Gurmail Singh Vs State of Punjab

Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1782 OF 2008 With

CRIMINAL APPEAL NO. 1783 OF 2008

Gurmail Singh …..Appellant

Versus

State of Punjab & Anr. ....Respondents

J U D G M E N T

Madan B. Lokur, J.

1. The substantive question before us is whether the High

Court was right in reversing the view expressed by the Trial Court

that the provisions of Section 149 of the Indian Penal Code (for

short IPC) did not apply to the facts and circumstances of the

case. Our answer is in the affirmative and we uphold the decision

of the High Court in this regard. The appeals before us require to

be dismissed.

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The appeals:

2. Two appeals are before us: The first appeal is Criminal

Appeal No. 1782 of 2008 filed by Gurmail Singh son of Bachan

Singh. He has challenged his conviction by the High Court for an

offence punishable under Section 302 of the IPC for which he was

earlier acquitted by the Trial Court. He has also challenged the

upholding of his conviction by the High Court for an offence under

Section 324 of the IPC for causing injuries to Kaka Singh and

Piaro.

3. The second appeal is Criminal Appeal No. 1783 of 2008 filed

by Gurmail Singh son of Nahar Singh. He has challenged his

conviction by the High Court for an offence punishable under

Section 302 of the IPC read with Section 149 thereof as well as for

an offence under Section 148 of the IPC. Gurmail Singh son of

Nahar Singh has also challenged his conviction under Section 324

read with Section 34 of the IPC for causing simple injuries to Kaka

Singh and Piaro as well as his conviction under Section 326 read

with Section 149 of the IPC for causing grievous injuries to

Gurmail Kaur. Gurmail Singh son of Nahar Singh had earlier been

acquitted of all charges by the Trial Court.

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The facts:

4. There was a dispute between the families of Gurdial Singh

and Nachhatar Singh. The disputants are related. The dispute

pertained to ownership of land and a civil suit is pending between

the parties in this regard in Mansa.

5. It appears that as a result of the land dispute, Nachhatar

Singh allegedly murdered Gurdial Singh’s son Mohinder Singh on

20th February 1989. Gurdial Singh was an eyewitness to the

alleged murder. We are told that the trial is still pending.

6. On 10th March 1989 at about 9/9.30 p.m. Gurdial Singh and

his two brothers, Kaka Singh and Dial Singh along with Joginder

Singh, the complainant (whose daughter is married to Gurdial

Singh’s son) were irrigating their fields in village Heeron Kalan,

Police Station Bhikhi, District Bhatinda (Punjab). They were

informed by Gurmail Kaur and Piaro (both daughters of Gurdial

Singh) that some shots were fired in the village near Nachhatar

Singh’s house. On receiving this information, all of them left for

the village.

7. When they were about to enter their house, a lalkara (a

challenge) was given by Gurmail Singh son of Nahar Singh (and

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nephew of Nachhatar Singh) and Bibi (Nachhatar Singh’s sister) to

the effect that no one from Gurdial Singh’s party would be spared.

On this, eight persons (the accused) which included Nachhatar

Singh’s nephews, their associates and Nachhatar Singh’s sister

Bibi attacked them. It needs to be mentioned here that some of

these eight persons were residents of village Shahpur Kalan, while

others were residents of village Jharon, both under Police Station

Longowal, District Sangrur (Punjab).

8. During the attack, Jarnail Singh (nephew of Nachhatar Singh)

allegedly fired a shot with a 12-bore double barrel gun at Gurdial

Singh and injured him on his left thigh. He allegedly fired another

shot at Gurdial Singh and injured him on the finger of his right

hand. Jarnail Singh has been convicted by the High Court of an

offence punishable under Section 302 of the IPC, but we say

nothing in this regard since he has filed a separate petition in this

Court against his conviction.

9. Gurmail Singh son of Bachan Singh (an associate) fired at

Piaro with a 12-bore double barrel gun and injured her left ankle.

He also fired two shots at Kaka Singh which hit him on the front

side of his right shoulder and behind his right upper arm.

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10. Gurmail Singh son of Nahar Singh (and nephew of Nachhatar

Singh) along with Pargat Singh (an associate) gave gandasa blows

to Gurdial Singh on his right shoulder and on his right arm.

Shingara Singh (husband of Bibi) also gave Gurdial Singh a

gandasa blow on the left side of the forehead.

