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2012 DIGILAW 1156 (PNJ)

Beant Singh alias Dara Singh v. State of Punjab

2012-09-05

R.P.NAGRATH, SURYA KANT

body2012
JUDGMENT R. P. Nagrath, J. 1. The appellant was tried of the offences under Section 302 Indian Penal Code (for short) for committing murder by intentionally causing the death of Pawan Kumar and Binder Singh; Section 307 IPC for murderous attack on Jagdish Chand, Sarup Chand, Madan Lal, Kirandeep Kaur and Sukhdev Singh with such intention and under such circumstances, if by that act he had caused the death of aforesaid persons, he would have been guilty of murder; section 325 IPC for voluntarily causing grievous hurt to Jagdish Chand and lastly Section 323 IPC for voluntarily causing hurts to Sarup Chand, Madan Lal, Kirandeep Kaur and Sukhdev Singh. The learned trial Court convicted him of the offences under Sections 302 and 307 IPC and awarded the sentence of imprisonment for life and to pay a fine of Rs.5,000/-; in default of payment of fine to further undergo rigorous imprisonment for one year under Section 302 IPC; and imprisonment for ten years and to pay a fine of Rs.3,000/- in default of payment of fine, to further undergo rigorous imprisonment for six months under Section 307 IPC vide judgment and order of sentence dated 12.12.2007. 2. The prosecution story as unfolded during the trial is narrated: PW1 Jagdish Chand, complainant, Sarup Chand (PW5) and Pal Chand alias Palli are real brothers and they are residents of village Mangewal. On 16.10.2004, they had organised a Jagrata near the main gate of their house which began at 9.00 p.m. The residents of village also started reaching there to hear bhajans (religious hymns) and to pay obeisance. The appellant had parked his truck bearing registration No.PB-04-2338 at some distance from the site of Jagrata. He was on the steering wheel of the truck. Jarnail Singh PW3 was present near the truck and having conversation with the appellant. The appellant expressed his anger that the people have blocked the street by sitting there and caused obstruction to the passers by and threatened to teach them a lesson for that. Jagdish Chand was sitting on a (cotton carpet) spread in the street and many other residents namely, Sarup Chand, Madan Lal, Sukhdev Singh Kirandeep Kaur, Binder Singh and Pawan Kumar were also listening. There was loud noise due to musical instruments and loudspeakers. Suddenly in a fit of anger, the appellant started his truck at about 11.00 p.m. with an intention to run them over. There was loud noise due to musical instruments and loudspeakers. Suddenly in a fit of anger, the appellant started his truck at about 11.00 p.m. with an intention to run them over. Binder Singh and Pawan Kumar died at the spot as a result of the multiple injuries suffered by them and the others namely, Jagdish Chand, complainant, Sarup Chand, Madan Lal, Kirandeep Kaur and Sukhdev Singh received injuries. There was a commotion and the truck struck against the electric pole and stopped. The injured were dragged out from beneath the truck. Meanwhile, the appellant reversed his vehicle and drove it away and ascended it over a heap of garbage where it stopped. The appellant alighted from the truck and slipped away. Gurmit Singh, Sarpanch and other residents brought the injured to the Civil Hospital, Barnala and got them admitted. Dead bodies of both the deceased were also brought there. 3. The police party headed by SI Paramjit Singh, SHO of Police Station Sadar Barnala got a telephonic message and reached the Civil Hospital in the morning on 17.10.2004. He recorded the statement of Jagdish Chand at 4.00 a.m. on 17.10.2004 and FIR for offences under Sections 304 and 308 IPC was registered. 4. The autopsy on the dead bodies of Pawan Kumar and Binder Singh was conducted in the Civil Hospital. The medicolegal examination of the injured had also been conducted by the doctor. The Investigating Officer obtained the certificate from the doctor about the fitness of all the injured including Jagdish Chand to make statement by moving applications Ex.PG to Ex.PK. 5. The police party visited the spot and recovered blood stained earth and sample earth vide memo Ex.PN. The broken pieces of the head lights and glass of the side window of the truck stated to be the result of the strike against the electric pole installed in the street and the offending truck lying parked near the garbage heap were recovered vide memos Ex.PO and Ex.PQ. Four pairs of foot wears of those attending were also recovered vide a separate memo Ex.PE. Rough sketch of the place of occurrence prepared by the Investigating Officer is Ex.PX, depicting the location of the platform on which religious photographs were placed; electric pole and the points where the truck was earlier parked and the heap of garbage, has been shown. Rough sketch of the place of occurrence prepared by the Investigating Officer is Ex.PX, depicting the location of the platform on which religious photographs were placed; electric pole and the points where the truck was earlier parked and the heap of garbage, has been shown. The distance between electric pole and the point where the truck was initially parked is stated to be 15/20 karams (which come to about 30 to 40 yards). The statements of other witnesses were recorded and the offence was converted to Section 302 IPC vide DDR No.17 dated 17.10.2004. The photographs of the scene of occurrence were also taken. The appellant was arrested on the same day. On completion of investigation, the charge-sheet against the appellant was presented. 