Darshan Singh vs State of Punjab

M.M. Punchhi, J.

These are three Criminal Appeals. Criminal Appeals No. 364 and 359DB of 1987 arise from one and the same judgment and order. These are the main appeals arising out of a trial for murder. There are two appellants in Criminal Appeal No. 364DB of 1987. Out of the two, Darshan Singh has appealed against his conviction under Section 302, Indian Penal Code, and the sentence of life imprisonment and fine of Rs. 10,000/ imposed thereunder. The other appellant, Joginder Singh, has appealed against his conviction under Section 323, Indian Penal Code, and sentence of one year''s rigorous imprisonment. Criminal Appeal No. 459DBA has been preferred by the State against Joginder Singh, for his acquittal under Section 302 read with Section 34, Indian Penal Code. Lastly, Criminal Appeal No. 390DB of 1987 has been preferred by Darshan Singh against his conviction under Section 25 of the Arms Act and the sentence of one year''s rigorous imprisonment. This sentence was ordered to run concurrently with the sentence awarded to the appellant, which is subject matter of Criminal Appeal No. 364DB of 1987.

The deceased in this case was Jagir Singh, a Harijan, residing in village Mundi Jamal, Tehsil Zira, District Ferozepur. He himself, while alive laid the foundation of the case in giving the following version to the police when his statement was recorded, which become the basis of the First Information Report.

According to Jagir Singh, he and his brother Channa Singh PW8, had gone to the circular road of the village in order to buy liquor from Joginder Singh accused selling liquor there in front of the house of Darshan Singh appellant. The deceased demanded liquor from Joginder Singh. Darshan Singh appellant, who was standing closeby, abused the deceased and told Joginder Singh not to supply liquor to the deceased, as the deceased had taken a loan of Rs. 50/ from him and had not returned the same by then. In retaliation the deceased abused Darshan Singh. Thereupon Darshan Singh ran to his house and brought a spear and immediately on his arrival hit the deceased with his spear in the abdomen. Joginder Singh appellant too, who was armed with a wooden batten, gave two or three batten blows hitting him on the right shoulder, left shoulder and the forehead. Darshan Singh appellant than gave another spear blow near the ribs of the deceased, whereupon he fell down. While lying fallen, Joginder Singh gave more batten blows on the right leg of the deceased. Besides, Darshan Singh gave him kick blows in the abdomen. The deceased and his brother Channa Singh kept saying loudly to the accused not to kill the deceased. In the meantime, the uncle of the deceased, namely, Sohan Singh also came at the spot. The assailants together with their respective weapons fled from the scene of occurrence. The deceased was removed to his house by Channa Singh and Sohan Singh. The father of the deceased had gone to a closeby village Saideshah and the brother of the deceased went to fetch him. They having arrived, removed him to the Rural Dispensary, Fatehgarh Panjtoor, where he was attended to by the Incharge. The deceased owned the cause of grudge being his having borrowed Rs. 50/ from Darshan Singh a year ago, which he had not been able to pay due to paucity of money and for that reason the deceased stated that he had been assaulted.

The deceased was attended to by Mr. Balraj Vohra, PW1, Medical Officer, Rural Dispensary, Fatehgarh Panjtoor, at 6.10 p.m. on May 24, 1986. He found as many as 10 injuries on his person, but the first two injuries require specific notice :

Incised stab wound 3 cm. x 1/2 cm. on front of abdomen in upper half, in right hypochondrium. Depth not probed Clots present, wound was oblique.

Incised wound 1/2 cm. x 1/2 cm. skin deep on right side of the chest in lower 3rd, 5 cm. right to injury No. 1, clots present, wound was oblique.

Out of the remaining eight injuries, six were stabbed abrasions of various dimensions and two were reddish contusions of different dimensions. All of them were on nonvital parts and those were attributed to Joginder Singh appellant. The incised wounds were attributed to Darshan Singh appellant. Dr. Vohra prepared a medicolegal report and sent a copy thereof to the police informing them of the arrival of the injured in the dispensary.

On receipt of the medicolegal report and the information, Head Constable Balbir Singh PW9 reached the Rural Dispensary, Fatehgarh Panjtoor, and after having obtained the certificate of worthiness of the deceased being able to make a statement from Dr. Vohra, he reduced into writing what was stated to him by Jagir Singh deceased at 6.45 p.m. on May 24, 1986, to which the deceased duly put his thumbimpression. The case at that stage was registered under Sections 324/323/34, Indian Penal Code.

