Kulwinder Singh vs State of Punjab

T.P.S. Mann, J.—The appellant has filed the present appeal for challenging the judgment and order dated 12.3.2009 passed by learned Additional Sessions Judge, Patiala whereby he was convicted under Sections 302/34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year. He was also convicted under Section 307 IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,500/- and in default of payment of fine, to further undergo rigorous imprisonment for nine months. Both the sentences were ordered to run concurrently. The period of detention already undergone by him during the investigation and trial of the case was ordered to be set off against the substantive sentence awarded to him.

The case of the prosecution, in nutshell, is that on 19.7.2002 at 9.15 a.m., SI Bimal Kumar, Station House Officer, Police Station Patran recorded the statement of Angrej Singh son of Pal Singh at Rajindra Hospital, Patiala to the effect that he was resident of village Gulzarpura Tharua and engaged in agriculture. Manjit Singh was his younger brother. Ever since the time of assembly election, there were two groups in the village. Nishan Singh son of Amar Singh, Jaswinder Singh @ Jassa, Kulwinder Singh @ Kaka and Balwinder Singh @ Binda sons of Nishan Singh, Kuldip Singh @ Jeji, Hardip Singh and Nawab Singh @ Kaka sons of Joginder Singh, caste Jat, belonged to the Akali Party while his (Angrej Singh''s family) was supporter of Congress party. Due to that reason, there was an altercation between the two groups but at the intervention of respectables of the village and both the parties belonging to the same village, the matter was compromised. Despite the same, Nishan Singh and others did not desist from taunting the complainant party. On 18.7.2002 at about 8.00 p.m., complainant Angrej Singh, alongwith his brother Manjit Singh and Balwinder Singh son of Amar Singh, was proceeding towards his Dera and when they reached near the tube-well of Puran Chand, Nishan Singh armed with a rifle, Sukhwinder Singh with a Barchha, Jaswinder Singh with a Barchhi, Kulwinder Singh @ Kaka with a Barchha, Kuldip Singh @ Jeji with a Dang, Hardip Singh with a Gandasi and Nawab Singh with a Barchhi came there while raising lalkaras. Nishan Singh proclaimed that the complainant and his brother Manjit Singh be not allowed to go scot free that day and be taught a lesson for opposing them in the village. Upon this, Jaswinder Singh gave Barchhi blow to Manjit Singh, hitting him in his chest. As a result, Manjit Singh fell on the ground. Kulwinder Singh gave a Barchha blow to complainant Angrej Singh which landed on the right side of his abdomen. Balwinder Singh gave a Barchha blow in the left flank of the complainant. Nawab Singh gave Barchhi blow on his right shoulder, Hardip Singh gave Gandasi blow on his right shoulder while Kuldip Singh gave Dang blow on the upper part of his back. On receiving the injuries, complainant also fell on the ground. All the accused gave fist and kick blows to complainant Angrej Singh and his brother Manjit Singh. Nishan Singh, while hurling abuses, loudly announced that Angrej Singh and Manjit Singh had been taught a lesson for supporting the Congress party. The complainant and Balwinder Singh raised an alarm which attracted Kuldip Singh, Ex-Sarpanch and Lakhwinder Singh to the spot. On seeing them coming to the spot, all the accused ran away towards the village while carrying their respective weapons. The complainant also stated that in the last elections, he had supported the Congress party whereas the accused had helped the Akali party. He further stated that Balwinder Singh, after arranging a vehicle, got him and his brother Manjit Singh admitted in the Rajindra Hospital, Patiala. Due to the injuries received by him, Manjit Singh died at about 2.30 a.m. The complainant sought taking of action against the accused.

Further case of the prosecution is that on the basis of statement made by complainant Angrej Singh, FIR No. 194 dated 19.7.2002 under Sections 302/307/325/120-B/148/149 IPC and Sections 25/27 of the Arms Act was registered at Police Station, Patran at 10.45 a.m. Special report sent through Constable Karanbir Singh was received by the Judicial Magistrate 1st Class, Samana on 19.7.2002 at 1.00 p.m.

