Pritam Singh vs The State

Muni Lal Verma, J.—The betrothal ceremony of Nathu son of Ishar was performed on 29th January, 1969; in village-Bhangala, which is about 12 kilometres towards the south of Police Station, Valtoha. The said betrothal ceremony was concluded at about 4 P.M. and Ishar invited his friends and others, including Kapura alias Kapur Singh (now deceased), Tarlok Singh, Banta Singh, Puran Singh, Jamber Singh and Surjit Singh alias Seeto, as well as Pritam Singh alias Prito appellant, Gurmukh Singh alias Gokha and Sawarna, to dinner at his house. So, the aforesaid persons went to his house about half an hour after sunsec Kapur Singh, Tarlok Singh, Banta Singh, Jamber Singh and Puran Singh began to take meals which were served to them by the appellant and Surjit Singh Gurmukh Singh and Sawarna. While taking meals, Kapur Singh demanded water from Surjit Singh. He refused 10 serve it to him. So, he (Kapur Singh) rebuked him (Surjit Singh) and this led to exchange of abuses between them Thereupon, the appellant spoke to Surjit Singh, Gurmukh Singh and Sawarna to leave the place in protest, since they were being insulted, and all of them, viz., the appellant, Surjit Singh. Gurmukh Singh and Sawarna quited the house of Ishar. About a few minutes later, may be without taking their meals to the full, Kapur Singh accompanied by Jamber Singh, Banta Singh, Tarlok Singh and Puran Singh left the house of Ishar. On the way to their houses, they found the appellant armed with spear, Sawarna armed with a gandasi and Gurmukh Singh and Surjit Singh having one lathi, each standing near the house of the appellant. Kapur Singh was moving ahead and when he, and his companions, reached near the house of the appellant, the latter, (the appellant) hit spear near the left eye of Kapur Singh and Sawarna struck gandasi on his head. As a result of the injuries sustained by him from the appellant and Sawarna, Kapur Singh dropped on the gound Tarlok Singh advanced to save Kapur Singh and Surjit Singh alias Seeto and Gurmukh Singh alias Gokha caused injuries to him with lathis. Thereafter, the appellant, as well as his companions, viz., Surjit Singh Gurmukh Singh and Sawarna decamped carrying their weapons with them. Tarlak Singh was taken to his house and Kapur Singh was carried on a cot by Jamber Singh and others to Primary Health Centre, Gharyila, which is about 12 kilometres from village Bhangala. When he reached there at about 11.15 P.M., Dr. Harbans Singh examined his injuries and he (Dr. Harbans Singh) sent information about his arrival in injured condition to the Police Post, Gharyala, from where Assistant Sub-Inspector Amar Singh went to the Primary Health Centre. Kapur Singh was then lying unconscious and Jamber Singh reported the incident to him. The report, made by Jamber Singh, was sent to Police Station, Valtoha, where First Information Report was recorded u/s 308, read with section 34, Indian Penal Code, on its basis. Kapur Singh succumbed to his injuries at 3. A.M. on 30th January, 1969, and Dr. Harbans singh sent information about his death to the Police Post. Thereupon Assistant Sub Inspector Amar Singh again went to the Primary Health Centre and he held inquest on the dead body of Kapur Singh and despatched it to Amritsar where Dr. A. Phillips conducted autopsy on it. After registration of the case, Assistant Sub Inspector Des Raj went to village-Bhangala from Valtoha. He collected blood soaked earth from the scene of occurrence and he recorded statements of Puran Singh Banta Singh and Tarlok Singh and he (Assistant Sub Inspector Des Raj) sent Tarlok Singh to Primary Health Centre, Gharyala, for medical examination. Dr. Harbans Singh examined his injuries. The appellant, Surjit Singh, Gurmukh Singh and Sawarna were not available at their houses or in the village. They were produced by Surjit Singh Sarpanch of Kotli Wasawa Singh before Assistant Sub Inspector Des Raj on 18th February, 1969. Hence, the Police, Valioha, after necessary investigation, prosecuted the appellant, Surjit Singh, Gurmukh Singh and Sawarna u/s 302, read with section 34, India Penal Code, and the learned Magistrate charged the appellant u/s 302, Indian Penal Code, and Surjit Singh, Gurmukh Singh and Sawarna u/s 302, read with section 34, Indian Penal Code, and committed them to the court of Session for standing trial for the said offence. At the trial Surjii Singh and Gurmukh Singh were further charged u/s 33, Indian Penal Code, and the appellant and Sawarna were also charged u/s 323, read with section 34, Indian Penal Code, for causing injuries to Tarlok Singh (P.W.). Thus is the prosecution case.

