Pal Singh Alias Pala vs State
2009 Latest Caselaw 737 Del

R-12,13,14
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Order : March 04, 2009

+                            CRL.A. 195/2001

       PAL SINGH alias PALA                      ..... Appellant
                       Through: Mr. M.L. Yadav, Advocate

                      versus

       STATE                                   ..... Respondent
                             Through:   Mr. Pawan Sharma, Advocate


                             CRL.A. 585/2001

       AJIT SINGH @ PAPPU                       ..... Appellant
                      Through: Mr. M.L. Yadav, Advocate

                      versus

       STATE                                   ..... Respondent
                             Through:   Mr. Pawan Sharma, Advocate


                             CRL.A. 203/2002

       GURMEET SINGH                          ..... Appellant
                    Through: Mr. M.L. Yadav, Advocate

                      versus

       STATE                                   ..... Respondent
                             Through:   Mr. Pawan Sharma, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH

       1. Whether reporters of local papers may be allowed
          to see the judgment?

       2. To be referred to the Reporter or not?       Yes
Crl.A.No.195/01, 585/01 & 203/02                          Page 1 of 12
        3. Whether judgment should be reported in Digest?      Yes

:      PRADEEP NANDRAJOG, J. (Oral)

1. 8.00 p.m. of 27th December 1996, was the pre-ordained

time for late Shri Shital Singh to breath his last. He was sitting

in a shop which was in his house, when he was accosted by

Gurmeet Singh, who was accompanied by Pal Singh, his cousin,

and Ajit Singh, his brother-in-law. As per the prosecution, Pal

Singh and Ajit Singh, on the exhortation of Gurmeet Singh

caught hold of Shital Singh and thus facilitated an assault by

Gurmeet Singh. Gurmeet Singh was armed with an iron rod and

gave a blow directed towards the fore-head of Shital Singh. The

incident was witnessed by Sheela Kaur PW-4, the wife of Shital

Singh. Her alarm call attracted her brother-in-law Bhag Singh

PW-3, and her nephew Jagdish Singh PW-5, who managed to

apprehend Gurmeet Singh at the spot since he slipped and fell

down while fleeing. Pal Singh and Ajit Singh managed to flee

and were apprehended later on.

2. As per the prosecution, the offending rod used by Gurmeet

Singh to assault Shital Singh was recovered pursuant to a

disclosure statement made by Gurmeet Singh and from his

house.

3. The injured Shital Singh was taken to Deen Dayal

Upadhayay (DDU) Hospital where he was declared brought dead

by the doctor on duty. The body was sent to the mortuary of

the said hospital, where Dr.Komal Singh PW-9, conducted the

post-mortem and as per post-mortem report Ex. PW-9/A, noted

an injury, obliquely placed on the mid fore-head and an abrasion

on the right side of the fore-head and an abrasion on the right

leg.

4. The doctor opined that all injuries were ante-mortem and

that cause of death was opined to be coma caused by the head

injury. It was further opined that the head injury was possibly

the result of being hit by an iron rod.

5. Reverting back in point of time; when the police received

information of the assault, S.I. Bhim Singh PW-8, accompanied

by Const.Umesh Kumar PW-10, left for the spot. Since the duty

Constable at the hospital also gave information to the local

Police Station, of Shital Singh being brought to the Hospital,

Inspector Rai Singh PW-11, the SHO of the Police Station also

reached the hospital.

6. Needless to state, S.I. Bhim Singh and Const.Umesh

Kumar, on reaching the place of the incident proceeded to the

hospital as they were told that the injured was removed to the

hospital. In this manner, S.I. Bhim Singh, Inspector Rai Singh

and Const.Umesh Kumar came to be present at the hospital.

7. The wife of Shital Singh, namely, Sheela Kaur PW-4, was

present at the hospital. Her statement Ex.PW-4/A was recorded

by Inspector Rai Singh, in which she disclosed that the accused

Gurmeet Singh used to steal electricity by directly hooking the

electric main lines, which was objected to by her husband, and

that in the past Gurmeet Singh, his brother-in-law Ajit Singh and

his cousin Pal Singh i.e. the accused had an altercation with her

husband and that on 27.12.1996 at around 8.00 p.m. when her

husband was in his house and she was in the shop, Gurmeet

Singh, Pal Singh and Ajit Singh came. Gurmeet Singh was

armed with an iron rod. Whereas Pal Singh and Ajit Singh

caught her husband, Gurmeet Singh inflicted a blow on his head

with the iron rod. Bhag Singh, her brother-in-law and Jagdish

Singh, her nephew reached, hearing her cries. The accused

attempted to flee, but Gurmeet Singh was apprehended by them

and others while he was attempting to flee and the other two

accused ran away. An endorsement, Ex.PW-11/A, was made on

her statement by Inspector Rai Singh and was dispatched

through Const.Umesh Kumar PW-10, at 11.15 p.m. for the FIR to

be registered. HC Mahabir Singh PW-6, posted as duty officer at

the police station registered the FIR Ex.PW-6/A.

