Wassan Singh vs State of Punjab

K.C. Gupta, J.—This appeal has been filed by Wassan Singh against the judgment and order dated 12.12.2000 passed by the Sessions Judge, Gurdaspur, whereby he was found guilty and convicted u/s 304 Part I of the Indian Penal Code and sentenced to undergo R.I. for 10 years and a fine of Rs. 5,000/-. In default of payment of fine, he was further sentenced to undergo R.I. for 4 months.

Briefly stated, the facts are that on 11.11.1993 at about 5 A.M., Prem Singh (now deceased) had gone from the house to the fields for starting tubewell. After sometime, Smt. Pritam Kaur wife of Kashmir Singh (mother of Prem Singh) reached the house in a perturbed condition. She told her husband, Kashmir Singh, that their son, Prem Singh, had been lifted by Wassan Singh, appellant, alongwith Sulakhan Singh, Hira Singh and Gurdip Singh from the tubewell and had been taken to their house.

Upon receipt of this information, Kashmir Singh, alongwith his brother Swarn Singh, went towards the house of Wassan Singh to know about his son, Prem Singh. When they reached near his house, then they saw that Smt. Joginder Kaur wife of Wassan singh had caught hold of Prem Singh from his hair and Raj Kumar had caught hold of him from the arms whereas Sulakhan singh son of Hazara Singh, armed with the handle of KASSI, Hira Singh son of Harbans Singh armed with rod, Gurdip Singh son of Wassan Singh armed with KIRPAN and Wassan Singh, appellant, armed with hockey, were inflicting injuries on the person of Prem Singh with their respective weapons. Prem Singh was raising Raula. Kashmir Singh and Swarn Singh entered their house and rescued Prem Singh from their clutches after making requests to them. After causing injuries, the assailants fled away with their respective weapons.

After arranging a tractor trolley, Kashmir Singh etc. carried Prem Singh to Civil Hospital, Dera Baba Nanak and got him admitted there but Prem Singh succumbed to his injuries in the hospital.

Kashmir Singh made statement, Ex.PF, before Joginder Singh, Sub Inspector, who reached in the Civil Hospital, Dera Baba Nanak, alongwith the officials on receipt of information on 13.11.1993. Kashmir Singh further stated in his statement that the appellant and his relatives were suspecting that there was some affair between the daughter of Wassan Singh, namely, Surjit Kaur and Prem Singh, now deceased and for this reason, the assailants, after making planning had inflicted injuries on the person of Prem Singh and had murdered him.

On the basis of statement of Kashmir Singh, Ex.PF, formal FIR, Ex.PF/2 was registered on 11.11.1993 under Sections 302, 148 and 149 IPC. The initial investigation was conducted by Joginder Singh, Sub Inspector and later on it was taken over by D.S.P.

The dead body of Prem Singh was subjected to post mortem examination.

After the completion of the investigation, Gurdip Singh, Joginder Kaur, Hira Singh and Raj Kaur were found innocent and challan was filed against Wassan Singh, appellant and Sulakhan Singh in the Court of Judicial Magistrate Ist Class, Batala, who in turn committed the case of the Court of Sessions vide order dated 22.2.1994.

Vide order dated 18.3.1994, the Additional Sessions Judge, Gurdaspur, summoned Gurdip Singh, Joginder Kaur, Hira Singh and Raj Kaur to stand trial alongwith Wassan Singh etc. who were shown in Column No. 2 of the report submitted u/s 173 Cr.P.C.

Having made out a prima-facie case, all the six persons, including the appellant, Wassan Singh, were charged under Sections 148, 302/149 IPC, to which they pleaded not guilty and claimed trial.

However, due to typographical mistake, the charge was mentioned u/s 149 instead of 148 IPC.

In order to prove the allegations, the prosecution examined 8 witnesses. The report of the Chemical Examiner, Ex.PO was also tendered in evidence.

After the closure of prosecution evidence, the statements of the appellant and his companions were recorded u/s 313 Cr.P.C., wherein they denied the allegations of the prosecution and pleaded false implication. Wassan Singh, appellant, further stated that on 11.11.1993, he had heard the voice of his daughter, Surjit Kaur, in the Kitchen of house of his brother, Mohinder Singh, which was near his house. On hearing her voice, he reached there and found his daughter Surjit Kaur and Prem Singh, deceased, in naked condition; that Prem Singh had committed sexual intercourse with his daughter forcibly and because of that he gave injuries to Prem Singh, who was in naked condition at that time and no other person was present there. He further stated that Gurdip Singh is his son while Sulakhan Singh is his brother and Joginder Kaur is his wife and further Hira Singh is also related to him and they had been falsely implicated being his relations.