During the investigation of the case, Jaswinder Singh, Balwinder Singh, Nawab Singh and Hardip Singh accused were arrested. The appellant, namely, Kulwinder Singh could not be arrested and, accordingly, he was declared a proclaimed offender. At the same time, Kuldip Singh and Nishan Singh were found innocent. Final report under Section 173 Cr.P.C. was submitted against Jaswinder Singh, Balwinder Singh, Nawab Singh and Hardip Singh, who were, thereafter, charged for committing the offences punishable under Sections 302, 307 and 324 read with Section 34 IPC, to which they pleaded not guilty and claimed trial.

Before the prosecution could examine any of its witnesses, it filed an application under Section 319 Cr.P.C. for summoning Kulwinder Singh and Nishan Singh as additional accused. No request was, however, made by the prosecution to summon Kuldip Singh as an additional accused as he had died in the meantime. The said application was allowed on 19.4.2003 by summoning Nishan Singh as additional accused whereas, Kulwinder Singh already stood declared proclaimed offender. On appearance of Nishan Singh, charges were framed against him as well as against the four accused who were initially challaned, namely, Jaswinder Singh, Balwinder Singh, Nawab Singh and Hardip Singh for offences punishable under Sections 148/302/307/324/149 IPC. Vide judgment and order dated 7/8.4.2004, learned Additional Sessions Judge, (ad hoc), Patiala convicted and sentenced Nawab Singh, Jaswinder Singh, Balwinder Singh, Hardip Singh and Nishan Singh under Sections 148/302/307/324/149 IPC. Aggrieved of their conviction and sentences, Nishan Singh, Jaswinder Singh and Balwinder Singh preferred Criminal Appeal No. D-398-DB of 2004 while Hardip Singh and Nawab Singh preferred Criminal Appeal No. D-414-DB of 2004. Both the appeals came up for hearing before a Division Bench of this Court on 11.8.2006 when after hearing learned counsel for the parties, the Bench acquitted Nishan Singh, Nawab Singh and Hardip Singh of the charges against them. As a result of their acquittal, the conviction of Jaswinder Singh was altered from Sections 148/302/307/149 and 324/149 IPC to Sections 302/307/324/34 IPC whereas that of Balwinder Singh under Sections 148/302/149/307 and 324 IPC to Sections 302/34, 307 and 324 IPC. However, the sentences passed against them qua those offences by the trial Court were maintained.

It may not be out of place to mention here that aggrieved of his conviction and sentence, Balwinder Singh preferred Special Leave Petition but the same was dismissed by the Hon''ble Supreme Court on the ground of delay as well as on merit vide order dated 27.7.2009.

It may be worthwhile to mention here that after disposal of the two sets of appeals by a Division Bench of this Court on 11.8.2006, the present appellant, who earlier stood declared a proclaimed offender, came to be arrested on 24.10.2006 and subsequently, challan was presented against him on 25.10.2006. On his appearance, copies of the challan was supplied to him free of costs. The case was, thereafter, committed to the Court of Sessions, where charges under Sections 148,302/149 and 307/149 and 324/34 IPC were framed against the appellant to which they pleaded not guilty and claimed trial.

In support of its case, the prosecution examined complainant Angrej Singh as PW 1 and Balwinder Singh as PW 2. Both of them testified about the ocular account of the occurrence. PW 3 Dr. Varinder Verma testified that on 18.7.2002 at 10.15 p.m. he medico-legally examined Manjit Singh on 18.7.2004 at 10.15 p.m. and found the following injury on his person:-

"3 c.m. x 1 c.m. incised wound over the middle of the sternum, fresh bleeding was present."

He further testified that on 18.7.2002 at 10.15 p.m., he also medico-legally examined complainant Angrej Singh and found the following injuries on his person:-

"1. A mass of omentum and fatty tissue protruding out of the abdomen in the left lumber region with fresh bleeding. Advised Surgeon opinion and x-ray.

