BALDEV SINGH AND ANR. versus STATE OF PUNJAB

BALDEV SINGH AND ANR.

v. STATE OF PUN.JAB OCTOBER 13, 1995

[A.S. ANAND AND K.S. PARIPOORNAN, J.J.j

()inzinal Lalv :

Indian Penal Code, 1860:

Sections 302 r/w 341299, 304, Pait-I-Murder/culpable homicide-No illlention to cause death-No knowledge that injwies inflicted were likely to cause death-Held; offence falls under Section 299 read with Section 304, Pan-I and not under S.302 r/w S.34.

Code of Ciiminal Procedure, 1973 :

Section 357( 3 T--Con111ensation--Maintaining tile se11tence of ilnp1ison-nient-No1 beneficial to victin1 or his lleirs-ACcused in }Josition to pay-Fit case for substitution of sentence of bnp1iso1unent by award of con1pensation.

Evidence Act, Ifi72 :

First infonnatimi Repmt-Value and use of-Not substantive piece of evidenw--Relevant on(v in judging the veracity of prosecution case--Only the essential or broad picture need be stated in it.

The first appellant and his father were convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 and sentenced to undergo imprisonment for life. The first appellant was also convicted under Section 25 of the Arms Act.

According to the prosecution, PW-S's husband took the land belong-G ing to the second a11pellant for cultivation. The second appellant wanted the Government land being cultivated by PW-S's husband in lieu of the lands taken over by him, but he did not consent to this. On the evening of 4th May, 1984 PW-5, her husband and son (PW-6) were working in the field. When they reached near the field of the second appellant, armed with kirpan, the first appellant armed \\-'ith Barchha and S with pistol came

there. S fired from the pistol aiming at PW-S's husband, but he was not hit. The first appellant gave Barcha blow on the thigh of PW-S's husband while the second appellant gave kirpan blow on his chest. Both the appel-lants--accused gave further injuries to him. A, who was in the nearby field, having heard the alarm, reached the spot and tried to intervene. The first appellant .gave ba~cl1ha thrust in the thigh of A. Thereafter, the accused ran away with their respective weapons. PW-S's husband died at the spot. PW-5 lodged First Information Report (Ex.P-7). The post mortem on the dead body of PW-S's husband was performed by PW-1. The statement of was recorded by PW-10. expired on 12.S.1984.

On the basis of the evidence adduced on behalf of the prosecution including that of PW-1, PW-S, statement of and F.I.R. (Ex.P-7) the Special Court came to the conclusion that the charges levelled against the appellants-accused were proved.

In the appeal before this Court, on behalf of the accused persons it was contended that there was discrepancy between Ex. P-7, (F.l.R.) and the deposition of PW-S in Court and hence her evidence was not trustworthy; that PW-S's husband did not receive any injuries by pistol; that there was no evidence as to who cause the fatal injuries to him; that the accused persons did not have an intention to cause death or had knowledge that death was likely to be caused by the injuries inflicted; that the accused persons could only be convicted under Section 299 read with Section 304, Part-I, IPC; and that this was fit and proper case for award of compen-sation under Section 3S7 Criminal procedure code to the heirs of the victim who were his near relations.

Disposing of the appeal, this Court

HELD: 1. There is nu discrepancy between Ex. P-7 (F.l.R.) and the deposition of PW-Sin Court. It should be remembered that Ex. P-7 was given within two hours of the incident and PW-S lady would have been in an agitated mind then. The proper value to be attached to the F.J.R., the cus-tomary or essential details to be mentioned there-in and the use that can be made of it should not be lost sight of. Stated brieny, the F.J.R. is not substantive piece of evidence, it is only relevant in judging the veracity of prosecutiorr' case and the value to be attached to it depends on the facts of each case. Only the essential or broad picture need be stated in the F.l.R. and all minute details need not be mentioned therein. (311-C-H]

Ram Kumar v. State of M.P., AIR (1975) SC 1026; Bishen Das v. State of Punjab, AIR (1975) SC 573; Podda Narayana v. Stale ofA.P., AIR (1975) SC 1252; Gumam Kaur v. Bakshislz Singh, AIR (1981) SC 631; State of Hmyana v. Sizer Singh, AIR (1981) SC 1021; State of UP. v. Bal/abh Das & 01s., AIR (1988) SC 1384; Joginder Singh v. State of Punjab, AIR (1988) SC 628 and Baldev Singh v. State of Punjab, [1990] 4 SCC 692, relied on.