6. The case was committed to the Sessions Court for trial by the learned Area Magistrate. 7. The prosecution examined 11 witnesses. 8. The evidence that the prosecution has led may be briefly stated: Dr. Narsi Ram (PW1) conducted the medicolegal examination on the person of all the injured on 17.10.2004 at about 12.10 a.m. (mid night). Copies of the medicolegal reports (MLRs) are Ex.PB, to Ex.PF. The doctor also stated about furnishing the certificates of fitness of the injured to make statements. 9. Dr. K.G.Singla (PW4) conducted autopsy on the dead bodies of Pawan Kumar son of Sadhu Ram on 17.10.2004 and found five injuries on his person. On the post-mortem examination of Binder Singh son of Bant Singh, the doctor found four injuries on his person. The cause of death in the case of Pawan Kumar was injury No.2 and in the case of Binder Singh, it was injury No.1, which were sufficient to cause death in the ordinary course of nature. Injury No.2 on the person of Pawan Kumar is as under : 2. Red abrasion 15 cm. x 10 cm. over lower part of lateral aspect of right side of chest. On dissection there was fracture of 5th to 7th ribs on the right side. Right lung lacerated and pleural cavity was full of blood. Injury No.1 on the person of Binder Singh which was found fatal has been described by the doctor in the following manner: 1. Frontal area of skull was depressed inwards. Lacerated wound 3 cm. x 1 cm. x bone deep over right side of forehead, 4 cm. from midline and 4 cm. above eye-brow. Injury No.1 on the person of Binder Singh which was found fatal has been described by the doctor in the following manner: 1. Frontal area of skull was depressed inwards. Lacerated wound 3 cm. x 1 cm. x bone deep over right side of forehead, 4 cm. from midline and 4 cm. above eye-brow. On dissection frontal and parietal bones on both sides were fractured into multiple fragments. Cranial cavity was full of blood. Brain tissue was lacerated. Clotted blood was present in and around the wound and in nasal cavities. The doctor stated that all the injuries were ante-mortem in nature. The time that elapsed between injuries and death was within 24 hours and that between death and post- mortem examination was between 6 hours to 24 hours. The post-mortem reports are Ex.PR and Ex.PS respectively. 10. The complainant is PW2 Jagdish Chand and has brought forth the version as reported to the Police. According to him, the truck of the appellant was parked at a distance of about 50 yards from the platform. PW2 further stated that the appellant was also suspecting that the witness was instrumental in a dispute between the appellant and his wife. 11. Jarnail Singh PW3 is a person before whom the appellant expressed his anger as per prosecution story. He was standing near the drivers window of the truck, that the appellant told him that the people organise in the street and block the same, causing obstruction to the passers by and further that Jagdish Chand and his brothers were instrumental in a dispute between the appellant and his wife. This witness and Sarup Chand (PW5), brother of Jagdish Chand (complainant) have also supported the version of the prosecution in the witness box. 12. PW7 HC Pargat Singh has tendered his formal affidavit Ex.PT. He was Moharrir Head Constable (MHC) of the Police Station, Sadar Barnala. The sealed parcels of blood stained and sample soil; offending vehicle, pieces of broken glasses and four pairs of footwears were deposited with him on 17.10.2004 by the Investigating Officer. He sent the parcels of the soil to the Forensic Science Laboratory for examination on 24.11.2004 through Constable Manjinder Singh. To support this evidence, Constable Manjinder Singh (PW10) has tendered his affidavit Ex.PEE. Report Ex.PDD of the Deputy Director, Serologist, FSL, Punjab Chandigarh says that the parcel of the earth was stained with human blood. 13. He sent the parcels of the soil to the Forensic Science Laboratory for examination on 24.11.2004 through Constable Manjinder Singh. To support this evidence, Constable Manjinder Singh (PW10) has tendered his affidavit Ex.PEE. Report Ex.PDD of the Deputy Director, Serologist, FSL, Punjab Chandigarh says that the parcel of the earth was stained with human blood. 