SIS vs The State of Punjab

A.D. Koshal, J.—For the murder of Bujha, aged 45 years, a resident of village Chak Phullu in Police Station Garhshankar, two persons, namely. Sis, aged 26 years, and Dara alias Didar Singh, aged 18 years, both residents of the same village, were jointly tried by Shri Surinder Singh, Sessions Judge, Hoshiarpur, the charge against Sis being one u/s 302 of the Indian Penal Code and that against his co-accused being one under that section read with section 34 of the Code Didar Singh accused was given the benefit of doubt and acquitted of the charge while Sis accused was held guilty of the murder and sentenced to imprisonment for life.

The judgment of the learned Sessions Judge is dated the 27th of June, 1969, against which Sis convict has filed the present appeal.

The prosecution case may be stated thus. Till the date of his death the deceased and his brother Kartar Singh (P. W. 2) had joint residence and cultivation. They had their para at a distance of about 3 Killas from the village abadi and adjoining that bara, they had their Residential house. The bara of the appellant lies opposite to that bara and the two of them are separated from each other by a 4-Karam wide path. The residential house of the appellant adjoins his own bara.

At about 4 or 5 P.M. on the 14th of October, 1968, Kartar Singh (P. W. 2), his son Bhajan Singh (P. W. 3) and the deceased were present in their bara. The deceased started for the village abadi and when he emerged on to the said path, he was invited to drinks by the appellant and his co-accused. At Bujha''s refusal to accept the invitation, which the appellant and his co-accused regarded as a personal insult to them, they started abusing Bujha who returned the abuse. Didar Singh accused then raised a lalkara in response to which Sis appellant who was holding a kulhari, gave a blow therewith to Bajha on the right temple. Bujha fell down on the ground and both the accused ran away, Sis appellant carrying the kulhari with him.

The occurrence was witnessed not only by Kartar Singh (P. W. 2) and Bhajan Singh (P. W. 3) but also by Bakshish Singh (P. W. 4), who is a resident of Mukandpur, which lies only half a mile away from Chak Phullu, and who was returning home after a visit to Mohan Singh (P.W. 5) who owed him rent in respect of some land. The three eye-witnesses found Bujha dead. After calling the village chowkidar to the place of occurrence, Kartar Singh (P. W. 2) went to Police Station Garhshankar where he lodged first information report Exhibit P.E. with Sub-Inspector Hardial Singh (P. W. 16) in respect of an offence u/s 304 read with section 34 of the Indian Penal Code. The Sub Inspector accompanied Kartar Singh (P. W. 2) to the place of occurrence and prepared the inquest report. He then secured bloodstained earth from the place where the dead body had been lying. A search for the accused during the night proved futile.

The autopsy was conducted by Dr. Suraj Bhalla, Incharge, Primary Health Centre. Garhshankar (P. W. 1) on the 15th of October, 1968, from 9 A.M. onwards when, apart from two abrasions, the deceased was found to have suffered only one injury, being an incised v-shape wound having the dimensions 2 �" x 1" and located on the outer side of the right eye-brow. The right side of the lower part of the frontal bone was found fractured as also the base of the skull in the middle of the right cranial fossa. The incised wound was, in the opinion of the doctor, sufficient in the ordinary course of nature to cause death because of the two fractures which resulted from it.

Dara Singh accused was arrested on the 21st of October, 1968. On the next day the appellant contacted Lambardar Aram Chand of Chak Singha (P. W. 15) to whom he made a confession that Bujha had died as a result of the injury given by him (the appellant) with a kulhari. The Lambardar produced the appellant before the Sub-Inspector who arrested him.

On the 25th of October, 1968, the appellant made a disclosure in pursuance of which Sub-Inspector Hardial Singh (P.W. 16) recovered kulhari Exhibit P. 1 in the presence of Amrik Singh (P.W.12) and Santa Singh (P.W.13).

Kulhari Exhibit P.1 and the earth secured from the spot were found by the Serologist to be stained with human -blood (vide report Exhibit P.L./i).

