[REPORTABLE]

                   IN THE SUPREME COURT OF INDIA     CRIMINAL APPELLATE JURISDICTION

  CRIMINAL APPEAL NO. 261 OF 2006      

Gurdial Singh & Ors.                                    …..Appellants

Vs.

State of Punjab                                            ..…Respondent

WITH Criminal Appeal No. 878 of 2007

HARJIT SINGH BEDI,J.

1. The appellants herein, Gurdial Singh now aged 85 years,  

his brother  Bakshish Singh, now aged 70 years, and Darshan  

Singh  now  aged  about  35  years  were  brought  to  trial  and  

convicted for offences punishable under Section 302/34 etc. of  

the IPC and sentenced to life imprisonment by the Trial Court.  

The High Court dismissed the appeal filed by them and the  

matter is before us after grant of special leave.

2. The facts are as under:  

3.    A drain carrying the village sewage ran across the house  

of Gurdial Singh appellant.  He attempted to divert the course  

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of the drain away from his house towards the house of Buta  

Singh deceased.   A civil  suit  was accordingly  filed  by Buta  

Singh  against  Gurdial  Singh  for  restraining  him  from  

constructing the new drain.   It  appears  that the  appellants  

had  a  grudge  against  Buta  Singh  and  his  family  on  that  

account.  At about 8 a.m. on the 10th September 1995,  as  

Buta  Singh  and  his  brother  Gurbachan  Singh  were  going  

towards their fields, they were way-laid in front of the village  

Gurdwara  by  Gurdial  Singh,   Bakhshish  Singh,  Darshan  

Singh,  the  appellants  herein,  and in  addition  Amrik  Singh,  

Joginder Singh, Kulwant Singh and Balwant Singh.  Gurdial  

Singh  was  armed with  a  Gandasi  whereas  the  others  were  

armed with Dangs.  As the accused were taking measurements  

for  the  construction  of  the  drain,  Buta  Singh  raised  an  

objection on which Gurdial Singh raised a lalkara exhorting  

the others to teach a lesson to Buta Singh.   Gurdial  Singh  

then gave a Gandasi blow on the head of Buta Singh whereas  

the other accused attacked Buta Singh with their dangs.  PW5  

Kulwinder Kaur, daughter-in-law of Buta Singh witnessed the  

occurrence.  She raised an alarm which attracted her husband  

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PW-7  Gurmeet  Singh.   Kulwant  Singh  and  Darshan  Singh  

gave injuries to him.  PW Kulwinder Kaur also intervened but  

was  chased  away  by  Gurdial  Singh,  Balwant  Singh,  Amrik  

Singh  and  Joginder  Singh  and  after  entering  her  house  

Joginder Singh gave a dang blow on her left upper arm and  

when Mohinder Kaur, sister of PW Gurmeet Singh attempted  

to  intervene  Gurdial  Singh  gave  a  gandasi  blow  from  its  

reverse side on Kulwinder Kaur and Balwant Singh and Amrik  

Singh caused dang blows to Kulwinder Kaur.  Chint Kaur, wife  

of  Buta  Singh  was  also  inflicted  injuries  by  Gurdial  Singh.  

The  injured  were  thereafter  removed  to  the  hospital  and  

information about their admission was conveyed to the police  

post. PW11 Rajesh Kumar, ASI also received the Medico-legal  

reports in respect of Buta Singh, Gurmeet Singh, Chint Kaur,  

Mohinder Kaur and Kulwinder Kaur in the Police Station.  The  

ASI  immediately  reached  the  hospital  and  moved  an  

application at 11.30 a.m. to find out if the injured were fit to  

make a statement.  The doctor opined that they were unfit to  

do so.  The ASI again went to the hospital at 8.30 p.m. and  

moved another application as to the fitness of the injured and  

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the  doctor   reiterated  that  Buta  Singh  and Gurmeet  Singh  

were  unfit  to  make  their  statements  but  Kulwinder  Kaur,  

Mohinder Kaur and Chint Kaur were found fit for the purpose.  

The ASI then recorded the statement of Kulwinder Kaur and  

on its basis the First Information Report under Section 307  

etc. of the IPC was registered.  The injured were also medically  

examined and it was found that Gurmeet Singh had 8 injuries  

in all, with injury No.1 being caused by a sharp edged weapon  

and injury No.2 being grievous in nature.   Chint Kaur was  

found to have two simple injuries, Mohinder Kaur one simple  

injury and Kulwinder Kaur three simple injuries.  The doctor  

also  examined  Buta  Singh  at  11.20  a.m.  and  found  two  

injuries on his person;

1. A lacerated wound 3.5 cm x ½ cm x bone  deep  on  the  left  side  of  the  scalp  8  cm  lateral to the mid-line and 5 cm behind the  anterior hair line. Bleeding was present.

2. A lacerated  wound  2  cm x  ½ cm x  bone  deep  on  the  left  side  of  the  scalp  3  cm  lateral to the midline and 5 cm medical (sic)  to injury No.1. Bleeding was present.