After hearing learned PP for the State and the defence counsel, the Sessions Judge, Gurdaspur, vide his judgment dated 12.12.2000, acquitted all the accused except Wassan Singh. However, Wassan Singh was found guilty and convicted u/s 304 Part I of the Indian Penal Code and was sentenced as stated in the earlier part of the judgment.

Aggrieved by the said judgment and order dated 12.12.2000, Wassan Singh has filed the present appeal.

I have heard Shri J.S. Chahal, counsel for the appellant, Ms. R.K. Nihalsinghwala, DAG, Punjab, for the respondent and carefully gone through the record.

The case of the appellant, as stated in his statement recorded u/s 313 Cr.P.C., is that on 11.11.1993, in the morning, he heard the voice of his daughter Surjit Kaur emanating from the Kitchen of the house of his brother, Mohinder Singh, which was near his house and on hearing her voice, he reached there and found his daughter Surjit Kaur and Prem Singh (now deceased) in naked condition and further that Prem Singh had committed sexual intercourse with his daughter forcibly and because of that he had given injuries to him, who was in naked condition at that time and no other person was present there.

PW-4 Pritam Kaur, mother of the deceased and PW-5 Swarn Singh have suppressed the genesis of the occurrence. They did not state so in their statements. On the other hand, they stated that Prem Singh was lifted from there tubewell in the early morning and was taken by Wassan Singh, appellant and his co-accused to the house of appellant and was given injuries there. However, the man can tell lie and not the circumstances or the documents. Ex.PA is the site plan prepared by PW-1 Satish Chander, Draftsman. He stated that he had prepared scaled site plan at the instance of Kashmir Singh and Harwant Singh. Mark ''F'' in the said site plan has been shown to be the room belonging to Mohinder Singh where Wassan Singh had seen Prem Singh, now deceased, and her daughter Surjit Kaur naked together and a Chadar had been spread over the ground and then Wassan Singh dragged Prem Singh to his house and gave him injuries in the courtyard of his house, due to which he died. In the inquest report, Ex.PE, it is mentioned that the dead body of Prem Singh was naked and he was having only a Parna of black colour on his head. Ex.PH is the rough site plan prepared by Joginder Singh, Sub Inspector. In the said site plan also at Sr. No. 6, it is mentioned that mark F is the place where Wassan Singh had seen Prem singh, deceased, and his daughter Surjit Kaur together naked and there was a Chadar spread on the ground and then Wassan Singh dragged Prem Singh to his house and gave him injuries. It is further stated that Bambi (small tubewell) of Kashmir Singh was situated at a distance of 80 Karams from the house of Wassan Singh. Therefore, Wassan Singh had seen Prem Singh and his daughter Surjit Kaur naked in the kitchen of his brother, Mohinder Singh, which was without door and a Chadar had been spread there and he guessed that sexual intercourse had been committed and for this reason, he got enraged and dragged Prem Singh to his house and caused injuries. The memo Ex.PM further shows that one pent of black colour and one pink shirt belonging to Prem Singh, one Salwar of light parrot colour and one Check Chadar were taken into possession by the police from the Kitchen of Mohinder Singh situated near the house of Wassan Singh. The recovery of these articles from the kitchen of Mohinder Singh again lends support to the version of Wassan Singh, appellant that he had seen his daughter Surjit Kaur and Prem Singh in a naked condition in the kitchen of Mohinder Singh and a Chadar had been spread on the ground and Prem Singh had committed sexual intercourse forcibly with his daughter Surjit Kaur. Certainly, on finding his daughter alongwith a stranger in a naked condition, Wassan Singh got enraged. Thus, it was sudden grave provocation because on seeing such an act being performed, any father could easily loose control on himself and the same thing happened in the present case also. Wassan Singh, appellant, assaulted Prem Singh due to grave and sudden provocation. Section 300 of the Indian Penal Code states that except in the case hereinafter expected, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death. Exception (1) to the said Section states that culpable homicide is not murder, if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Therefore, the case of the appellant is covered by Exception (1) to Section 300 and culpable homicide not amounting to murder is punishable u/s 304(1) of the Indian Penal Code.

