Hardit Singh vs State of Punjab

S. S. Grewal, J.

This appeal is directed against the order of Additional Sessions Judge, Barnala dated 11th of September, 1992, whereby, Hardit Singh appellant was convicted under Section 302 of the Indian Penal Code and Karnail Singh appellant was convicted under Section 302 read with Section 34 of the Indian Penal Code for intentionally causing death of Bahadur Singh in furtherance of their common intention and each of them was sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/ each. In default of payment of fine each one of them was sentenced to undergo further rigorous imprisonment for one year. Karnail Singh appellant was further convicted under Section 323 of the Indian Penal Code whereas Hardit Singh appellant was also convicted under Section 323 read with Section 34 of the Indian Penal Code and each one of them was sentenced to undergo imprisonment for six months. Both the substantive sentences of imprisonment were ordered to run concurrently. Darbara Singh coaccused of the appellants was, however, acquitted.

Aggrieved against the order of their conviction and sentence passed by the learned trial Court, Hardit Singh and Karnail Singh have filed the present appeal whereas Nirmal Singh first informant has filed Criminal Revision No. 726 of 1992 concerning acquittal of Darbara Singh coaccused of the appellants and for enhancement of sentence awarded to Hardit Singh and Karnail Singh appellants. This revision petition was merely ordered to be heard along with this criminal appeal. Since common questions of law and fact are involved, both the Criminal Appeal and the Revision Petition shall be disposed of by one order.

In brief facts of the prosecution case as emerge from the first information report lodged by Nirmal Singh, an eye witness, are that on 3.7.1990 he along with his brother Bahadur Singh was returning to the house after working in their fields. As they reached near the village circular road (Phirni), their mother Gurnam Kaur also met them. Bahadur Singh was going ahead whereas Nirmal Singh and his mother Gurnam Kaur were coming behind. At about 8.00 or 8.30 p.m. as Bahadur Singh reached near the house of Jagan Nath, Darbara Singh and Karnail Singh accused armed with Gandasa surrounded him while Hardit Singh (father of Darbara Singh and Karnail Singh) armed with his .12 bore licensed double barrel gun came there and immediately thereafter he raised a lalkara that they would teach a lesson for securing apology from them before the Panchayat. Immediately thereafter Hardit Singh fired from his gun hitting Bahadur Singh who fell on the ground. His mother Gurnam Kaur fell on Bahadur Singh. Karnail Singhappellant then gave a Gandasa blow from its reverse side on the dorsum of left hand of Gurnam Kaur. Meanwhile Lal Singh uncle of Nirmal Singh PW who was sitting in the village Sath (gathering) came to the spot and Nirmal Singh and other PWs raised alarm NA MARO NA MARO hearing which all the three accused ran away from the spot along with their respective weapons. Lal Singh and Nirmal Singh put Bahadur Singh on a cot and brought him to their house and as they were just about to start the tractor trolley in order to take Bahadur Singh to Civil Hospital, Barnala, Bahadur Singh breathed his last. The motive for the crime is that on the night preceding the occurrence Karnail Singh accused under the influence of liquor had abused Bahadur Singh right in front of the latter''s house. Panchayat called Karnail Singh and Hardit Singh and made enquiries from them. Hardit Singh tendered apology before the village Panchayat. Due to this grudge, the three accused committed the murder of Bahadur Singh. Leaving Shangara Singh and Mehar Singh Chowkidar to guard the dead body, Nirmal Singh went with Lal Singh and lodged the first information report at 11 p.m. at Police Station, Barnala after covering a distance of 13 Kilometres.

Postmortem examination on the dead body of Bahadur Singh was conducted by Dr. Ashok Kumar Bansal, on the next morning of the occurrence at 9.15 a.m. which revealed a lacerated wound with inverted margins measuring 5.5 cm x 5.5 cm over the anterior aspect of left side of chest in the nipple line 8 cm below the left nipple and 6 cm from the midline. Omentum had come out of the wound, blackening of the wound margins was present. There were 10 small wounds with lacerated and inverted margins each measuring 2 mm x 2mm in an area of 4 cm x 2 cm adjoining the left inferolateral border of the main wound as well as the 10 small wounds communicated with the paritonial cavity. On dissection 8th, 9th and 10th ribs of left side had been fractured into pieces at the level of the said injury. Peritonial cavity was full of blood. Spleen was ruptured. Left kidney was also lacerated at many places. There were multiple tears of the transverse and dissending colon and small gut. Messenteric vessels were damaged. Pyloric end of the stomach had multiple tears. There was a big haematoma in the parinephric area of left side. One piece of card and 11 pellets were recovered from the peritonial cavity during dissection. Death in the opinion of the said doctor was due to shock and haemorrhage as a result of injuries to the spleen kidney, messenteric vessels and stomach which were sufficient to cause death in the ordinary course of nature. In the opinion of the doctor, these injuries were antemortem and result of a fire arm.