2. On careful consideration of the materials available in the case and in particular Ex. P-7 (F.l.R.), -statement by A, evidence of PW-5 and the medical evidence, it is clear that the Court below was justified in holding that the appellants - accused caused injuries to PW-S's deceased husband which resulted in his death. It is also clear that the Court below was justified in holding that the first appellant alone caused injuries to resulting in his death. [314-B-C]

3. The medical evidence negatives any wound as having been sus-tained by PW-S's deceased husband, by pistol. The arms possessed by the accused are not inherently dangerous to infer that the intention of the accused was to cause death or that the accused had knowledge that by inflicting the injuries as was done, death was likely to be caused. There is no evidence or finding as to who caused the fatal injuries which resulted in the death of PW-S's deceased husband. The appellants accused inflicted injuries only on the thigh and at the back. The incident happened nearly 11 years ago (4.S.1984). The injuries inflicted on by the first appellant have not been proved to be serious or fatal and died nearly 8 days after the incident on account of cumulative effect of the in.furies. The conviction of the appellants for the offence under Section 299 read with Section 304, Part-I, IPC is upheld. [317-C-D-G]

State of Andlzra Pradesh v. Rayavarapu Punnayya, [1977] 1 SCR 601, relied on.

4. The passage of time should have its impact in taking an overall view of the matter. The appellants have served the sentence of imprison-ment for more than two years. PW-S's deceased husband is ari unfortunate victim. The property dispute between the father and son has led to the unfortunate incident. PW-S (widow) and children of the deceased are the persons to suffer and they should not be forgotten ,and by merely main-H

taining the sentence of imprisonment on the accused, the victim or his heirs are not benefited. Considering the nature of the crime, the fact that the accused and the victim are near relations, that it is property issue which ended in the calamity, the fact that the accused are admittedly in position to pay, it is clear that this is fit case, in which Section 357 (3) Cr. P.C. can be invoked and just and reasonable compensation given to the family of the deceased (PW-5 and her children).· [317-E-F]

Hmi Singh v. Sukhbir Singh, (1988) 4 SCC 551; Dr. Jacob George v. State, [1994] 3 SCC 4301 and Ba/raj v. State of UP., (1994] 4 SCC 291, referred to.

D.R. Mitru's Code of Oiminal procedure-18th Edition, pp 1240-1241, referred to.

5. In the circumstances, the following further directions are given in the interests of justice :·

(i) The appellants are found guilty and sentenced under Section 304, Part-I of the Indian Penal Code to term of imprisonment, which will be limited to the period they have already undergone for causing the death of PW-S's husband and A. (317-H, 318-A]

(ii) fo addition to the above, it is ordered that the two appel· !ants-accused. shall pay by way of compensation sum of Rs. 35,000 each to PW-5 and her children who have suffered the irreparable loss due to the death of her husband for which the appellants · accused persons have been sentenced to the term of imprisonment already undergone by them. (318-B]

(iii) The amount of compensation ordered shall be paid to PW-5 and her children with in period of 3 months from now. If it is not so paid, the amount shall be recovered by the persons entitled to the amount from the appellants as if the direction contained herein is decree passed against them by this Court. If not recovered, the accused shall suffer the balance of the term of imprisonment as imposed by the Trial Court, which shall stand revived. (318-C]

(iv) The conviction and sentence under Arms Act is set aside. (318-D]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

181 of 1985.

From the Judgment and Order dated 3.l.85 of the Special Court at Ferozcpur, Punjab in Case No. 49/84 & Trial No. 39 of 1984.

M.S. Gujral Singh and P.P. Singh for the Appellants.

Ms. Arnita Gupta for R.S. Suri for the Respondent.

The Judgment of the Court was delivered by

PARIPOORNAN, J. Accused No. 1 Baldev Singh son of Roar Singh and Accused No. 3 Roar Singh son of Khushal Singh in Case No. 49/84 -Trial No, 39/84 of the Court of Shri M.L. Merchea, Judge, Special Court, Ferozepur have filed this appeal under Section 14 of the Terrorists Af-fected Areas (Special Courts) Act of 1984{hereinafter referred to as 'Act') against their conviction and sentence dated 3.1.1985. There were four accused in this case. Accused No. 2 Sham Singh son of Roar Singh and Accused No. 4 Shamsheer Singh son of Roar Singh were acquitted by the same judgment. The State has not filed any appeal against the acquittal of accused Nos. 2 and 4.