PW-3 Dr. Inderjit Singh, Senior Medical Officer, P.H.C., Bhullar, Tehsil Batala, had conducted autopsy on the dead body of Prem Singh on 12.11.1993 and found the following injuries on his person:-

"1. A reddish contusion 20 cm x 5 cms on the postro lateral aspect of left forearm. The underlying bones were fractured and the muscles were lacerated.

An incised wound 2.5 x 0.5 cms on the right side of the face starting from the right side of the nose going downwards and laterally on the face and was only muscle deep. The underlying bones were normal.

An incised wound 4 x 1 cm x bone deep on the medial part of right eye-brow, extending on to the right half of the forehead. The underlying bone was partially cut.

A lacerated wound 6 x 1 cm x bone deep placed obliquely on the left occipital region 2, cms from the ear lobule, and was bone deep and bone was fractured.

Another lacerated wound 5 x 1 cm on the left occipital region, 3 cms below and behind injury No. 4. The underlying bone was fractured.

On dissection of injuries 3, 4 and 5:- The underlying meninges were torn in the posterior cranial fossa and brain was lacerated and cranial cavity contained blood.

Multiple super-ficial bruises on the front of face, forehead and nose, varying in size from 1 x 0.75 cms to 3 x 1 cm.

A lacerated wound 2 x 0.75 cms placed longitudialy on the front of right leg, 10 cms above the ankle and was only muscle deep.

2 lacerated wounds 1 x 0.5, 1.05 cms on the front of right leg, 7 cms below the knee joint.

Multiple bruises on the front of the left knee and lower part of thigh and upper part of left leg.

Multiple bruises on the front, medial posterior aspects of right knee.

An oblique reddish bruise on the front of abdomen in its middle and measured 15 x 1.5 cm.

Multiple bruises on the back of chest and abdomen.

Multiple bruises on the upper part of left foot and ankle. The ankle was swollen. Underlying bones were normal.

Multiple bruises on the gluteal region (both sides).

He next stated that the death was due to shock and haemorrhage as a result of injuries described above caused by sharp and blunt weapons and all the injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. In cross-examination, he stated that Prem Singh, deceased, was not wearing the clothes when he conducted post mortem examination except black Parna.

Counsel for the appellant contended that the appellant, on seeing his daughter, Surjit Kaur, being raped by the deceased, Prem Singh, assaulted him and as such, his right of private defence extended to cause his death under Sections 96, 97 and 100 of the Indian Penal Code. For this contention, he placed reliance upon an authority of Hon''ble Apex Court i.e. Yeshwant Rao Vs. State of Madhya Pradesh, . In the above mentioned case, the appellant had found his minor daughter, aged about 15 years, was being assaulted sexually by deceased Lakhan Singh. As per medical evidence, the cause of death was due to injury to the lever but for this injury no external injury was found nor the doctor deposed that this could be caused by spade. Thus, it was observed by the Hon''ble Apex Court that rapture of lever could be either by fall on hard object as the appellant stated that deceased tried to run away but hit against the wall and fell on the ground or it could be as a result of blow given by the appellant. Therefore, in such circumstances, the right of private defence was extended to cause grievous injury to the deceased, which is punishable u/s 325 IPC. However, in the present case, the appellant had caused extensive injuries to the deceased, Prem Singh, who was unarmed. He had caused injuries by blunt as well as sharp weapons. So, certainly, the right of private defence u/s 100 of the Indian Penal Code does not extend for causing such extensive injuries to the deceased as he was unarmed and he had not assaulted, Smt. Surjit Kaur. Probably, the sexual intercourse was done with her consent. In such circumstances, the appellant is punishable u/s 304 Part I IPC and as such, he could not be acquitted and has rightly been found guilty and convicted u/s 304 Part I IPC. However, sentence awarded to the appellant is somewhat harsh. The occurrence is alleged to have taken place in November 1993 i.e. the appellant is suffering the agony of trial for the last about more than 9 years. So, in my opinion, it would meet the ends of justice, if the sentence is reduced to seven years R.I. from ten years R.I. with a fine of Rs. 5000/- u/s 304 Part I IPC. Ordered accordingly. In default of payment of fine, the appellant would further suffer R.I. for four months.

With this modification in the sentence, the appeal is dismissed.