11. Shingara Singh and Raju gave gandasa blows to Gurmail

Kaur (daughter of Gurdial Singh) from the blunt end of the

gandasa. Dial Singh also received some injuries.

12. In the scuffle that took place, Gurmail Singh son of Bachan

Singh received some injuries.

13. After the attack and on cries being raised by the victims, the

assailants left the scene. The injured were taken to the Civil

Hospital where Gurdial Singh succumbed to his injuries.

Necessary medical attention was provided to Kaka Singh, Dial

Singh, Gurmail Kaur and Piaro who had sustained injuries.

Joginder Singh (complainant) went to the police station and

lodged a first information report (FIR for short) at about 11.30

p.m. This reached the Ilaqa Magistrate the next morning at about

6.30 a.m.

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14. Based on the FIR, investigations were carried out and a

charge sheet was filed against eight persons. During the trial,

three accused Shingara Singh, Bibi and Raju died and the

prosecution abated against them. Of the remaining five accused,

we are concerned only with the appeals of Gurmail Singh son of

Bachan Singh (an associate) and Gurmail Singh son of Nahar

Singh and nephew of Nachhatar Singh.

15. As can be seen, Gurmail Singh son of Bachan Singh had

injured Piaro and Kaka Singh with a 12-bore double barrel gun.

He also received some injuries in the scuffle that took place.

Gurmail Singh son of Nahar Singh was responsible for giving

gandasa blows to Gurdial Singh.

16. In the trial before the Additional Sessions Judge, Bhatinda,

the prosecution examined twelve witnesses while the defence

examined one witness. The Trial Judge convicted Jarnail Singh

under part I of Section 304 of the IPC. Gurmail Singh son of

Bachan Singh was convicted under Section 25 of the Arms Act for

possessing an unlicenced gun. He was also convicted under

Section 324 of the IPC for causing injuries to Kaka Singh and

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Piaro. Gurmail Singh son of Nahar Singh was acquitted of the

charges against him.

Decision of the Trial Court:

17. The Trial Judge held that there was a land dispute between

Gurdial Singh and Nachhatar Singh. He relied on the statement of

PW-3 Darshan Singh, a Court Ahlmad who confirmed the

pendency of the civil suit between Gurdial Singh and Nachhatar

Singh. The Trial Judge also relied on the evidence of PW-4

Joginder Singh (complainant) to hold that there was a land dispute

between Gurdial Singh and Nachhatar Singh. He also noted his

testimony to the effect that Mohinder Singh son of Gurdial Singh

was murdered by Nachhatar Singh and that Gurdial Singh was an

eyewitness to the alleged murder. On this basis, the Trial Judge

concluded that there some enmity between the two families and

that the appellants and others had a motive for committing the

offences for which they were charged.

18. Before the Trial Judge, it was contended that there was a

delay in lodging the FIR of the incident and in sending a report to

the Ilaqa Magistrate. The Trial Judge did not attach much

significance to this and observed that the FIR was lodged after a

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delay of about 1½ hours and it is not as if the delay was

unreasonable. Moreover, the offence was first registered under

Section 307 of the IPC but on the death of Gurdial Singh, it was

converted into one punishable under Section 302 of the IPC. It

was held that there was no challenge to the genuineness of the

FIR nor was there any allegation that it was fabricated or

doctored.

19. On the merits of the case, the Trial Judge relied on the

evidence of the eyewitnesses, PW-4 Joginder Singh, PW-5 Gurmail

Kaur and PW-6 Piaro. Kaka Singh did not enter the witness box

(he was apparently won over by the defence) but the testimony of

the eyewitnesses was relied on to hold that Gurmail Singh son of

Bachan Singh had injured him. The Trial Judge rejected the

contention that PW-5 Gurmail Kaur and PW-6 Piaro were

interested witnesses and therefore they ought not to be believed.

20. It was urged that Joginder Singh (complainant) was not

present when the occurrence took place since he did not receive

any injury. The Trial Judge rejected this contention, taking note of

the fact that Joginder Singh (complainant) hid himself.

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21. The Trial Judge also rejected the contention that there were

improvements in the statements of PW-5 Gurmail Kaur and PW-6

Piaro and held that there could be discrepancies with the passage

of time.