13. PW8 HC Gurcharan Singh tendered his formal affidavit Ex.PU. He was entrusted with both the dead bodies for getting the post- mortem examination conducted in the hospital. 14. PW9 SI Paramjit Singh is the Investigating Officer. He stated about the entire proceedings which he conducted in the hospital and the spot. The Investigating Officer also conducted the inquest proceedings in respect of the dead bodies and inquest reports are Ex.PV pertaining to Pawan Kumar, deceased and Ex.PW in respect of Binder Singh, deceased. The foot wears i.e. 8 chappals Ex.P3 to Ex.P10 and the offending vehicle were produced during the examination of the witness. 15. PW6 ASI Pritam Singh was a member of the police party headed by SI Paramjit Singh, who has attested various memos. 16. PW11 Constable Jaswinder Singh is official photographer of the police department at Barnala. He visited the spot on 17.10.2004 and the photographs pertaining to the spot are Ex.P23 to Ex.P34. 17. In his examination under Section 313 Cr.P.C. the appellant denied all the incriminating circumstances appearing against him in the prosecution evidence and he even denied the factum that Jagdish Chand PW2 and his brothers had organised on the night of 16.10.2004. He, however, pleaded that he was taking the truck towards his house and tried to apply breaks on the slope but his foot inadvertently fell on the accelerator and struck against a pole. He further pleaded that neither any person died nor any person sustained injuries due to his intentional act. He did not have a talk with Jarnail Singh nor told him that the people sit in the street and hold Jagratas. In his defence, the appellant tendered certified copies of the statements Ex.D1 and Ex.D2 made by Sarup Chand and Kiranjit Kaur. 18. The learned trial Court convicted and awarded the sentences to the appellant as aforesaid. 19. We have heard the learned Counsel for the appellant and the learned State Counsel and gone through the record quite carefully. 20. In his defence, the appellant tendered certified copies of the statements Ex.D1 and Ex.D2 made by Sarup Chand and Kiranjit Kaur. 18. The learned trial Court convicted and awarded the sentences to the appellant as aforesaid. 19. We have heard the learned Counsel for the appellant and the learned State Counsel and gone through the record quite carefully. 20. Learned Counsel for the appellant vehemently contended that from the facts, the only offence attracted against the appellant would be under Section 304-A IPC for rash or negligent driving of the truck or at best for the offence under Part II of Section 304 IPC. According to the learned Counsel the version of motive alleged against the appellant has been concocted simply because two persons have died and injuries caused to others as a consequence of his act. It is further contended that the evidence to support the allegation of prior enmity is highly discrepant. 21. Learned State Counsel on the other hand submits that there was no occasion to propound a false story of the enmity and the evidence of prosecution is cogent and convincing. He has supported the findings of learned trial Court holding the appellant guilty of offences under Sections 302 and 307 IPC. 22. The frontal attack to the prosecution case is based upon the medical evidence led in this case, in order to support the contention that it is only offence under Section 304-A IPC which is attracted to the facts of the present case. In the MLRs relating to all the injured, the doctors have mentioned road side accident or accidental injuries. PW1 Dr. Narsi Ram stated that he wrote the injuries as accidental at the instance of the injured and on the request for autopsy of dead bodies of Pawan Kumar and Binder Singh, SI Paramjit Singh mentioned the injuries to be accidental. In the circumstances of the case, the above fact is quite insignificant because medicolegal examination was conducted at 12.10 a.m. before the arrival of the police. It is natural that in such kind of incident where a motor vehicle is involved, the doctor would mention the injuries as accidental, irrespective of the version that was put forth by the witnesses in the FIR subsequently. The adjudication therefore has to be made from the evidence that was led in this case and the consequential act of the accused-appellant. 23. The adjudication therefore has to be made from the evidence that was led in this case and the consequential act of the accused-appellant. 