S.S. Dewan, J.
1. Waryam Singh aged 50, Sampuran Singh aged 40 years, Kuljit Singh aged 19 years and Romesh alias Nathi aged 19 years, residents of village Masana were brought to trial before the Court of Additional Sessions Judge, Kurukshetra under Section 302 with the aid of Section 34, Indian Penal Code for committing the murder of Surinder Singh. Waryam Singh was acquitted of the charge. Sampuran Singh, Kuljit Singh and Romesh were held guilty under Section 304 Part II of the Indian Penal Code and sentenced to ten years' rigorous imprisonment each. Cr. Appeal No. 1046/78 has been filed by Sampuran Singh and others against their conviction and sentence. State of Haryana has filed Cr. Appeal No. 1484/78 against the acquittal of Waryam Singh and the aforesaid accused for the offence under Section 302/34, Indian Penal Code. Both of them will be disposed of by this judgment.
2. The ultimate motive of the heinous crime is stated to be that Surinder Singh since deceased lived as a tenant in the house of Dalip Singh in village Masana for a period of about six months and during this period he developed brotherly relations with his Landlord (Dalip Singh). Dalip Singh became mentally deranged and his brothers Waryam Singh and Sampuran Singh (accused) refused to look after him. Surinder Singh took Dalip Singh to Rohtak and got him treated from Dr. Vidya Sagar of Medical College Hospital, Rohtak. The brothers of Dalip Singh were not happy over the assistance rendered by Surinder Singh in getting him medically treated. On the night of 20-12-77 some quarrel took place between the wife of Dalip Singh, on the one hand, and the wife of Sampuran Singh accused, the father and sister of Romesh accused, on the other. On 21-12-1977 Dalip Singh requested Gurcharan Singh, a neighbour to intervene and settle the dispute. The prosecution story goes that on the same day at about 7/8 a.m., Gurcharan Singh, Surinder Singh, his father Niranjan Singh, his brother Dharampal and one Attar Singh collected in the house of Dalip Singh to settle the dispute. During the course of the meeting, Dalip Singh and Sampuran Singh exchanged hot words. Sampuran Singh remarked that Dalip Singh had collected the Panchayat to malign his (Sampuran Singh's) wife. When the two brothers were exchanging hot words, Dharampal Singh, Gurcharan Singh, Niranjan Singh and Attar Singh got up in order to leave the Panchayat. When they had hardly moved a few steps, Waryam Singh raised lalkara that it was Surinder Singh who was the root cause of the entire trouble and he should be taught a lesson. Thereupon Kuljit Singh, Sampuran Singh and Romesh gave a lathi blow each on the head of Surinder Singh. When the latter slumped on the ground, Sampuran Singh gave another lathi blow on his person. When Niranjan Singh and Gurcharan Singh, etc. tried to intervene, the accused threatened them with dire consequences. All the four accused then bolted away with their respective weapons. Surinder Singh became unconscious. Dharampal brought his tractor-trolley and took the injured towards the Civil Hospital, Kurukshetra. Gurcharan Singh got down at Police Post, Pipli while Niranjan Singh and Dharampal went to the hospital along with the injured. A.S.I. Chandgi Ram, Incharge of Police Post, Pipli recorded the statement Ex. PD of Gurcharan Singh and on the basis of that statement. F.I.R. Ex. PD/2 was registered at Police Station, thenesar at 10.30 A. M., on 21-12-1977. The A.S.I. then proceeded to Civil Hospital, Kurukshetra to record the statement of the injured but he was declared unfit to make statement.
3. Dr. M. P. Garg (P. W. 1) examined Surinder Singh at 10 a. m. on 21-12-1977 and found the following injuries on his person:
(1) Lacerated wound 3' x 1/8' x skull deep obliquely placed on a parietal region of the skull on right side. Bleeding was present and swelling of the surrounding area was present. Advised X-ray of the part. Injury was kept under observation.
(2) Lacerated wound 21' x 1/8' and skull deep obliquely placed going backward and posteriorly on the right side of the parietal region of the skull. Swelling of the surrounding area was present. Advised X-ray of the part.
(3) Irregular lacerated wound 4' x l/8' x skull deep obliquely placed, starting from midline going posteriorly and towards the right side of the parietal region. Swelling of the surrounding area was present. Advised X-ray of the part.
(4) Contusion swelling blue in colour of both the eyelids measuring 11/2' x 1/2'' and 11/4' x 3/8'. Advised X-ray of the part.
(5) Irregular swelling 4' x 31/2' over the dorsal surface of the left hand and wrist joint and extending over to the fingers. Advised X-ray of the part.