Medicolegal examination of Gurnam Kaur PW revealed swelling on the dorsum aspect of the left hand.

After completion of the investigation, Hardit Singh, Karnail Singh and Darbara Singh accused were challaned and tried. All the accused when examined under Section 313 of the Code of Criminal Procedure, denied the prosecution allegations appearing in evidence against them and pleaded false implication on account of doubt and enmity. According to Hardit Singh accused, he joined the investigation on 5.7.1990 in this case and police took his .12 bore licensed gun along with the licence on that day in good condition. Karnail Singh and Darbara Singh pleaded that they joined the investigation on 7.7.1990. Besides Darbara Singh accused pleaded that his name is Didar Singh and not Darbara Singh. He pleaded alibi and stated that he resides at Bhatinda and was working on night duty at Nehru Yuva Kendra, Bhatinda. Baljit Singh, Accounts Clerk Nehru Yuva Kendra, Bathinda while appearing as DW. 1 merely produced the record. Hardit Singh, District Youth Coordinator, Nehru Yuva Kendra appeared as DW. 2 and he stated that Darbara Singh accused was working as Chowkidar with the said Kendra and on surprise checking he had found Darbara Singh present in the Kendra on 3.7.1990 at 8.45 p.m. Certified copy of the voters list Ex. DF was also filed and the accused closed their defence.

Darbara Singh accused was acquitted whereas Hardit Singh and Karnail Singh accused (present appellants) were convicted and sentenced by the learned trial Court, as stated earlier.

We have heard the learned counsel for the parties and have carefully perused the record with their help.

The learned counsel for the appellants mainly contended that it is a case of blind murder; that the occurrence took place elsewhere and after the dead body of Bahadur Singh was located in the morning hours on 4.7.1990, Nirmal Singh and Gurnam Kaur PWs falsely implicated the appellants on misguided suspicion. It was further submitted by the learned counsel for the appellants that even according to the case set up by the prosecution the first information report was registered at Police Station, Barnala at 11 p.m., the special report was received by the Ilaqa Magistrate on the next morning of the occurrence at 9.30 a.m. On this basis, it was further submitted that the first information report was actually recorded on the next morning of the occurrence by the Investigating Agency after due deliberations and consultations with the complainant party, which, had thus ample opportunity to introduce a coloured version of its own choice.

The argument is devoid of any merit. After the occurrence naturally the first anxiety on the part of Lal Singh uncle and Nirmal Singh brother of the deceased was to take him to the hospital. For this purpose first Bahadur Singh injured was removed from the spot on a cot to his house, from where Nirmal Singh and Lal Singh wanted to take Bahadur Singh on tractor trolley to Civil Hospital, Barnala for proper treatment. Just after the cot on which the said injured was lying, was placed in the trolley, Bahadur Singh breathed his last. Thereafter leaving others to guard the dead body both Nirmal Singh and Lal Singh left for the police station and after covering a distance of 13 kilometres lodged the first information report with the police at 11 p.m. As per affidavit of Constable Balwinder Singh he was deputed to deliver the special reports to the authorities concerned. However, due to deterioration in law and order situation during those days, the Ilaqa Magistrate did not come out of his house during the night. Even if this explanation is believed, the said official could have delivered the special report to the Ilaqa Magistrate after sunrise. The remissness on the part of Constable Balwinder Singh not to deliver the special report to the Ilaqa Magistrate in time or omission on his part to give a note on the cover in which the first information report was sent that inmates of the house of the Magistrate did not open the door of the house during the night would not affect the prosecution story or would help the defence, as the special report reached the Ilaqa Magistrate before the doctor had completed the postmortem examination on the dead body of Bahadur Singh. We are satisfied that the first information report in the instant case has been lodged by Nirmal Singh PW with all promptitude. Thus mere delay in sending the special report does not materially affect the prosecution version in the present case. Delay per se is not fatal to the prosecution story and its only effect is to scrutinise the prosecution evidence more thoroughly and to seek independent corroboration on material aspects of the case. Thus it would be prudent to seek independent corroboration on the material aspects of the ocular account given by Nirmal Singh and Gurnam Kaur PWs in the instant case.

