Gurpreet Singh Vs. State
of Punjab  Insc 633 (9 November 2005)
B.N.Agrawal & A.K.Mathur
with Criminal Appeal No. 710 Of 1995 Mohinder Pal Singh Appellant Versus State
Respondent B.N.Agrawal, J.
The appellants of these two appeals along with accused Bhajan Singh @
Harbhajan Singh and Meharban Singh were made accused in a case under Section
302 of the Indian Penal Code (for short 'IPC') but as accused Meharban Singh
died during trial, the remaining three accused persons were tried and by its
judgment the trial court acquitted accused Bhajan Singh @ Harbhajan Singh
whereas these two appellants were convicted under Section 302 IPC and sentenced
to undergo imprisonment for life and to pay a fine of Rs. 2,000/- each, in
default to undergo further imprisonment for a period of six months. Against the
order of acquittal of accused Harbhajan Singh, no appeal was filed by the State
whereas on appeal being filed by the appellants, the High Court confirmed their
conviction and sentence. The revision application filed by the private
prosecutor for enhancement of sentence has been rejected by the High Court.
Prosecution case, in short, was that Kuljit Singh @ Billa was a student of
B.A. Part I in Arya College, Ludhiana and he was a witness in a case filed for
prosecution of appellant Gurpreet Singh under Section 307 IPC which was
pending. On 22nd January, 1990 at about 5.30 p.m., Kuljit Singh along with his
brother Harvinder Singh and friends Parminder Singh (PW 2) and Gurvinder Singh
(PW 3) was returning to his house after attending classes from Guru Angad Dev
College and when they reached near Oriental Public School, the appellants along
with accused Meharban Singh, who were present there armed with kirpans,
confronted him. Appellant Gurpreet Singh shouted that Kuljit Singh should be
done to death and he attacked him with kirpan on his head.
Thereafter, appellant Mohinder Pal Singh @ Vicky inflicted kirpan blow in
the abdomen of Kuljit Singh. Accused Meharban Singh assaulted him with kirpan
on the temporal region whereupon Kuljit Singh fell down. In the meantime,
accused Harbhajan Singh who too was armed with kirpan came there and also dealt
a kirpan blow on the forehead of Kuljit Singh. All the aforesaid accused
persons thereafter inflicted several injuries upon Kuljit Singh even after he
fell down. In the process of inflicting injuries, appellant Gurpreet Singh also
received injuries at the hands of one of the co- accused. On halla being
raised, people of the locality arrived whereafter the accused persons fled
away. Kuljit Singh was taken to Christian Medical Hospital by PW 3 and
Harvinder Singh where the doctor declared him dead. Thereupon, Harvinder Singh,
who was brother of Kuljit Singh deceased, left for the police station but on
the Brown Road, near Christian Medical Hospital, he met Sub Inspector Bakshish
Singh (PW 8) who recorded his statement stating therein the aforesaid facts and
sent the same to the police station where a case was registered against all the
aforesaid four accused persons, including the appellants on the same day at
Police after registering the case took up investigation and on completion
thereof submitted charge sheet against the accused persons, on receipt whereof,
learned magistrate took cognizance and committed all the aforesaid accused
persons, including the appellants, to the court of Sessions to face trial. As
accused Meharban Singh died during trial, the same proceeded against the
remaining three accused persons.
Defence of the accused persons was that they were innocent and were falsely
implicated in the case in hand. Specific defence of the appellants was that
when they were going to the shop of appellant Gurpreet Singh and arrived at
Jail Road at the time of the present occurrence, Kuljit Singh and his brother
Upkar Singh were coming from the opposite direction along with one unknown
person and out of them, Kuljit Singh asked his companions to kill appellant
Gurpreet Singh whereupon, he was chased and surrounded by Kuljit Singh and
others and out of them, Upkar Singh stabbed Gurpreet Singh with his knife. In
the meantime, upon halla being raised by appellant Gurpreet Singh, villagers
arrived there who assaulted Kuljit Singh and stating the aforesaid facts, a
complaint was filed by appellant Gurpreet Singh on 3rd February, 1990 as
Gurpreet Singh was hospitalized.