The appellant denied the prosecution story. The learned Additional Sessions Judge. Amritstr, however, accepted the prosecution version and convicted the appellant u/s 302, Indian Penal Code, and Sawarna, Surjit Singh and Gurmukh Singh u/s 302, read with section 34, Indian Penal Code, and sentenced them to imprisonment for life, each. He further convicted Gurmukh Singh u/s 323, Indian Penal Code, and the appellant Sawarna and Surjit Singh u/s 323, read with section 34, Indian Penal Code, for causing injuries to Tarlok Singh and sentenced them to three months'' rigorous imprisonment, each Surjit. Singh alias Seeto was also held guilty u/s 323, Indian Penal Code, and the appellant, Sawarna and Gurmukh Singh were convicted u/s 323, read with section 34, Indian Penal Code, for causing injuries to Tarlok Singh and they were sentenced to three months'' rigorous imprisonment, each, with the direction that all the aforesaid three sentences of imprisonment would run concurrently. Aggrieved by their convictions and sentences, the appellant, Surjit Singh, Gurmukh Singh and Sawarna preferred separate appeals from jail. Since all these four appeals i.e., No. 44 of 1971 preferred by Surjit Singh, No. 46 of 1971 preferred by Gurmukh Singh, No. 47 of 1971 preferred by Sawarna and this appeal No. 45 of 1971 preferred by the appellant, have arisen out of one case, the same are being disposed of by one judgment. The evidence was read out to us and we heard the arguments and examined the record.

Jamber Singh (P.W. 4), Tarlok Singh (P.W. 5), Puran Singh (P.W. 6) and Banta Singh (P.W. 7) have supported the prosecution version in its entirety. They maintained that they, as well as Kapur Singh, had gone to the house of Ishar who had invited them to dinner in celebration of the betrothal of his son, and that the appellant, Surjit Singh, Gurmukh Singh and Sawarna were also present there and, as a matter of fact, they were serving meals to them. It is in evidence from Tarlok Singh, Puran Singh and Banta Singh that Kapur Singh demanded water from Surjit Singh and the latter declined to supply the same to him, and there upon both of them, viz., Kapur Singh and Surjit Singh had exchanged abuses. All the aforesaid four witnesses maintained that on account of the said exchange of abuses, the appellant, Surjit Singh, Gurmukh Singh and Sawarna had left the house of Ishar; and Tarlok Singh added that the appellant had spoken to his companions, viz., Surjit Singh, Gurmukh Singh and Sawarna to quit the house of Ishar, because they were being abused, before they had walked out from there. We find no reason to disbelieve them no these matters and, as would be presently seen, there is nothing against there reliability. The appellant and his companions, Kapur Singh (deceased) and the aforesaid eye-witnesses, as well as Ishar, are Mazhbis and belonged to the area of District Amritsar. Having regard to the conditions prevailing in the villages and the notions of the class to which the appellant and his companions, the witnesses, the deceased and Ishar belonged, it cannot be gainsaid that the refusal of Surjit Singh who was companion of the appellant to serve water to Kapjr Singh could have been reserved by him and the rebukes given by him (Kapur Singh) leading to the exchange of abuses between him and Surjit Singh, could have been resented by the appellant and it is for this reason that he (the appellant) called upon his companions to quit the house of Ishar and they had walked out of it. So, evidently, he had motive to commit the crime. It is in evidence from Jamber Singh (P.W. 4) and it is admitted by the appellant as well as Sarjit alias Seeto, that Sawarna and Surjit Singh are real brothers. It is further in evidence from Jamber Singh, and it is admitted by the appellant as well as Gurmukh Singh, that the latter (Gurmukh Singh) is the son of the sister of the appellant. Jamber Singh has further stated that the appellant is a collateral, though distant, of Surjit Singh and Sawarna. Having regard to the said relationship, it can be safety said that the appellant could prevail upon Sawarna, Gurmukh Singh and Sarjit Singh and they could join with him (the appellant) in his design. So it can be safely concluded that the appellant and his companions viz., Surjit Singh, Gurmukh Singh and Sawarna (the appellants of other three appeals) had motive to commit the crime, or, at least, to cause injuries of serious nature to Kapur Singh.