22. The medical evidence indicated that Gurdial Singh had

received two injuries caused by a firearm and injuries from a

sharp weapon. The post-mortem examination of the body of

Gurdial Singh showed as many as 116 lacerated wounds and 15

pellets were found in his thigh. The injuries were ante mortem in

nature. The medical evidence also showed that Kaka Singh

received two injuries through a firearm and similarly a firearm

caused the injury received by Piaro. The injuries on Gurmail Kaur

from a blunt object were confirmed by the medical evidence.

23. Therefore, on the facts alleged by the prosecution, the Trial

Judge agreed with the prosecution and believed all its witnesses.

On the issues raised regarding the motive for the crime and the

alleged delay in lodging the FIR and submitting a report to the

Ilaqa Magistrate, the Trial Judge ruled in favour of the prosecution.

24. However, on the substantive legal issue before him, the Trial

Judge pithily observed that the prosecution did not lead any

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evidence to show the formation of an unlawful assembly by the

accused persons nor was any evidence led to show that the

assembly had any common object. Individual convictions were,

accordingly, handed down.

25. The Trial Judge was of the view that since the firearm and

gandasa injuries caused to Gurdial Singh were on non-vital parts

of his body, they were not dangerous to life and so there was no

intention on the part of Jarnail Singh and Gurmail Singh son of

Nahar Singh to kill him. Under these circumstances, Jarnail Singh

was convicted of an offence punishable under part I of Section

304 of the IPC.

26. As far as Gurmail Singh son of Nahar Singh is concerned, it

was held that since the accused party was armed with guns,

causing injuries to Gurdial Singh with gandasas does not arise.

Therefore, Gurmail Singh son of Nahar Singh was acquitted of the

charges against him.

27. With regard to the firearm injuries caused to Kaka Singh and

Piaro on non-vital parts of their body, it was held that Gurmail

Singh son of Bachan Singh was guilty of an offence punishable

under Section 324 of the IPC.

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Decision of the High Court:

28. Against the decision of the Trial Judge, the convicts filed

appeals and the State also preferred appeals, though against the

acquittal and for enhancement of the sentence awarded. The High

Court of Punjab and Haryana disposed of the appeals by judgment

and order dated 10th October 2006 (under appeal).

29. The contentions urged by the accused persons before the

High Court were essentially a reiteration of the contentions urged

before the Trial Court.

30. The High Court held that the accused had a motive for

committing the crime. The motive being the land dispute between

the families and also that Gurdial Singh was an eyewitness to the

alleged murder of his son Mohinder Singh by Nachhatar Singh. It

was held that there was no delay in lodging the FIR by Joginder

Singh. The High Court found that there was no substance in the

contention that Joginder Singh was not present at the scene of the

crime. The High Court did not give much significance to the

contention that had Joginder Singh been present, he too would

have suffered some injuries. The High Court was of the view that

the witnesses had withstood their cross examination and it could

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not be said that they had given an incorrect version of the events

because of inimical relations. The High Court found no merit in

the contention that the investigating officer was biased.

31. With regard to the injuries suffered by Gurmail Singh son of

Nahar Singh, it was held that the evidence showed that the

injuries were caused by his co-accused in the darkness. In any

case, it was held that the question was not about the injuries

suffered by Gurmail Singh son of Nahar Singh but the murder of

Gurdial Singh and the injuries to his brother and two daughters.

32. In other words, the High Court agreed with and upheld the

conclusions arrived at by the Trial Judge on all issues.

33. However, with regard to the constitution of an unlawful

assembly, the High Court disagreed with the Trial Court. It was

held that the presence of eight persons armed with guns and

gandasas with a motive to wreak vengeance on Gurdial Singh and

his family clearly pointed to the existence of an unlawful

assembly having a common object. That Gurdial Singh was the

target is clear from the number and nature of injuries received by

him, which subsequently resulted in his death. Alternatively, it

was held that the members of the unlawful assembly knew that

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an offence against Gurdial Singh was likely to be committed. As

such, the ingredients of Section 149 of the IPC were made out.

34. With regard to an offence under part I of Section 304 of the

IPC, it was held that the intention of the appellants was to cause

the death of Gurdial Singh or to inflict such bodily injury as is

likely to cause death. Consequently, it was held that an offence

punishable under Section 302 of the IPC was made out.

Accordingly, the appellants were sentenced to imprisonment for

life.

