Singh & Anr Vs. State of Punjab 
INSC 576 (19 October
M.K. (J) Mukherjee M.K. (J) Kirpal B.N. (J) M.K. Mukherjee, J.
JT 1995 (8) 235 1995 SCALE (6)70
J U D
G M E N T
Singh and Pala Singh, the two appellants before us, along with four others were
placed on trial before the Judge, Special Court, Ferozepore to answer charges under Sections 148, 302/149
and 324/149 I.P.C. On conclusion of the trial the learned Judge convicted the
two appellants under Section 302/34 I.P.C. and sentenced each of them to suffer
imprisonment for life, while acquitting the others.
thereby the appellants have preferred this appeal under Section 14 of the
Terrorist Affected Area (Special Courts) Act, 1984.
of details the prosecution case is that on August 10, 1984 at or about 5 P.M.
when Malkiat Singh (the deceased) and his brother Nachhatar Singh (P.W.4) were
irrigating their paddy field with the water of a Government Khaal (water
channel) which is brought to their field through an outlet allotted to them, Gurnam
Singh came there and closed the outlet. As soon as Malkiat Singh tried to open
it Gurnam Singh gave a blow with a Kassi on his head.
then rushed to his rescue but, by that time the other appellant Pala Singh
reached there armed with a gandasa and accompanied by others. On a lalkara
raised by Gurcharan Singh (since acquitted) Pala Singh gave a gandasa blow on
the head of Malkiat Singh. When P.W.4 tried to intervene Pala Singh assaulted
him also. Thereupon the appellants and others started assaulting the deceased
further. Finding no other alternative P.W.4 and his brother Jit Singh
retaliated by beating Gurnam Singh. Then the accused persons fled away with
their respective weapons. Immediately thereafter Malkiat Singh and P.W.4 were
taken to the hospital at Bagha Purana where Dr. T.C. Aggarwal (P.W.1) examined
them. P.W.1 also attended to the injuries of Gurnam Singh who had also come to
the hospital the same evening. P.W.1 sent the medico legal reports of their
injuries to Bagha Puana Police Station and considering the injuries sustained
by Malkiat Singh referred him to the Ludhiana Hospital for better treatment. On receipt of
the medico legal reports, Shri Natha Singh (P.W.5) ASI of Police attached to Bagha
Purana Police Station went to the Hospital and recorded the statement of Nachhatar
Singh. He forwarded the statement to the Police Station for registering a case
and took up investigation. On the same day he recorded the statement of Malkiat
in the Hospital at Ludhiana, Malkiat Singh succumbed to his
injuries on August 17,
1984 and consequently
the case, which was earlier registered under Section 324 I.P.C. was converted
to one under Section 324 I.P.C. was converted to one under Section 32 I.P.C. He
held inquest upon the dead body of Malkiat Singh and sent it for postmortem
examination on August
18, 1984. On receipt
of the report of the postmortem examination and completion of investigation
P.W.5 submitted charge-sheet.
appellants pleaded not guilty to the charges levelled against them and their
version of the incident, as can be gathered from the trend of cross-examination
and the suggestions put to P.W.4, was that Gurnam Singh had opened the outlet
in question as it was his turn to take water of the canal through it, to which Nachhatar
Singh and Malkiat Singh objected and both of them assaulted him. In exercise of
his right of private defence he then assaulted Malkiat Singh and Nachhatar
Singh met with his death owing to injuries sustained on August 10, 1984, as
alleged by the prosecution, stands conclusively proved by the evidence of Dr.
(P.W.1) who examined him in the Bagha Purana Hospital on that day at 6.15 P.M.
and that or Dr. J.S. Lama (P.W.2), who held post mortem examination on his dead
body on August 18, 1984. According to P.W.1 Malkiat Singh had the following
injuries on his person:
Incised wound on right parietotemporal region measuring 5.5 cms. x 1.5 cms. bone
deep with profused bleeding.
Incised wound on left temporal region measuring 1.5 cms. x 0.25 cm x .5 cm.
Incised wound on the left eye brow measuring 1 cm. x 0.25 cm. skin deep.