2. The deceased No. 1, Balbir Singh and deceased No. 2 Amrik Singh and accused Nos. l to 4 are near relations. The following chart will help to understand the relationship of the parties inter se :

Khushal Singh

Amrik Singh Roar Singh (Deceased No. 2) (Accused No. 3) Balbir Singh Sham Singh Baldev Singh Shamsheer Singh (Deceased-1) (Accused-2) (Accused-1) (Accused-4)

The Court below, by its judgment dated 3.1.1985, convicted Accused Nos. 1 and 3 under Section 302 read with Section 34.of the Indian Penal Code for committing the murder of Balbir Singh. Baldev Singh, accused No. 1

was convicted under Section 302 of the Indian Penal Code for committing the murder of Amrik Singh, deceased No. 2 and under Section 25 of the Arms Act for heing in possession of the Barchha without licence. It is against the said conviction and sentence the accused have filed this appeal under the Act.

3. The prosecution alleged that accused Nos. l to 4 committed the murder of Amrik Singh and Balbir Singh, deceased Nos. l and 2. The prosecution case is as follows :

Balbir Singh was in Aalli village cultivating the land of the Govern-c ment. About 3 years prior to the incident he shifted to village Saddushah-wala and took 2-1/2 kilas belonging to his father Roar Singh for cultivation. Father Roor Singh wanted the land in village Aalli from Balbir Singh in lieu of the lands taken over by Balbir Singh. Balbir Singh did not consent to this. On 4.5.1984 at about 8 P .. M. Balbir Singh, his son Avtar Singh (PW-6), Daya Singh and Dalip Kaur, widow of Balbir Singh (PW 5), were working in the field collecting ·bundles of the wheat stacks. When they reached near the field of Roor Singh, Roor Singh armed with Kirpan, Baldev Singh and Shamsheer Singh armed with Barchhas and Sham Singh with pistol came there. Roor Singh raised lalkara stating that Balbir Singh should not be spared. Sham Singh fired from the pistol aiming at Balbir Singh. But Balbir Singh was not hit. Balbir Singh laid himself on the ground to save himself from the firing. Bundles of wheat-stacks fell on him. Baldev Singh gave Barchha blow on the thigh of Balbir Singh. Shamsheer Singh gave Barchha thrust in the chest of Balbir Singh. Roor Singh gave Kirpan blow in the chest of Balbir Singh. All the accused gave further injuries to Balbir Singh. Amrik Singh, deceased, who was in the nearby field, having heard the alarm, reached the spot and tried to intervene. Baldev Singh gave Barchha thrust in the thigh of Amrik Singh. Thereafter the accused ran away with their respective weapons. Balbir Singh died at the spot. Dalip Kaur (PW 5), widow accompanied by one Sher Singh went to Police Station Mallanwala and gave the F.I.R. (Ex.P-7) at 10.20 P.M. case was registered under Section 302 read with Section 34 of Indian Penal Code and Section 25 of the Arms Act, against the accused. On the other hand, Amrik Singh reached the Rural Dispensary, Mallanwala at 9 AM. the next day. PW 2, Dr. Raja Singh, Doctor, Rural Dispensary, Mallanwala, ex-amined him at 9.45 A.M. In the meanwhile, PW-10, Rattan Singh, Station House Officer, Police Station, Mallanwala proceeded to the spot, found

the dead-body of Balbir Singh with multiple injuries lying in the field of Roor Singh, the accused with Daya Singh and A\1ar Singh (PW-6) guarding the dead-body. Ex. P-24 inquest report was prepared. Dead body was despatched for post- mortem examination through Ex. P-24/A. Rough site-plan P-6/A was prepared. The shoes of Balbir Singh P/0-8 were col-lected from the spot under seizure memo Ex. P-25. Blood stained earth was collected under seizure memo Ex. P-26. Three stacks of wheats were secured under seizure memo Ex. P-75. Thereafter, in the evening PW-10, Rattan Singh, reached the hospital and made inquiries about Amrik Singh. PW-2, Dr. Raja Singh, opined that Amrik Singh was fit to make state-ment. Thereafter, PW-10, Rattan Singh, recorded the statement of Amrik Singh Ex. P-28. Amrik Singh produced his blood-stained shirt and kachha which were taken possession of under Ex.P-29.

4. PW-1 Dr. J asp al Singh performed the post mortem on the dead-body of Balbir Singh on 5.5.1984. The post-mortem revealed the following 7 injuries :

l. Incised W[!Ulld 5 ems. x 2 ems. on the front of the left chest in upper part 3 ems. above the nipple with blood clots. On dissection the underlying rib was found cut and left thoracic cavity full of clotted blood. Lower part of the heart stood punctured through and though. The lower part of the lung also lay injured.

2. Incised wound 9 ems. x 3 ems. front and upper part of the right thigh, oblique in direction with blood clots. On dissection the underlying major blood vessels were found corripletely cut and sub-cutaneous congested.