Sixteen witnesses were examined at the trial in support of the prosecution case, four of them on affidavits. They included three eyewitnesses, namely, Kartar Singh (P.W.2) Bhajan Singh (P.W.3) and Bakshish Singh (P.W.4) all of whom gave the same version of the occurrence as has been set out above. Mohan Singh (P.W. 5) deposed that on the day of the occurrence Bakhshish Singh (P.W.4) had visited him and had collected a sum of Rs. 250/- on account of rent pertaining to land held by the former as a tenant under the latter. Lambardar Amin Chand (P.W.15) testified to the correctness of the extrajudicial confession attributed to the appellant. The details of the investigation were furnished by Sub Inspector Hardial Singh (P.W. 16) who was supported therein by Amrik Singh (P.W. 12) and Santa Singh (P.W.13).

When examined in pursuance of the provisions of section 342 of the Code of Criminal Procedure, both the accused denied the allegations made against them by the prosecution and pleaded innocence, although the appellant admitted that his bara lay opposite to that of the deceased. They took the stand that Bujha had been killed by Bhajan Singh (P.W 3.) and the latter''s brothers named Jit and Bikkar who had been arrested by Inspector Sohan Lal in connection with this case.

In their defence the accused relied upon two documents, namely, jamabandi Exhibit D.B. and khasra girdawari Exhibit D.C. According to the entries in these documents, no land owned by Bakshish Singh or his father was occupied by Mohan Singh (P. W.5) as a tenant.

The presence of Kartar Singh (P. W.2) and Bhajan Singh (P.W.3) at the time and place of the occurrence was considered by the learned Sessions Judge to be quite natural. It was contended before him that the conduct of Kartar Singh (P.W.2) and his son Bhajan Singh (P.W.3) in not intervening when Bujha was attacked, was extraordinary and militated against their veracity but the learned Sessions Judge thought otherwise in view of the fact that the occurrence had taken place suddenly providing little occasion to the eye-witnesses to intervene He unhesitatingly arrived at the conclusion that the testimony of Kartar Singh (P.W.2) and Bhajan Singh (P.W 3) was fully reliable, supported as it was by the deposition of an independent witness, namely. Bakshish Singh (P.W.4) whose presence at the time and place of the occurrence was also accepted by him (the learned Sessions Judge) in spite of the fact that documents Exhibits D.B and DC did not support that part of the prosecution case according to which Mohan Singh (P.W.5) was cultivating a part of the land belonging to Bakshish Singh (P.W.4) as a tenant. It was pointed out to him that while Bakshish Singh (P.W.4) had taken up the position that Mohan Singh (P.W.5) had no money to pay to him, Mohan Singh (P.W 5) himself asserted that he had actually paid Rs.250/ to Bakshish Singh (P W.4) on the day of the occurrence. The learned Sessions Judge was of the opinion that the two statements were not irreconcilable.

The ocular testimony was found to gain support from the recovery of kulhari (Exhibit P.1) and the presence of stains of blood on it, even though the extra-judicial confession said to have been made to Amin Chand (P.W.15) was not considered reliable. The defence put forward by the accused was considered frivolous and futile and "rejected outright". Nevertheless, the learned Sessions Judge doubted that Didar Singh accused had raised any lalkara which was the only act attributed to him as part of the occurrence. The incised wound suffered by Bujha at the hands of the appellant was found to be an injury intentionally caused as also one which was sufficient in the ordinary course of nature to cause death. According to the learned Sessions Judge, therefore, the case of the appellant fell within the ambit of clause 3rdly of section 300 of the Indian Penal Code.

It was in these premises that the learned Sessions Judge acquitted Didar Singh accused but convicted and sentenced the appellant as aforesaid.