A mass of fatty tissue coming out of the right lumber region with fresh bleeding. Advised Surgeon opinion.

3 c.m. x 1 c.m. incised wound on the left upper arm just below the shoulder joint. Fresh bleeding was present.

2 c.m. x 1/2 c.m. incised would on left upper arm just below the shoulder joint about 3 c.m. from injury No. 3. Fresh bleeding present."

He also stated that injuries No. 1 and 2 on the person of Angrej Singh were dangerous to life while injuries No. 3 and 4 were simple in nature. Qua the injury found on the person of Manjit Singh he had advised x-ray of chest and surgeon''s opinion. All the injuries were within the probable duration of six hours and weapon used in causing those injuries was sharp.

PW 5 Dr. S.S. Oberoi deposed that on 19.7.2002 at 1.00 p.m. he conducted post-mortem on the dead-body of Manjit Singh and found the following injuries:-

"A stab would measuring 3 x 1 c.m. going inside the right chest cavity, with sharp margins and clear ends present obliquely to the right side chest was in the sternal border 1 c.m. away the inter mammary line. On exploration the underlying costal cartilage was cut and incised would 2 x .5 c.m. was present on the surface of middle lobe of right lung. The right pleural cavity was full of liquid blood. A surgically stitched would 3 c.m. long placed in the right anterior axillary line 10 c.m. from the axilla and 7 c.m. from the right nipple."

In the opinion of the doctor the cause of death was on account of haemorrhagic shock due to the injuries which were ante-mortem in nature and sufficient to cause death in ordinary course of nature. The time between injury and death was six to twelve hours and between death and post-mortem twelve hours.

PW 7 Dr. Kuldip Singh, Associate Professor, Department of Surgery, Rajindra Hospital, Patiala testified that on 18.7.2002 at about 10.50 p.m. Angrej Singh was admitted in Emergency Surgical Ward and operated upon for penetrating injuries in his abdomen. The operation notes which were in the hands of Dr. Adrash Pal Kaur, who was a member of the operating party, are re-produced here-in-below:-

"Under General anesthesia:

Part was cleaned and drapped and abdomen opened through vertical mid-line incision. Peritoneal cavity was full of faecal matter and blood which was sucked out. There were multiple perforations in ileum at three places. There were two perforations in terminal ileum. Three perforations 10 cms. proximal to that six perforations 50 c.m. proximal and two perforations 30 c.m. proximal to previous perforations. All the perforations were sutured using 3-0 vikryl and 3-0 mercilk sutures. Rest of gut was found to be normal. Two corrugated drains put in the through external wounds and placed left and right side of abdomen. Peritoneal lavage was done. Haemostasis achieved abdomen close in layers. Antiseptic dressing done."

PW 4 SI Ram Asra testified that he had arrested the appellant on 24.10.2006.

PW 6 SI Bimal Kumar testified about the various steps taken by him during the investigation of the case.

PW 8 Jajbir Singh, Patwari proved the scale site plan Ex. PW 8/A, which he had prepared at the pointing out of Kuldip Singh.

PW 9 HC Satnam Singh tendered into evidence his affidavit Ex. PW 9/A, while PW 10 MHC Mewa Singh tendered into evidence his affidavit Ex. PW 10/A.

When examined under Section 313 Cr.P.C., the appellant pleaded innocence. In defence he examined DW 1 Raj Kumar, Pharmacist, DW 2 Dr. Parshotam Lal, DW 3 Jaswinder Singh, DW 4 Dr. Jagwant Singh, DW 5 Bachan Singh Randhawa, Superintendent of Police (retd.) and DW 6 HC Harbhajan Singh.

At the final stage of the trial it came to the notice of the trial Court that the charge framed against the appellant was not proper. In fact, no substantive charge under Section 307 IPC was framed against him. Accordingly, vide order dated 9.3.2009, the trial Court re-framed the charge by charging the appellant under Sections 148, 302/149 and 307 IPC. Subsequent thereto, the prosecution did not examine any further evidence and, accordingly, the defence counsel stated that he did not want to lead any evidence in defence and also not to cross-examine any of the prosecution witnesses even after the amendment of the charge.

