Sadhu Singh vs State of Punjab

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment and order dated 24.2.1996 passed by the Court of Additional Sessions Judge, Gurdaspur, who convicted the appellants, Sadhu Singh and Gurdip Singh, cultivators, residents of Village Cheema Khudi, Distt. Gurdaspur, under Sections 450 and 307/34 I.P.C. and under Sections 450 and 307, I.P.C. respectively. Both the appellants were sentenced to undergo R.I. for a period of 7 years each and to pay a fine of Rs. 250/ each. In default of payment of fine, they were further directed to undergo R.I. for one month each under Section 450 IPC. Further, appellant Gurdip Singh was sentenced to undergo R.I. for a period of 7 years and to pay a fine of Rs. 250/. In default of payment of fine, Gurdip Singh was directed to undergo R.I. for one month under Section 307 IPC. Similarly, Sadhu Singh appellant was directed to undergo R.I. for a period of 7 years and to pay a fine of Rs. 250/. In default of payment of fine, he was ordered to undergo R.I. for one month under section 307 read with section 34 IPC. It was, however, ordered by the trial Court that the substantive sentences awarded to the appellants shall run concurrently.

The story of the prosecution can be deescribed in the following manner :

Smt. Sukhwinder Kaur, PW2, is the widow of Shri Surjit Singh, S/o Sadhu Singh (appellant). Surjit Singh was murdered by the extremists. He left behind 5 issues. The land falling to the share of Surjit Singh was got cultivated by the complainant. Sadhu Singh and Gurdip Singh, appellants, wanted to grab the land from Sukhwinder Kaur. The issues of Sukhwinder Kaur were minor. In order to look after her children, Sukhwinder Kaur had kept her mother Smt. Gurdip Kaur in her house. This was so done by Sukhwinder Kaur alsofor her own protection. The appellants were not happy with this arrangement. Resultantly, they had earlier caused injuries to Gurdip Kaur. A criminal case was pending against them. Sukhwinder Kaur, PW2, was cited as a prosecution witness. Sadhu Singh and Gurdip Singh had been pressurising her not to appear as a witness against them but Sukhwinder Kaur did not agree. On 13.12.1989 at about 7/7.30 PM, when Sukhwinder Kaur was present in her house and was busy in tethering the cattle heads in a room and when her minor son Sakandar Singh was also there, both the appellants came there and they trespassed inside the house. Appellant Sadhu Singh was carrying a Datar while Gurdip Singh, appellant, had a bottle containing petrol. He was also having a match box. Sadhu Singh raised a Lalkara exhorting his coaccused Gurdip Singh that Sukhwinder Kaur be set on fire as she had not effected the compromise with them. On hearing the Lalkara, Sukhwinder Kaur came in the verandah. Gurdip Singh sprinkled the petrol on the person and clothes of Sukhwinder Kaur and set her on fire. As a result of that, Sukhwinder Kaur sustained burn injuries on her both hands, face and breast. She raised hue and cry upon which her son Sakandar Singh was attracted. He also raised an alarm saying Mar Ditta Mar Ditta. Thereafter, both the appellants run away from the place of occurrence. On hearing the Raula, some neighbours came to the house of the complainant. There was no peace in the State of Punjab during those days, so nobdoy took the courage to get the injured admitted in the hospital during the night. On the next date, i.e. on 14.12.1989, Smt. Balwinder Kaur w/o Shinda Singh, arranged a conveyance and got Sukhwinder Kaur admitted in Civil Hospital, Batala. The injured remained unconscious till 23.12.1989 when SI Harbhajan Singh, PW5, went to the Civil Hospital, Batala, and after obtaining the opinion from the Doctor about the fitness of Sukhwinder Kaur, he recorded the statement Exh. PB at about 4.00 PM. It was read over and explained to the complainant, who signed the same in token of its correctness. SI made his endorsement Exh. PB/1 and the statement Exh. PB was sent to the Police Station, Siri Hargobindpur, on the basis of which a formal FIR, Exh. PB/1, No. 53 was recorded. Thereafter, SI Harbhajan Singh went to the place of occurrence and inspected the spot and prepared the rough site plan, Exh. PW 5/A with correct margin notes. He recorded the statements of the witnesses under section 161, Cr.P.C. Thereafter, ASI Bahadur Singh arrested the accused.