3. Incised wound 9 ems. x 3 ems. at the outer and upper part of the right thigh with blood clots. On dissection sub-cutaneous tissues \Vere found congested.

4. Incised wound 5 ems. x 2 ems. at the middle of the right thigh with blood clots and sub-cutaneous tissues congested and soft tissues cut.·

5. Incised wound 1-1/2 ems. x 1/2 cm. at the middle of the right buttock sub-cutaneous tissues congested.

6. Incised wound 1-1/2 ems. x 1/2 cm. at the outer and upper part of the left thigh near iliac crest with blood clots.

7. Incised wound 7 ems. x 2 ems at the back of the abdomen in lower part in middle at Jumbo sacral region with blood clots with underlying vertebra partially cut and sub-cutaneous tis-sues congested."

The Doctor opined that death was due to shock and haemorrhage as result of multiple injuries which were sufficient in the ordinary course of nature to cause death. He also opined that injury No. 1 alone was sufficient in the ordinary course of nature to cause death. Amrik Singh expired on 12.5.1984. An assistant Sub-Inspector of Police, Police Station Mallanwalla, Gurmel Singh (PW-11)', on receipt of the said information, went to the hospital and prepared Inquest Report Ex. P-5. The dead body was despatched for post-mortem through request Ex. P-5/A.

5. Accused Sham Singh, Roar Singh, Shamsheer Singh and Baldev Singh were arrested on 12th and 14th May, 1984. PW-7, Head Constable recover.ed the loaded pistol and cartridges from Sham Singh under seizure memo Ex. P-8 and Ex. P-9. From Shamsheer Singh Barchha was recovered under seizure memo P-14 and his statement was recorded Ex. P-13. As per Ex. M/0/7 Barchha was recovered from Baidev Singh under seizure memo Ex. P-19. Thereafter, the following charges were framed against the 4 accused persons.

(Sham Singh accused was charged under Section 25 Arms Act by the Sub-Divisional Magistrate, Zira.)"

The cases against the accused under the Arms Act were clubbed along with the main case. All the accused pleaded not guilty to the charges.

6. The prosecution examined PW-1 to PW-5 and PW 7 lo PW-11. Affidavits of police officials were also taken into account. PW-1 is Dr. .laspal Singh, who performed the post mortem on the dead body of Balbir Singh PW-2, Dr. Raja Singh, examined Amrik Singh (deceased) and gave Ex. P2 1ne<licolega1 report. The learned judge, Special Court, after refer-ring to the nature of the injuries, as disclosed in the post mortem certifi-cate, held that the case of the prosecution that Sham Singh the accused fired at Balbir Singh stands belied since there was no fire arm injury on the body of the deceased. He was also acquitted of the charges framed under the Arms Act. The learned Judge also acquitted Shamsheer Singh, holding that the statement of PW-5 that Shamsheer Singh gave Barchha thrust in the chest of Balbir Singh, finds no mention in the F.I.R. and the participation of Shamsheer Singh in the crime is open to serious doubt. Giving the benefit of doubt, Shamsheer Singh was acquitted. The prosecu-tion has not filed any appeal against the acquittal of Sham Singh, Accused No. 2 and Shamsheer Singh, accused No. 4.

7. The learned Judge of the Special Court heavily relied upon P- 7, F.I.R. and testimony of Dalip Kaur, PW-5 and statement of Amrik Singh Ex. P-28, and the medical evidence afforded by PW-1 and PW-2 and relevant certificates issued by them to hold that the cases against Baldev Singh, accused No. 1 and Roor Singh, accused No. 3 have been proved. On the basis of this finding, Baldcv Singh and Roar Singh were convicted under Section 302 read with Section 34 of the Penal Code for committing the n1urdcr of Balhir Singh. Baldcv Singh, accused No. 1 \Vas also convicted under Section 302 1.P.C. for co1111nitting the murder of Amrik Singh and under Section 25 of the Arms Act for being in possession of Barchha without licence.

