Balwinder Singh vs State of Punjab

Jai Singh Sekhon, J.—The appellant was tried and convicted by the learned Sessions judge, Kapurthala, for having committed house trespass and murder of Bachitter Singh punishable under Sections 449 and 302, Indian Penal Code, and sentenced to undergo R.I. for a period of four years and to pay a fine of Rs. 2000/- or in default thereof to further undergo R.I. for one year on the first count, while to imprisonment for life and a fine of Rs. 2000/- or in default thereof to further undergo R.I. for one year on the second count. Both the substantive sentences were, however, directed to run concurrently. The other two co-accused Gurdip Singh and Gurmej Singh were, however, released on probation u/s 4(1) of the Probation of Offenders Act for a period of one year, as they were found guilty under Sections 323 and 448, Indian Penal Code. Feeling aggrieved against the said order only Balwinder Singh, appellant, has come up in appeal.

In brief, the facts are that the land of the father of all the accused and Bachitter Singh deceased are located adjacent to each other in the revenue estate of village Khiranwali. The deceased had no regular passage or access to his land. He requested Jarnail Singh father of the accused on many occasions to give him a passage, but the latter refused to oblige him. Bachitter Singh deceased then purchased 1/2 marla of land from Swaran Singh, a near collateral of the accused for the passage. With this background, on 27th October, 1986, at 9 P. M. Balwinder Singh appellant along with his two brothers Gurdip Singh and Gurmej Singh came in front of the house of Bachitter Singh deceased and exhorted him to come out and face the consequences of not providing them with a passage to their land. Bachitter Singh deceased along with his son Sukhdev Singh (P.W. 3) and his wife Mohinder Kaur (P.W. 5) came out in the courtyard of their house from their residence. All the accused thereafter entered the house despite the request of Mohinder Kaur not to harass them. Then all the accused started pelting brickbats towards these persons after pushing aside Mohinder Kaur. Some of the brickbats struck against the chest of Bachitter Singh who fell down. All these witnesses raised alarm on which their neighbour Pakhar Singh also arrived at the spot. Thereafter, the accused went away. Bachitter Singh injured was then removed in a tractor-trolly by his son Bikkar Singh and Pakhar Singh P.W. to Civil Hospital, Kapurthala, where Dr. Harmit Pal Singh (P.W. 1) declared, him dead at, 11.20 p.m. Sukhdev Singh P.W. then rushed to Police Station Kotwali Kapurthala and lodged report Ex. PH with A.S.I. Rajinder Singh at 12.15 a.m. during the night of occurrence. A case under Sections 304, 452 read with Section 34, I.P.C. was registered against all the accused. The special report of the F.I.R. was conveyed to the Illaqa Magistrate during the same night at 5 a.m. A. S. I, Rajinder Singh then prepared inquest report Ex. PC on the dead body of Bachitter Singh and sent the same for postmortem examination. Dr. Harmit Pal Singh (P.W. 1), found three external injuries, one of which was located on the first interphalangeal joint of right index finger, and the other near the left nipple, while the third had resulted in fracture of the 5th left rib on its anterior aspect. According to him the cause of death was due to cardiac arrest as a result of injury No. 2, which was declared individually sufficient to cause death in the ordinary course of nature. The death took place within less than 45 minutes, while the autopsy was conducted within 24 hours.

A. S. I. Rajinder Singh inspected the spot on the morning of 28th October, 1986 and prepared its rough site-plan Ex. PK. He also found four brickbats lying scattered in the courtyard and took the same into possession vide Memo. Ex.PL. besides recording the statements of Mohinder Kaur and other witnesses. The accused was arrested on 3rd November, 1986 and arraigned for trial on such like allegations by submitting the charge-sheet before the Committing Magistrate.

