CRIMINAL APPEAL NO. 621 OF 2006
Markandey Katju, J.
1. This appeal has been filed
against the impugned judgment of the Punjab & Haryana High Court dated
4.5.2005 in Criminal Appeal No. 636-DB of 2002.
2. Heard learned counsel for the
parties and perused the record.
3. The appellants are one Balwant
Singh and his three sons Balwinder Singh, Harbans Singh and Malkiat
Singh. They were convicted under section 302 and other provisions of the
Indian Penal Code by the Additional Sessions Judge, Bathinda on
30.7.2002. Against that judgment they filed an appeal in the High Court
which was dismissed and hence this appeal.
4. The prosecution case is that on
17.7.1998 at about 10/10-30 A.M., Bharpur Kaur(PW1) wife of Jarnail
Singh r/o village Khokhar, Police station Kalawali had along with her
sons Vakil Singh, Gurjant Singh and Nachhattar Singh gone to village
Gill Patti, Bathinda to meet her sister's daughter Amarjit Kaur (PW-3),
who was at that time residing in street No. 6, Janta Nagar, Bathinda.
From there along with Amarjit Kaur and her son Kuldeep Singh alias
Gurtej Singh they had gone to the house of Amarjit Kaur in village Gill
Patti. When they alighted from the jeep in front of the house of Amarjit
Kaur, they found the appellants Balwant Singh and his sons Harbans
Singh, Malkiat Singh and Balwinder Singh armed with kirpans and gandasas
sitting in the Deodi of the house of Natha Singh son of Wazir Singh.
Amarjit Kaur along with Gurjant Singh and Nachhattar Singh left the
house to bring milk and vegetable while Bharpur Kaur PW1, deceased
Kuldeep Singh and Vakil Singh remained in thehouse. In the mean time,
Balwant Singh and his son Harbans Singh armed with swords and Malkiat
Singh and Balwinder Singh armed with gandasas and Natha Singh empty
handed trespassed into Amrit Kaur's house. Natha Singh allegedly raised
a lalkara "Inna Noo Jaggar Singh Noo Katai Karan Atte Ghar To Kabza
Karan Da Maja Chakhaounde Haan, Ajj Ahe Bach Ke Na Jaan". Thereupon,
Kuldeep Singh and Vakil Singh sons of Bharpur Kaur tried to go out of
the house in order to save themselves but Harbans Singh gave a blow with
the kirpan on the left side of the forehead and on the head of Kuldeep
Singh, as a result of which he fell down on the ground.
Thereafter, Balwant Singh gave a
kirpan blow which resulted in infliction of injury on his right ear.
Malkiat Singh gave a gandasa blow from its reverse side on the right
cheek and ear of Kuldeep Singh. When Bharpur Kaur PW1 intervened to save
Kuldeep Singh, Balwinder Singh and Malkiat Singh gave gandasa blow from
reverse side, which resulted in injuries on her left wrist joint, left
knee joint and nose. Vakil Singh raised a shout "Na Maro Na Maro"
whereupon Malkiat Singh and Balwinder Singh gave gandasa blows on the
person of Kuldeep Singh on his right and left thigh and below the knee
joint when he was lying on the ground. In the meantime, Amarjit Kaur,
mother of the deceased Kuldeep Singh, Gurjant Singh and Nachhattar Singh
returned to the scene of occurrence and they also raised an alarm on
hearing which the assailants fled away from the spot taking their
respective weapons with them. Kuldeep Singh succumbed to the injuries.
5. Bharpur Kaur PW1 proceeded for
the Police Station and on the way met SI Chand Singh SHO of Police
Station Sadar, Bathinda, who was present at Aeroplane Chowk, Bathinda
where he had set up a Naka for special checking of vehicles and got
reduced her statement into writing. On the basis of the statement, which
was completed at 12.30 PM on 17.7.1998, a formal FIR Ex PA/2 was
recorded in Police Station Thermal Bathinda at 12.45PM on the same day.
He himself proceeded to the spot where he prepared inquest report and
during the investigation took into possession blood stained earth vide
recovery memo Ex PR, recorded the statements of the witnesses and
forwarded the dead body to Civil Hospital, Bathinda through Constable
Joginder Singh along with request for Post Mortem Examination Ex PE. On
18.7.1998 he took into possession clothes of the
deceased, which were handed over to him by Constable Joginder Singh.
6. On 21.7.1998 he arrested Balwant
Singh and Malkiat Singh, who made disclosure statements pursuant whereof
the Kirpan Ex P12 and gandasa Ex P13 were taken into possession through
recovery memo Ex PU/2 and Ex PU/3. Harbans Singh and Balwinder Singh
were apprehended on 22.7.1998 and they too made disclosure statements Ex
PU/4 and Ex PU/5 respectively pursuant whereof Kirpan Ex P/14 and
gandasa Ex P/15 respectively were taken into possession vide recovery
memo Ex P/6 and Ex PU/7 respectively. Balwant Singh and Malkiat Singh,
appellants made separate disclosure statements Ex PU/16 and Ex PU/17
pursuant whereof their shirts Ex P/16 and Ex P/17 which were blood
stained were taken into possession through recovery memos Ex PU/18 and
Ex PU/19 respectively. The same were forwarded to the Chemical Examiner
for examination and on receipt of the report of Chemical Examiner, the
challan was put in Court against the appellants before the Illaqa
Magistrate, who upon finding that the offences disclosed were
exclusively triable by the Courts of Sessions, committed the same to the
Court of Sessions for trial.