8. We heard counsel. The arguments of appellants' Counsel can be summarised thus :

There is no reliable record to show that deceased Balbir Singh was cultivating the land in the village Saddushahwala belonging to his father. The deceased was not living there. The F.I.R. Ex. P-7 slated that Sham Singh fired from his pistol at Balbir singh which struck his chest and later all the accused attacked the deceased which resulted in his death. The final

act which caused the death is not attributed to any person. Amrik Singh has not seen the inc:ident and the narration in the statement of Amrik Singh, Ex. P-28, is only surmise. Dalip Kaur, PW -5 while in the box gave different ver>ion regarding the pistol shot of Sham Singh. It was stated that the shot did not hit at Balbir Singh though he fell down. The deposition of PW-5 on this 1-ital aspect is entirely different story. So, the evidence of PW-5 is not trustworthy. Daya Singh who was said to be present during the incident was not examined. What is more - the medical evidence disclosed that the pistol shot is not the cause of death. Since there is no independent evidence to show that the appellants/accused Nos. 1 and 3 caused the fatal injuries, their conviction and sentence under Section 302 read with Section 34 1.P.C. cannot be sustained. It is the prosecution case that accused No. 2 fired from the pistol at Balbir Singh, and Shamsheer Singh, accused No. 4 alone gave thrust in the chest. But, the medical evidence disclosed that injury No. 1 did not result from any pistol shot. If at all, injury No. 1 incised wound in the left chest was attributable only to Shamsheer Singh who was acquitted. It is clear from Ex. P-7, F.l.R. and the evidence of PW-5 that Baldev Singh gave Barchha blow at the thigh of Balbir Singh and Roar Singh gave Kirpan blow at the back of Balbir Singh. The fact!i stated above do not warrant the sentence and conviction of the appellants, accused Nos. 1 and 3 under Section 302 read with Section 34 I.P.C., nor can the conviction stand scrutiny under the Arms Act. On the other hand, counsel for the prosecution submitted that there was treacherous attack on the deceased Balbir Singh by accused Nos. l to 4 and though it was Sham Singh who used the pistol, the other accused caused severe injuries in important parts of the body which resulted in the instantaneous death of Balbir Singh and so the conviction and sentence awm·ded lo accused Nos. 1 and 3 by the learned Judge, Special Court, are justified.

9. Appellants' counsel attacked Ex. P-7, the F.1.R., Statement given ··by Dalip Kaur, PW-5, an eye-witness as untrue. It was argued that PW-5 was categoric in the F.I.R. that Sham Singh fired from his pistol at Balbir Singh which struck his chest on the left side and he fell down. Thereafter, the other accused attacked the deceased with Barchha and in!licted injuries which resulted in the death of Balbir Singh instantaneously. Al the trial, PW-5, however, deposed that Sham Singh fired from the pistol at Balbir Singh, but Balbir Singh was not hit. Balbir Singh fell down and bundles of wheat fell on his head and the other accused inflicted various injuries onother parts of the body of Ball>ir Singh like thigh, chest, back, etc. There is discrepancy on very vital aspect oft he case - as to whether Balbir Singh was hit and he fell down when Sham Singh fired from his pistol. The medical evidence disclosed, no fire-arm injury on the body of the deceased. No M.T. wad or Palllit were recovered from the spot. The above aspect will show that PW-5 cannot be believed, that Ex. P-7, FIR is not true or proper version of the incident and the details given therein are unfounded. On this basis it is only appropriate to hold that PW-5 is not speaking the truth and if her evidence is excluded, the prosecution case stands on very fragile foundation.

10. We are of the view that there is no discrepancy between Ex. P-7, FIR and the deposition of PW-5 in Court. We should remember that Ex. P-7, FIR was given within two hours of the incident and PW- 5, lady, would have been in an agitated mind then. In Ex. P-7, PW-5 only stated that Sham Singh fired from his pistol at her husband whiCh struck his chest. That could only be what she inferred. She did not state that her husband died as result of the above pistol shot. It is because of the various injuries inflicted by the other accused, Balbir Singh, died. And as PW-5, she stated that Balbir Singh was not hit when the accused Sham Singh fired from the pistol at Balbir Singh, but Balbir Singh fell down. Bundles of hay fell on his head and the other accused intlicted various injuries on other parts of the body. Really, there is no contradiction or variation in the deposition of PW-5 from what she stated in FIR, Ex. P-7. We are of the view that the plea of the appellants' counsel fails to reckon the proper value to be attached to the FIR, the customary or essential details to be mentioned therein and the use that can be made of it. There are innumerable decisions of this Court dealing with the above aspects of the FIR. Mention may be made of few important decisions of this Court on the subject Ram Kumar v. State of M.P., AIR (1975) SC 1026; Bisha11 Das v. State of Punjab, AIR (1975) SC 573;' Podda Narayana v_ State of A.P., AIR (1975) SC 1252; Gumam Kaur v. Bakshish Singh, AIR (1981} SC 631; State of Hwyana v. Sher Singh, AIR (1981} SC 1021; State of U.P. v. Ba/labh Das & 01'-., AIR (1985) SC 1384; Jogi11der Singh v_ State of Punjab, AIR (1988) SC 628 and Baldev Singh v. State of Punjab, [1990] 4 SCC 692. Stated briefly, the FIR is not substantive piece of evidence, it is only relevant in judging the veracity of prosecution case and the value to be attached to il depends on the facb of each case. Only the essential or broad picture need be stated in the FIR and all minute details need nol be mentioned therein. It is not

