Gurmail Singh vs State Of Punjab

Crl.A. No.974 of 2008 REPORTABLE

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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 974 of 2008

GURMAIL SINGH ..... APPELLANT

VERSUS

STATE OF PUNJAB ..... RESPONDENT

WITH

CRIMINAL APPEAL NO. 975 OF 2008

AND CRIMINAL APPEAL NO. 981 OF 2011 ARISING OUT OF SLP (CRL) NO. 4898 OF 2008

O R D E R

1. This judgment will dispose of three appeals,

being Criminal Appeal Nos. 974 of 2008, 975 of 2008 and

981 of 2011 @ SLP(Crl) 4898 of 2008.

2. The facts are being taken from the paper book of

Criminal Appeal No. 974 of 2008 entitled Gurmail Singh

v. State of Punjab.

3. The facts leading to these appeals are as under:

3.1 Sohan Singh, P.W., the complainant, and his co-

accused Nachhattar Singh and Parshotam Singh, are

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married to real sisters. Nindo is the daughter of Sher

Singh, accused. Darshan Singh accused is the son of

Sher Singh. A few days prior to the incident which

happened on the 25th March, 1996 a message was received

with regard to the proposed marriage of the son of

Parshottam Singh accused, on which the accused had got

together in his house to celebrate the occasion by

taking liquor. At about 10:00p.m. the accused came

out in the street and raised a lalkara that they would

teach the complainant party a lesson for having teased

Nindo. At that time accused Gurnam Singh and Gurmail

Singh were both armed with small knives (kirch) and

Sher Singh, Nachhattar Singh, Parshottam Singh,

Dharampal Singh and Avtar Singh were armed with lathis.

Sohan Singh came out into the street to persuade them

not to abuse and that they would sort out the dispute

in the morning. While he was still talking to the

accused Rajwinder Singh PW and Baljinder Singh also

arrived there. Nachhattar Singh, Sher Singh, Dharam

pal Singh and Avtar singh then raised a lalkara saying

that they should not be allowed to go alive and should

be taught a lesson for having teased Nindo. Gurnam

Singh thereupon gave a knife blow on the right side of

the abdomen of Baljinder Singh and when Rajwinder Singh

came forward to help Baljinder Singh, Gurmail Singh

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gave a knife blow on the right side just below his

chest whereas Gurcharan Singh gave a knife blow on the

lower portion of his right flank. Rajwinder Singh fell

down whereupon Sher Singh gave a dang blow on his

right shoulder. In the meantime, the women folk came

out into the street and hurled brickbats in self-

defence. As a consequence of this counter attack the

accused ran away from the spot. Baljinder Singh and

Rajwinder Singh were shifted to the A.P. Jain Hospital

at Rajpura in a truck but the former succumbed to his

injuries on the way. After investigation, the accused,

eight in number were broguht to trial for offences

punishable under Sections 302/149, 302, 324/149 and

323/149 of the IPC. The prosecution placed primary

reliance on the evidence of Sohan Singh PW 5, Rajwinder

Singh PW6, the injured eye witnesses, and also on the

evidence of Dr. Charanjit Singh, PW1 whereby he, had at

the initial stage, declared Rajwinder Singh unfit to

make a statement, Dr. S.M. Birdi who had conducted the

medical examination on the injured and Dr. O.P. Agarwal

PW 4 who had conducted the post mortem on the dead body

of Baljinder Singh. The accused in their defence,

pleaded false implication and further that the dispute

had arisen because of some election rivalries. Some of

the accused also claimed alibis. The trial court on a

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consideration of the evidence, acquitted Avtar Singh,

Dharam Pal Singh, Nacchtar Singh and Parshottam Singh

whereas Gurnam Singh, Gurmail Singh, Gurcharan Singh

and Sher Singh were convicted for having committed the

murder of Baljinder Singh. This judgment has been

affirmed by the High Court leading to these appeals by

way of special leave.

4. Before us, the main argument raised by the

learned counsel for the appellants is that even

assuming the prosecution case to be true the matter

would still not fall within the definition of murder

but would fall be culpable homicide not amounting to

murder punishable under Section 304 Part I of the IPC.

It has also been submitted that in the facts and

circumstances of the case, the provisions of Section 34

of the IPC were not made out as there was no intention

on the part of the accused to commit murder. It has

finally been submitted that Sher Singh accused,

appellant was similarly situated as those acquitted by

the trial court as the injury attributed to him on the

shoulder of Rajwinder Singh could have caused as a

result of a scuffle during the incident and was not

possible with a lathi.