7. The incident in question occurred
on 17.7.1998 at 10.30 AM and the FIR was filed at 12.45 PM. Hence there
was no delay in filing the FIR.8. Learned counsel for the appellants
submitted that PW1 Bharpur Kaur who lodged the FIR turned hostile as is
evident from her statement in court on 28.2.2000. PW2 Gurjant Singh also
turned hostile. Hence we are left only with the testimony of PW3 Amarjit
Kaur and PW8 Sukhjit Kaur. We have, therefore, to see whether conviction
on their testimonies would be safe.
9. We have carefully gone through
the testimony of these two witnesses and we see no reason to disbelieve
the same, especially since they broadly corroborate each other. Amarjit
Kaur stated in her evidence that Bharpur Kaur and her son came to her
house in Janta Nagar, Bathinda in a rented jeep and there she and her
son Kuldeep Singh (deceased) accompanied them in the jeep and they went
to village Gill Patti, where also Amarjit Kaur has a house. The jeep was
parked near the house of Amarjit Kaur where they saw all the accused
persons sitting in the Deodi of Natgha Singh. Balwant Singh and Harbans
Singh accused were armed with kirpan and Balwinder Singh and Malkiat
Singh were armed with gandasa. Amarjit Kaur, Gurjant Singh and Nachattar
Singh went out to purchase vegetables while Kuldeep Singh, Bharpur Kaur
and her son Vakil Singh remained present in the house of Amarjit Kaur.
When Amarjit Kaur and two others returned to the house at 10 or 10.30 AM
they saw her son Kuldeep Singh lying on the ground. In their view
Balwinder Singh gave gandasa blow on the leg of deceased Kuldeep Singh
and Malkiat Singh gave a gandasa blow from its blunt side in his
abdomen. All the accused gave thrust blows as well as kick blows to her
son Kuldeep Singh. The motive behind the occurrence was said to be the
desire to usurp the property of Amarjit Kaur by killing her son.
10. Learned counsel for the
appellant submitted that from the evidence of Amarjit Kaur it appears
that she only saw Balwinder Singh giving a gandasa blow on the leg of
Kuldeep Singh and Malkiat Singh giving a gandasa blow from the blunt
side in his abdomen. From this evidence learned counsel for the
appellant has tried to infer that Amarjit Kaur did not see the main
incident in which the fatal injuries were caused. These fatal injuries
are mentioned in the evidence of the doctor who conducted the post
mortem. The doctor mentioned the following injuries :
1. Lacerated wound present on
frontal region of head 10 x 5 cm underlying bone was fractured. Brain
matter exposed. On dissection multiple fracture were present pieces of
the bone were present in the brain matter. Haemotoma was present on
frontal region of head.
2. Fracture of mandible evident.
3. Incised wound 4 xm x 3 cm on
right ear and back of head. Loss of part of right ear. On dissection
underlying bone fractured. Haemotoma was present.
4. Incise wound 4 cm x 2 cm on
frontal region of lower leg on right side. Underlying bone fractured.
Clotted blood present. Multiple abrasions on right leg.
5. Multiple abrasion on right arm.
6. Bruise 8 cm x 4 cm lower abdomen
7. Bruise 4 cm x 3cm on left writ
11. Thus it appears that there were
three injuries on the head of Kuldeep Singh. It may be that Amarjit Kaur
was not present when these injuries were caused to Kuldeep Singh, but in
our opinion there is strong circumstantial evidence that they were
caused by the accused. In our opinion this circumstantial evidence is
sufficient to uphold the conviction because it contains all the links in
the chain which connect the accused with the incident. These links are :
(a) The accused persons were present
with deadly weapons near the house of Amarjit Kaur. When persons come
armed with deadly weapons to someone's house, it is a strong
circumstance to indicate
that they had came with deadly intentions.
(b) When Amarjit Kaur and others
returned to the house at 10 or 10.30 AM, they saw Balwinder Singh giving
gandasa blow to her son on the right leg and Malkiat Singh giving
gandasa blow from the blunt side of gandasa in his abdomen. These blows
were evidently given after the fatal injuries on the head of Kuldeep
(c) All the accused thereafter gave
thrust blows as well as kick blows to Kuldeep Singh who was lying on the
ground. Hitting and kicking an injured man who is already lying on the
ground shows the deadly intent of the accused.
(d) There was no one else other than
the accused who is said to have been on the spot at the time of the
12. The evidence of Amarjit Kaur has
been corroborated by the evidence of the doctor and PW8 and we see no
reason to disbelieve their evidence also. PW8 Sukhjit Kaur has stated in
her evidence that she saw the accused armed with kirpans and gandasas
going towards the house of her father Jaggar Singh (deceased husband of
Amarjit). From this an inference can be drawn that the accused armed
with weapons were going with deadly intentions towards the house.
Sukhjit Kaur PW8 also stated that when they came back after 30 to 45
minutes they were armed with the same weapons with blood stains and the
clothes also had blood stains which they later changed and ran away.
This evidence of Sukhjit Kaur corroborates the evidence of Amarjit Kaur,
though it is true that neither saw the main incident in which the fatal
injuries were caused. However, as already stated above, there is strong
circumstantial evidence to connect the accused with the crime.
13. Learned counsel for the
appellant then submitted that it is not clear which of the accused
caused which particular injury. In our opinion that will not matter
because section 34 IPC is clearly attracted to the facts of the case.
When persons go together armed with deadly weapons and fatal injuries
are caused to the deceased, all of them are equally liable in view of
section 34 IPC.
14. In view of the above, there is
no merit in this appeal. The appeal is accordingly dismissed.
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