23. The evidence with regard to motive with the appellant appears to us little exaggerated. In the FIR, allegation of motive was the anger expressed by the appellant against obstruction of the street by holding Jagrata. In the witness box PW2, however, introduced a version that the appellant suspecting the witness to be instrumental in a dispute between the appellant and his wife. PW2, however, admitted in the cross-examination that he did not mention this fact in the statement Ex.PM, which forms the basis of FIR. PW2 has never visited the house of the appellant nor he knew if there was any Court case between the appellant and his wife. 24. The prosecution can bank upon the statement of Jarnail Singh (PW3) only, to prove the plea of motive, as both Jagdish Chand (PW2) and Sarup Chand (PW5) stated that they did not hear the conversion between Jarnail Singh and the appellant due to loud music being played in the Jagrata. PW3 stated in the cross-examination that he did mention in his statement to the police about this motive regarding the alleged matrimonial dispute between the appellant and his wife. PW5 in the case before Motor Accidents Claims Tribunal made the statement that the appellant had no enmity against him. Moreover, if the appellant had such kind of grouse against Jagdish Chand and family, the occasion of Jagrata being attended by many residents of locality, could never be thought as appropriate opportunity. PW2 stated that the nephews of the appellant were also attending Jagrata but they were sitting on the other side. PW5 also stated that the son and nephew of the appellant had also attended who left from there at about 9.15 p.m. The above circumstances would rule out version of personal grudge that the appellant was nursing. 25. Learned Counsel for the appellant has attacked the testimony of PW3 basically on the ground that he is real brother of Binder Singh, one of the deceased. That by itself is no reason to challenge the sworn testimony of PW3 whose presence at the spot cannot be doubted. PW3 in the cross-examination stated that he sat in the with Jagdish Chand (PW2) for about one and half hour. That by itself is no reason to challenge the sworn testimony of PW3 whose presence at the spot cannot be doubted. PW3 in the cross-examination stated that he sat in the with Jagdish Chand (PW2) for about one and half hour. He reached there at about 9.30 p.m. Thereafter, he came near the truck for urinating. The appellant was talking while sitting on the steering wheel of the truck. The above spontaneous response from the witness in the cross-examination shows that he withstood the test of scrutiny. Reference is made to certain discrepancies. Jagdish Chand (PW2) in the cross-examination stated that Jarnail Singh, who is brother of Binder Singh, deceased, did not sit in the Jagrata. Sarup Chand (PW5), however, stated that Jarnail Singh left the Jagrata after paying obeisance, but it was not suggested to PW5 that Jarnail Singh did not attend Jagrata. These are otherwise minor discrepancies and would always arise when there was rush of the worshippers in the Jagrata and the manner in which the same took place. Otherwise despite extensive cross-examination of Jarnail Singh, his testimony to the effect that he had a conversion with the appellant could not be successfully impeached. 26. There is consistent evidence that the appellant had parked his vehicle at a distance of about 50 yards away when began. According to PW2, the people started leaving Jagrata at about 10.00 p.m. The appellant moved his truck from that place at about 11.00 p.m while the people were still sitting in the street on the ground, for listening Bhajans. PW5 stated that he was sitting in the street at a distance of about 2 karams from the electric pole. Madan Lal was sitting at a distance of five karams from the pole. It is not the version of the appellant that he cautioned those persons or the witnesses to clear the street as he wanted to carry the vehicle to his home. This is a case where the appellant started moving his vehicle unmindful of the presence of so many people in the street/ground. It was obviously due to his anger as stated by PW3 because as it had gone late at night, and out of frustration and sheer irritation that he started moving his vehicle towards the place where there was high pitch music being played. It was obviously due to his anger as stated by PW3 because as it had gone late at night, and out of frustration and sheer irritation that he started moving his vehicle towards the place where there was high pitch music being played. The plea of the appellant that he drove the truck towards his house and applied breaks but his foot inadvertently landed on the accelerator and struck against the pole is not helpful as he has not explained why he barged his vehicle into the crowd without getting the street cleared. PW3 Jarnail Singh stated that the people were sitting up to the electric pole while attending Jagrata. During examination of the witnesses, the appellant wanted to suggest that there was still a passage left for the truck, to safely move to his house but that was impossible to believe. Photographs Ex.P23 and Ex.P27 would show the location of the platform and the electric pole which are consistent with the statements of the witnesses and falsify the plea of the appellant. 