Submissions and discussion:

35. Learned counsel for the appellants reiterated the

contentions urged before the High Court. But we find no merit in

them.

Peripheral issues:

(a) Delay in lodging the FIR:

36. It was contended that there was considerable delay in

lodging the FIR and also in sending the special report to the Ilaqa

Magistrate. The incident took place on 10th March, 1989 at about

9/9.30 p.m. and the FIR was lodged at about 11.30 p.m. There

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was, therefore, a delay of about two hours in lodging the FIR. We

do not think this delay is per se unreasonable.

37. In situations such as the present, a realistic and pragmatic

approach is necessary. It is not as if the incident of firing and

inflicting of gandasa blows was over within a minute or so. The

entire incident would have taken some time, and thereafter, the

victims would have to recover from the shock and trauma caused

by injuries suffered by them and make arrangements for medical

treatment. Often several emergent issues need attention and so,

it is not as if the moment an incident is over, someone is

expected to rush to the police station for lodging an FIR. However,

if there is an unreasonable or unexplained delay in lodging a

complaint, an argument can surely be made, but it is wrong to

make a fetish out of every delay in lodging an FIR. Given the

facts of this case, we do not think there was any unreasonable or

unexplained delay in lodging an FIR.

38. In this context, we may only refer to a recent decision of this

Court (authored by one of us, Swatanter Kumar, J) in Jitender

Kumar v. State of Haryana, (2012) 6 SCC 204 in which it was

held:

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“It is a settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases, but in the given circumstances of a case, delay in lodging the FIR can be one of the factors which corrode the credibility of the prosecution version. Delay in lodging the FIR cannot be a ground by itself for throwing away the entire prosecution case. The court has to seek an explanation for delay and check the truthfulness of the version put forward. If the court is satisfied, then the case of the prosecution cannot fail on this ground alone.”

39. As far as the delay in sending the special report to the Illaqa

Magistrate is concerned, it has come on record that Gurdial Singh

was shifted to a Civil Hospital, along with other injured persons.

The victims of the incident were being treated till sometime after

2.00 a.m. the next morning. Initially, an offence under Section

307 of the IPC was made out, but after Gurdial Singh succumbed

to his injuries, it was converted to an offence punishable under

Section 302 of the IPC. It is then that information about the death

was conveyed to the Illaqa Magistrate. The fact that the Illaqa

Magistrate was informed at about 6.30 a.m. the next morning

indicates that the information was not unnecessarily delayed.

40. We are satisfied that the record does not show any undue

delay either in lodging the FIR or in dispatching the special report

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to the Illaqa Magistrate. The concurrent findings of both the

courts are upheld.

(b) Motive:

41. It was then contended that there was no motive for the

appellants to commit the crime. We do not agree. It is quite clear

that there was a land dispute between the families of Gurdial

Singh and Nachhatar Singh. Evidence in this regard was led by

PW-3 Darshan Singh, a Court Ahlmad working in the concerned

court at Mansa. The existence of a land dispute was also testified

to by PW-4 Joginder Singh.

42. That the land dispute was not a trivial matter is clear from

the fact that it even led to the murder of Mohinder Singh son of

Gurdial Singh on 20th February, 1989 allegedly by Nachhatar

Singh. Gurdial Singh was an eyewitness to the murder. Therefore,

not only was there a motive for committing the crime but the

motive had already led to a murder on an earlier occasion.

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43. We, therefore, reject the submission advanced by learned

counsel for the appellants in this regard and uphold the

concurrent opinion of both the courts below.

(c) Presence of complainant:

44. Learned counsel for the appellants submitted that the

presence of PW-4 Joginder Singh at the scene of the crime was

doubtful and therefore the complaint lodged by him with the

police ought not to be taken note of. In this context, it was

contended that the absence of any injury on PW-4 Joginder Singh

strongly suggests that he was not present when the incident

occurred.

45. We are of the opinion that too much is being read into this

aspect of the case. Joginder Singh’s sister, Charanjit Kaur was

married to Mohinder Singh son of Gurdial Singh. After Mohinder

Singh’s murder on 20th February 1989, Charanjit Kaur married

Kewal Singh, another son of Gurdial Singh. Under the

circumstances, the presence of Joginder Singh in the village is

explained.