8. We eschew reference to the disclosure statement of the

appellant Gurmeet Singh and recovery of an iron rod from his

house at his instance. We do so for the reason, Gurmeet Singh

was apprehended at the spot and as held by the learned trial

Judge the possibility of the co-accused running away with the

iron rod cannot be ruled out. But, in said circumstance, how

would Gurmeet Singh know that they had kept the iron rod in his

house; much less the place wherefrom he could have got the

same recovered.

9. It is settled law, that where an eye witness account is

consistent and trustworthy, until and unless there are serious

doubts in the manner in which the investigation is conducted,

over zealous acts of the police officers should be ignored and on

account thereof the testimony of the eye witnesses should not

be discarded.

10. Reverting back, the co-accused were apprehended.

Needless to state, nothing of consequence was recovered at

their instance.

11. At the trial, Sheela Kaur PW-4, deposed the facts which

were told by her to Inspector Rai Singh which find a mention in

Ex.PW-4/A.

12. She was cross-examined at length. Nothing was brought

out to discredit her, except the fact that in her statement

recorded by the police she had not informed that on an earlier

occasion even Pal Singh and Ajit Singh had attempted to hook a

wire on the electricity mains and that in her statement recorded

by Inspector Rai Singh she had not stated that her husband was

present at the spot. We note that she only told the police that

she was present at the shop.

13. Bhag Singh PW-3, deposed that he was standing outside

his house when he heard alarm calls of Bachao-Bachao. He ran

towards the place from where the sound was coming and saw

Pal Singh and Ajit Singh holding Shital Singh and that Gurmeet

Singh gave a blow with an iron rod on Shital Singh. He rescued

Shital Singh. The accused started running. Accused Gurmeet

Singh slipped and fell down and he over-powered him; other

accused ran away. Police came to the spot. That even Jagdish

Singh was present and he saw him at the site of the occurrence.

14. The witness was cross-examined and nothing of substance

was brought out to discredit Bhag singh.

15. Jagdish Singh PW-5, deposed that he was present in his

house at 8.00 p.m. on 27.11.1996 and on hearing alarm sound

he came out and saw Gurmeet Singh assaulting Shital Singh.

Then Bhag Singh came. Accused started running. Bhag Singh

chased them. Accused Gurmeet Singh slipped and was

apprehended by Bhag Singh and other two co-accused managed

to escape.

16. The witness was cross-examined. Nothing of substance

was brought out to discredit the testimony of said witness.

17. We note that the deceased used to reside in House No. D-

7/217, Sultanpuri, Delhi. Bhag Singh PW-3, resides at D-7/251,

Sultanpuri, Delhi and Jagdish Singh PW-5, resides at D-7/213

Sultanpuri, Delhi; meaning thereby, Jagdish Singh and Bhag

Singh would be natural witnesses to the occurrence.

18. Vide impugned judgment and order dated 12 th February

2001, the three accused i.e. Gurmeet Singh, Ajit Singh and Pal

Singh have been convicted for the offence of having murdered

Shital Singh. They have been convicted under Section 302 read

with Section 34 IPC.

19. Vide order dated 19th February 2001, they have been

sentenced to undergo imprisonment for life and to pay a fine in

the sum of Rs. 1,000/-; in default of payment of fine to undergo

simple imprisonment for 15 days.

20. The learned trial judge has held that the testimony of the

wife of the deceased showed that there was an enmity between

the deceased and the accused. The defence taken by the

accused persons that the deceased sustained the injury when he

fell from the pole while attempting to steal electricity has not

been accepted in view of the testimony of Dr.Komal Singh PW-9,

who categorically deposed that the injuries mentioned in the

post-mortem report Ex.PW-9/A could not have been possible if

the deceased fell from a height of 20 feet.

21. With respect to the recovery of the iron rod at the instance

of the appellant Gurmeet Singh, the learned trial judge held that

the possibility of the other two co-accused running away with

the iron rod cannot be ruled out. In this manner, the learned

trial judge has held that the recovery of the iron rod, pursuant to

the disclosure statement of Gurmeet Singh and at his instance,

was an incriminating piece of evidence.

22. As noted by us hereinabove, Gurmeet Singh was

apprehended at the spot. By the time, the iron rod was not in

his hand. Obviously, one out of the two co-accused could have

removed it. But, Gurmeet Singh could never had knowledge as

to what did they do with the iron rod; much less could have

knowledge that they have kept the iron rod in his house. It is

obvious that the over zealous police officers have shown the

recovery of the rod at the instance of Gurmeet Singh.