verbatim summary of the prosecution case. It need not contain details of the occurrence· as if it \Vere an "encyclopae<lia'1 of the occurrence. It may not be even necessary to catalogue the overact acts therein. Non mention-ing of some facts or vague reference to son1c others are not fatal. We should also bear in mind that the FIR was given by PW-5, who is an illiterate lady soon after the occurrence, when she should have been very emotional and in disturbed state of mind. We find that the evidence of PW-5 is substantially in accord with Ex. P-7, FIR and the court below was justified in placing reliance on Ex. P-7 and the evidence of PW-5. We repel the plea of the appellants' counsel to the contrary.

11. The statement of Amrik Singh Ex. p-28 translated into English is contained at pages 12 and 13 of the paper book. He has categorically stated therein that he heard the pistol shot when he was feeding the crop nearby and he immediately rushed to the field of his brother Roor Singh and found that Balbir Singh was being inflicted with injuries by his brothers and Roor Singh. He has also described the various blows administered to Balbir Singh by the accused persons and that Balbir Singh was murdered at the spot by the culprits. He stated that Sham Singh had earlier fired shot with his pistol. When he tried to rescue, Balbir Singh, his. nephew, Baldev Singh gave him (Amrik Singh) blow with his Barchha from its sharp side towards him, which struck at his right thigh and he fell down. He was brought from village Saddushahwala by Anoop Singh in an injured condi-tion and was admitted in the hospital at Mallanwalla. PW-10, the Inves-tigator recorded ·the statement after satisfying from the Doctor about the fitness of Amrik Singh to make the statement. The Court below has placed reliance on Ex. P-7, FIR, the statement of PW-5 and the above statement of Amrik Singh, Ex. P-28 and found thus :

"The statement of Dalip Kaur PW-5 is that Baldev Singh gave Barchha blow at the thigh of Balbir Singh; that Roor Singh gave Kirpan blow at the back of Balbir Singh and that the accused gave further injuries. The parties are closely relation as is clear from the pedigree table (propounded by me in para 1 of the judgment). Normally no daughter-in-law would accuse her father- in-law or husband's brother. It is in the statement of Dalip Kaur PW-5 that Baldev Singh gave Barchha thrust in the thigh of Balbir Singh. Her statement is corroborated by the medical evidence also. The motive alleged is that previously Balbir Singh was putting up in village

Alli, Police Station Sultanpur, district Kapurthala, and had for the last three years shifted to village Saddushahwala; there he was cultivating the land of Ro.or Singh and Roar Singh father of Balbir Singh (Deceased) wanted that Balhir Singh should part.with the land in his occupation in village Alli. Roor Singh accused admits having given the injuries but his pica is one of self defence for which there is not an iota of evidence. There is no injury on the person of Roar Singh. It was urged that the copies of the Khasra Girdawari did not support the possession of Balbir Singh. It is matter of common knowledge that if relation cultivates the_ land of proprietor the same is shown as self cultivated by the revenue officials at the time of girdawari (crop inspection). Moreover, there is no presumption of correctness to the entries of the Khasra Girdawari within the meaning of section 44 of the Punjab Land Revenue Act. The Fact that the occurrence is shown to have taken place in the field of Roar Singh is of no consequence because the statement of Dalip Kaur PW-5 is that the occurrence had taken place near the vacant field of Roar Singh. The Statement of Amrik Singh Ex. P 28 ............. "

(pp.11-12 Paper book)

Again, in paragraphs 30 and 31 (page 15 of the Paper book), the CQurt

found thus:

"The statement of Dalip Kaur PW-5, witness of the occurrence, and the statemePt of Amrik_ Singh Ex. P-28 bring the offence home to Roar Singh and Baldev Singh accused. It cannot be lost sight of that the accused did not prove much less allege any past hostility with Dalip Kaur PW-5. As given earlier the parties are closely related. The statement of Dalip Kaur PW-5 deserves credence. Baldev Singh and Roar Singh accused gave injuries to Balbir Singh resulting in his death and thereby committed an offence punishable under Section 302 r/w section 34 of the Penal Code. Amrik Singh was an intervenor and as such section 34 of the Penal Code would not be attracted against Roar Singh. It was Baldev Singh alone who caused injuries to Amrik Singh resulting in his death. Baldev Singh accused was also found in possession of Barchha which would make him liable under section 25 Arms Act. I convict Baldev

Singh and Roor Singh accused under section 302 r/w section 34 of the Penal Code for committing th~ murder of Balbir Singh. Baldev Singh accused is also convicted under section 302 of the Penal Code for committing the murder of Amrik Singh and under Section 25 of Arms Act for being in possession of Barchha without licence."