Jamber Singh (P.W. 4), Tarlok Singh (P.W. 5), Puran Singh (P.W. 6) and Banta Singh (P.W. 7), who gave ocular narration of the event, related the story which has been summarised above. The gist of their statements is that when they reached near the house of the appellant they noticed him and his companions, viz., Surjit Singh, Gurmukh Singh and Sawarna, standing together and the appellant had spear while Sawarna carried a gandasi and Surjit Singh and Gurmukh Singh were armed with one lathi each and that the appellant opened the attack by hitting spear near the left nose of Kapur Singh and Sawarna then struck gandasi on his head and as a result of the injuries so inflicted to him, Kapur Singh fell on the ground. Jamber Singh and Tarlok Singh further maintained that when Tarlok Singh came forward to save Kapur Singh, Surjit Singh and Gurmukh Singh save lathi blows to him.

Mr. Arvind Kishore, the learned counsel who appeared for the appellant, and his companions, impeached the credibility of the aforesaid witnesses with the contention that they were related inter se. True, Puran Singh (P.W. 6) is the brother of the deceased and Banta Singh (P.W. 7) is their uncle and Tarlok Singh and Jamber Singh (P.Ws.) who are brothers inter se, are their cousins in third degree. But relationship of witnesses with the deceased has never prevailed with Courts as a ground, muchless just, for doubting their veracity. Therefore, the said relationship of the witnesses with Kapur Singh (deceased) is insufficient for dismissing their statements, though it may at the most be a ground to receive their statements with caution and it is for this reason that we have scanned their testimony strictly. Tarlok Singh, as is clear from the medical evidence, had four injuries and so he is, as commonly called, a stamped witness and, as such, his presence at the time and scene of incident cannot be doubted. Since the aforesaid witnesses and Kapur Singh were related inter se, and they had gone to the house of Ishar for taking dinner, it sounds natural that all of them had left his house after taking the meals, whether to the full or otherwise. After the departure of the appellant and his companions, Jamber Singh brought a cot and he (Jamber Singh), along with others, loaded and carried Kapur Singh on it to Primary Health Centre, Gharyala, covering a distance of about 12 kilometres, and they reached there at about II 15 PM Therefore, the lime, extending to three hours, consumed in carrying Kapur Singh to the aforesaid Primary Heahh Centre cannot be said to be unjustified. On receipt of information about arrival of Kapur Singh in injured condition from Dr. Harbans Singh, Assistant Sub Inspector Amar Singh, then posted at Police Post, Gharyala, reached the Primary Health Centre at 11.55 P.M. and recorded the statement of Jamber Singh, which was completed at about 1 A.M. Therefore, it cannot be gainsaid that report (Exhibit P. 10), on the basis of which First Information Report (Exhibit P. 10/A) was recorded at Police Station, Valtoha, at 2.15 A.M. was made by Jamber Singh without any delay, muchless culpable. So, it contains the earliest version of the event. It contains exactly the same story which has been related by the aforesaid witnesses. The names of the appellant, Surjit Singh, Gurmukh Singh and Sawarna, being the assailants, the weapons which they possessed and used for causing injuries, and the names of the eye-witnesses, as well as the details of the version, are clearly mentioned in it. So, it corroborates the statement of Jamber Singh and reads consistent with the prosecution case. There is absolutely nothing on the record to show that the aforesaid witnesses, or any one of them, had any ill-will against the appellant and his aforesaid three companions or that they (the witnesses) had any cause or reason to make false statements against them. The statements of the aforesaid eye-witnesses read consistent and do not suffer from any defect which could induce us to disbelieve them. True, the statement of Puran Singh is silent with regard to the injuries caused to Tarlok Singh. But there is nothing in his statement to show that the said injuries had not been caused to Tarlok Singh at the time of incident. So, if his statement does no support the prosecution case, respecting the injuries caused to Tarlok Singh, it does not negative it at the same time. The result is that after giving our careful consideration to the entire evidence and circumstances of the case, we are satisfied that the eye-witnesses have stood the necessary test of judicial scrutiny very well and they have appealed to us as reliable witnesses and the version, deposed to by them strikes genuine.