Lacerated wound on the face below and lateral to left eye measuring 0.5 cm. x
Abrasion on the left hand measuring 2 cms. x 2 cms."
opined that injury Nos. 1, 2 and 3 could be caused by a sharp edged weapon
while the other injuries by a blunt weapon. He further opined that injury No. 1
could be caused by a kassi and injury No.2 by a gandasa. P.W.2 corroborated the
evidence of P.W.1 regarding the external injuries found on the person of Malkiat
Singh and further stated that there were fractures of anterior cranial fossa
and middle cranial fossa on the right side. He opined that the death was the
result of injury No.1, namely, the wound on the right temporal region. Indeed,
this part of the prosecution case was not seriously challenged by the defence;
on the contrary, as noticed earlier, the appellants took the plea of right of
prove the authorship of the crime the prosecution rested its case principally
upon the ocular version of the incident as given out by Nachhatar Singh
(P.W.4). Besides, it pressed into service the statement of Malkiat Singh (the
deceased) recorded by the Investigating Officer under Section 161 Cr.P.C.,
(Ext. P/15) which, consequent upon his death due to the injuries sustained in
the incident, became admissible in evidence as his dying declaration. P.W.4
detailed the entire prosecution case including the manner in which he sustained
the injuries. Though P.W.4 was cross examined at length nothing could be
elicited by the appellants from which it can be even remotely said that he is
unworthy of credit. On the contrary his evidence as regards the nature of
assault on Malkiat Singh gets ample support from the medical evidence which we
have discussed earlier. That P.W.4 sustained injuries in course of the incident
as claimed by him also gets support from the evidence of P.W.1 when he stated
that he found a lacerated wound as also an incised wound on his person. While
on this point it will be pertinent to mention that the suggestion put to P.W.4
on behalf of the appellants which we have noticed earlier corroborates his
claim as an eye-witness to the incident. Another circumstance which
corroborates P.W.4 is the prompt lodging of the F.I.F detailing the substratum
of the prosecution case.
was, however, contended by Mr. Sushil Kumar appearing on behalf of the
appellants that in the F.I.R. that he lodged P.W.4 did not disclose the fact
that Gurnam Singh had sustained injuries in the incident much less explained
those injuries. Consequently, he submitted, P.W. 4's belated claim that on
being assaulted he and his brother Malkiat Singh retaliated in exercise of
their right of private defence to explain away the injuries on the person of Gurnam
Singh should not be accepted. For the foregoing reasons the learned counsel for
the appellants asked us to hold that there was no reasonable explanation for
the injuries sustained by the appellant Gurnam Singh which made the evidence of
the sole eye-witness, namely, P.W.4 suspect.
not find any merit in this contention. The obligation of the prosecution to
give an explanation for the injuries sustained by an accused in a case of
assault, if need be, comes only at the stage of the trial and therefore absence
of such explanation in the F.I.R. would not by itself affect the prosecution
case. It was next contended on behalf of the appellants that having regard to
the nature of injuries sustained by Gurnam Singh it must be held that a case of
right of private defence as contended by him was made out.
evidence of P.W.1 no doubt proves that Gurnam Singh had sustained two
abrasions, a contusion and an incised wound on his forehead but then the the
explanation offered by P.W.4, in the absence of any material in support of the
claim of Gurnam Singh as to how he sustained those injuries must be accepted.
In other words, the evidence on record clearly establishes that the appellants
were the aggressors and, therefore, the deceased and P.W.4 were justified to
assault Gurnam Singh in exercise of their right of private defence.
we find the evidence of P.W.4 to be wholly reliable upon we need not go into
the probative value of the dying declaration.
that it stands established that the two appellants caused injury Nos. 1, 2 and
3 on the person of the deceased with kassi and gandasa and the injury No. 1 was
sufficient in the ordinary course of nature to cause death the only other
question that requires to be decided is whether the offence committed by the
appellants, in furtherance of their common intention, falls under Section 302
or under Section 304 (Part I) I.P.C. The answer to this question is not far to
seek for the evidence of P.W.4 clearly shows that the incident took place in
course of a sudden quarrel over the opening of the outlet and therefore the
appellants can be said to have committed an offence under Section 304 (Part I)
I.P.C. and not under Section 302 I.P.C.
the foregoing discussion we set aside the conviction and sentence of the
appellants recorded under Section 32-3 I.P.C. and convict them under Section
304 (Part I)/34 I.P.C For the altered conviction we sentence each of them to
suffer rigorous imprisonment for seven years. The appellants, who are on bail,
will now surrender to their bail bonds to serve out the sentence.
appeal is thus disposed of.