12. On an anxious consideration of the materials available in the case and in particular Ex. P-7 (FIR), Ex. P-28 (statement by Amrik Singh), evidence of PW-5 (widow of deceased. Balbir Singh) and the medical evidence, we are satisfied that the court below was justified in holding that Baldcv Singh (accused No. 1) and Roor Singh (accused No. 3) caused injuries to Balbir Singh (deceased No. 1), which resulted in his death. We are also satisfied that the court below was justified in holding that Baldev Singh (accused No. 1) alone caused injuries to Amrik Singh (deceased No. 2) resulting in his death.

13. Now, about the conviction and sentence, the court below held :

1. That Baldcv Singh (accused No. 1) and Roor Singh (accused No. 3) are guilty under section 302 read with section 34 IPC in causing the death of Baldev Singh and sentenced them to imprisonment for life;

2. That Baldev Singh (accused No. 1) is guilty under section 302 !PC in causing the death of Amrik Singh and sentenced him to imprisonment for life; and

3. Thai Baldev Singh was guilty of possession of Barchha without licence under section 25 of Arms Act.

14. In evaluating the legality and propriety of the conviction and sentence so passed by the court below, the following facts highlighted before us by appellants' counsel deserve consideration. The accused as also the victims (deceased) are members of the same family (near relations) (father and sons). The feud in the family centered round the entitlement to property. According to the prosecution, the deceased Balbir Singh moved to Saddushahwala village three years prior to the incident and was cultivating two and half kilas of property, admittedly belonging to the father (family) and it is in evidence that father Roar Singh (accused No. 3) wanted properties in Alli village in lieu of the property taken over by deceased inSaddushahwala village, which was not heeded to. While deceased Balbir Singh \Vas carrying on cultivation in Saddushahwala property, the father Roor Singh (Accused Nn. 3) and his other sons appeared in the scene and shouted about the unauthorised cultivation carried on hy Balbir Singh. The accused, no doubt had arms (kirpan, barchhas) and in the final analysis, the finding is that accused Nos. I and 3, only inllicted wounds in the thigh and hack. The plea of the accused, though not acccpted 1 \Vas right of self-defence. No douht, ·the wounds inllictcd by the accused caused the death of Balbir Singh. ln the e<intext and nature of the several injuries inllictcd, it could, at best, be (assumed) stated that the bodily injuries inflicted were likely to cause the death of Balbir Singh and the acts committed by the accused amounts to culpable homicide as defined in section 299 IPC. It is not proved nor docs any material exists to state that the accused had an intention to cause th_e death of Balbir Singh or had the knowledge that in inflicting the injuries, that death was likely to be caused. So, it was argued that the facts proved will not bring the case within section 300 !PC punishable under section 302 !PC and, if at all the accused can be convicted and sentenced only under section 299 read with section 304 (first part) of IPC only. It was further submitted that the father Roor Singh was more than 80 years of age, that he is possessed of valuable properties, . and the dispute itself having stemmed from the right to property, this is fit and proper case \Vhcre the court should consider, mitigative circumstan-ces and substitute the sentence of imprisonment awarded by the award of reasonable and appropriate compensation under section 357 Cr. P.C. to the heirs of the victim, \Vho are none other than their near relations. Our attention was invited to the decision of this Court in State of Andhra Pradesh v. Rayavarapu Punna;ya, [1977] 1 SCR 601, at pp. 608-609 to contend, that, if al all, ihc conviction and sentence can hc, only under Section 299 read with section 304 Part I !PC and stress was laid on the following passage :

" ... \Vhenever court is confronted with the question \Vhether the offence is 'murder' or 'culpable. homicide n(Jt amounting to murder', on the facts of case, it will he convenient for it to approach the problen1 in three stages. The question to be con-sidered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death, leads to the second stage for considering whether that act

of the accused amounts to "culpable homicide" as defined in S. 299. the answer to this question is plima jacic found in the aflirn1ativc, the stage for considering the operation of S. 300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition or n1urdcr contained ins. 300. If the <i11S\Ver to this question is in the negative the offence would be 'culpable homicide not amount-ing to murder', punishable under the iirsl or the second part of S. 304, depending, respectively, on whether the second or the third Clause of S. 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in S. 300, the offence would still be 'culpable homicide not amounting to murder,' punishable under the First Part of S. 304 Penal Code."