Kartar Singh (P. W. 2) and Bhajan Singh (P. W. 3) are near relations of the deceased and, therefore, very much interested in him but that is no reason at all why their test in only should be looked upon with suspicion although it is a circumstance enjoining scrutiny of their depositions with extraordinary caution. On the other hand, if the Court finds that they had seen the occurrence, they would be the last persons to substitute an innocent person for the real culprit. Now, according to the prosecution case, the occurrence took place between 4 and 5 P.M. and the first information report was lodged at the police station, which lies four miles away, at 9-10 P M. There is no material whatsoever on the basis of which it could be held that the occurrence took place earlier than alleged or that the time when the first information report was really recorded was later than that at which it purports to have been lodged. It was, therefore, promptly given and its contents consequently lend important corroboration to the deposition of Kartar Singh (P. W. 2). In it are mentioned all the details of the occurrence including the names of the accused, the deceased and the eye-witnesses as also the manner and consequences of the assault. There was no enmity between the appellant on the one hand and the deceased and the eye-witnesses on the other at any time prior to the occurrence and none of the three eye witnesses had cause to implicate the appellant falsely. As remarked by the learned Sessions Judge, the presence of Kartar Singh (P. W. 2) and Bhajan Singh (P. W. 3) who were joint in residence and cultivation with the deceased, was quite natural. The probabilities, therefore, are that they witnessed the occurrence and are witnesses of the truth.

The same is true of Bakshish Singh (P. W. 4), It cannot be gainsaid that he belongs to village Mukandpur which is separated from village Chak Phullu by a distance of half a mile but then he had good reason to visit the place of occurrence on his way back to his house after meeting Mohan Singh (P. W. 5). He is not interested in either party and there is no reason why he should have agreed to falsely charge the appellant with as serious an offence as murder. Undue significance need not be attached to the fact that the jamabandi and khasra girdawari entries do not indicate that any land belonging to Bakshish Singh (P. W. 4) was being cultivated by Mohan Singh (P. W. 5) as a tenant it not being unusual for landlords to make it appear in the revenue records that their lands were under their own cultivation even though actually their tillers were other persons. Nor do we find that the discrepancy appearing in the depositions of Bakshish Singh (P. W. 4) and Mohan Singh (P. W. 5) about the payment of rent by the latter to the former is material. We are convinced that Bakshish Singh (P. W. 4) saw the occurrence as did the other two eye-witnesses and that the reliance of the learned Sessions Judge on the ocular testimony was fully justified. A contention to the contrary raised on behalf of the appellant is, therefore, repelled.

The next contention raised by learned counsel for the appellant is that the recovery of the kulhari made on the 25th of October, 1968, i.e., three days after the appellant''s arrest is not genuine and should be ignored. We need not go into this aspect of the matter in view of What we have said about the eye-witnesses.

Another argument put forward on behalf of the appellant is that his false implication in the case is evidenced by the arrest on the 29th of November 1968 of Jit and Bikkar, brothers of Bhajan Singh (P.W. 3). The said arrest is a matter of record and Kartar Singh (P. W. 2) unhesitatingly admitted it while in the witness-box, but then we do not see how it helps the appellant. The fact of the matter is that the appellant had made an application to the higher police authorities stating that the investigating police officers had falsely implicated him and that the investigation should be entrusted to the C.I.A. staff. The request made in the application was accepted and Inspector Sohan Lal was deputed to carry out further investigation during the course of which he arrested it and Bikkar brothers of Bhajan Singh (P. W. 3) but later on had them discharged. The opinion which the Inspector formed in relation to the guilt or innocence of Jit and Bikkar is both immaterial and inadmissible and the appellant cannot, therefore, take advantage thereof.

The last contention raised by learned counsel for the appellant is that although his case is covered by clause 3rdly of section 300 of the Indian Penal Code, it also falls within the ambit of Exception 4 to that section which runs thus:

Explanation 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender''s having taken undue advantage or acted in a cruel or unusual manner.

The factors which reduce murder to culpable homicide simpliciter, according to this Exception, are:

(1) It should have been committed without premeditation.

(2) It should have been committed in a sudden fight.

(3) It should have been committed in the heat of passion.