The most important question which arises for determination in this case is about the presence of both Nirmal Singh and Gurnam Kaur PWs near the spot at the time when the main occurrence took place. Gurnam Kaur is a stamped witness and received an injury on her left hand with the Gandasa from its reverse side given by Karnail Singh appellant. It is true that except swelling there was no visible mark of injury on the person of Gurnam Kaur, and the doctor has not given the colour of the swelling. Thus it was not possible for doctor to give the probable duration of this injury. Gurnam Kaur PW was medically examined on the next day of the occurrence at 5 p.m. Keeping in view the fact that after the death of Bahadur Singh, Gurnam Kaur his mother stayed with the dead body in the house during the night and the postmortem was conducted on the next morning after 9 a.m. and also the fact that it was quite normal for a mother not to leave the dead body before the same was cremated, the delay in conducting medicolegal examination of Gurnam Kaur PW in the instant case, would not lead to the inference that the injury of Gurnam Kaur was self suffered either at the time she was bewailing the death of her son or on the next day of the occurrence as suggested by the defence. Opinion of the doctor that injury could be sustained by Gurnam Kaur provided her hand is struck against a hard object while bewailing cannot be preferred to the direct testimony of Gurnam Kaur and Nirmal Singh PWs. Gurnam Kaur had also given cogent reason for her presence. She stated that she along with her son Darshan Singh had gone to the bus stop; while returning she met Nirmal Singh and Bahadur Singh who were coming on a tractor from their fields. She further stated that Darshan Singh took away the tractor while she along with Nirmal Singh PW and Bahadur Singh deceased left on foot towards their village in order to come to their house. As such omission to mention the name of Darshan Singh in the first information report or in the inquest report is of minor nature and is not a material one, inasmuch as Darshan Singh is not an eye witness in this case. He left with the tractor before reaching the spot and much before the occurrence took place. Apart from Gurnam Kaur, Nirmal Singh PW too has supported the version that his mother Gurnam Kaur and Darshan Singh were coming together from the side of the bus stop when they met them on the way and the tractor on which the said witness and Bahadur Singh deceased were coming was taken away by Darshan Singh before Nirmal Singh, Gurnam Kaur and Bahadur Singh deceased actually came to the spot, where, the occurrence took place.

Both Nirmal Singh and Gurnam Kaur are named as eyewitnesses in the first information report, which has been lodged within two hours of the occurrence. After the occurrence Nirmal Singh and his uncle Lal Singh brought Bahadur Singh injured on a cot to their house, in order to take him to the hospital on a tractor trolley. However, before they could leave their house for the hospital, Bahadur Singh passed away. Thereafter Nirmal Singh accompanied by Lal Singh came to the Police Station after covering a distance of 13 kilometres and lodged the first information report. Conduct of Nirmal Singh brother of the deceased is thus quite consistent with natural human conduct. Presence of both the eyewitnesses at the spot at the time of the occurrence is thus quite natural, probable and convincing.

The next question which arises for determination is whether the testimony of Nirmal Singh and Gurnam Kaur PWs is creditworthy. The version given by Gurnam Kaur and Nirmal Singh PWs concerning the matter in which the entire occurrence took place has been consistent throughout. Both of them deposed that initially Karnail Singhappellant and Darbara Singh accused (since acquitted by the trial Court) armed with Gandasas surrounded Bahadur Singh near the spot. Thereafter Hardit Singhappellant came armed with his licensed .12 bore gun and after raising a lalkara to teach a lesson to Bahadur Singh fired at him and he fell down on receipt of the said injury. The medical evidence on the record shows that the injury on the left side of the chest of the deceased is a firearm injury which in all probability had been caused by a single shot fired from a .12 bore gun. Taking into consideration the nature and extent of the said injury it supports the ocular account given by the two eyewitnesses in this case about the manner in which Bahadur Singh deceased received the firearm injury, which, subsequently proved fatal.

Both these eyewitnesses, who are close relations of the deceased, have further deposed that electric light from the nearby house of Jagan Nath was on. Thus there was ample light near the place of occurrence in which there would be no difficulty for the two eyewitnesses to identify the appellants, who were their covillagers and were already known to them. This obviously is not a case of mistaken identity.

The argument raised on behalf of the defence that no witness from the nearby houses has been produced by the prosecution and that this factor casts doubt about the truthfulness of the prosecution case is hardly tenable. It is true that it has come in evidence that no body from the nearby houses came to the spot and witnessed the occurrence which took place in the lane. During the days of occurrence because of law and order situation in Punjab in general and in rural areas in particular, none would like to get involved in disputes of others and would be reluctant to come out of their house when firing incidents took place in which other persons were involved.