15. Similarly for the mitigation of the sentence of imprisonment and for applying section 357 of Cr. P.C. the following passage occuring in B.B. Milra's Code of Criminal Procedure - 18th Edition (1995) at pages 1240 " 1241 was relied on :

"S. 357 (a) Scope - ...... The power of courts lo award compensation to victims under Sec. 357, is not ancillary to other sentences but is an addition thereto. It is measure of responding appropriately to crime as well as of reconciling the victim with the offender. It is, to some extent, constructive approach to crimes, step forward in our criminal justice system. Therefore, all courts are rccommcndc<l to exercise this po\vcr liberally so as to nlcct the ends of justice in better way. Any such measure which would give the victim succour is far better than sentence by deterrence. Sub-sec. (3) of Sec. 357 provides for ordering of payment by way of compensation to the victim by the accused. It is an important provision and it n1ust also be noted that po\vcr to a\Vard compen-sation is not ancillary to other sentences but it is in addition thereto ........ In a\varc.ling con1pcnsation the court has to decide whether the case is fit one in which compensation has to be awarded. If it is found that compensation should be paid then the capacity of the accused lo pay compensation has to be determined. It is the duty of the court to take into account the nature of crime, the injury

suffered, the justness of the claim for compensation and other rt!fcvant c1rcun1stanccs in fixing the amount of con1pensation.11

Reference was also made lo the decisions of this Court in Hmi Singh v. Sukhbir Sing/1, I L988J 4 sec 55 L; Dr. Jacob George v. Stace, [ 1994] 3 sec 430 and Ba/raj v. State of U.P., Jl994] 4 SCC 291.

lA We are of the view that the submission made as staled hcreinabove, am entitled to acceptance. The medical evidence negatives any wound as havirtg been sustained by deceased Balbir Singh, by pistol. The arms possessed by the accused are not inherently dangerous to infer that the intention of the accused was to cause death or that the accused had knowledge that inflicting the injuries as was done, death was likely to be catis!!tl. There is no evidence or linding as to who caused the fatal injuries which resultc<l in the death of Balbir Singh. The appellants-accused inflicted injuries only Clft the thigh and at the back. The incident happened nearly 11 years ago (4.'.i,1984), The injuries inflicted on the thigh of Amrik Singh by BaldeV Singh have rtdt been proved to be serious or fatal and Amrik Singli died hearly 8 Jays after the incident on account of cumulative effect of the injuries. The passage of time should have its impact in taking an over all view of the mallet, The appellants have served the sentence of imprisonment for more than two years, till they were allowed bail by this Court by order dated 17.11.1987. Balbir Singh is an unfortunate victim. The property dispute between the father and son has led to the unfortunate incident. PW-5, widow and children of Balbir Singh, are the persons to miler and they should not be forgotten and by merely maintaining the sentence of imprisonment on the accused, the victim or his heirs are not benefited. Consiclering I he nal urc of the crime, the fact that the accused and the victim are near relations, that it is property issue which ended in the calamity, the fact that the accused are admittedly in position to pay, we ate of the view that this is fit case, in which section 357(3) Cr. P.C. can be invoked and just and reasonable compensation given to the family of Balbir Singh· (PW-5 and children). In the circumstances, while uphold-ing the conviction of the appellants for the offence under section 299 read with section 304, Part-I, IPC, we give the further following directions in the interests of justice :

1. Thal the appellants are found guilty and sentenced under section 299 read with section 304, Part-1 of the Indian Code to term

of imprisonment, which will be limited to the period they have already undergone for causing the death of Balbir Singh and Amrik Singh.

2. In addition to the above, we order that the two appellants/ac-cused Nos. 1 and 3 shall pay by way of compensation sum of Rs. 35,IJIJIJ each to PW-5 and her children who have suffered the irreparable loss due to the death of Balbir Singh for which the appellants/accused persons have been sentenced lo the term of imprisonment already undergone by them.

3. The amount of compensation ordered by us shall be paid to PW-5 and her children within period of 3 months from today. If it is not so paid, the amount shall be recovered by the persons entitled to the amount from the appellants as if the direction contained herein is decree passed against them by this Court. If not recovered, the accused shall suffer the balance of the term of imprisonment as imposed by the Trial Court, which shall stand revived.

4. The conviction and sentence under Arms Act is set aside.

The appeal is disposed of as above.

Appeal disposed of.