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46. Joginder Singh would surely have been aware of the enmity

between the parties and when the attack took place, he hid

himself so as to escape the wrath of the appellants. This is quite

natural, considering the unfortunate events that had taken place

only a few weeks earlier. It is for this reason that Joginder Singh

did not receive any injury, as explained by him.

47. At this stage, we may mention that learned counsel also

sought to take advantage of the absence of any mention of

Joginder Singh in the dying declaration Exhibit PW8/A given by

Gurdial Singh. The dying declaration has not been relied on,

either way or for any purpose, both by the Trial Court and the

High Court. Therefore, we also do not think it appropriate to deal

with the contents of the dying declaration. We may, however,

only note that the failure of Gurdial Singh to mention the

presence of Joginder Singh does not necessarily mean that

Joginder Singh was not present at the scene of the crime.

48. We may also note that both the courts below have not

doubted the presence of Joginder Singh at the scene of the crime

and we see no reason to differ with this concurrent finding only

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because Joginder Singh did not suffer any injuries or that his

presence was not mentioned by Gurdial Singh in his dying

declaration.

(d) Injuries on Gurmail Singh:

49. Learned counsel for the appellants contended that Gurmail

Singh son of Bachan Singh had suffered serious injuries and the

prosecution has not explained these. Although Gurmail Singh son

of Bachan Singh in his statement under Section 313 of the

Criminal Procedure Code says that Gurdial Singh, Dial Singh and

Kaka Singh attacked him with gandasas, the evidence on record

does not indicate that any of the victims were armed. On the

contrary, the evidence indicates that Gurmail Singh son of Bachan

Singh received injuries at the hands of his co-accused in the

darkness. In these circumstances, the prosecution’s “failure” to

explain the injuries on Gurmail Singh son of Bachan Singh would

not disprove the case of the prosecution, namely, that Gurdial

Singh was killed and some of those with him had been seriously

injured.

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50. As long as the evidence on record is trustworthy (and it has

found to be so by both the courts below) the failure of the

prosecution to explain the injuries on an accused person may not

necessarily adversely impact on its case. In a recent decision

Mano Dutt v. State of U.P., (2012) 4 SCC 79 (authored by

one of us, Swatanter Kumar, J) it was held as follows:

“…… this Court has taken a consistent view that the normal rule is that whenever the accused sustains injury in the same occurrence in which the complainant suffered the injury, the prosecution should explain the injury upon the accused. But, it is not a rule without exception that if the prosecution fails to give explanation, the prosecution case must fail.

Before the non-explanation of the injuries on the person of the accused, by the prosecution witnesses, may be held to affect the prosecution case, the Court has to be satisfied of the existence of two conditions:

(i) that the injuries on the person of the accused were also of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question.

Where the evidence is clear, cogent and creditworthy; and where the court can distinguish the truth from falsehood, the mere fact that the injuries on the person of the accused are not explained by the prosecution cannot, by itself, be the sole basis to reject the testimony of the prosecution witnesses and consequently, the whole case of the prosecution. Reference in this regard can be made to Rajender Singh v. State of Bihar [(2000) 4 SCC 298], Ram Sunder Yadav v. State of Bihar [(1998) 7 SCC 365] and Vijayee Singh v. State of U.P. [(1990) 3 SCC 190].”

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51. It is interesting to note that the issue of injuries suffered by

Gurmail Singh son of Bachan Singh was not raised by the

appellants at the trial stage and has, therefore, not even been

adverted to by the Trial Judge.

Substantive issue of Section 149 of the IPC:

52. The final and more significant contention urged by learned

counsel for the appellants was that the ingredients of Section149

of the IPC were not made out. It was pointed out that the Trial

Court concluded that there was no evidence of an unlawful

assembly, nor was there any evidence to show that the appellants

and those with them had any common object to commit the

murder of Gurdial Singh and injure Kaka Singh, Piaro and Gurmail

Kaur. It was submitted that this finding was reversed by the High

Court without any sufficient material on record.

53. Before proceeding any further, it is worthwhile to quote in

entirety what the Trial Judge had to say on the issue:

“No evidence has been led by the prosecution to show that unlawful assembly was formed by the accused with the common object of those composing such assembly. They can be convicted under S. 149 IPC only if the prosecution by way of evidence proved that the persons forming unlawful

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assembly should be animated by common object. In the instant case no evidence has come forward to spell out that all the accused formed an unlawful assembly in prosecution of the common object of that assembly to inflict injuries to Gurdial Singh deceased etc. and in view of all this it is not possible to hold that (accused) guilty under sections 148/149 IPC.”