After hearing learned counsel for the parties and on going through the record, the trial Court believed the prosecution case, insofar as the involvement of the appellant in the commission of crime was concerned, and, accordingly, convicted and sentenced him, as mentioned above.

We have heard learned counsel for the parties and scanned the evidence with their assistance.

Primary argument of learned counsel for the appellant is that during the investigation of the case an enquiry was conducted by Shri Bachan Singh Randhawa, Superintendent of Police (Crime) in which the appellant was found to be innocent. Said Bachan Singh Randhawa stepped into the witness-box as DW 5 and proved enquiry report Ex. DW 5/B prepared by him in that regard. However, during his cross-examination, he stated that he has not investigated the case. He further stated that he did not take prior permission of the Ilaqa Magistrate before conducting the enquiry, despite the fact the challan stood presented in the Court. Subsequent to the enquiry, the prosecution did not bring on record the enquiry report by way of supplementary challan. Even Angrej Singh, injured and Balwinder Singh, the eye-witness, were not shown to have been associated with the enquiry. On the other hand, the appellant was declared a proclaimed offender. Under these circumstances, no benefit of any such enquiry can be extended to the appellant.

As regards the plea of the appellant that there was an inordinate delay of 14/15 hours in reporting the matter to the police, suffice it to state that after the occurrence had taken place on 18.7.2002 at about 6.00 p.m., complainant Angrej Singh and his brother Manjit Singh, who had received injuries in the occurrence were transported by their cousin Balwinder Singh to the Rajindra Hospital, Patiala where they reached at 10.15 p.m. and were medico-legally examined. Both of them were shown to have been brought by PW 2 Balwinder Singh. With the type of serious injuries received by complainant Angrej Singh and his brother Manjit Singh, their cousin Balwinder Singh must have remained busy in attending upon them, instead of rushing to the Police Station for lodging the report. Because of the injuries received during the occurrence, Manjit Singh died on 19.7.2012 at 2.30 p.m. It has been mentioned in the police proceedings, as noted in the FIR itself, that ASI Kuljit Singh, Incharge, Police Post, Tharua had visited the Rajindra Hospital, Patiala during the night to record the statements of two injured but before he could reach there, Manjit Singh had succumbed to the injuries while complainant Angrej Singh was in the operation theatre. Later on, PW 6 SI Bimal Kumar, after receiving telephonic message from ASI Kuljit Singh, reached the Rajindra Hospital, Patiala and after obtaining opinion from the doctor regarding fitness of complainant Angrej Singh, who declared him fit, recorded his statement Ex. P1 which was completed on 19.7.2002 at 9.15 a.m. The said statement was forwarded to Police Station Patran, where, on its basis, FIR Ex. P1/B was registered on 19.7.2002 at 10.45 a.m. by PW 10 MHC Mewa Singh. As the special report sent through Constable Karanbir Singh was received by the Ilaqa Magistrate, Samana at 19.7.2002 at 1.00 p.m., there was no inordinate delay in lodging the FIR. Whatever delay occurred has been satisfactorily explained by the prosecution.