Doctor K.K. Singh, Medical Officer, Civil Hospital, Batala, on 14.12.1989 treated the injured. Exh. PA is the Bed Head Ticket of Sukhwinder Kaur. The injured was also treated by Doctor Gurmit Singh besides Doctor Sukhdip Singh and Doctor Ashok Nayyar. As per the statement of Doctor K.K.Singh, the injured remained in the hospital from 14.12.1989 to 23.1.1990 for a period of about one month and 8 days. As per the statement of Doctor K.K. Singh, the injured had multiple burn injuries to the extent of 25% to 30% on neck, chest and both hands. On 21.3.1991, Satish Chander, Draftsman, prepared the scaled site plan, Exh. PW4/A at the instance of Sukhwinder Kaur. On the completion of the case, both the accused were challaned in the court of the Illaqa Magistrate under Sections 326, 452 and 307/34, IPC perhaps on the basis of the opinion of the doctor. The learned Magistrate supplied the copies of the documents to the accused as required under the law and vide commitment order dated 4.9.1992, committed the accused to the court of Sessions to stand their trial.

Vide orders dated 7.10.1992, the Additional Sessions Judge, Gurdaspur, framed charge against the appellants under section 450, IPC and substantive charge under section 307 against Gurdip Singh and substantive charge under Section 307 read with section 34, IPC, against Sadhu Singh. The charges were read over and explained to the accused to which they pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined Doctor K.K. Singh, Medical Officer, Civil Hospital, Batala, as PW1, Sukhwinder Kaur as PW2, Sakandar Singh, child of 13/14 years, as PW3, Satish Chander, Draftsman, as PW4 and the I.O. Harbhajan Singh as PW5. It may be mentioned here that the occurrence took place on 13.12.1989 and the statement of Sakandar Singh was recorded on 9.5.1994 in the trial court. Thus, it can be safely concluded that this witness Master Sakandar Singh must be aged about 9/10 years at the time of the occurrence.

On the closure of the prosecution evidence, the statements of the appellants were recorded under Section 313, Cr.P.C. and all the incrimination circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and the plea of Sadhu Singh, appellant, was as follows :

"I am innocent. Sukhwinder Kaur got two cases registered against us in order to get the land. One case bearing FIR 160/88, Police Station Siri Hargobindpur (State v. Sadhu Singh) was registered at the instance of Gurdip Kaur, in which we were acquitted by Shri G.S. Khurana, Additional Sessions Judge, Gurdaspur, on 16.4.1991. On 3.4.1991, S.P. Sharma, Advocate and Kashmir Singh, Advocate, Batala, had got effected a compromise. I had executed a sale deed of 3 killas of land in favour of Sukhwinder Kaur and her 3 sons. This case is false one."

The plea of Gurdip Singh was the same as that of his father, coaccused Sadhu Singh.

When called upon to enter into the defence, the accused examined Karamjit Singh as DW1, Constable Satnam Singh as DW2, Clerk Surinder Singh as DW3 and Kashmir Singh, Advocate, as DW4. The accused also tendered into evidence Exh. DA, a copy of the application moved by Sadhu Singh to the S.S.P., Batala, Exh. DB, a copy of the sale deed dated 3.4.1991, Exh. DC, a copy of the judgment dated 16.4.1991, Exh. DD, a copy of the statement of Gurdip Kaur recorded on 16.4.1991 and Exh. DE, a copy of the statement of Swinder Kaur, and closed the case.

The learned trial court believed the story of the prosecution and rejected the defence version and convicted and sentenced the appellants in the manner stated above and aggrieved by their conviction and sentence, the present appeal.

I have heard Mr. B.S. Bhasaur, Advocate, on behalf of the appellants and Mr. J.S. Brar, DAG, Punjab on behalf of the respondent and with their assistance have gone through the record of this case.

The appellants are none else but the close relations of Sukhwinder Kaur. Sadhu Singh is the fatherinlaw and Gurdip Singh is the Jeth of Sukhwinder Kaur. It is an established fact on the record that Surjit Singh, husband of Sukhwinder Kaur, died after leaving behind his 5 children. The case of the prosecution is that after the death of Surjit Singh, the land falling to his share was being cultivated by Sukhwinder Kaur. In order to look after her children, Sukhwinder Kaur had also called her mother Gurdip Kaur. This act on the part of Sukhwinder Kaur was but natural, keeping in view the fact that her children were small and she was apprehensive that the land falling to the share of her husband Surjit Singh might not be grabbed by the relations of Surjit Singh and exactly this was the motive in the present case. Both the appellants were not happy with this arrangement on the part of Sukhwinder Kaur as to why she had taken the services of her mother. Earlier, Gurdip Kaur was injured and it is the common case of the parties that a criminal case started though ended with an acquittal. Land is very dear to the agriculturist class in this part of the country. After the death of Surjit Singh, his share had fallen in the lap of Sukhwinder Kaur, who was cultivating the land. This was an irksome point on the part of the appellants and in order to teach her a lesson, they had every cause and occasion to commit the offence. Thus, the motive part of the story is totally established. The motive aspect of the case can also be viewed from another angle. It is not the defence of the accused that the land falling to the share of Surjit Singh was being cultivated by them. In these circumstances, it can be reasonably inferred that Sukhwinder Kaur must be getting cultivated the land falling to the share of Surjit Singh from somebody else and this, naturally, could not be liked or appreciated by the appellants. The counsel for the appellants made an effort to establish that there was no motive on the part of the present appellants to commit the offence because under the compromise, they had already sold 3 killas of land to Sukhwinder Kaur.