54. Section 149 of the IPC constructively criminalizes all

members of an unlawful assembly if a member of that assembly

commits an offence in prosecution of a common object of that

assembly or if the members of that assembly knew likely to be

committed in prosecution of that object. To bring a case within

Section 149 of the IPC three features must be present. Firstly,

there must be in existence an unlawful assembly within the

meaning of Section 141 of the IPC. This is a mixed question of fact

and law, which was overlooked by the Trial Judge. Secondly, an

offence must have been committed by a member of the unlawful

assembly. Thirdly, the offence committed must be in prosecution

of a common object of the unlawful assembly or must be such as

the members of the unlawful assembly knew likely to be

committed in prosecution of that object. Once these ingredients

are satisfied, the provisions of Section 149 of the IPC will come

into play and cover every member of the unlawful assembly.

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55. Section 141 of the IPC is reproduced for convenience:

141. Unlawful assembly.—An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is— First.—To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second.—To resist the execution of any law, or of any legal process; or Third.—To commit any mischief or criminal trespass, or other offence; or Fourth.—By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.—By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.—An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.”

Section 149 of the IPC is reproduced for convenience:

“149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. —If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”

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56. Insofar as the present case is concerned, as many as eight

persons had assembled with guns and sharp-edged gandasas.

There cannot be any conclusive proof with regard to what was in

the contemplation of the unlawful assembly, but it is clear that

the assembly was not without a purpose. Their getting together

and firing a few shots in the air before the incident actually took

place suggests that they gathered to either display a show of

strength or commit an offence. It is unlikely that they would have

gathered in village Heeron Kalan (District Bhatinda) from two

other villages, Shahpur Kalan and Jharon (District Sangrur) only

for a show of strength. Even if they did, the explanation to Section

141 of the IPC makes it clear that an assembly, not unlawful when

it assembled, may subsequently become an unlawful assembly.

57. Also, given the fact that the assembly was armed, it would

not be off the mark to expect it to be for a somewhat disreputable

purpose and not merely by way of a show of strength. This view is

fortified by what actually transpired at the scene of occurrence,

namely, the lalkara given members of the assembly that no one

from Gurdial Singh’s party will be spared.

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58. Additionally, it is also necessary to keep in mind the

antecedent circumstances, namely, the land dispute between the

parties and the murder of Mohinder Singh on 20th February 1989.

59. In our opinion, if all the facts are looked at conjunctively and

not disjointedly, an overall picture of compelling circumstances

would emerge that the accused persons had assembled with a

common object of committing an offence and not merely as a

show of strength and, therefore, they constituted an unlawful

assembly.

60. What is the offence committed by members of the unlawful

assembly? The Trial Court would have us believe that offences

under part I of Section 304 of the IPC and under Section 324 of

the IPC were committed. The Trial Court proceeded on the basis

that since the injuries inflicted on Gurdial Singh were not on any

vital part of his body, it cannot be said that the common object of

the unlawful assembly was to kill him.

61. The High Court has not agreed with this view and we

endorse the opinion of the High Court in this regard. It is not

possible to overlook the fact that at least one injury caused to

Gurdial Singh with a firearm was on a vital part of his body. That

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apart, Gurdial Singh had as many as 116 lacerated wounds and

15 pallets were found in his body. He also had a couple of incised

wounds, though not on any vital part of his body. It is not as if

only one gunshot was fired or one gandasa blow given to Gurdial

Singh - two shots were fired at him and gandasa blows given.

62. The High Court has referred to the third clause of Section

300 of the IPC which reads as follows:

“300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— 2ndly.— xxx xxx xxx 3rdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or — 4thly.— xxx xxx xxx”

63. In our opinion, the evidence is clear that the offence

committed was the murder of Gurdial Singh. Assuming this was

not so, the High Court has drawn attention to the third clause of

Section 300 of the IPC. There can be no doubt that if the unlawful

assembly did not murder Gurdial Singh, it certainly caused such

bodily injury to Gurdial Singh and others with him as to result in

his death. Given the number and nature of injuries, it is difficult to

come to any conclusion other than that the injuries were sufficient

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in the ordinary course of nature to cause death. In fact, Gurdial

Singh did succumb to the injuries.