During the course of trial, the prosecution examined eight witnesses in all,
out of whom, Dr. I.P.Singh Chhabra (PW 1) was the doctor who conducted
postmortem examination on dead body of the deceased. Parminder Singh (PW 2) and
Gurvinder Singh (PW 3) claimed to be eyewitnesses to the occurrence. Head
Constable Balbir Singh (PW 4) and Constables Manjit Singh (PW 5), Gurcharan
Singh (PW 6) and Lakhbir Singh (PW 7) were the formal witnesses whereas SI
Bakshish Singh (PW 8) was the Investigating Officer.
Informant Harvinder Singh could not be examined as he died before the trial
commenced. The defence in support of its case examined three witnesses, namely,
Dr. Subodh Radian (DW 1), who is said to have examined injuries of appellant-
Gurpreet Singh, and Tarsem Singh (DW 2) and E.Rai Singh (DW 3) were formal
witnesses. Upon the conclusion of trial, accused Harbhajan Singh was acquitted
whereas the appellants were convicted and their appeal before the High Court
having failed, as stated above, the present appeals by special leave.
In the present case, presence of the appellants at the time and place of
occurrence has not been denied rather admitted. Appellant Gurpreet Singh is
said to have been examined by doctor [DW 1] who stated that he found following
injury on his person:- "Penetrating wound on the back of the chest left
8th interracostal space, 5 c.m. from midline, 1-5 c.m. x 0.5 c.m, depth not
ascertained along with left haeopheumethroex." From the dimension of
injury, it would appear that the same was superficial one inasmuch as,
according to the doctor, even its depth could not be ascertained. The complaint
petition was filed by appellant Gurpreet Singh on 3rd February, 1990, i.e., after eleven days of the date of the incident and the reason for delay disclosed
was that the said appellant was discharged from hospital on 3rd of February,
1990. The doctor (DW 1) stated that appellant Gurpeet Singh remained conscious
throughout, but, even then, no explanation is forthcoming why complaint was not
filed either by this appellant himself or any of his relations for a period of
eleven days after the occurrence. It appears that injury was superficial and
complaint was filed after an inordinate delay of eleven days in order to make
out a defence in the present case.
Doctor [PW 1], who held postmortem examination on the dead body of Kuljit
Singh, found following injuries:-
1. Curved incised wound 5" x 1" x bone deep on the left side of
forehead, extending from bridge of the nose to left ear.
Underneath bone was cut i.e. frontal and nasal bone.
2. Incised wound 2" x =" x bone deep on forehead on right side.
3. Incised wound 3" x =" x bone deep underneath bone was cut on
right cheek extending from lateral angle of eye towards ear downward.
4. Lacerated wound on parieto occipital on right side 4" x =" x
5. Incised wound 2 >" " x =" x bone deep on upper lip, cut
and cut through and through and underneath teeth fractured i.e. both incisors
6. Abraded contusion 2" x =" on the top of right shoulder.
7. Abraded contusion on the top of left shoulder 4" x 2".
8. Incised would 1= x =" x bone deep on the right thumb on palmer
aspect. Underneath bone was fractured.
9. Incised wound 4" x >" on the left parietal bone, bone deep
underneath bone was fractured.
10. Four incised wounds >" x ?" elliptical shape on the back,
left side 5" below the tip of scapula. Both margins incised.
11. Abraded contusion 3" x <" on left supra scapular region.
12. Incised wound >" x ?" elliptical shape, both margins
incised on right memory area lateral to nipple. On exploration underneath
muscle and bone were cut. The lung is cut size >" x ?" thoraxic
cavity was ful of blood i.e. about one ltr of blood.
13. Incised wound >" x ?" on epigestrium, elliptical wound with
both margins incised and on exploration there was wound on liver >" x
?" peritonial cavity contained blood about one litre.
14. Incised wound >" x ?" on the left side of the chest 3"
below and medial to nipple and on exploration on left lung there was wound
>" x ?" . Forensic cavity contained about one ltr. Blood and
elliptical in share and both margins incised.
15. Incised wound >" x ?" on the left side of the chest
elliptical in shape 6" below and lateral to nipple. On exploration the
left lung was injured in the area in >" x ?".
