Lal Singh and Others vs State

Teja Singh, C.J.—In an incident that took place at village Didargarh on 18-6-2004, one Amar Singh received injuries at the hands of Sarwan Singh, Nikka Singh and Lal Singh, P.W. Sohan Singh went to the Police Station which is about 4 1/2 miles from the village and lodged the report during the night. The police registered a case u/s 307, Penal Code, and later on when they were informed that Amar Singh had succumbed, changed the offence to one u/s 302, Penal Code. Sarwan Singh was arrested on the following day and was properly challaned. He was tried by the Sessions Judge on the charge of murder and on conviction u/s 302, Penal Code, was sentenced to transportation for life. The sentence was confirmed by the High Court. Nikka Singh and Lal Singh, who had absconded and remained fugitive from justice when the case against Sarwan Singh was put in Court, were arrested on 4-1-2005. The learned Sessions Judge in whose Court they stood their trial, has convicted Nikka Singh u/s 326/34, Penal Code, and Lal Singh u/s 324, Penal Code. The sentences, awarded to them are 7 years'' rigorous imprisonment with a fine of Rs. 250 and two years'' rigorous imprisonment and a fine of Rs. 100 respectively. Both the convicts have preferred separate appeals against their convictions and sentences. Tara Singh, the brother of Amar Singh deceased, has made a revision petition praying (1) that the order acquitting Nikka Singh and Lal Singh for the charges of murder be set aside and they be retried; and (2) their sentences be enhanced. These appeals and the revision will be disposed of by one order.

Both sides are agreed that the accused party had no previous enmity with Amar Singh deceased. The prosecution case is that the trouble arose because Sarwan Singh, Nikka Singh and Lal Singh had broken open a house belonging to a Muslim of the village, named, Mehar Jolaha, and while they were about to take away the things that were lying in the house, Amar Singh deceased happened to pass by and remonstrated with them for interfering with the house which was virtually in the possession of the Panchayat. It may here be mentioned that those were the days of communal disturbances and Muslims of various villages had left either for Pakistan or for the refugee camps. In some places the houses of the Muslim evacuees were plundered but in other, the notables or the Panchayats of the village kept guard over them and tried to preserve the things lying therein till the authorities came and took charge of them. The position of the prosecution in the present case is that Mehar''s house had been taken hold of by the Panchayat and for this reason Amar Singh tried to dissuade the accused party from interfering with it. The accused, however, did not desist on Amar Singh''s intervention and started calling him names. This resulted into the exchange of abusive language between them and the accused then caused injuries to him with the spears with which they were armed. Unfortunately the post mortem examination on the dead body could not be conducted till 21st of Bhadon 2004. The reason for the delay was that it was first taken to Dhuri and when it was discovered that the doctor in-charge of that dispensary was not qualified to perform a post mortem examination, it was later on taken to Barnala. By that time almost complete decomposition of the body bad taken place though the doctor stated that he found as many as 10 penetrating wounds spreading on all parts of the body, he was not in a position to say whether all of them had been caused anti-mortem. (His Lordship considered the evidence and proceeded:)

For all these reasons I hold that the prosecution version was fully proved and the Appellants joined Sarwan Singh in attacking the deceased and caused injuries to him with Bhallas.

Before proceeding further, I consider it necessary to refer to the point raised by the Appellants'' counsel that since the prosecution failed to adduce any evidence to show that the dead body was not tampered with from the time it was discovered by the police to the time of the post mortem examination, it was quite possible that some of the injuries that the doctor found on it had been caused after the death had occurred. He particularly drew our attention to Rules and Orders of the High Court of Judicature at Patiala, vol. 1. Chap. 5, para. 20, which reads as follows:

In all cases in which a post mortem report has to be proved, formal evidence must be led to the effect that the dead body since its discovery was properly kept in custody and was delivered to the Medical Officer concerned for post mortem examination without being tampered with by anyone. Similar evidence must be led when any articles are sent to a Chemical Examiner for examination of blood-stains etc.

There can be no doubt that the rules framed by the High Court of Patiala still apply to us, and that they have the force of law. I am also in agreement with learned Counsel that the evidence of the kind mentioned in para 20 is essential in every case and the prosecution must affirmatively prove that the dead body of a person with whose murder the accused is charged, when placed before a doctor for post mortem examination, was not tampered with in any way after the death. I may also observe that it is quite possible to visualize a case in which want of such an evidence may materially effect the result of the case. In fact, I know of cases which failed because the prosecution did not care to prove that proper guard was kept on the dead body after it was discovered by the police and consequently the Court found itself unable to hold that some of the injuries existing on the dead body had not been manufactured after the incident resulting into the death. Where, however, I do not agree with the counsel is that such a thing could possibly have happened in the present case. I admit that the relations of the deceased with his father and the brother, those wife be abducted, could not have been cordial, but in face of the evidence discussed above, I have no hesitation in coming to the conclusion that they had absolutely no hand in the murder of the deceased and it is unthinkable that they should have taken into their head to tamper with the dead body in any way. Nor do I think that anything of such kind should have been done by anyone else. There is abundant evidence on the record and to this fact.

I have already referred that delay in the post mortem examination was due to circumstances which, unfortunate though they were unavoidable and I am convinced that there could have been no tampering with of the dead body at any time.

The question that remains for consideration is what offence the present Appellants should be taken to have committed. It would be clear from what I have said above that the offence was not premeditated and that the whole thing happened on the spur of the moment. It is true that the Appellants and their companion were armed with spears and had gone to Mehar''s house with the intention of committing a burglary, but I am not prepared to believe that their intention was to kill any one. Taking into consideration the conditions that prevailed in the country during those days and the fact that Muslims were fleeing from their places of residence and were leaving their houses in large numbers, I am of the opinion that the Appellants could never have thought that any one would come forward to obstruct them or that there would be resistance which they might be called upon to overcome by force. Not much significance attaches to the arms that they carried, because it is common experience that agriculturists generally carry spears with them and this was more so in the days during which this incident happened. Since murder was not and could not have been the common intention of the accused party, I cannot hold that the deceased was attacked and killed in furtherance of any such intention. Accordingly Section 34, Penal Code, has no application and each of the culprits must be held responsible for his individual act.

As regards Nikka Singh, the only injury that can be positively held to have been inflicted by him was the one on the right arm, but it was a simple injury. So his offence can only fall within the purview of Section 324, Penal Code, and I cannot understand how the learned Sessions-Judge convicted him u/s 326, Penal Code.

As regards Lal Singh, Appellant, the learnd Sessions Judges has convicted him u/s 324, Penal Code, and after hearing S. Kartar Singh in support of the revision petition, I do not think that that finding can be disturbed.

For the reasons mentioned above, I would accept Nikka Singh''s appeal to the extent that I would alter his conviction from 326, Penal Code, to one u/s 324, Peanl Code, and sentence him to three years'' rigorous imprisonment and a fine of Rs. 500, in default of payment of fine he shall undergo nine months'' further rigorous imprisonment. Lal Singh''s appeal shall stand dismissed. It was urged before us that Lal Singh''s sentence was inadequate and should be enhanced, but I do not find any force in this contention. He is a young man of about 20 years and it appears to me that serious though his offence was, he must have acted under the influence of Sarwan Singh, who was his elder brother, and this constitutes an extenuating circumstance. The revision petition must, therefore, fail and is dismissed. Announced.

Chopra, J.

I concur.