I do not subscribe to the argument raised by the counsel for the appellants because I have just stated above that though Sadhu Singh might have sold the land in the name of Sukhwinder Kaur or in favour of her sons, the fact is that the ancestral land of Sadhu singh had gone to the custody of Sukhwinder Kaur, who became a stranger in the family of Sadhu Singh after the death of her husband Surjit Singh. Also a criminal case was pending between the parties and for this reason it can be safely inferred that the relations between Sukhwinder Kaur on the one hand and Sadhu Singh and his son Gurdip Singh on the other hand, were not cordial. Sukhwinder Kaur was an eye witness qua the case of Gurdip Kaur and the story of the prosecution is that Sukhwinder Kaur was being pressurised by the appellants not to depose against them and she was not agreeing to this prayer of the appellants. Thus, in these circumstances, it can be reasonably inferred that the present appellants had every cause of action to take the law into their own hands.

It was then submitted by the learned counsel for the appellants that the occurrence had taken place on 13.12.1989 while the FIR in this case was registered on 23.12.1989 and, thus, there is a delay of 14 days in recording the FIR.

The submission if scrutinised in depth has no legs to stand. According to the prosecution, the occurrence had taken place inside the house of Sukhwinder Kaur and the same was witnessed by her son Sakandar Singh, PW3, who was aged about 9/10 years at the time of the occurrence. The story of the prosecution goes that during those days, terrorism was at peack. It is not established on the record that Gurdip Kaur was present in the house, who could possibly remove the injured to the hospital. What a boy of 9/10 years could do during the night when the State was burning ? In these circumstances, it can be reasonably inferred that during the night of 13.12.1989, the injured remained in the house as nobody had taken her to the hospital. This court cannot also lose sight of the fact that this was a dispute between the fatherinlaw and the daughterinlaw. On the next day, Balwinder Kaur w/o Shinda Singh took the courage and she arranged a conveyance and, in this manner, the injured was brought to the hospital. On the arrival of the injured, the intimation must have gone to the police station about the admission of Sukhwinder Kaur. A close perusal of the statement, Exh. PB of the injured would show that from 13.12.1989 upto 23.12.1989 she remained unconscious and immediately on regaining consciousness, she made her statement before SI Harbhajan Singh, who recorded the statement, Exh. PB of the injured. Even the Bed Head ticket, Exh. PA of Sukhwinder Kaur does not indicate that she was in senses or was conscious when she was brought in the hospital and perhaps for this reason her formal medical examination did not take place. Thus, I repel the second submission of the learned counsel for the appellants that there was an inordinate delay in lodging the FIR or that the occurrence was not witnessed by any person.

It was then submitted by the learned counsel for the appellants that the prosecution has not been able to prove the occurrence beyond any reasonable doubt. The counsel submitted that Sukhwinder Kaur was highly inimical with the appellants and she had made a false statement which is sought to be corroborated by Master Sakandar Singh, who is none else but the son of Sukhwinder Kaur.

I do not agree with the contention raised by the counsel for the appellants. Relationship per se is no ground to reject the statement of Sakandar singh. The occurrence had taken place inside the house of Sukhwinder Kaur and, in these circumstances, the presence of Sakandar singh is very natural. Had the prosecution wanted to introduce a false witness, it could very easily take the service of Gurdip Kaur, mother of Sukhwinder Kaur. Sukhwinder Kaur is an injured witness. The offence has been committed by none else but her real fatherinlaw and Jeth and, in these circumstances, Sukhwinder Kaur can easily identify her assailants. Though the occurrence had taken place in the month of December, 1989, yet there could not be any difficulty on the part of Sukhwinder Kaur to identify her assailants as the Lalkara has been attributed to Sadhu singh. The accused and the injured PW are closely related. It is also not believable that Sakandar Singh has falsely deposed against his own grandfather and `Taya''. I have perused the statement of Sukhwinder Kaur in depth and she has stood the test of cross examination. Her statement is corroborated by her son Sakandar Singh besides PW1 Doctor K.K. Singh, who deposed that the injured suffered 25% to 30% burn injuries on her hands, chest and neck. Thus, I am inclined to hold that the prosecution has been able to prove the occurrence through Sukhwinder Kaur, Sakandar Singh and from the statement of Doctor K.K. Singh.