16. Incised wound >" x ?" elliptical in shape and both margins
were incised and on the left side of abdomen just lateral to umbilicus omentum
was oozing out.
17. Incised wound >" x ?" elliptical in shape. Both margins
were incised on the left side of abdomen 1" above injury No.
16. Omentum was oozing out of the wound. On exploration peritoneum cavity
contains blood. Small intestine was injured at two places. Size was >" x
18. Abraded contusion 3" x =" on the right knee joint.
19. Abraded contusion 3" x =" on left leg lower third on lateral
aspect. The stomach contained about 80 cc of semi digested food. Bladder was
healthy and empty. Large intestine were healthy and contained gases and foecal
matter. Heart described and empty. All other organs were described. Spleen and
kidneys were healthy. Organs of generation were healthy. All other organs which
have not been described were healthy.
The doctor stated that the deceased died as a result of cumulative effect of
injuries on the lungs and liver and the same were sufficient to cause death in
the ordinary course of nature. According to him, injury Nos. 4,6, 7, 11, 18 and
19 could have been inflicted by blunt weapon whereas other thirteen injuries by
incised weapon like kirpan. So far as injury Nos. 4,6,7,11,18 and 19 are
concerned, PW 3 stated during the course of cross-examination that even after
the deceased fell down, he was assaulted by the accused persons and in order to
protect himself, he was tossing and rolling on the ground. As such, the
aforesaid injuries he might have received during the course of tossing and
rolling on the ground. The other injuries were undisputedly caused by kirpan.
Thus, the medical evidence supports the prosecution case that the deceased was
assaulted by the accused persons with kirpan.
The two eyewitnesses, namely, Parminder Singh (PW 2) and Gurvinder Singh (PW
3) have consistently supported the prosecution case in their statements made before
the police as well as in Court. The ground of attack to their evidence is that
neither in the mortuary register nor in the daily diary [Ex.
DC] their names were disclosed. In this connection, reference has been made
to Section 154 of the Code of Criminal Procedure (for short 'the Code') which
lays down that every information relating to the commission of a cognizable
offence shall be reduced into writing by the police officer incharge of the
police station and thereafter substance thereof shall be entered in a book to
be kept by such officer in such form as the State Government may prescribe in
this behalf. Under Rule
24.1 of the Punjab Police Rules, Volume III, 1959 Edition, framed by the
State Government, it has been prescribed that substance of the report shall be
entered in the Daily Diary. The relevant part of the Rule reads as under:
"Every information covered by Section 154, Criminal Procedure Code,
must be reduced to writing as provided in that section and substance thereof
must be entered in the police station daily diary, which is the book provided
for the purpose. It is only information which raises a reasonable suspicion of
the commission of a cognizable offence within the jurisdiction of the police
officer to whom it is given which compels action under section 157, Criminal
Procedure Code." In the present case, as required under the aforesaid
Rules, substance of information received under Section 154 Cr.P.C. has been
entered in the daily diary which has been marked as Ex.DC wherein names of all
the four accused and that of the deceased have been mentioned but so far as
names of witnesses are concerned, the same have not been disclosed. It may be
stated that under Section 154 of the Code as well as Rule 24.1 of the Rules
referred to above, what is required to be mentioned in the daily diary is
substance of the information received and the same cannot be said to be
repository of everything. Factum of murder of Kuljit Singh by the four accused
persons, including the appellants, has been specifically entered. If the names
of the witnesses have not been mentioned, it cannot be said that substance of
information received was not entered and there was violation of the provisions
of Section 154 read with Rule
24.1 of the Rules . Mere non-disclosure of the names of witnesses in the
daily diary as well as mortuary register, ipso facto, cannot affect the
prosecution case more so, when their names have been disclosed in the first
information report itself and there is no other circumstance to otherwise create
doubt regarding veracity of the prosecution case. This being the position, we
do not find any ground to disbelieve the evidence of PWs 2 and 3.
