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1983 Supreme(SC) 3
SUPREME COURT OF INDIA
A.P. SEN AND V. BALAKRISHNA ERADI, JJ.
State of Punjab, Appellant
Versus
Mann Singh and another, Respondents.
Criminal Appeal No. 311 of 1976,
D/- 4-1-1983.
Advocates Appeared
Mr. D. D. Sharma, Advocate for Appellant; Mr. S. K. Sabharwal, Advocate, for Respondent.
D.D.SHARMA, S.K.SABHARWAL
Headnote:(i) Indian Penal Code, 1860-Sections 304 Part II, 323 and 34-Conviction under-Assault on deceased Pala Singh by respondents, father and son, with prior concert-Mann Singh, the father armed with dang (a blunt weapon) and his son armed with gandasa (a sharp weapon)-Two types of head injuries caused-A lacerated wound and an incised wound- Medical evidence stating former caused by a blunt-edged weapon and latter by a sharp edged weapon-Three eye witness, brother and daughter of deceased, deposing that both accused made a joint assault on the deceased-Sessions Judge convicting both-High Court convicting father but acquitting son-Whether proper? (No)
Held the order of acquittal of the accused Balbir Singh as recorded by the High Court has caused manifest miscarriage of justice. There was no basis for the assumption made by the High Court that both the head injuries caused to the deceased Pala Singh could be inflicted by one weapon like Dang and therefore could be attributed to the accused Mann Singh. The conclusion reached by the High Court proceeds on mere conjectures and surmises and, is wholly unwarranted by the evidence on record. According to the evidence of Dr. Randhiraj Singh, P.W. 1 the deceased Pala Singh had two head injuries. One was a lacerated wound and the other was an incised wound. In his opinion, the lacerated wound was caused by a blunt-edged weapon and the incised wound was caused by a sharp-edged weapon. The unimpeachable testimony of the three eye-witnesses viz. Sew a Singh, P.W. 4, Harbans Singh, P.W. 8, and Mrs. Joginder Kaur, P.W. 9 clearly shows that both the accused Mann Singh and his son Balbir Singh made a joint assault on the deceased Pala Singh by their weapons. In view of this, the learned Sessions Judge was right in convicting the accused Mann Singh for having committed culpable homicide not amounting to murder punishable under sections 304 Part II and 323, and the accused Balbir Singh under section 304 Part II read with section 34. There can be no doubt whatever that both the accused Mann Singh and Balbir Singh acted with prior concert when they assaulted the deceased. Accordingly, we restore the judgment and sentence passed by the learned Sessions Judge, Hoshiarpur with regard to the accused Balbir Singh. (Para 7)
(ii) Indian Penal Code, 1860-Section 304 Part II-Sentence for culpable homicide not amounting to murder-Respondent 1 found guilty of offence punishable under section 304 Part II-Sessions Judge sentencing to 7 years R.I.-Appeal against-Reduction sought-Counsel for state not opposing-High Court thus reducing to 20 months R.I. already undergone-Whether proper? (No)-Proper course - (Cf. section 53 Indian Penal Code)
Held it is the duty of the Court in every case to award a proper sentence having regard to the nature of offence, the manner in which it was committed and to all the attendant circumstances. The testimony of the eye-witnesses shows that the accused Mann Singh had struck the blow with sufficient force as a result of which the deceased fell down unconscious in a pool of blood. There can be no doubt that the accused Mann Singh hit the deceased Pala Singh with the Dang with great force because it resulted in a fracture of the skull, and ultimately caused his death. He must therefore bear the consequences of his act. In all the facts and circumstances of the case, if there is to be a reduction of the sentence, the proper sentence to the award on the accused Mann Singh would be a sentence of rigorous imprisonment for three years, and a fine of Rs. 3000/- or in default, to suffer rigorous imprisonment for two years more; (Para 8)
Judgment
SEN, J. - This appeal by special leave is directed against the judgment passed by Punjab and Haryana High Court dated Jan. 10, 1975 setting aside the judgment and sentences passed by the Sessions Judge, Hoshiarpur dated Feb. 13, 1974 convicting respondent No. 1 Mann Singh for having committed an offence punishable under Sections 304, Part II and 323 of the I. P. C., 1860 and sentencing him to undergo rigorous imprisonment for 7 years and 9 months. respectively, and his son Balbir Singh, respondent. No. 2, for an offence under Ss. 304, Part II and 323 both read with S. 34 of the I. P. C. and sentencing him to suffer rigorous imprisonment for 3 years and 6 months respectively. On appeal, the High Court has upheld the conviction of respondent No. 1 Mann Singh but reduced his sentence to the period already undergone i. e. for a period of 20 months and to a fine of Rupees 2,000/- or in default to suffer further rigorous imprisonment for two years, but acquitted his son Balbir Singh, respondent No. 2 of both the offences.
2. The prosecution case in brief is as follows: On the date of occurrence i.e. on June 22, 1973, early in the morning Mst. Lila Wanti, wife of the accused Mann Singh and one Mst. Rekhi had an altercation leading to exchange of abuses, at which Mst. Lila Wanti snatched away the veil from the head of Mst. Joginder Kaur, P. W. 9, daughter of the deceased Pala Singh, who tried to intervene. At about 12.30 p. m. the deceased Pala Singh returned from his field and Sewa Singh, P. W. 4, a neighbour, took him to the house of the accused Mann Singh to protest over the incident and made a demand for return of the veil from the accused Mann Singh at which Mann Singh got infuriated and started abusing the deceased Pala Singh. On seeing him in an agitated mood, both of them returned and the deceased Pala Singh lay down on a cot under a mulberry tree in front of his house.
3. The prosecution case is that after about an hour, the accused Mann Singh armed with a dang and his son Balbir Singh armed with a Gandasi, arrived at the scene of occurrence and hurled abuses at the deceased Pala Singh, who thereupon got up from his cot and asked them to desist from abusing him. Upon this, both the accused made a joint assault on the deceased Pala Singh - Mann Singh dealt a blow with his Dang on the head of the deceased Pala Singh, and the accused Balbir Singh gave a Gandasi blow on his head as a result of which the deceased fell down unconscious at the spot. On hearing the alarm raised by the deceased Pala Singh, Mst. Joginder Kaur, P. W. 9 rushed out of the house and laid herself on her father in order to save his life. The accused Mann Singh gave her a couple of blows with the Dang and both the accused then left the place of occurrence. The deceased was taken in an unconscious condition to Civil Hospital, Mukerian where he was examined by Dr. Randhiraj Singh, P. W. 1 who found the following two external injuries :
"1. A verticle lacerated wound 2.3/4" x 1/4" X 1/6" on the left side of the head. It was 4" away from left pinna and 3" above the left eye-brow.
2. A transverse incised wound 1" X 1/8" X 1/8" on the top of the head, 3." from the root of the nose and 5" above the left pinna."
These injuries were bleeding head injuries and the deceased was in a precarious condition. Dr. Randhiraj Singh, P. W. 1 found that the deceased was in a serious condition and therefore referred him to Canal Hospital, Talwara for treatment, but the deceased died on his way because of the head injuries. In his opinion, Dr. Randhiraj Singh stated that the injury No. 1 was caused by a blunt-edged weapon and the injury No. 2 by a sharp-edged weapon.
4. Dr. Ram Lubhaya, Medical Officer, Canal Hospital, P. W. 2 performed an autopsy on the dead body of the deceased and found the following two internal injuries :
"1. A wound 7 cm. long on the left side of the head, verticle direction, about 10 cm. from the left pinha and 7.5 cm. above the left eye. The skull bone und