The defence has harped upon the testimony of PW 3 Dr. Varinder Verma, who conducted medico-legal examination of complainant Angrej Singh and testified that there was no stab wound on the person of complainant Angrej Singh. According to the defence, the appellant was said to be armed with a Barcha, a sharp pointed weapon, and the same was to result in a stab or a penetrating wound. However, as PW 3 Dr. Varinder Verma stated that there was no stab wound on the person of complainant Angrej Singh, the prosecution version that it was the appellant who had caused an injury in the abdomen of complainant Angrej Singh cannot be accepted. However, on perusal of the testimony of PW 3 Dr. Varinder Verma, this Court finds that as many as four injuries were received by Angrej Singh. Two of the injuries were incised in nature and on the left upper arm, whereas the remaining two injuries have been described to be mass of omentum and fatty tissue protruding out of the left and right lumber regions. A close look at injury No. 2 would reveal that it was present in the right lumber region and consisted of mass of omentum and fatty tissues protruding out of the right lumber. It has also come in the evidence that PW 7 Dr. Kuldip Singh, Associate Professor, Department of Surgery, Rajindra Hospital, Patiala had operated upon complainant Angrej Singh for penetrating injuries in his abdomen. As per the operation notes, peritoneal cavity was full of faecal matter and blood. There were multiple perforations in ileum. The medico-legal report when read in conjunction with the operation notes, goes a long way to establish that the injury received by complainant Angrej Singh at the hands of the appellant was in nature of a stab/punctured wound, having been caused by a sharp pointed weapon and not the one caused by a sharp edged weapon. The medical evidence fully corroborates the prosecution case, especially regarding the role attributed to the appellant in causing an injury with a Barcha in the right side of abdomen of complainant Angrej Singh.

It is also the contention of the learned defence counsel that the injuries noticed on accused Jaswinder Singh and Balwinder Singh have not been explained by the prosecution. In this regard, he has referred to the testimonies of DW 2 Dr. Parshotam Lal, who proved the medico-legal report Exs. D4 and D5 in respect of the injuries received by Jaswinder Singh and Balwinder Singh, respectively. However, both PW 1 Angrej Singh and PW 2 Balwinder Singh testified that they have not seen any injury on the two accused at the time of occurrence. PW 1 Angrej Singh also testified that the persons accompanying him were not armed with any weapon and no injury was caused by his party either to Balwinder Singh or to Jaswinder Singh. Both PW 1 Angrej Singh and PW 2 Balwinder Singh were not cross-examined to show that in the given set of facts, it was the complainant party which had attacked the accused party and only, thereafter, the accused acted in exercise of private defence of person. Only suggestions were put to them that it was the complainant party which was the aggressor. The said suggestions were specifically denied by both PW 1 Angrej Singh and PW 2 Balwinder Singh. Even PW 6 SI Bimal Kumar categorically denied the suggestion that it was the complainant party which acted as an aggressor in the case. Thus, no benefit of the injuries said to have been received by the accused can be extended to the appellant.

From the facts and circumstances of the case it stands established that the accused had the motive to open the assault and cause injuries to complainant Angrej Singh and his brother Manjit Singh as they had been opposing them during the Panchayat elections. On the day of the occurrence, complainant Angrej Singh, his brother Manjit Singh and their cousin were proceeding towards their Dera and when they reached near the tube-well of Puran Chand, the accused came their while raising lalkaras. The accused wanted to teach a lesson to complainant party for opposing them in the village. It was accused Jaswinder Singh who gave Barcha blow to Manjit Singh hitting him in his chest. The said injury, later on, led to the death of Manjit Singh. Present appellant Kulwinder Singh had also not lagged behind in causing Barcha blow to complainant Angrej Singh, hitting him on the right side of his abdomen. As mentioned above, the medical evidence fully corroborates the prosecution version that the Barcha blow given by the appellant resulted in a mass of fatty tissue coming out the right lumber region and when complainant Angrej Singh was operated upon, multiple perforations were noticed in ileum. The peritoneal cavity was full of faecal matter and blood. Going by the nature of the injury attributed to the appellant and the opinion rendered by PW 3 Dr. Varinder Verma, injury No. 2 on the person of complainant Angrej Singh which was found to be dangerous to life, made the appellant liable for committing the offence under Section 307 IPC. Of course, the appellant was member of an unlawful assembly, common object of which was to commit the murder of Angrej Singh, which also made him liable for committing the offences under Sections 148 and 302/149 IPC.

In view of the above, no case is made out for any interference in the impugned judgment of conviction and sentence passed by the trial Court.

The appeal is without any merit and, therefore, dismissed.