Mr. Sushil Kumar, learned Senior Counsel appearing on behalf of the
appellant Gurpreet Singh submitted that there was inordinate delay in sending
copy of the first information report to the learned magistrate as the case was
registered on 22nd January, 1990 at 7.15 p.m. but first information report
reached the concerned magistrate on that night at 0002 hours. In this regard,
reference may be made to the evidence of constable Lakhbir Singh (PW 7) who
stated that the special report of the present case was made over to him at 8.00 p.m. for being delivered to the concerned magistrate and other officers. He further
stated that first of all, he delivered copy of the report at the City Control
Room, the Superintendent of Police (City), Deputy Superintendent of Police
(City), Deputy Superintendent of Police (Detective), Senior Superintendent of
Police, Ludhiana, District Control Room and lastly to the concerned magistrate.
As before delivering the report to the magistrate, he had delivered its copy at
six other places, therefore, the report could be delivered to the concerned
magistrate at 0002 hours during night which shows that this witness has taken
four hours time in delivering report to the magistrate. In the present case, we
do not find that there was any delay at all in making over the report to
concerned magistrate rather the same was very promptly sent and delivered to
the learned magistrate.
That apart, it is well settled that even if there is any delay in sending
the special report to a magistrate that alone cannot affect the prosecution
case if the same is otherwise found to be trustworthy.
Learned Senior Counsel next submitted that in any view of the matter,
conviction of the appellants under Section 302 IPC simpliciter is unwarranted
as there is no evidence to show that any of the two appellants inflicted fatal
injury. It has been further submitted that their conviction cannot be altered,
by this Court, to under Section 302 read with Section 34 IPC for sharing the
common intention as no charge was framed under Section 302 read with Section 34
IPC but the charge was framed under Section 302 IPC simpliciter. It has been
further submitted that at the highest, the appellants can be convicted by this
Court under Section 326 IPC for causing grievous injury to the deceased by
dangerous weapons. Reliance in this connection was placed upon a three Judges'
Bench decision of this Court in the case of Shamnsaheb M.Multtani v. State of Karnataka
(2001) 2 Supreme Court Cases 577. In that case, charge was framed under Section
302 IPC and the accused persons were acquitted by the trial court.
When the matter was taken in appeal by the State, High Court reversed the
order of acquittal but convicted accused under Section 304-B IPC which was
challenged before this Court. After taking into consideration the provisions of
Section 464 of the Code of Criminal Procedure, this Court laid down that a
conviction would be valid even if there is omission or irregularity in the
framing of charge provided the same did not occasion a failure of justice. In
the said case, Court came to the conclusion that by non-framing of the charge
under Section 304-B IPC, there was failure of justice and the accused was
prejudiced thereby in view of the fact that under Section 113-B of the Evidence
Act, there was a statutory presumption against the accused which he was
entitled to rebut and no such opportunity of rebuttal was afforded to him in
the absence of charge. This being the position, this Court set aside the
conviction under Section 304-B IPC, remitted the matter to the trial court,
directing it to proceed from the stage of defence evidence. Therefore, the said
decision is quite distinguishable and has no application to the present case.
On behalf of the State, reference was made to a decision of this Court in
the case of State of A.P. v. Thakkidiram Reddy and others, (1998) 6 Supreme
Court Cases 554, in which case charge was framed under Section 302 IPC
simpliciter but eleven accused persons were convicted under Section 302/149 IPC
by the trial court. When the matter was taken to the High Court, conviction of
one accused under Section 302/149 IPC was maintained but of all other ten
accused persons reversed and they were acquitted of the charge. Against the
order of acquittal of the ten accused persons, State of Andhra Pradesh filed an
appeal before this Court whereas the accused whose conviction was upheld by the
High Court also preferred an appeal. This Court, following the decision of
Constitution Bench in the case of Willie (William) Slaney vs. State of M.P.,
AIR 1956 Supreme Court 116, upheld the order of conviction but reversed the
acquittal of five accused persons out of ten and restored their conviction
under Section 302/149 IPC recorded by the trial court. After taking into
consideration the provisions of Section 464 and 465 of the Code, it was laid
down that unless it could be shown from the evidence of witnesses as well as a
statement of the accused under Section 313 of the Code that there was a failure
of justice and thereby accused was prejudiced, the appellate court would not be
justified in refusing to convict the accused for the offence under Section
302/149 IPC merely because charge was framed under Section 302 IPC simpliciter
and not under Section 302/149 IPC. The court thus observed in paras 10-11 which
read thus:- "10. Sub-Section (1) of Section 464 of the Code of Criminal
Procedure, 1973 ('Code' for short) expressly provides that no finding, sentence
or order by a Court of competent jurisdiction shall be deemed invalid merely on
the ground that no charge was framed or on the ground of any error, omission or
irregularity in the charge including any misjoinder of charges, unless in the
opinion of the Court of appeal, confirmation or revision, a failure of justice
has in fact (emphasis supplied) been occasioned thereby. Sub- section (2) of
the said section lays down the procedure that the Court of appeal, confirmation
or revision has to follow in case it is of the opinion that a failure of
justice has in fact been occasioned.