It was then submitted by the counsel for the appellants that the trial court erred in recording the conviction under Section 307 and under Section 307/34 IPC against Sarvshri Gurdip Singh and Sadhu Singh, respectively. According to the counsel, at the most, the offence under Section 326, IPC is made out, keeping in view the nature of the injuries and keeping in view the fact that the injured remained in the hospital for more than 30 days and she could not perform her daily pursuits.

On the contrary, Mr. J.S. Brar, learned counsel appearing on behalf of the State submitted that the present crime has been committed with the intention to take the life of Sukhwinder Kaur and, therefore, the conviction has been rightly recorded under Section 307 and 307/34, IPC. In support of his contention, the learned DAG relied upon Sarvinder Singh alias Chhinda son of Kesar Singh and another v. The State, 1976 PLR 867, a Full Bench judgment of this Court, wherein it was held as follows :

"Held, that in our opinion intention or knowledge is not to be measured by the consequence. It has to be gathered from all the surrounding facts and circumstances. If an act is done with the intention or knowledge requisite for the commission of the offence of murder, and, if there are no circumstances introducing a defence to a charge of murder either by way of a general or a special exception, the offence would be attempt to murder, if the act does not result in death, whatever be the reason for the act not resulting in death, whatever be the nature of the injuries, and even if no injuries are caused. The requisite intention, or knowledge is not to be excluded from the mere fact that death is not the consequence of the act. Such an act may not result in death for a variety of reasons, such as, the ineffectiveness of the weapon, the ineffectiveness of the assailant, the movement of the victim, the intervention of a sudden obstruction etc. It is true that the mere act of firing a gun need not necessarily lead to the inference of the requisite intention or knowledge necessary to make the offence one of murder. A person may fire a gun in the air intending to frighten some one, a person may aim and shoot at some one''s legs intending to cause injury to the leg, a person may discharge a gun from a distance of 300 yards knowing that the maximum range of the gun is 30 yards. In such or similar situations, one may not draw the inference of the requisite intention or knowledge for the commission of the offence of murder. But, if a person shoots at another at a sufficiently close range or if a person fires a loaded canon at a crowd of person, the requisite intention or knowledge can be readily inferred. Such an intention or knowledge cannot be refused to be inferred merely because the act does not result in the death of any one either because the weapon is defective or because the powder is wet or the pellets too small, or because only a few pellets strike the victim, the aim of the assailants being poor, or because the victim is so lucky that no vital portion of the body is injured or expert medical attention available on the spot saves his life and so on."

On the contrary, it has been submitted by the counsel for the appellants that the ratio of this authority will not be applicable to the facts in hand because the cited case was a case of fire arm. In the present case, since the injuries have been caused to Sukhwinder Kaur, the offence has to be measured according to the injuries suffered by her and the intention or knowledge on the part of the appellants has to be gathered from the consequences of the alleged act attributed to the appellants as the burns on the body of Sukhwinder Kaur were declared to be 25% to 30%. Moreover, the medicolegal report of the injured was never issued at the first instance and, therefore, it cannot be said that the injuries on the person of Sukhwinder Kaur were dangerous to life or could endanger her life. Counsel maintains that when the injured was got admitted in the hospital the doctor did not state in the Bed Head Ticket that the injuries on the person of Sukhwinder Kaur were dangerous to life. So much so, at no point of time the doctor attending upon Sukhwinder Kaur had stated that the injuries suffered by her were dangerous to life. Submitting further, the counsel for the appellants stated that Doctor K.K. Singh had, for the first time stated in the court "But for the timely medical aid, the patient would have died in the natural course of events". However, in the crossexamination he had stated that earlier he had not mentioned that the patient would have died but for the timely medical aid and he had deposed about this fact for the first time in court at the time of making the statement on 9.5.1994. At no point of time, he gave the information to the police about this fact. Rather, the doctor has admitted "that normally, a person dies only if there 50% or above burn injuries. In the present case, as per the Bed Head Ticket, Ex. PA, there were only 25% to 30% injuries."

