GURMAIL SINGH Vs STATE OF PUNJAB
Bench: HARJIT SINGH BEDI,CHANDRAMAULI KR. PRASAD, , ,
Case number: Crl.A. No.-000974-000974 / 2008
Diary number: 33291 / 2007
Advocates: P. N. PURI Vs
KULDIP SINGH
Crl.A. No.974 of 2008 REPORTABLE 1
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 974 of 2008
GURMAIL SINGH ..... APPELLANT
VERSUS
STATE OF PUNJAB ..... RESPONDENT
WITH
CRIMINAL APPEAL NO. 975 OF 2008
AND CRIMINAL APPEAL NO. 981 OF 2011
ARISING OUT OF SLP (CRL) NO. 4898 OF 2008
O R D E R
1. This judgment will dispose of three appeals,
being Criminal Appeal Nos. 974 of 2008, 975 of 2008 and
981 of 2011 @ SLP(Crl) 4898 of 2008.
2. The facts are being taken from the paper book of
Criminal Appeal No. 974 of 2008 entitled Gurmail Singh
v. State of Punjab.
3. The facts leading to these appeals are as under:
3.1 Sohan Singh, P.W., the complainant, and his co-
accused Nachhattar Singh and Parshotam Singh, are
Crl.A. No.974 of 2008 REPORTABLE 2
married to real sisters. Nindo is the daughter of Sher
Singh, accused. Darshan Singh accused is the son of
Sher Singh. A few days prior to the incident which
happened on the 25th March, 1996 a message was received
with regard to the proposed marriage of the son of
Parshottam Singh accused, on which the accused had got
together in his house to celebrate the occasion by
taking liquor. At about 10:00p.m. the accused came
out in the street and raised a lalkara that they would
teach the complainant party a lesson for having teased
Nindo. At that time accused Gurnam Singh and Gurmail
Singh were both armed with small knives (kirch) and
Sher Singh, Nachhattar Singh, Parshottam Singh,
Dharampal Singh and Avtar Singh were armed with lathis.
Sohan Singh came out into the street to persuade them
not to abuse and that they would sort out the dispute
in the morning. While he was still talking to the
accused Rajwinder Singh PW and Baljinder Singh also
arrived there. Nachhattar Singh, Sher Singh, Dharam
pal Singh and Avtar singh then raised a lalkara saying
that they should not be allowed to go alive and should
be taught a lesson for having teased Nindo. Gurnam
Singh thereupon gave a knife blow on the right side of
the abdomen of Baljinder Singh and when Rajwinder Singh
came forward to help Baljinder Singh, Gurmail Singh
Crl.A. No.974 of 2008 REPORTABLE 3
gave a knife blow on the right side just below his
chest whereas Gurcharan Singh gave a knife blow on the
lower portion of his right flank. Rajwinder Singh fell
down whereupon Sher Singh gave a dang blow on his
right shoulder. In the meantime, the women folk came
out into the street and hurled brickbats in self-
defence. As a consequence of this counter attack the
accused ran away from the spot. Baljinder Singh and
Rajwinder Singh were shifted to the A.P. Jain Hospital
at Rajpura in a truck but the former succumbed to his
injuries on the way. After investigation, the accused,
eight in number were broguht to trial for offences
punishable under Sections 302/149, 302, 324/149 and
323/149 of the IPC. The prosecution placed primary
reliance on the evidence of Sohan Singh PW 5, Rajwinder
Singh PW6, the injured eye witnesses, and also on the
evidence of Dr. Charanjit Singh, PW1 whereby he, had at
the initial stage, declared Rajwinder Singh unfit to
make a statement, Dr. S.M. Birdi who had conducted the
medical examination on the injured and Dr. O.P. Agarwal
PW 4 who had conducted the post mortem on the dead body
of Baljinder Singh. The accused in their defence,
pleaded false implication and further that the dispute
had arisen because of some election rivalries. Some of
the accused also claimed alibis. The trial court on a
Crl.A. No.974 of 2008 REPORTABLE 4
consideration of the evidence, acquitted Avtar Singh,
Dharam Pal Singh, Nacchtar Singh and Parshottam Singh
whereas Gurnam Singh, Gurmail Singh, Gurcharan Singh
and Sher Singh were convicted for having committed the
murder of Baljinder Singh. This judgment has been
affirmed by the High Court leading to these appeals by
way of special leave.
4. Before us, the main argument raised by the
learned counsel for the appellants is that even
assuming the prosecution case to be true the matter
would still not fall within the definition of murder
but would fall be culpable homicide not amounting to
murder punishable under Section 304 Part I of the IPC.