The other section relevant for our purposes is Section 465 of the Code; and
it lays down that no finding, sentence or order passed by a Court of competent
jurisdiction shall be reversed or altered by a Court of appeal, confirmation or
revision on account of any error, omission or irregularity in the proceedings,
unless in the opinion of that Court, a failure of justice has in fact been
occasioned. It further provides, inter alia, that in determining whether any
error, omission or irregularity in any proceeding under this Code has
occasioned a failure of justice, the Court shall have regard to the fact
whether the objection could and should have been raised at an earlier stage in
11. This Court in Willie (William) Slaney v. The State of M. P., elaborately
discussed the applicability of Sections 535 and 537 of the Code of Criminal
Procedure, 1898, which correspond respectively to Sections 464 and 465 of the
Code, and held that in judging a question of prejudice, as of guilt, courts
must act with a broad vision and look to the substance and not to
technicalities, and their main concern should be to see whether the accused had
a fair trial, whether he knew what he was being tried for, whether the main
facts sought to be established against him were explained to him fairly and
clearly and whether he was given a full and fair chance to defend himself.
Viewed in the context of the above observations of this Court we are unable to
hold that the accused persons were in any way prejudiced due to the errors and
omissions in the charges pointed out by Mr. Arunachalam. Apart from the fact
that this point was not agitated in either of the Courts below, from the fact
that the material prosecution witnesses (who narrated the entire incident) were
cross examined at length from all possible angles and the suggestions that were
put forward to the eye witnesses we are fully satisfied that the accused
persons were not in any way prejudiced in their defence. While on this point we
may also mention that in their examination under Section 313 of the Code, the
accused persons were specifically told of their having committed offences (besides
others) under Sections 148 and 302/149 IPC. For all these reasons we reject the
threshold contention of Mr. Arunachalam.
Further, it has been reiterated by this Court in the case of Ramji Singh and
another v. State of Bihar (2001) 9 Supreme Court Cases 528 wherein also charge
was framed under Section 302 simpliciter but conviction was under Section 302
read with Section 34 IPC and it was laid down that conviction under Section 302
read with Section 34 IPC was warranted as the accused person shared the common
intention to cause death of the victim and no prejudice was caused to them
because of non-framing of charge under Section 302 read with Section 34 IPC.
In the present case, it cannot be said that the accused persons were
prejudiced merely because charge was framed under Section 302 IPC simpliciter
and no charge was framed under Section 302 read with Section 34 IPC. From the
evidence of two eyewitnesses, namely, PWs 2 and 3 it would appear that the
accused persons shared the common intention to cause death of the victim.
They were cross-examined at length from all possible angles and from the
suggestions that were put forth to the eyewitnesses, we are fully satisfied
that the accused persons were not in any manner prejudiced in their defence. That
apart, in their examination under Section 313 of the Code, the appellants were
specifically told that they along with other accused persons armed with kirpan
came to the place of occurrence and assaulted the deceased whereafter they fled
away which shows that appellants shared the common intention to cause death of
Learned Senior Counsel appearing on behalf of the appellant in this regard
has further relied upon decision of this Court in the case of Atmaram Zingaraji
v. State of Maharashtra 1997 Criminal Lal Journal 4406 wherein charge was
framed under Section 302/149 IPC against nine accused persons who were
acquitted by the trial court and when State of Maharashtra preferred an appeal,
the High Court upheld acquittal of eight accused persons but reversed the
acquittal of ninth accused and convicted him under Section 302 IPC simpliciter.