Seeing merit in the contention raised by the counsel for the appellants, I am of the opinion that the trial Court committed an error in recording the conviction under Section 307 and 307/34 IPC. Rather the offence, in the opinion of this court, was committed under Section 326, IPC on behalf of Gurdip Singh and under Section 326/34 IPC on behalf of Sadhu Singh. Of course, both the appellants had committed the offence under Section 450, IPC. This point has been dealt by the learned trial Court in paragraph 18 of the judgment, which I would like to quote as follows :

"Last point urged before me by the learned defence counsel is that offence under Section 307 IPC is not made out as the doctor has opined for the first time in the court that Sukhwinder Kaur would have died in the natural course of events, but for timely medical aid. He further drew my attention to the statement of PW1 who stated that normally a man dies if he has burn injuries to the extent of 50% or above and that in this case there were 2530% injuries. In support of this contention reliance has been placed on the authority Rajesh Vimal Kumar and another v. State (Delhi Administration), 1995(2) Recent Criminal Reports page 140. I have given my careful though to this submission but I do not find myself inclined to accept it. Intention or knowledge as envisaged under Section 307 IPC has to be gathered from all the surrounding facts and circumstances. If an act is done with the intention or knowledge requisite for the commission of the offence of murder, and, if there are no circumstances introducing an defence to a charge of murder either by way of general or a special exception, the offence would be attempt to murder, if the act does not result in death, whatever be the nature of the injuries and even if no injuries are caused. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. In this view of the matter, I am fortified by the observations of the Hon''ble Full Bench of the Punjab and Haryana High Court in the case of Sarvinder Singh alias Chhinda son of Kesar Singh and another v. State, 1976 PLR page 867. In this connection authority State of Maharashtra v. Balram Bama Patil and others, 1983 Criminal Law Journal page 331 can also be cited with advantage. As discussed earlier in this case, there was motive for the accused to assault the victim. Both the accused with common intention went to her house. Sadhu Singh was armed with datar, whereas Gurdip Singh was having bottle full of petrol and matchbox. From this it can easily be inferred that they had gone with the intention to kill her and in consequence thereof petrol was sprinkled on her body and she was set ablaze but she was saved with timely medical help. She remained admitted in the hospital from 14.12.1989 to 22.1.1990 i.e. for a period of one month and 8 days. Mere fact that doctor opined that normally a man dies with 50% burn injuries or above, does not take the case out from the purview of Section 307 IPC in the facts and circumstances of this case. So far as the case of Rajesh Kumar (supra) is concerned, it does not hit the bull''s eyes. In that case doctor who had opined the injuries to be dangerous was not examined. It is not so in this case. Accordingly, I am of the considered view that Section 307 IPC also stands attracted."

I am not in agreement with the reasons advanced by the learned trial Court. The judgment relied upon by the learned trial Court has not been rightly appreciated. It may also be mentioned here that the FIR in this case was registered under Section 326 IPC. The cited case was a case of fire arm where several accused had fire arms in their possession and they used their weapons. The injuries were on the vital part of the body, like abdomen. It was a providential escape on the part of the injured. In these circumstances, the Hon''ble Judges of the High Court were pleased to hold that in order to determine the offence under Section 307 IPC, the intention or knowledge has to be seen and this factor is not to be measured by the consequences. Present is a case of simple burns, the range of which is 25% to 30%. Resultantly, I am inclined to reduce the offence under Section 307, IPC to Section 326, IPC, and modify the conviction of Gurdip Singh to Section 326, IPC and that of his co accused Sadhu Singh to section 326/34 IPC. However, their conviction under Section 450 IPC is hereby maintained.

On the quantum of sentence, I also reduce the substantive sentence of both the appellants from 7 years to 4 years under Section 450 IPC. However, they are directed to pay a fine of Rs. 250/ each. In default of payment of fine, they shall undergo R.I. for one month each as awarded by the trial court. Appellant Gurdip Singh shall further undergo R.I. for 4 years under Section 326, IPC and Sadhu Singh, appellant, shall also undergo R.I. for 4 years under Section 326/34 IPC. Both the appellants shall further pay a fine of Rs. 250/ each as imposed by the trial Court. In default of payment of fine, each one of them shall further undergo R.I. for one month. Both the sentences shall run concurrently. To this extent, the conviction and sentence of the appellants under Section 450 IPC, as awarded by the trial court, is affirmed.

The net result is that this appeal is allowed in part in the terms stated above. The rest of the appeal is hereby dismissed in all particulars.