(4) It should have been committed upon a sudden quarrel.

(5)It should have been committed without the offender''s having taken undue advantage or acted in a cruel or unusual manner.

If any one of these factors is missing in a particular case, the provisions of the Exception will not be attracted In the instant case factors (1), (3) and (4) are present but the other two factors, namely, that the murder Was committed in a sudden fight and that it was committed without the offender''s having taken undue advantage or acted in a cruel or unusual manner are absent. The wordy dual between the deceased and the appellant can at best be termed "a sudden quarrel" but it never developed into "a sudden fight" because there was no use or attempted use of violence on the part of the deceased against the appellant and without such use or attempted use on both sides the affair could not be termed "a fight". Reference in this connection be made with advantage to Atma Singh v. The State, AIR. 1955 Punjab 191, decided by Bhandari, C.J., and Falshaw, J. The following observations made by Falshaw, J., with whom Bhandari, C.J., agreed, while interpreting the word "fight" as used is section 300 of the Indian Penal Code, appear to me, with all respect, to lay down the law on the point correctly:

The term ''fight'' is not defined in the Code, but everyone knows what a fight is and that It takes two to make a fight. I would agree with the argument of the learned counsel for the appellant that it is not necessary that weapons should be used in a fight, and also that an affray can be a fight even if only one party in the fight is successful in landing a blow on his opponent.

I would however hold that in order to constitute a fight it is necessary that blows should be exchanged even if they do not all find their target, and I do not in the present case find any evidence to suggest that Shangara Singh aimed any blow at Atma Singh. I am, therefore, of the opinion that the case is not covered by the Fourth Exception and that it falls u/s 302, Indian Penal Code. It is, however, clear that Atma Singh speared Shangara Singh in the heat of the moment, and in the course of a sudden quarrel and that the murder was not premeditated, and in the circumstances, I do not consider that the extreme penalty is called for.

In the instant case there is no allegation from any quarter that the deceased used or attempted to use force in any manner against the appellant and Didar Singh accused and the affair, therefore, cannot be termed a "fight".

Learned counsel for the appellant has, however, drawn our Attention to Chamru Budhwa Vs. State of Madhya Pradesh, . In which Chamru appellant, his father Budhwa and his brother Damru were charged with having committed the murder of one Tiharu who was a cousin of Budhwa. The prosecution case was that about the time of night meal on the 26th of May, 1061, there was an exchange of abuses between the deceased and the three accused. The three accused went to the courtvard of the deceased with lathis in their hands, Damru threw a lathi towards the deceased and the deceased shouted out that he was struck and advanced a step or two towards the accused. The appellant dealt a blow on the head of the deceased with the lathi in his hand. The deceased fell down and was given a blow by Budhwa. In these circumstances their Lordships held that although the case fell within the ambit of clause 3rdly of section 300 of the Indian Penal Code, it was also covered by the provisions of Exception 4 thereto inasmuch as it appeared that the crime was committed without premeditation in a sudden fight In the heat of passion upon a sudden quarrel and without the appellant''s having taken undue advantage or acted in a cruel or unusual manner. The facts stated in their Lordship''s judgment do not Indicate whether or not the deceased was armed and as to how his gesture in advancing a step or two towards the accused was interpreted. The conclusion arrived at by their lordships must, in the circumstances of that case, be regarded as being confined to them and not to be laying down any proposition of law that even an affair in which violence is used or attempted only on one side can be regarded as a fight within the meaning of that term as used in Exception 4.

And then the deceased was unarmed while the appellant was holding a kulhari with which he gave the fatal blow to the former. He must accordingly he held to have taken undue advantage of the deceased and acted towards him in a cruel manner. For this reason also Exception 4 fails to be attracted in the instant case.

For the reasons stated we find the charge having been fully brought home to the appellant. He has rightly been given the lesser penalty of the law. Maintaining the conviction recorded against and the sentence imposed upon him, we dismiss the appeal.

M.M.S. Gujral, J.

I agree.