Dr. Vohra of Rural Dispensary, Fatehgarh Panjtoor, referred Jagir Singh injured to Civil Hospital, Zira. He was taken there. The Medical Officer, Civil Hospital, Zira, referred Jagir Singh to C.M.C. Hospital, Ludhiana. He was taken on a truck. On reaching near Ludhiana Jagir Singh succumbed to his injuries. His dead body was then brought back and the police was accordingly informed. The dead body of the deceased was subjected to post mortem examination at Zira at 2 p.m. on May 25, 1986, by Dr. Hartirath Singh PW2. On post mortem, the same 10 injuries were found on the person of the deceased. On opening the abdomen portion of the deceased and taking into account all factors, Dr. Hartirath Singh came to the opinion that injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature, individually or collectively.

Darshan Singh appellant was arrested on June 3, 1986, by ASI Harbhajan Singh. He was interrogated in the presence of Bhopinder Singh. On interrogation, he disclosed that he had kept concealed a spear in a room meant for keeping dry fooder in his house and offered to get the same recovered. His statement Exhibit PM was recorded. In pursuance thereof, he got recovered as spear vide recovery memo. Exhibit PN. Joginder Singh appellant too was arrested on June 3, 1986. The weapon of offence, however, was not recovered from him.

It is on this evidence that the accusedappellants were sent up for trial before the Sessions Judge, Ferozepur. The Sessions Judge acquitted Joginder Singh appellant of the charge under Section 302 read with Section 34, Indian Penal Code, taking the view that his being armed with a batten which he used during the crime, possibly having picked it up from the spot, could by itself not establish that he shared the common intention of committing murder of the deceased, when batten is hardly a weapon of offence. Besides, he took into account that none of the injuries inflicted by Joginder Singh was fatal.

We have gone through the record of the case, and in particular the dying declaration Exhibit PG made to HC Balbir Singh PW9 and the statement of Channa Singh PW8. The dying declaration Exhibit PG assumes great importance. It was recorded at the hospital by PW9 Head Constable Balbir Singh when the deceased was receiving treatment from Dr. Vohra PW1. The only suggestion put to PW9 HC Balbir Singh was that statement Exhibit PG had been prepared after the death of Jagir Singh and that it was wrongly attributed to have been made by the deceased. This was denied by HC Balbir Singh PW9. It, otherwise, does not stand to reason as to why should Balbir Singh take judges to fabricate the First Information Report which was recorded at the Police Station on May 24, 1986 at 7.45 p.m. at a time when the deceased was alive and the death of the deceased had occurred the following day on May 25, 1986, at 5 a.m. It cannot be imagined that the First Information Report had remained unwritten for all this period in anticipation of the death of the deceased in order to fabricate a dying declaration. The prosecution case did not rest solely on the dying declaration but there was Channa Singh PW.8, and eyewitness of the occurrence.

Channa Singh PW8 has fully supported the prosecution case and gave vivid details of the occurrence. Nothing worth the name could be elicited from Channa Singh in crossexamination. The suggested delay in reporting the matter to the police and the delay in taking the deceased to Ludhiana by means of a truck are of no consequence in the instant case. The deceased and his family members being Harijans were poor people. Their social condition and the poverty enveloping was bound to make their mobility tardy. It goes to their credit that they managed to take the deceased to the hospital and got him some medical aid. It also goes to their credit that they could hire a truck to remove the deceased to Ludhiana, but by then it was too late because the serious injuries received by the deceased had shown their result. There is no reason at all to disbelieve the statement of Channa Singh PW8.

Lastly, the evidence of recovery of the spear supported by the evidence of ASI Harbhajan SIngh PW11, a weapon the possession of which is punishable under the Arms Act, is extremely worthy in the circumstances for being accepted for the appeal under the Arms Act. The denials to the contrary of nonparticipation in the crime and the nonrecovery of the spear at the instance of Darshan Singh appellant, are of no value in view of the trustworthy evidence led by the prosecution to maintain the convictions.

The trial Court''s view with regard to the nonapplicability of Section 34, Indian Penal Code, so far as the participation of Joginder Singh appellant in the crime of murder is concerned, appears to us rightly taken. The way in which the occurrence developed shows that the two blows caused by Darshan Singh appellant were individually or collectively sufficient to cause the death of the deceased. The participation of Joginder Singh appellant in having caused blunt weapon injuries on the deceased, a few after the first blow given by Darshan Singh appellant and the remaining after Darshan Singh having caused the second blow, and yet the blows of Joginder Singh having resulted in blunt weapon simple injuries, is an indication that Joginder Singh appellant did not share the common intention of his coaccused of causing the murder of the deceased and his participation on these two occasions was no endorsement of the intention of Darshan Singh appellant. Thus, we are of the considered view that the State appeal filed to have the conviction of Joginder Singh altered to one under Section 302 read with Section 34, Indian Penal Code, is without merit and must fail.

As a sequel to the aforesaid discussion, all the three appeals are dismissed and the judgments and orders of the learned Sessions Judge under appeals are affirmed.