It has also been submitted that in the facts and
circumstances of the case, the provisions of Section 34
of the IPC were not made out as there was no intention
on the part of the accused to commit murder. It has
finally been submitted that Sher Singh accused,
appellant was similarly situated as those acquitted by
the trial court as the injury attributed to him on the
shoulder of Rajwinder Singh could have caused as a
result of a scuffle during the incident and was not
possible with a lathi.
Crl.A. No.974 of 2008 REPORTABLE 5
5. The learned counsel for the State has, however,
supported the judgment of the trial court.
6. Mr. D.P. Singh has submitted that in the light
of the judgments of this Court reported as Virsa Singh
v. State of Punjab AIR 1958 465, Laxman Karlu Nikalje
v. The State of Maharashtra 1968 (3) SCR 685,
Harjinder Singh v. Delhi Administration AIR 1968 867,
Randhir Singh alias Dhire v. State of Punjab 1981 (4)
SCC 484, Tholan v. State of Tamil Nadu 1984 (2) SCC 133
the injury caused to the deceased would not fall under
clause “thirdly” of Section 300 and as such the
conviction ought to have been recorded under 304 Part I
or II of the Indian Penal Code. We have considered the
submissions very carefully and have examined the
judgments aforesaid with the assistance of the learned
counsel.
7. It is true that clause thirdly of Section 300 of
the IPC deals with a case where the intention was to
cause the very injury found on the dead body. In the
case of Virsa Singh, Laxman Karlu's case and Arun
Nivalji More's case, the injuries had been caused on
non vital parts but the death had occurred because of
the fact that some artery beneath the injured part had
Crl.A. No.974 of 2008 REPORTABLE 6
been cut. The Court, in that eventuality, held that it
could not have been presumed that the appellants wanted
to cause that very injury which ultimately led to
death. It is true that in Randhir Singh's case the
injury had been caused by a kassi on the head of the
deceased. It appears, however, that what had weighed
very heavily with the Court was the fact that attack
was not pre-planned, the accused was only 18 years of
age and the kassi had been brought by his father and
given to him to cause a blow on the victim, only one
injury had been caused and that the death had occurred
after six days of the incident. In Tholan's case it
was held that though the injury had been caused in the
chest but the facts were that the appellant had not
intended to give the blow with a knife in the chest.
In the case before us, we find that a lalkara had been
raised by the accused threatening retribution on
account of the misbehaviour of Darshan Singh, son of
Sher Singh with Nindo a few days earlier and that the
accused had been drinking together in the house of
Parshottam Singh and had thereafter come out leading to
the incident. It has been held in all the afore-cited
cases that the question as to whether the injury had
been caused with the intention to cause death would be
a matter of objective satisfaction of the Court. We
Crl.A. No.974 of 2008 REPORTABLE 7
are, therefore, of the opinion, that the injury in the
present case had been caused directly and deep into the
stomach of the deceased, a very vital part, which had
led to death within a short time. It cannot,
therefore, be said that there was no intention to cause
that very injury which had led ultimately to the death
of the deceased. In a somewhat similar situation, it
has been held in Arun Nivalaji More v. State of
Maharashtra 2006 (2) SCC 613 that where the injury had
been caused in the stomach which was a vital part of
the body, it could be said that the injury had been
caused with the intention of causing death in the
background of the facts that preparations for the
attack on the deceased had earlier been made.
8. We now take up the question of common intention
in the facts of the case. Once again it needs to be
highlighted that the accused were all of one family and
they were annoyed with the members of the victim family
as they had teased Nindo. They also lived close
together in the same locality and had come out armed
and raised a lalkara that the opposite party be done
away with and that the injuries had been caused
thereafter. It is also clear that several injuries had
been caused to Rajwinder Singh PW as well and that one
Crl.A. No.974 of 2008 REPORTABLE 8
injury had been proved fatal for Baljinder Singh. A
case of common intention is, thus, spelt out.
10. We, however, find some merit in the argument of
the learned counsel that Sher Singh appellant should be
given the benefit of doubt in the circumstances. The
injury attributed to him on the person of Baljinder
Singh is a “Red abrasion 2.5cm X 0.5cm on the right
super scapular region obliquely placed 3 cm back ward
from the upper tip of the right shoulder joint.” A
perusal of this injury would indicate that it is of
very small dimensions and there is a clear doubt as to
whether an abrasion could be caused with a lathi which
Sher Singh was said to be carrying. We are, therefore,
of the opinion that Sher Singh is similarly placed as
the accused who have been acquitted by the trial court.
12. We, accordingly, allow the appeal of Sher Singh.
The appeals of the other accused are dismissed.
.........................J [HARJIT SINGH BEDI]
........................J [CHANDRAMAULI KR. PRASAD]
Crl.A. No.974 of 2008 REPORTABLE 9
NEW DELHI APRIL 20, 2011.