64. We have no doubt that the offence committed by the

unlawful assembly was the murder of Gurdial Singh and injuries to

other members of his party.

65. Did the unlawful assembly have, as a common object the

murder of Gurdial Singh, or knew that he was likely to be killed in

prosecution of that common object? It was pointed out in Lalji v.

State of U.P., (1989) 1 SCC 437 (and approved in Chanakya

Dhibar (dead) v. State of West Bengal, (2004) 12 SCC 398

and Roy Fernandes v. State of Goa, (2012) 3 SCC 221) that,

“Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.”

66. From the facts and circumstances of the case, it is quite

clear that the assembly of eight had come from two different

villages (Shahpur Kalan and Jharon) to Heeron Kalan at about

9/9.30 p.m. That they came with an aggressive intent is clear

from the fact that two of them were armed with 12-bore double

Crl. Appeal No.1782 of 2008 Page 27 of 30

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barreled guns and others with sharp-edged gandasas. Two

members of the assembly (Gurmail Singh, nephew of Nachhatar

Singh and Bibi, sister of Nachhatar Singh) gave a lalkara (a

challenge) to effectively “finish off” Gurdial Singh and his party.

Following up on this, shots were fired at Gurdial Singh, Kaka Singh

and Piaro. Gurdial Singh, Dial Singh and Gurmail Kaur were

subjected to gandasa blows. No one from Gurdial Singh’s party

(all of whom were unarmed) was spared, except Joginder Singh

who had hidden himself. As already noted, Gurdial Singh

succumbed to his injuries.

67. That the death of Gurdial Singh was the common object of

the unlawful assembly would be clear from the result of the post

mortem examination conducted on Gurdial Singh. This showed

the following injuries as recorded by PW-2 Dr. H.S. Lumba, Senior

Medical Officer, Civil Hospital, Sangrur:

1. There were 116 lacerated wounds varying from 0.5 cm to 0.5 cm and 0.75 cm to 0.75 cm in size on the front of left thigh in the middle part in an area of 25 cms x 27 cms. The thigh was swollen. On dissection clotted blood was present and the muscle and vessels were found lacerated 15 pallets were found & packed.

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2. Incised wound 2 cms x 0.2 cm on the back of proximal inter-phalangeal joint of right index finger. The underlying bone was fractured.

3. Lacerated wound 4 in number on the back of right index finger 0.5 cm x 0.5 cm (2) and other two 0.5 cm x 0.75 cm. There was no bone injury.

4. Lacerated wounds 2 in number on the back of right middle finger 0.5 cm x 0.5 cm. There was no bone injury.

5. Incised wound 3 cms x 0.2 cm x 0.75 cm on the lateral side of proximal phalanx of the left index finger. On dissection there was no bone injury.

6. Lacerated wound 0.5 cm x 0.75 cm on the front and middle of penis.

68. Surely, these injuries are severe enough to lead to a

reasonable conclusion that the common object of the unlawful

assembly was the murder of Gurdial Singh.

69. In addition to the above, we need to recall that the

appellants had a cause for wreaking vengeance upon Gurdial

Singh. As mentioned above, the motive was the land dispute

between Gurdial Singh and Nachhatar Singh in respect of which a

case was pending. The additional reason was the fact that Gurdial

Singh was an eyewitness to the murder of his son Mohinder Singh,

allegedly by Nachhatar Singh.

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70. The inference, on a totality of the facts and circumstances of

the case, is compelling that the attack on Gurdial Singh was with

the object of killing him and injuring those with him. The third

requirement of Section 149 of the IPC is also met in this case.

71. All the ingredients of Section 149 of the IPC having been

met, we have no doubt that the High Court arrived at the correct

conclusion that the appellants are liable for an offence punishable

under Section 302 of the IPC.

Conclusion:

72. Under the circumstances, we find no reason to interfere with

the judgment and order under appeal. Accordingly, both the

appeals are dismissed. However, we make it clear that since

Jarnail Singh is not before us, we should not be understood to

have made any comment on his role in the incident.

….…….……………………. J. (Swatanter Kumar)

….…….……………………. J. (Madan B. Lokur)

New Delhi; November 21, 2012

Crl. Appeal No.1782 of 2008 Page 30 of 30

GURMAIL SINGH Vs STATE OF PUNJAB

GURMAIL SINGH Vs STATE OF PUNJAB