The learned Sessions Judge believing the ocular evidence of Sukhdev Singh and Mohinder Kaur coupled with the medical evidence of Dr. Harmit Pal Singh (P.W. 1) covicted and sentenced the appellant as referred above, while discarding the version of simple denial of the accused. The provisions of Section 34, Indian Penal Code, were held not to be applicable for vicariously making Gurdip Singh and Gurmej Singh accused liable for the acts of Balwinder Singh accused.

There is no force in the contention of Mr. J. S. Mann, learned Counsel for the appellant, that the accused was falsely implicated in this case or that some unknown person had caused injuries to Bachittar Singh with brickbats while standing outside his house, as the testimony of Sukhdev Singh and Mohinder Kaur, eve-witnesses clearly proves that in the electric light fitted inside the courtyard of the house as well as on its outer gate, they have recognised the accused. No doubt, Sukhdev Singh is the son of the deceased, while Mohinder Kaur his widow, but all the same, as the occurrence took place in their house itself at 9 p.m. there is no scope for doubting the same, especially when it appears that they had deposed nothing but the whole truth by stating that the accused had resorted to brickbats and had not depicted that they had come duly armed to their house. The presence of four brickbats at the spot, as deposed by A, S. I. Rajinder Singh (P.W. 7), further clinches the issue. The mere non-presence of blood in the courtyard of the house of the deceased is of no consequence to belie the evidence of these two eyewitnesses, what to say of holding that the occurrence had not taken place there, because there was not much external damage under the injuries of Bachitter Singh deceased. So there is no question-of his profusely bleeding or spilling of blood at the spot. Similarly, the non-presence of the blood on the brickbats is of no consequence, as the victim was wearing a Kurta and whatever blood came from injury Nos. 2 and 3 was absorbed by it.

The evidence of Dr. Harmit Pal Singh (P.W. 1.) reveals that during the autopsy on the dead body of Bachitter Singh at 12.45 p.m. on 28th October, 1986, he observed the following three injuries:

1 cm. long horizontally placed lacerated wound on the posterior aspect of first interphalangeal joint of right index finger. It was 0. 2 cm. deep.

3 cm. x 2 1/2 cm. slightly depressed and puckered contusion of chocolate brown in colour having irregular and ill-defined margins at the level of and above and medial to the left nipple.

5th left rib was fractured on the anterior aspect 4 cm. from mid-line.

According to him, the cause of death in this case was due to cardiac arrest as a result of injury No. 2. This injury was found sufficient to cause death in the ordinary course of nature. The death took place after less than 45 minutes of the receipt of the injuries and the autopsy on the dead body was conducted within 24 hours of death. The lacerated wounds and the fracture of rib could easily be caused with the pelting of brickbats. Under these circumstances, there is no scope but to conclude that the medical evidence renders due assurance to the ocular version of Sukhdev Singh and Mohinder Kaur, eyewitnesses.

The prompt lodging of report at 12.15 a.m. during the same night, i.e. after three hours of this incident by Sukhdev Singh P.W. further lends due assurance to his testimony in particular and to the case of the prosecution as a whole because it is substantially the same as deposed by the eye-witnesses at the trial. The special report was received by the Illaqa Magistrate at 5.00 A.M. on the same night. According to Column No. 2 in the F.I.R. the place of occurrence falls at a distance of 7 Kilometers from the police station. Keeping in view that these witnesses must have taken some time in arranging tractor trolly and covering a distance of 7 Kilometers to the hospital, their arrival at 12.45 P.M. in the hospital appears to be very prompt under the circumstances of the case. Moreover, as already discussed, this gap of 3 1/4 hours in lodging the F.I.R. after the incident has not resulted in giving twist to the real facts of the case because in that case Sukhdev Singh P.W. could have easily attributed these accused having given injuries to his father with same blunt weapon.

