyxia, which ultimately resulted in the death. The Trial Court has rightly convicted the accused, attributing knowledge of the consequence of their attack, which result in the death under Section 304 Part II of the Indian Penal Code. Therefore, it is his submission that the judgment of the Trial Court warrants no interference. 6. PW3 is the star witness in this case. She had, in fact, accompanied her husband Kapoor Singh to the house located in the field. She has categorically deposed before the Trial Court that all the accused caught hold of her husband Kapoor Singh and dragged him towards their house and delivered fist blows on him. Thereafter, Kapoor Singh was tied to a tree with a rope. The accused delivered again fist blows on him. Only after the arrival of PW4 and PW5, Kapoor Singh was retrieved. She would depose that Kapoor Singh could not eat or drink after the occurrence as the food stuff could not pass through his throat. 7. Thereafter, Kapoor Singh was tied to a tree with a rope. The accused delivered again fist blows on him. Only after the arrival of PW4 and PW5, Kapoor Singh was retrieved. She would depose that Kapoor Singh could not eat or drink after the occurrence as the food stuff could not pass through his throat. 7. It is true that PW4 and PW5, for the reasons best known to them, have turned hostile to the case of the prosecution. But it is to be noted that PW4 Didar Singh has admitted, though he had not fully supported the case of the prosecution, that it was only the accused who caused injuries on the person of the deceased Kapoor Singh. The other portion of the evidence of PW4 and the testimony of PW5, which takes a total departure from the statement under Section 161 of the Code of Criminal Procedure recorded by the Investigating Officer, does not inspire confidence of this Court. They virtually supported the case of the defence quite against their original version before the police. Therefore, the accused cannot be permitted to take advantage of a new version read out by the PW4 and PW5 before the Court for the first time. 8. Coming to the medical evidence, it is found that PW1 and PW2 formed part of the team of doctors who conducted the post mortem examination on the dead body of Kapoor Singh. It is found from their testimony that there was no external visible mark of any injury found on the person of the deceased Kapoor Singh. The peritoneum was found congested. A dark congested patch was also found on the anterior aspect of peritoneum. There was also a perforation in the lower part of ileum. The trachea, larynx and pharynx contained light brown colour fluid. The doctors opined that the direct cause of death was asphyxia due to aspiration associated with peritonitis due to perforation found in the small intestine. It has also been observed by the doctors that the perforation could be the result of blunt trauma to abdomen. PW1 has also opined that asphyxia due to aspiration in the instant case would have caused the sudden death. 9. It is the admitted case of the prosecution that the deceased, who sustained injuries, was not taken to hospital for treatment to the injuries he sustained. PW1 has also opined that asphyxia due to aspiration in the instant case would have caused the sudden death. 9. It is the admitted case of the prosecution that the deceased, who sustained injuries, was not taken to hospital for treatment to the injuries he sustained. The medical evidence would loudly speak to the fact that asphyxia due to aspiration was the direct cause of death of Kapoor Singh. The moment the asphyxia due to aspiration had taken place, Kapoor Singh would have encountered sudden demise. Therefore, peritonitis caused to Kapoor Singh due to perforation of the small intestine would have been the root cause for the asphyxia that developed later but that cannot be the direct cause of death. The evidence of PW3, which is corroborated by the medical evidence, would go to establish that the blunt injuries sustained by Kapoor Singh in his abdomen had occasioned perforation in the small intestine. As already pointed out by me, the deceased had survived the assault for two days. He having been developed with asphyxia due to aspiration had suddenly encountered the death after two days. 10. Of course, the prosecution could establish that all the accused having formed an unlawful assembly committed rioting and in the process used force and they took away Kapoor Singh from his house and attacked him indiscriminately and caused internal injuries. 11. The Trial Court has simply lost sight of the fact that the medical evidence would indicate that the perforation found in the small intestine on account of the attack launched by the accused was not the direct cause of death, but only asphyxia due to aspiration which developed later on account of the internal injuries sustained by Kapoor Singh had ultimately taken his life. The accused would not have knowledge that the attack they launched on the abdomen and the neck would ultimately result in asphyxia which would take away the life of the victim. They had not caused any external injury on the person of the deceased. Despite the fact that they had sufficient time to deal with the deceased, they had not chosen to take any arms to attack the deceased. At best, they would have intended to cause injury on the person of the deceased. 12. The learned Deputy Advocate General would refer to a decision of the Bench of the Court in State of Punjab Vs. At best, they would have intended to cause injury on the person of the deceased. 