23. But, since three eye witnesses to the incident have

withstood the test of cross-examination coupled with the fact

that Sheela Kaur PW-4, the wife of the deceased met the police

officers at the hospital and her statement was recorded

somewhere before 11.15 p.m. in which she named all the

assailants and gave a detailed account of what happened, we

find that there is hardly any time for Sheela Kaur to cook-up a

false version. We note that the incident took place at 8.00 p.m.

She rushed her husband to the hospital. Where was the time for

her to fabricate a story? Even at the hospital she would be

concerned about the well being of her husband. When the

doctors examined him after a few minutes of his arrival, he was

declared brought dead. The lady would be traumatized in grief.

That apart, PW-4, PW-3 and PW-5 have corroborated each other

on all other material aspects of the controversy. That the

appellants sought to project a version that the deceased

sustained the injury when he fell from the electricity pole,

means the accused admit their presence at the site. Indeed, if

they were not present at the spot, how could they even say that

the deceased was attempting to climb up an electricity pole and

slipped down, and as a result of the fall sustained the injury.

24. We are satisfied that the evidence on record establishes

that Pal Singh and Ajit Singh demobilized the deceased by

catching hold the deceased and facilitated an assault by

Gurmeet Singh.

25. But, a question arises, whether the accused persons came

with an intention to kill the deceased or did they have only an

intention to harm the deceased? This question is not free from

controversy.

26. But guidance can be taken from past precedents, where

even directed towards the head, a single assault has been held

indicative of lack of intention to cause death or intention to

cause a bodily injury which has been opined by the doctor to be

sufficient in the ordinary course of nature to cause death or

even the doing of an imminently dangerous act which must in

probability cause death.

27. In the decision reported as (2005) 9 SCC 650

Thangaiya vs. State of Tamil Nadu, an injury on the right parietal

scalp, 4" linear obliquely placed; opined by the doctor to be

sufficient in the ordinary course of nature to cause death, was

held to be making out a case attracting 304 Part-I IPC and not

Section 302 IPC. Similarly, in the decision reported as JT 2008

(5) SC 407, Kesar Singh & Anr. vs. State of Haryana a single

blow on the head causing death was held to be an offence

punishable under Section 304 Part-I IPC. Needless to state, in

both cases the victim had died as a result of the head injuries.

In the decision reported as AIR 1974 SC 1351, Thakarda Lalaji

Gamaji vs. The State of Gujarat, two blows with a Danti (scythe),

one directed on the left temporal region of the scalp and the

other on the left forearm; resulting in the death of the victim as

a consequence of the first injury, was held to be an act

attracting Section 304 Part-I and not Section 302 IPC.

28. We need not note a plethora of authorities on the point.

Needless to state, a single assault which proves fatal, may also

be sometimes indicative of an intention to cause death. But, the

circumstances of each case have to be seen. Whether the

offending object is a weapon; the ferocity of the blow; the

attendant circumstances wherefrom an intention to cause death

can be inferred or whether only an intention to cause an injury

can be inferred, all have to be kept in mind.

29. In the instant case, the accused persons inflicted a single

blow on the head of the deceased. The other two abrasion

wounds can possibly be the result of a fall; we note that only

one injury is a lacerated wound. The other two are abrasions,

which can be the result of forceful catching hold of the person of

the deceased or possibly even a fall. It is important to note that

the deceased was demobilized, being caught hold of by Ajit

Singh and Pal Singh and nothing prevented Gurmeet Singh to

inflict more than one fatal blows. That only one blow was

inflicted suggests that the intention of the accused was to injure

the deceased.

30. Under the circumstances, we are of the opinion that the

instant case does not warrant a conviction under Section 302

IPC. Taking cue from the decisions of the Supreme Court as

noted above, we hold that the acts of the appellants show the

commission of an offence punishable under Section 304 Part-

I/34 IPC.

31. A custodial sentence of 10 years would meet the ends of

justice.

32. The appeals are partially allowed. The conviction of the

appellants under Sections 302/34 IPC is altered to a conviction

under Section 304 Part-I/34 IPC. The appellants are sentenced

to undergo rigorous imprisonment for 10 years and to pay a fine

of Rs.5000/- each; in default of payment of fine to undergo

simple imprisonment for a month. If the fine is realized, it shall

be paid to the widow of the deceased.

33. The appellants are on bail. Their bail bonds and surety

bonds are cancelled. The appellants shall surrender to undergo

the rest of the sentence. The appellants shall be entitled to the

benefit of Section 428 Cr.PC.

34. We clarify, if the appellants or any one of them have/has

undergone the sentence (including period of remission, if any),

such appellant need not surrender and need not be arrested.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

MARCH 04, 2009 dkg