Dr. Harbans Singh (P.W. 1), who examined Kapur Singh, when he was alive, at 11.15 P.M. on 29th January 1969, as well as Dr. A. Phillips (P.W 3), who conducted autopsy on his (Kapur Singh''s) dead body at 12.15 P.M. on 31st January, 1969, found an incised wound on the head and a stab wound on left side of the nose. Dr. A. Phillips testified that the base of the brain had been cut as a result of the stab wound and it resulted into the death of Kapur Singh. It is also in evidence from Dr. Harbans Singh that he found a contused wound and a contusion on the head and an abrasion on the right forearm and another abrasion on the right thigh of Tarlok Singh on 30th January, 1969. The ocular testimony, as discussed in the preceding paragraph, tells that the appellant had hit spear near the left eye of Kapur Singh and Sawarna (appellant in other appeal) had struck gandasi on his head and that Surjit Singh and Gurmukh Singh had caused injuries with lathis to Tarlok Singh. The incised wound found on the head of Kapur Singh could be caused with the blow of gandisi by Sawarna to him and the stab wound found on the left side of his nose could be caused to Kapur Singly by the blow of spear wielded by the appellant. The contused wound, contusion and abrasions could be caused to Tarlok Singh from lathi blows given by Surjit Singh and Gurmukh Singh. Therefore, the medical evidence reads consistent with the ocular testimony and lends necessary assurance to the prosecution case.

It is in evidence from Assistant Sub-Inspector Des Raj that, despite search, the appellant and his companions, viz., Surjit Singh, Gurmukh Singh and Sawarna were not found on 30th and 31st January, 1969, and that they were produced before him on 18th February, 1969. The said ascendance of the appellant, and his companions, may not, by itself, be evidence of their guilt, but it does read consistent with the prosecution case.

At one stage of the arguments, the learned counsel appearing for the appellant, and his companions, contended that since Ishar or any person residing in the vicinity of the scene of incident was not examined by the prosecution, an adverse inference should be raised against the correctness of its version. There is, however, nothing on the record to show that Ishar, or any other person, had witnessed the incident. Jamber Singh (P.W. 4) and Tarlok Singh (P.W. 5) have asserted categorically that none else, other than the four eye-witnesses, had arrived at the scene of incident. Therefore, in absence of any material to indicate that any person other than the eye-witnesses, had witnessed the incident, the prosecution cannot be censured for not producing Ishar or any other person, alleged to be residing in the vicinity of the scene of incident. Since Ishar had invited Kapur Singh and his companions, as well as the appellant and his companions, to dinner at his house, it can be presumed that he was friendly towards both the parties, and, as such, it was difficult, or at least inconvenient, for him to give evidence about the exchange of abuses between Kapur Singh and Surjit Singh. Therefore, the prosecutor was not unjustified in giving him up as won over. Further, since he did not witness the incident, his (Isliar''s) evidence could not be of much assistance to the prosecution. It follows from the discussion above that the prosecution did not withhold any material witness with ulterior motive and, as such, no adverse inference can be drawn against its version for non-production of Ishar, or any other person alleged to have been residing in the vicinity of the scene of incident.

In the last, it was contended that Section 34, Indian Penal Code, was not applicable to the case and, therefore, Surjit Singh and Gurmukh Singh could not be indicted for the murder of Kapur Singh as they did not cause any injury to him. ''Common intention'' or ''knowledge'' cannot be proved by direct evidence and has to be inferred from the act, conduct of the accused and attending circumstances of a particular case. No doubt, it pre-supposes pre-arranged plan, but some time it can be conceived at the spur of the moment. It has been observed by their Lordships of the Supreme Court in Rishideo Pande Vs. State of Uttar Pradesh, , that where the accused did not inflict any blow on the deceased, yet it was found that he shared the common intention to kill him and actually participated in the criminal act by being present on the spot, armed with his lathi, in the eye of law, he was as much guilty of the whole criminal act as his co-accused, who actually dealt the fatal blow. In the case in hand, Surjit Singh felt humiliated when Kapur Singh rebuked him for not supplying water and then there had been exchange of abuses between them (Kapur Singh) and Surjit Singh. The appellant had taken the aforesaid misconduct of Kapur Singh, as insult and it was at his instance that Surjit Singh, Gurmukh Singh and Sawarna, along with him, had left the house of Ishar in protest. They had no weapon, or at least there is not evidence to show that they carried any arm when they were present in the house of Ishar or when they left it. After leaving the house of Ishar, the appellant, Sawarna, Surjit Singh and Gurmukh Singh had armed themselves with spear, gandasi and lathis and then waited for Kapur Singh near the house of the appellant. It is, thus, obvious that their feeling of resentment was against Kapur Singh. As soon as he appeared, the appellant hit spear near his nose and then Sawarna struck gandasi on his head as a result of which he dropped on the ground. When Tarlok Singh came forward to save him (Kapur Singh), Surjit Singh and Gurmukh Singh deterred him by giving lathiblows to him. They are relations and they, as discussed in paragraph 3 above, had motive to cause injuries of serious nature to Kapur Singh. All the aforesaid circumstances and ac''s and conduct of the appellant and his companions, when taken together, give rise to reasonable and legitimate inference that all of them, viz., the appellant, Sawarna, Surjit Singh and Gurmukh Singh, had shared the common intention to cause the death of Kapur Singh or at least to cause such bodily injury which was sufficient in the ordinary course of nature to cause death to him. ''Criminal act'' is not equivalent to offence which is composed of physical act, its effect and the intention or knowledge with which the physical act was performed reg. Nazir and Others Vs. Emperor, . The physical act, i.e., the causing of injury or injuries, is the criminal act, which culminates into an offence. So physical act is the cause while offence is the effect. Section 34, Indian Penal Code, refers to criminal act, i.e., the physical act and not to offence which is the result of the physical or criminal act. Each of the persons joining in the commission of a criminal act is liable for any such act committed by any of the persons joining, as was done in furtherance of the common intention, and that it is not necessary for the liability of the persons joining in the commission of a criminal act that they must have the common intention about the exact result which was to follow from the act or about the offence which would be made out on account of actual physical act and its results. Thus the others would be liable for such acts of the other confederates as were likely to be committed in the carrying out of the common intention and which would have been normally foreseen and even contemplated by those persons. (Vide reg. Nazir''s case supra).