12. The learned Deputy Advocate General would refer to a decision of the Bench of the Court in State of Punjab Vs. Navjot Singh Sidhu and another, 2007(1) R.C.R. (Criminal) 374 to drive home the point that if a fist blow resulted into the death of the victim, it would get attract the offence under Section 304 Part II of the Indian Penal Code. That was a case where the accused has delivered a fist blow exactly on the temporal region of the head. Having received such an injury, the deceased had collapsed. The medical evidence in that case would establish that subdural hemorrhage was present over the left parietal region. The doctor in the said case had opined that the death could be attributed to the head injury received by the victim. It has also been opined by the doctor in the said case that the head injury itself could be sufficient to cause death in the ordinary course of nature. In other words head injury was the direct cause of death 13. In the instant case, as already pointed out by me, the perforation caused to the small intestine on account of fist blow given by the accused was not the direct cause of the death of the victim. The doctors, who conducted post mortem examination, also had not opined that such an injury found in the stomach would be sufficient to cause death of the victim. In view of the above, I find that the above ratio laid down by the Bench of this Court would not apply to the present case. 14. In a similar case in Pirthi Vs. State of Haryana, 1994 CRI. L.J. 2187, the Supreme Court has held that though the medical evidence would go to show that there had been an injury to the testicles on account of the attack launched by the accused, the injury caused to the testicles was not the direct cause of death. The death had occasioned only due to toxemia because of gangrene which could be the result of injury caused to the testicles in the attack launched by the accused on the deceased. The death had occasioned only due to toxemia because of gangrene which could be the result of injury caused to the testicles in the attack launched by the accused on the deceased. Under such circumstances, the Supreme Court having observed that the injury caused to the testicles was not the direct cause of death, held that an offence under Section 323 alone was made out and not an offence under Section 304 Part II of the Indian Penal Code. 15. In yet another case in B.N.Kavatakar and another Vs. State of Karnataka, 1994 Supreme Court Cases (Cri) 579, it has been held as follows: - “9. The next question that comes up for our consideration is what is the nature of the offence that the appellants have committed. The Medical Officer who conducted autopsy on the dead body of the deceased has opined that the death was as a result of septicemia secondary to injuries and peritonitis. As we have indicated above, the deceased died after five days of the occurrence in the hospital. On an overall scrutiny of the facts and circumstances of the case coupled with the opinion of the Medical officer, we are of the view that the offence would be one punishable under Section 326 read with Section 34 IPC.” 16. Having relied upon the opinion expressed by the doctor in the said case that the death had occasioned on account of septicemia which was secondary to the injuries and peritonitis, the Supreme Court has held in the said case that an offence under Section 326 read with Section 34 of the Indian Penal Code alone was made out and not an offence under Section 302 read with Section 34 of the Indian Penal Code. 17. In the light of aforesaid two decisions, I find that the internal injuries found in the intestine was not the direct cause for the death of Kapoor Singh, but the asphyxia developed due to aspiration was the direct cause of death of Kapoor Singh. I find that in addition to the offence under Section 147 of the Indian Penal Code, an offence under Section 323 of the Indian Penal Code and not under Section 304 Part II is made out as against all the accused-appellant in this case. I find that in addition to the offence under Section 147 of the Indian Penal Code, an offence under Section 323 of the Indian Penal Code and not under Section 304 Part II is made out as against all the accused-appellant in this case. As it is made out that Kapoor Singh was taken away from his house not for the purpose of commission of murder, no offence under Section 364 of the Indian Penal Code could be made as against all the accused-appellants. 18. It is found that the 5th accused Maninder Singh S/o Amrik Singh was admittedly 17 years of age at the time when the offence was committed. Though under the provisions of Juvenile Justice Act, 1986, the 5th accused Maninder Singh was rightly tried by the Sessions Judge as he had completed 16 years of age, as per the verdict of the Supreme Court, the 5th accused Maninder Singh who had not completed 18 years of age, as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, is entitled to the benefits under the new Act. In other words, he cannot be convicted or sentenced, but could, at best, be sent to the Special Home for a period of three years, as per the provision of Section 15(1)(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Now it is brought to the notice of the Court that 5th accused Maninder Singh had already undergone 4 months of rigorous imprisonment in jail in connection with the conviction recorded in this case and the other accused had already undergone more than one year of rigorous imprisonment. 19. In the result, confirming the judgment of conviction recorded as against all the accused for the offence under Section 147 of the Indian Penal Code, the sentence imposed thereunder for the accused Nos.1 to 4 and 6 is confirmed and the sentence imposed thereunder on the 5th accused Maninder Singh for the aforesaid offence is converted as special home detention and reduced to the period already undergone by him. The conviction recorded by the Trial Court for the offence under Section 364 read with Section 149 of the Indian Penal Code and the sentence imposed thereunder on all the accused stand set aside. The conviction recorded by the Trial Court for the offence under Section 364 read with Section 149 of the Indian Penal Code and the sentence imposed thereunder on all the accused stand set aside. Further the accused are convicted for the offence under Section 323 of the Indian Penal Code and not under Section 304 Part II of the Indian Penal Code and the accused Nos.1 to 4 and 6 are sentenced to the period already undergone by them for the offence under Section 304 part II of IPC. The sentence already undergone by the 5th accused for offence under Section 304 part II of IPC is treated as special home detention and is reduced to the period already undergone by him. With the aforesaid modification in the judgment passed by the Trial Court, the appeal is partly allowed. Appeal allowed.