ASI Jarnail Singh who inspected the spot on the next morning of the occurrence took into possession blood stained earth and an empty .12 bore cartridge. The said empty cartridge reached the office of the Director Forensic Science Laboratory, Punjab, Chandigarh on 11.7.1990 much before the recovery of a double barrel .12 bore gun from the possession of Hardit Singh appellant on 20.7.1990. The defence plea that all the three accused including Hardit Singhappellant had been arrested much earlier has not been substantiated on the record from any reliable evidence on the record. As per report of the Ballistic Expert empty cartridge recovered in this case had been fired from the right barrel of .12 bore gun (recovered from the possession of Hardit Singhappellant). These two circumstances lend independent corroboration to the ocular account so far as presence and participation of Hardit Singh and Karnail Singhappellants during the occurrence is concerned. Darbara Singh accused who allegedly was armed with a Gandasa had not used his weapon or caused any injury to either the deceased or to Gurnam Kaur PW. In the absence of any independent corroboration the learned trial court rightly acquitted Darbara Singh accused.

Prosecution in the instant case has alleged a definite motive. On the night preceding the occurrence Karnail Singhappellant came in front of the house of Bahadur Singh deceased and abused him. Panchayat called both Karnail Singh and his father Hardit Singh (the present appellants) and made enquiries from them. Hardit Singh tendered apology before the Panchayat. Thus the prosecution has been able to establish that the greater motive was on the side of the accused particularly Hardit Singh and Karnail Singh to wreak vengeance on Bahadur Singh. Only Darbara Singh accused who has since been acquitted and to whom no injury is attributed during the entire occurrence produced evidence of alibi. Thus, there is no need to discuss that evidence. Defence plea about false implication of Hardit Singh and Karnailappellants has not been substantiated on the record and we have not the least hesitation in rejecting the same.

The ocular account given by Nirmal Singh and Gurnam Kaur PSs two close relations of the deceased is credible and trustworthy and finds ample corroboration from other circumstantial evidence referred to above, so far as the presence and participation of Hardit Singh and Karnail Singhappellants, in the main occurrence is concerned.

There is substantial merit in the contention raised by the learned counsel for the appellants that the prosecution has not been able to establish that Hardit Singh and Karnail Singh acted in furtherance of their common intention while committing the murder of Bahadur Singh and causing simple injury to Gurnam Kaur PW. According to the ocular account given by both Gurnam Kaur and Nirmal Singh PWs, Hardit Singh reached the spot after his co appellant Karnail Singh and their coaccused Darbara Singh (since acquitted) armed with Gandasa had surrounded Bahadur Singh. It is significant to note that neither Karnail Singhappellant, nor, Darbara Singh said a word or gave any injury before Hardit Singhappellant arrived at the spot and after raising lalkara to teach a lesson to Bahadur Singh fired a single shot hitting Bahadur Singh who fell down and subsequently died as a result of the said injury. Gurnam Kaur PW then fell on Bahadur Singh to save her son and at that stage Karnail Singh only caused an injury from the reverse side of Gandasa on the left hand of Gurnam Kaur PW. In view of the peculiar circumstances of the present case the circumstances referred to above do not in any manner indicate that the appellants acted in furtherance of their common intention in committing the murder of Bahadur Singh or causing injury to Gurnam Kaur PW. Thus both Hardit Singh and Karnail Singh would be responsible for their own individual acts and cannot be fastened with vicarious liability concerning the individual acts of the other appellant. There is no legal, cogent or reliable evidence on the record to show that both the appellants had committed the crime charged with in pursuance of their prearranged plan or shared the common intention to commit the murder of Bahadur Singh and the suspicion, howsoever strong cannot take the place of proof in order to bring home charge in respect of vicarious liability of the two appellants in the present case. We find support in our view from the authority of the apex Court in Mohanan Nair and others v. State of Kerala, 1989 Criminal Law Journal 2106 wherein relying on its earlier authority in Dharam Pal v. State of Haryana, AIR 1978 S.C. 1492, it was observed as under :

"Before fastening vicarious liability, the criminal court must satisfy itself as to the prior meeting of minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former. Mere accompanying cannot infer common intention. Existence or otherwise of common intention depends upon facts and circumstances of each case. The intention of the principal offender and his companions to deal with any person who might intervene to stop the quarrel must be apparent from the conduct of the persons accompanying the principal culprit. Otherwise, there must be some other clear and cogent incriminating piece of evidence. When such materials are absent, the companions cannot be justifiably held guilty of every offence committed by the principal offender."

For the foregoing reasons, we hereby set aside the order of conviction and sentence passed against Karnail Singh under Section 302 read with Section 34 of the Indian Penal Code for commission of murder of Bahadur Singh and only maintain his conviction and sentence under Section 323 of the Indian Penal Code for causing injury to Gurnam Kaur PW. Conviction and Sentence of Hardit Singhappellant under Section 323 read with Section 34 of the Indian Penal Code is also set aside while his conviction and sentence under Section 302 of the Indian Penal Code passed by the learned trial Court is maintained.

This appeal is partly allowed to the extent indicated above and Criminal Revision No. 726 of 1992 filed by Nirmal Singh is hereby dismissed.