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

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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

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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.

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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

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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

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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

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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.