27. In Court on its own motion v. State of Punjab and others 2005(4) RCR (Criminal) 673, this Court expressed the view that in the cases arising out of utter callousness are a matter of deep concern and the prosecution for an offence under Section 304-A IPC may not be in order, and in the circumstances may warrant more rigorous action. A direction was, therefore issued to the courts subordinate to this Court to ensure that in cases of extreme negligence and rashness and only where the circumstances so warrant a charge under Section 304 or 302 IPC adequate to the circumstances of the case be framed along with the alternative charge under Section 304-A IPC. The observations in Gurdev singh Sardar Puran Singh v. Emperor, AIR 1941 Lahore 459 were also referred, which are as under : xxx xxx xxx It is possible that the driving of a heavy vehicle at high speed in a crowded place like a city might result in charge under Section 304, or even under Section 301, Penal Code, but it would be impossible under the circumstances of this case to bring the offence under either of these sections. xxx xxx xxx 28. xxx xxx xxx 28. In Bimbadhar Parida and others v. State of Orissa, 1993 Supp (4) Supreme Court Cases 34, a mob of the villagers consisting about 300/400 persons came to Mali Sahi from all the sides carrying deadly weapons shouting that they would assault the Malis and set fire to their houses. Bombs were exploded. Doors of houses were broken. The houses were damaged and ransacked and the Malis were assaulted and their properties were taken away. The major incident during this occurrence was in respect of throwing of a bomb by Bimbadhar Parida on one Kandhi Dei which resulted in her death. The story of the prosecution was that on seeing the mob approaching house, the husband of the deceased went inside the house and bolted the door. Some of the assailants uprooted the door and entered the house. When the deceased tried to stop them by standing at the front door and when she refused to give way to Bimbadhar Parida, he threw a bomb towards her which exploded on her stomach of which she died. The contention in that case was that the conviction of appellant under Section 304, Part II IPC was not warranted. Hon’ble Supreme Court found no force in this submission. There was positive evidence that the appellant hurled the bomb which resulted in the death of the unfortunate lady. Such an act was held to be very serious one and warrant no interference even in respect of the sentence which was not at all excessive. The sentence awarded by the High Court in that case was four years rigorous imprisonment, which was upheld by Hon’ble Supreme Court. 29. From the facts of this case also the offence under Section 304, Part II IPC would be attracted and not Section 302 IPC in the absence of the proof of the motive with the accused in intentionally running over those persons, sitting in the Pandal with a motive to teach the family of Jagdish Chand, complainant a lesson for causing differences between the appellant and his wife. It is not a case where the appellant intended to kill a particular person present there but his act has been proved to be such which amounts to culpable homicide not amounting to murder. 30. It is not a case where the appellant intended to kill a particular person present there but his act has been proved to be such which amounts to culpable homicide not amounting to murder. 30. In Thangaiya v. State of T.N., AIR 2005 Supreme Court 1142(1) Hon’ble Supreme Court observed that in the scheme of the IPC, culpable homicide is genus and murder its specie. All murder is culpable homicide but not vice-versa. Speaking generally, culpable homicide sans special characteristics of murder is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide, which is defined in Section 300 as murder. The second may be termed as culpable homicide of the second degree. This is punishable under the first part of Section 304. Then, there is culpable homicide of the third degree. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 31. From the discussion made above, inevitable conclusion is that the case in hand is covered by Section 304, Part II, IPC apart from the offence under Section 307, IPC, and not Section 302, IPC. Accordingly, the conviction and sentence of the appellant under Section 302, IPC are set aside. We alter conviction from Section 302, IPC to Section 304, Part II, IPC and sentence him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000/-. In default of payment of fine, he shall further undergo RI for 9 months. However, the findings of conviction under Section 307, IPC are upheld but sentence awarded by the trial Court is reduced to 7 years instead of 10 years. However, the sentence of fine and imprisonment in default of payment of fine awarded by the trial Court, under Section 307, IPC are maintained. The substantive sentences shall run concurrently. 32. The appeal stands partly allowed in the above terms. Appeal partly allowed.