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2005 Supreme(P&H) 1278
PUNJAB & HARYANA HIGH COURT
Rajive Bhalla, J.
Kesar Singh
Versus
State Of Haryana
Criminal Appeal No. 61 of 1993,
Decided On : DECEMBER 14, 2005
Common Intention - It is not necessary that all persons must inflict injury-Common intention is an act performed by several individuals in furtherance of their common intention.
Headnote:Indian Penal Code, 1860 - Section 304 Part I - Culpable homicide not amounting to murder - Sudden fight - A single blow - Inflicted with the reverse side of Kassi - It cannot be stated that he had an intention to cause death - Clearly placed the offence as one under section 304 - 1 of the IPC. (Para 30)
Criminal Procedure Code, 1973 - First Information Report - Delay - Effect of - Held, Delay by itself is not a circumstance, that could ensure to the benefit an accused - It is only un - explained and unwarranted delay coupled with the likelihood of tailoring the evidence to suit the prosecution case. (Para 20)
Criminal Procedure Code, 1973 - Section 157 - Chapter XII - Investigation - Recovery of weapon - Neither the blood stained earth taken from the spot nor any blood was found on the weapon - Murder case - Offence came to the notice of the police after 6 days - Held, Once the two eye witnesses have clearly and categorically deposed that the weapon of offence was kassi and there is nothing on record to establish that kassi was not used in the offence - The mere fact that no blood was found on the kassi or that no blood was lifted from the spot, would not confer, any benefit upon the appellants. (Para 22)
Indian Penal Code, 1860 - Section 34 - Common intention - It is not necessary that all persons must inflict injury - Common intention is an act performed by several individuals in furtherance of their common intention. (Para 26)
Rajive Bhalla, J.
1. By this judgment, two appeals, namely, Criminal Appeal Nos. 61-SB of 1993 (Kesar Singh and another v. State of Haryana) and 185-SB of 1993 (State of Haryana v. Kesar Singh and another) shall be disposed of. Criminal Appeal No. 51-SB of 1993 has been filed by Kesar Singh and Pala Ram, impugning the judgment and order of Additional Sessions Judge, Ambala, whereby they were convicted under Section 304 Part-I, read with Section 34 of the Indian Penal Code. Kesar Singh was sentenced to 8 years rigorous imprisonment and a fine of Rs. 500/-, in default whereof, he was directed to undergo a further rigorous imprisonment for a period of 2 months. Pala Ram was sentenced to undergo 5 years rigorous imprisonment and a fine of Rs. 500/-, in default, he was directed to undergo 2 months rigorous imprisonment. The sentences were ordered to run concurrently. Criminal Appeal No. 185-SB of 1993 has been filed by the State of Haryana, impugning the aforementioned judgment and order of acquitting the appellants under Sections 302 read with Section 34 of the Indian Penal Code (for short the "IPC").
2. A factual narrative of the matter, in dispute, would be appropriate.
3. FIR No. 80, dated 30.4.1988, under Section 302 read with Section 34 of the IPC, Police Station Panchkula, was registered on the statement of PW1 Hardev Singh. In his statement before the Police, Hardev Singh alleges that he lives at Dera Bassi, where he is posted as a teacher. On 24.4.1988, he and Karam Chand came to village Budhanpur to meet his father Ujjagar Singh. A patch of Shamlat land exists in front of their house, which land is in possession of Pala Ram, Kesar Singh, sons of Kesar Singh and Binder alias Balwinder s/o Sadhu Ram and Mohna s/o Pala Ram Pala Ram etc. were laying a foundation on the aforementioned (land) and Ujjagar Singh, the complainants father, asked them to leave a passage, while laying the foundation, whereupon, Pala Ram, appellant No. 2 exhorted his co-accused to teach the old man a lesson, for otherwise he would trouble them. On hearing this noise, the complainant alongwith Karam Chand came out of their house and saw Kesar Singh inflicting a kassi (spade) blow, from its reverse side, on the head of Ujjagar Singh. Ujjagar Singh fell down. The complainant and Karam Chand rushed him to the Primary Health Centre, Panchkula, where the doctor conducted a medico-legal examination and after providing first aid, referred him to General Hospital, Sector 16, Chandigarh. On 30.4.1988, Ujjagar Singhs condition became serious and he was referred to Post Graduate Institute of Medical Sciences and Research, Chandigarh, where he succumbed to his injury on 1.5.1988. The matter was reported to the Police on 30.4.1988 at 6.00 p.m. leading to the lodging of the FIR, aforementioned.
4. Upon completion of the investigation, the final report under Section 173 of the Code of Criminal Procedure (for short the Cr.P.C.) was filed before the Illaqa Magistrate. The accused were committed to the Court of Sessions. The accused were charged under Section 302 read with Section 34 of the IPC, to which they pleaded not guilty and claimed trial.
5. In support of its case, the prosecution examined PW1 Hardev Singh, complainant, PW2 - Karam Chand, an eye witness, PW3 - Udey Bhan, who drafted the site plan, PW4 - Bhim Singh, Sub Inspector, who received the communication, Ex.PA and scribed the formal FIR Ex.PC., PW5 - Inspector Maheshwar Singh, 1st Battalion Haryana Armed Police, Panchkula; PW6 - Dr. Lalit Virmani; who medico-legally examined Ujjagar Singh (the deceased) s/o Basant Singh aged 65 years. This witness also proved a copy of the Medico- legal report Ex.PD, PW7 - Jasjit Singh witnessed to the recovery of the Kassi (spade) and who disclosed the statement of the accused Kesar Singh, Ex.PE; PW8 - Dr. U.S. Bansal S.M.O. General Hospital, Chandigarh, who conducted the post mortem. PW9 - Avtar Singh, ASI; PW10 - Dr. Uttam Tripathy, Senior Resident, Surgery, PG
