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2011 DIGILAW 922 (PNJ)

Boota Singh v. State Of Punjab

2011-03-25

ARVIND KUMAR, HEMANT GUPTA

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Judgment Hemant Gupta, J. 1. Appellant-Boota Singh son of Darshan Singh is in appeal, aggrieved against the judgment dated 24.8.2002 convicting the appellant for an offence under Section 302 IPC and the order dated 27.8.2002 sentencing the appellant to undergo imprisonment for life and to pay a fine of Rs.1,000/-and in default of payment of fine, to undergo further RI for a period of one month. 2. The prosecution case was set in motion on the statement of Lal Singh, brother of the deceased Mela Singh. He has stated that they are six brothers. Three of his brothers are residing in the same village, separately. He and his brothers Mela Singh & Pratap Singh are residing jointly. The appellant is having his fields across the canal. On 14.10.2000, he and his brother Mela Singh were cutting fodder in their fields. At about 2/2.30 p.m., the appellant set on fire the husk (parali) of the harvested paddy crop. The flames of fire affected the fodder crop of Lal Singh-complainant. Then deceased Mela Singh, brother of the complainant (Lal Singh) told Buta Singh that due to setting on fire by him, the flames of fire have affected their chari, but he took ill of it and started abusing. On being prevented, Boota Singh got enraged and while abusing gave a spade blow, which he was holding in his hand, on the left side of the head of Mela Singh. Mela Singh fell down. He came to the spot and raised alarm, but Boota Singh along with spade ran away from the spot. Mela Singh was removed to Civil Hospital, Barnala after arranging a vehicle. Since his condition was not well, the Doctor referred the injured to Patiala. After two days, the Doctor advised that his brother be shifted to Chandigarh, but they shifted him to Dayanand Medical College and Hospital, Ludhiana. The patient was not fit to make statement, therefore, he (Lal Singh) gave statement on 18.10.2000. Such statement is Exhibit PJ, which was sent by ASI, Gurmit Singh, to Police Station vide endorsement Exhibit PJ/1. It was recorded in the endorsement that a wireless message was received from SHO, Kotwali, Barnala in respect of admission of injured Mela Singh in Civil Hospital, Barnala. Head Constable Kulwant Singh along with the police party reached civil hospital Barnala, but the doctor declared the injured unfit to make statement. It was recorded in the endorsement that a wireless message was received from SHO, Kotwali, Barnala in respect of admission of injured Mela Singh in Civil Hospital, Barnala. Head Constable Kulwant Singh along with the police party reached civil hospital Barnala, but the doctor declared the injured unfit to make statement. No other person was present, who has seen the occurrence. On visit of the Police Party on 15.10.2000, the police party was informed that the injured was referred to Rajindra Hospital. On 17.10.2000, the information was received that Mela Singh has been referred to PGI when the police party reached Chandigarh. It was found that no injured by the name of Mela Singh, has been admitted. It was on 18.10.2000 the information regarding admission of Mela Singh in Dayanand Medical College and Hospital, was received and after obtaining Doctors opinion regarding fitness of Mela Singh, who opined that he is unable to make statement, statement of his brother was recorded and was sent for lodging of an FIR. Mela Singh died on 22.10.2000 at about 3.30 p.m. at Dayanand Medical College and Hospital, Ludhiana. The post mortem was conducted on 23.10.2000 by PW6-Dr. U.S. Sooch. The post mortem report is Exhibit PN. After completion of investigation, the appellant was made to stand trial. PW7-Janak Singh arrested Boota Singh on 24.10.2001. On the basis of the disclosure statement, the spade, Exhibit PQ was taken into possession vide recovery memo Exhibit PS. It was found that the spade had been washed. The prosecution in support of the allegations against the appellant examined PW5-Lal Singh, brother of the deceased and author of the FIR. It also examined PW1-Dr. Ashok Kumar, who initially provided medical aid to Mela Singh on 14.10.2000 at Civil Hospital, Barnala. He has found incised wound 12 x 1.5 cm on the left side of head, which was found dangerous in nature. PW2-Dr. Harminder Singh, has produced the Bed Head Ticket, Exhibit PE of the patient Mela Singh in respect of his treatment at Rajindra Hospital, Patiala. PW4 is Head Constable Balwant Singh, who has proved the statement of Lal Singh and other endorsements. PW7-Janak Singh is the