The most material aspect of this case. involves the determination whether the accused Balwinder Singh had given injuries on the chest of Bachittar Singh deceased or that the possibility of these injuries being suffered with the brickbats pelted by his co-accused Grudip Singh and Gurmej Singh was there. In this regard, it is noteworthy that in the F.I.R. lodged by Sukhdev Singh P. W. or during his examination-in-chief he had simply stated that all the three accused have pelted brickbats at his father Bachittar Singh and that he had sustained injuries on the chest''. Similar is the version of Mohinder Singh (P.W. 5) in her examination-in-chief. It was for the first time that both these witnesses blurted out in the cross-examination that the brickbats pelted by Balwinder Singh accused had hit the chest of Bachittar Singh. No doubt, it is the result of the excessive curiosity of the cross-examiner but all the same under the circumstances of the present case, the testimony of these two witnesses in this regard is not acceptable, as according to them the moment the accused had started pelting brick bats at them, the aforesaid Sukhdev Singh had gone to the roof of his house in order to save himself while Mohinder Kaur had entered the verandah of her house and Bachittar Singh had received the injuries in the court-yard of their house. Thus, these witnesses were not in a position to perceive as to where the brick bats pelted by each of the accused had struck Bachittar Singh. According to A. S. I. Rajinder Singh, the brick bats were of small sizes. If that is so, there is very remote possibility of these witnesses observing the brickbats in the electric light during its trajectory after these had left the hands of the three accused. It appears that these witnesses are improving their version stating during cross-examination that the brick bats pelted by Balwinder Singh had struck the chest of Bachittar Singh deceased.

The question then arises as to whether during the course of this incident all the accused shared the common intention of each other to commit the murder of Bachittar Singh or merely to give him grievous injuries. In this regard, it is noteworthy that the very factum of the accused having come unarmed to the house of the deceased clearly shows that they were intending to lodge protest only, because in case they had intended to kill him, they would have armed themselves with effective weapons like Gandasas, Kirpan etc., which are usually available with the villagers. It appears that during the course of lodging protest some unbecoming words or exchange of hot words took place between the accused and Sukhdev Singh and others, which resulted in their entering the court-yard of the house of the deceased and hurling brick bats on them, after picking the same from near the hand-pump. Thus at the most, it can be said that all the accused shared the common intention of each other to cause grievous hurt to Bachitter Singh and not to kill him, especially when the possibility of hitting the brick bats at the chest of the victim by his movement cannot be ruled out, even though the accused may not have aimed the same at his chest. The evidence of Dr. Harmit Pal Singh (P.W. 1) that injury No. 2 was individually sufficient to cause death in the ordinary course of nature is not acceptable as he had not ruled out the possibility of the victim being already suffering from some heart disease. Thus, it could not be said with certainty that the cardiac arrest was the result of injury No. 2. Under these circumstances, even if it is taken that Balwinder Singh appellant had caused injuries on the chest of the victim, the offence at the most would fall u/s 325, Indian Penal Code, as the accused never intended to cause the death of Bachitter Singh or had the necessary knowledge that the pelting of brick bats would result in his death. He cannot even be attributed with the remote knowledge that pelting of brick bats would result in cardiac arrest of the victim. Thus, he is held guilty for the offence u/s 325/34, Indian Penal Code and Section 448, Indian Penal Code and his conviction for the offence under : Sections 449 and 302, Indian Penal Code is hereby set aside being not legally sustainable. In view of the factum that the State has not filed any appeal against the acquittal of the remaining two accused for the offences u/s 302/34 of the Indian Penal Code, there is no need to comment upon their liability.

For the reasons stated above, the appeal partly succeeds to the extent referred to above. Balwinder Singh accused is sentenced to undergo R.I. for three years, besides to pay a fine of Rs. 2000/- or in default thereof to undergo further R.I. for one year for the offence u/s 325/34, Indian Penal Code, while one year R.I. for the offence u/s 448, Indian Penal Code. The fine, if paid, shall be given as compensation to the heirs of Bachitter Singh deceased. However, the substantive sentences shall run concurrently.