Against the order of conviction, the accused moved this Court and his
conviction under Section 302 IPC simpliciter was set aside on the ground that
there was no evidence to show that he inflicted the fatal injury and he could
not be convicted under Section 302/149 IPC as the other eight accused persons
were acquitted and their acquittal attained finality. This Court, however,
convicted the accused under Section 326 IPC for causing grievous injury by him
to the deceased. Likewise, in the case of Roopa Ram v. State of Rajasthan 1999
Criminal Law Journal 2901 three accused persons were charged under Section 302
and out of them two were acquitted by the trial court and one person was
convicted under Section 302 IPC and his conviction was upheld by the High
Court. When the matter was brought to this Court, it was found that the injury
inflicted by the appellant before this Court could not be said to be fatal as such
his conviction under Section 302 IPC simpliciter was unwarranted and the same
was set aside specially in view of the fact that he could not have been
convicted under Section 302 read with Section 34 IPC as other two accused
persons had been already acquitted by the trial court itself and their
acquittal attained finality.
In these circumstances, this Court convicted the accused under Section 326
of the IPC for causing grievous injury to the deceased. In our view, the
aforesaid two cases have no application to the facts of the present case. In
view of the facts set forth above, we are of the opinion that prosecution has
succeeded in proving its case beyond reasonable doubt and conviction of the
appellants under Section 302 IPC is liable to be altered to one under Section
302 read with Section 34 IPC as fatal injury could not be attributed to him.
Shri Prabha Shanker Misra, learned Senior Counsel appearing in support of
Criminal Appeal No. 710 of 1995 apart from challenging conviction of appellant
Mohinder Pal Singh on merits, which we have already dealt with, submitted that
on the date of the alleged occurrence, he was a juvenile within the meaning of
Section 2(h) of the Juvenile Justice Act, 1986 (hereinafter referred to as 'the
Act') as on that date he had not attained the age of 16 years. It appears that
this point was not raised either before the trial court or the High Court . But
it is well settled that in such an eventuality, this Court should first
consider the legality or otherwise of conviction of the accused and in case the
conviction is upheld, a report should be called for from the trial court on the
point as to whether the accused was juvenile on the date of occurrence and upon
receipt of the report, if it is found that the accused was juvenile on such
date and continues to be so, he shall be sent to juvenile home. But in case it
finds that on the date of the occurrence, he was juvenile but on the date this
Court is passing final order upon the report received from the trial court, he
no longer continues to be juvenile, the sentence imposed against him would be
liable to be set aside. Reference in this connection may be made to decision of
this Court in the case of Bhoop Ram v.
State of U.P. (1989) 3 Supreme Court Cases 1 in which case at the time of
grant of special leave to appeal, report was called for from the trial court as
to whether the accused was juvenile or not which reported that the accused was
not a juvenile on the date of the occurrence but this Court, differing with the
report of trial court, came to the conclusion that accused was juvenile on the
date the offence was committed and as he was no longer a juvenile on the day of
judgment of this Court, sentence awarded against him was set aside, though
conviction was upheld. In the present case, we have already upheld conviction
of appellant - Mohinder Pal Singh as well but it would be just and expedient to
call for a report from the trial court in relation to his age on the date of
Accordingly, Criminal Appeal No. 711 of 1995 filed by appellant - Gurpreet
Singh fails and the same is dismissed. Bail bonds of this appellant, who is on
bail, are cancelled and he is directed to be taken into custody forthwith to
serve out the remaining period of sentence for which a compliance report must
be sent to this Court within one month from the date of receipt of copy of this
In Criminal Appeal No. 710 of 1995 filed by appellant Mohinder Pal Singh,
call for a report from the trial court as to whether on the date of occurrence this
appellant was juvenile within the meaning of Section 2(h) of the Juvenile
Justice Act, 1986? The trial court shall give opportunity to both the parties
to adduce evidence on this point. Let the entire original records of the trial
court be returned to it. Report as well as records must be sent to this Court
within a period of three months from the receipt of this order. Upon receipt of
report from the trial court, final order shall be passed in this appeal.