Investigating Officer, who has completed the investigation and link the chain of circumstances. The eye witness of the occurrence is PW5-Lal Singh. He is the real brother of the deceased. PW4 is Head Constable Balwant Singh, who has proved the statement of Lal Singh and other endorsements. PW7-Janak Singh is the Investigating Officer, who has completed the investigation and link the chain of circumstances. The eye witness of the occurrence is PW5-Lal Singh. He is the real brother of the deceased. In cross-examination, he has stated that the place of occurrence is at the distance of two miles (one kos) from the village and that there is no residential house constructed in the field. He and his brother Mela Singh went to fields for getting the fodder on cycle and a cart. Mela Singh was taken to hospital in a Tata Sumo belonging to Lajpat Commission Agent. He has stated that there was an altercation between Mela Singh and Buta Singh for about a minute. He has further stated that there was no dispute with Buta Singh accused earlier to the occurrence. On the basis of the prosecution evidence, the learned trial Court found that the charge for an offence under Section 302 IPC framed against the appellant stands proved and the trial Court convicted and sentenced the appellant, as mentioned above. Learned counsel for the appellant has vehemently argued that the FIR is delayed, as it was lodged on 18.10.2000 i.e. four days after the occurrence. The spade, the alleged weapon of offence, is not blood stained, therefore, the prosecution has failed to connect the weapon of offence with spade alleged to be recovered in pursuance of the disclosure statement made by the appellant. It is lastly argued that as per PW5-Lal Singh, there was no previous enmity and the dispute arose suddenly, therefore, the injuries inflicted upon the deceased, Mela Singh, were on account of sudden provocation, without any premeditated mind and consequently, the conviction for the offence under Section 302 IPC is not sustainable. Having heard learned counsel for the parties at some length, we do not find any merit in the argument raised by the learned counsel for the appellant that there is delay in lodging of FIR and such delay is fatal to the prosecution case. No doubt, Mela Singh has received injuries on 14.10.2000, but he was unfit to make statement. The police was trying to record his statement, but Mela Singh was being shifted from one hospital to another in view of his precarious health. No doubt, Mela Singh has received injuries on 14.10.2000, but he was unfit to make statement. The police was trying to record his statement, but Mela Singh was being shifted from one hospital to another in view of his precarious health. In the event of serious injuries, the first preference of the relations is to provide medical assistance and to save the life of the injured. It was with the said intention, the deceased was being shifted from Civil Hospital, Barnala to Rajindra Hospital, Patiala and from Patiala to Dayanand Medical College and Hospital, Ludhiana. Though the spade has been recovered on 24.10.2000 on the basis of the disclosure statement of the accused and that such spade is not blood stained, but injury on the head could be caused by such spade as is evident from the cross-examination of PW1-Dr. Ashok Kumar Bansal. Still further, PW5-Lal Singh, brother of the deceased, is the most natural witness. He was with the deceased at the time of occurrence. Generally agriculture operations are not undertaken single handedly. There is no previous enmity so as to prompt Lal Singh to lodge false report against the appellant. From the testimony of PW5-Lal Singh, it transpires that the incident has taken place suddenly without any pre-meditated mind when the fire lit by the appellant harmed the crop of the deceased and PW5-Lal Singh. The inflicting of the injuries on the person of the deceased by the appellant was with the intention to cause death or of causing such bodily injury as is likely to cause death punishable under Section 304 Part I IPC as culpable homicide not amounting to murder. Consequently, we allow the appeal partly and convert the conviction of the appellant from 302 IPC to the one under Section 304 Part I IPC. Consequently, we modify the sentence so as to sentence the accused to undergo RI for a period of 5 years and to pay compensation of Rs.1,00,000/-within a period of six months. Such compensation be deposited within a period of six months. In the event of default of not making deposit, the appellant shall undergo RI for a period of three years. On deposit, the compensation shall be paid to Lal Singh, brother of the deceased.