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5. The learned counsel for the State has, however,

supported the judgment of the trial court.

6. Mr. D.P. Singh has submitted that in the light

of the judgments of this Court reported as Virsa Singh

v. State of Punjab AIR 1958 465, Laxman Karlu Nikalje

v. The State of Maharashtra 1968 (3) SCR 685,

Harjinder Singh v. Delhi Administration AIR 1968 867,

Randhir Singh alias Dhire v. State of Punjab 1981 (4)

SCC 484, Tholan v. State of Tamil Nadu 1984 (2) SCC 133

the injury caused to the deceased would not fall under

clause "thirdly" of Section 300 and as such the

conviction ought to have been recorded under 304 Part I

or II of the Indian Penal Code. We have considered the

submissions very carefully and have examined the

judgments aforesaid with the assistance of the learned

counsel.

7. It is true that clause thirdly of Section 300 of

the IPC deals with a case where the intention was to

cause the very injury found on the dead body. In the

case of Virsa Singh, Laxman Karlu's case and Arun

Nivalji More's case, the injuries had been caused on

non vital parts but the death had occurred because of

the fact that some artery beneath the injured part had

Crl.A. No.974 of 2008 REPORTABLE

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been cut. The Court, in that eventuality, held that it

could not have been presumed that the appellants wanted

to cause that very injury which ultimately led to

death. It is true that in Randhir Singh's case the

injury had been caused by a kassi on the head of the

deceased. It appears, however, that what had weighed

very heavily with the Court was the fact that attack

was not pre-planned, the accused was only 18 years of

age and the kassi had been brought by his father and

given to him to cause a blow on the victim, only one

injury had been caused and that the death had occurred

after six days of the incident. In Tholan's case it

was held that though the injury had been caused in the

chest but the facts were that the appellant had not

intended to give the blow with a knife in the chest.

In the case before us, we find that a lalkara had been

raised by the accused threatening retribution on

account of the misbehaviour of Darshan Singh, son of

Sher Singh with Nindo a few days earlier and that the

accused had been drinking together in the house of

Parshottam Singh and had thereafter come out leading to

the incident. It has been held in all the afore-cited

cases that the question as to whether the injury had

been caused with the intention to cause death would be

a matter of objective satisfaction of the Court. We

Crl.A. No.974 of 2008 REPORTABLE

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are, therefore, of the opinion, that the injury in the

present case had been caused directly and deep into the

stomach of the deceased, a very vital part, which had

led to death within a short time. It cannot,

therefore, be said that there was no intention to cause

that very injury which had led ultimately to the death

of the deceased. In a somewhat similar situation, it

has been held in Arun Nivalaji More v.

State of

Maharashtra

2006 (2) SCC 613 that where the injury had

been caused in the stomach which was a vital part of

the body, it could be said that the injury had been

caused with the intention of causing death in the

background of the facts that preparations for the

attack on the deceased had earlier been made.

8. We now take up the question of common intention

in the facts of the case. Once again it needs to be

highlighted that the accused were all of one family and

they were annoyed with the members of the victim family

as they had teased Nindo. They also lived close

together in the same locality and had come out armed

and raised a lalkara that the opposite party be done

away with and that the injuries had been caused

thereafter. It is also clear that several injuries had

been caused to Rajwinder Singh PW as well and that one

Crl.A. No.974 of 2008 REPORTABLE

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injury had been proved fatal for Baljinder Singh. A

case of common intention is, thus, spelt out.

10. We, however, find some merit in the argument of

the learned counsel that Sher Singh appellant should be

given the benefit of doubt in the circumstances. The

injury attributed to him on the person of Baljinder

Singh is a "Red abrasion 2.5cm X 0.5cm on the right

super scapular region obliquely placed 3 cm back ward

from the upper tip of the right shoulder joint." A

perusal of this injury would indicate that it is of

very small dimensions and there is a clear doubt as to

whether an abrasion could be caused with a lathi which

Sher Singh was said to be carrying. We are, therefore,

of the opinion that Sher Singh is similarly placed as

the accused who have been acquitted by the trial court.

12. We, accordingly, allow the appeal of Sher Singh.

The appeals of the other accused are dismissed.

.........................J [HARJIT SINGH BEDI]

........................J [CHANDRAMAULI KR. PRASAD]

Crl.A. No.974 of 2008 REPORTABLE

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NEW DELHI APRIL 20, 2011.