The  doctor  also  kept  the  injuries  under  observation  and  

opined that injury No.1 could be caused from the reverse side  

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of  a  Gandasi.   He  also  opined  that  both  the  injuries  were  

grievous in nature.  Buta Singh expired at the 7.30 p.m. on  

the  17th September  1995  and  his  body  was  subjected  to  a  

post-mortem examination and the two injuries, noted above,  

were found  thereon.  On the completion of the investigation,  

all seven accused were charged for offences punishable under  

Sections 148,302, 323 and 324 read with Section 149 of the  

Code.  They pleaded not guilty, and were brought to trial.  The  

trial court relying on the evidence of PW5, PW7 and PW10, the  

injured three eye witnesses, held that the prosecution story in  

so far as the three appellants was proved beyond doubt, but  

the  other  accused,  namely  Amrik  Singh,  Joginder  Singh,  

Kulwant Singh and Balwant Singh were entitled to benefit of  

doubt and they were accordingly acquitted.    The plea of the  

right of private defence and that, if at all, the case fell within  

the ambit of Section 304 Part II read with Section 34 of the IPC  

was  repelled.   An  appeal  was  thereafter  taken  to  the  High  

Court  by  the  three  appellants.   The  appeal  was  dismissed,  

leading to the present proceedings.  

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4.     The learned counsel for the appellants has argued that in  

the  light  of  the  fact  that  Bakhshish  Singh  appellant  had  

received an injury in the same incident which had not been  

explained by the prosecution, the prosecution story itself was  

in doubt and the accused-appellants were entitled to acquittal  

on that basis.  It has also been pleaded that the trial court had  

found  that  four  of  the  accused  were  not  involved  in  the  

incident and it was thus apparent that the present case was  

one of false implication on account of animosity between the  

parties over the construction of the drain.  It has finally been  

pleaded that there was absolutely no evidence to show that the  

appellants had an intention to commit murder as the Doctor  

had  opined  that  the  two  injuries  on  Buta  Singh  had  been  

caused by the reverse side of the Gandasi whereas the other  

injuries on the person of the PW’s had been caused with dangs  

and as such the case fell under Section 304 Part II and not  

under Section 302 of the IPC.  The learned State counsel and  

the  complainant’s  counsel  have,  however,  controverted  the  

stand and pointed out that the trial court and the High Court  

had  given  categorical  findings  that  the  appellants  were  

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involved in a case of murder and had attempted to take the  

law  into  their  hands  and  attempted  to  construct  the  drain  

despite the injunction order made by the Civil Court.   

5.      We have heard the learned counsel for the parties and  

gone through the record very carefully.  We are of the opinion  

that  no  fault  can  be  found  with  the  conviction  of  the  

appellants in the light of the fact that the prosecution story  

rests on the evidence of three injured witnesses.  The incident  

is  virtually  admitted  by  both  sides  although  in  different  

circumstances  as the  appellants’  claim was that  Bakhshish  

Singh had suffered injuries at the hands of the Gurdial Singh  

and others and that the prosecution had suppressed this part  

of the story.  This plea has been rejected by the trial court as  

well as the High Court holding that the injuries suffered by  

Bakhshish Singh could not be related to the present incident.  

We  are  therefore  of  the  opinion  that  the  conviction  of  the  

appellants  is  fully  justified  on  the  facts  of  the  case.   We,  

however, feel that a case under Section 302 of the IPC is not  

spelt  out.   It  is  clear  from  the  prosecution  story  that  the  

incident happened all of a sudden when Buta Singh objected  

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to the construction of the drain by Gurdial Singh and others in  

violation of an injunction order in operation.  Buta Singh was  

apparently attacked as he was making his way to his fields  

when he objected to the taking of measurements as a prelude  

to the diversion of the drain.  The evidence shows that some  

altercation took place on which the three appellants Gurdial  

Singh armed with a Gandasi  and the other two with dangs  

caused injuries to Buta Singh and the PWs.  We, however, see  

that the weapons used were in fact implements of common use  

which are normally carried by villagers all over India and they  

do not reflect any prior intention on the part of the accused to  

commit murder.   It also appears that Gurdial Singh had used  

the Gandasi  from its blunt side as would be clear from the  

evidence of the doctor.   PW4 who had examined Buta Singh  

on the 11th September 1995 in the Dayanand Medical College  

Hospital, Ludhiana.  He opined that both the injuries on the  

deceased had been caused by a blunt weapon.  We, therefore,  

find that if the appellants had intended to murder Buta Singh,  

there  was  nothing  to  stop  Gurdial  Singh  from  using  the  

Gandasi from its true side as that would have made it a much  

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more effective weapon.   We are, therefore, of the opinion that  

the appellants are liable for the offence under Section 304 Part  

I read with Section 34 of the IPC.  We are told by the learned  

counsel that they have already undergone about 5 years of the  

sentence.  In the light of this fact,  and keeping in view the age  

factor of Gurdial Singh in particular, we feel that the ends of  

justice would be met if the appellants are imposed a sentence  

of 5 years R.I., under Section 304 Part I read with Section 34  

of the IPC, the other parts of the sentence being maintained as  

it is.  With this modification in the impugned judgments, the  

appeals are dismissed.  

                                                                                          ……………………………….J.

     ( HARJIT SINGH BEDI)

   ….……………………………J.       ( P. SATHASIVAM )

  …………………………………J.   (CHANDRAMAULI KR. PRASAD )

January 24, 2011. New Delhi.

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