Surjit Singh and Gurmukh Singh knew that the appellant was carrying a spear and Sawarna was carrying a gandasi for causing injuries to Kapur Singh. They could see that normally injuries caused with such weapons, i.e., spear or gandasi, would result in the death of the victim. Surjit Singh and Gurmukh Singh had themselves carried one lathi each. They used the same in wielding blows to Tarlok Singh who had come forward to save Kapur Singh and thereby deterred him to come near him (Kapur Singh). It is immaterial that when Kapur Singh had fallen under the blows of spear and gandasi given to him by the appellant and Sawarna that they (Surjit Singh and Gurmukh Singh) did not feel the necessity of causing injuries themselves to him (Kapur Singh). It is the original or the common intention which matters and when the criminal act, i.e., the causing of injury which proved fatal, was committed by anyone of the persons joining in the commission of the said criminal act in furtherance of that original or common intention, each one of the said persons would be liable for the fatal result and it is not open to any one of them to plead that he never meant to cause such a fatal result. Therefore, when, as shown above, Surjit Singh, Gurmukh Singh and Sawarna shared the common intention with the appellant to cause injuries to Kapur Singh, all of them are responsible for the fatal result, which followed from the below given by the appellant on the left side of the nose of Kapur Singh. Hence, we find no force in the aforesaid contention of the learned counsel for the appellant and over-rule the same. We find ourselves in agreement with the trial Court that Section 34, Indian Penal Code, is applicable to the facts of the case.

Spear is a deadly weapon. The appellant gave blow with it on the face, which is vital part of human body, of Kapur Singh with such a force that it (the spear) had gone up to the brain cutting the bones underneath and had also caused a cut to the brain and the said injury proved fatal. Dr. A. Phillips testified that the said injury was sufficient in the ordinary course of nature to cause death; It is, therefore, clear that the act of the appellant, in causing the aforesaid injury with spear to Kapur Singh, falls within the scope of clause ''thirdly'' of section 300, Indian Penal Code, and the offence committed by him is murder. Sawarna had also given a severe blow with gandasi on the head of Kapur Singh. Since, as held above, Section 34, Indian Penal Code is applicable. Sawarna, Surjit Singh and Gurmukh Singh were rightly convicted u/s 302, Indian Penal Code, read with section 34, Indian Penal Code. As Surjit Singh and Gurmukh Singh had caused simple hurts to Tarlok Singh, they were rightly found guilty u/s 323, Indian Penal Code, and the appellant and Sawarn Singh were held guilty for that offence by application of section 34, Indian Penal Code.

In the conclusion, we find that the appellant, Sawarna, Surjit Singh and Gurmukh Singh were rightly held guilty for causing the murder of Kapur Singh and also for causing hurt to Tarlok Singh. The sentences awarded for the said offences to them are proper. So, there is no force in either of the four appeals and the same must fail.

Consequently we maintain the convictions and sentences awarded to the appellant, Sawarna, Surjit Singh and Gurmukh Singh by the trial Court and dismiss this appeal as well as Appeal Nos. 44, 46 and 47 of 1971.