4. A.S.I. Chandgi Ram went to the spot and prepared its visual plan Ex. PO. He also lifted blood-stained earth from the spot. The condition of Surinder Singh being serious, he was referred to P.G.I. Chandigarh for better treatment. On the same day he was removed to the P. G. I., Chandigarh where he succumbed to his injuries. On 21-12-1977 at about 8,15 p.m. Bhagat Singh, Head Constable received intimation from the P. G. I about the death of Surinder Singh. He accordingly made an entry in the Daily Diary Register copy of which is Ex. PN and ruqa is Ex PN/1. A.S.I. Jagjit Singh handed over the aforesaid documents to A.S.I., Kishen Lal (PW 10) of Police Station, Kurukshetra. A.S.I. Kishen Lal held inquest on the dead body in the dead house of the P.G.I., Chandigarh and recorded the statement of two persons present there and thereafter he handed over the documents to A.S.I. Chandgi Ram of Police Post, Pipli, The dead body was sent to the mortuary for autopsy. The accused were searched but they were not available. Sampuran Singh and Kuljit Singh were arrested by Section I Sant Lal (P. W. 12) on 23-12-1977 while Waryam Singh and Romesh were arrested by him on 24-12-1977. Sampuran Singh and Romesh were interrogated by the Sub-Inspector and they suffered disclosure statements leading to the recovery of lathis Exs. P3 and P4 from the specified places of concealment.
5. Dr. Inderjit Dewan (P. W. 3) conducted autopsy on the dead body of Surinder Singh on 22-12-1977 and noticed the aforementioned injuries on the dead body. He found an irregular fracture 15 cms. long under injuries Nos. 2 and 3, just behind the right parietal eminence extending upwards and forwards for 5 cms. on right parietal bone and then downwards and forwards for 10 cms. to extend on to the squama of right temporal bone. Death was opined to be due to tonsillar herniation of the brain due to cerebral contusions and subdural haemorrhage following fracture of the skull due to head injury which was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between admission and death was stated to be about 31/2 hours and between death and postmortem about 20 hours. After necessary investigation, the accused were challaned and committed.
6. The material evidence in a case of this kind is that of the eye-witnesses PW2 Gurcharan Singh and PW4 Niranjan Singh. Apart from the testimony' of A.S.I. Kishen Lal of Police Post Kurukshetra (P. W. 10) and A.S.I. Chandgi Ram of Police Post, Pipli (P. W. 11) who are the main investigating officers of the case, the rest of the testimony is of sub-sidiary and formal nature.
7. In their statements under Section 313, Code of Criminal Procedure, the appellants denied the prosecution allegations and pleaded false complicity in the case. Waryam Singh examined Dalip Singh (D. W. 1), Hans Raj (D. W. 3) besides himself appearing in the witness-box as D. W. 2.
8. The trial court on the basis of the material placed before it convicted and sentenced the accused for the offence as indicated above and hence the appeal at their instance.
9. Mr. H.L. Sibal addressed us on behalf of Sampuran Singh and other appellants in Cr. Appeal No. 1046 of 1978 and Mr. R.P. Bhasin on behalf of the appellant in Cr. Appeal No. 1484 of 1978.
10. The attack of Mr. Sibal against the conviction of the appellants on merits appears to be both half-hearted and tenuous. No other serious challenge was laid either to the time or place of occurrence. The main plank of the argument on behalf of the appellants is that the crime was committed unseen and in any case Gurcharan Singh (P.W. 2) and Niranjan Singh (P. W. 4) did not witness the same. Lacking any factual basis for this suggestion, the usual argument was sought to be raised that they being the relations of the deceased, no implicit reliance could be placed on their testimony.
11. After hearing learned Counsel for both sides and perusing the record with their help, we are of the opinion that there is no merit in the appeal filed by the appellants.
12. As has already been noticed, the evidence with regard to motive is so overwhelming that it is unnecessary to repeat what has been earlier said through the re'sume' of facts, No hint of criticism was seriously levelled with regard to the reasons given in paragraph 21 of the judgment under appeal. We hold that the lodging of the report in the present case was as prompt and unblemished of delay as the circumstances could possibly permit. Equally we are in accord with the finding of the trial court that the plea taken by the appellants' defence witness Dalip Singh that it was he who caused injuries to Surinder Singh when he found him molesting his wife is, on the face of it, untenable and it has been rightly styled as a cock and bull story not worth the paper on which it is written.
13. As is inevitable in a case of the present kind, the ocular account is the core of the prosecution case. Gurcharan Singh, a cousin and Niranjan Singh, father of the deceased have given an account thereof which is remarkable in its consistency. A gruelling cross-examination was levelled against both these witnesses. This however, appears to us to be lacking both in thrust and direction and nothing significant had emerged therefrom which may possibly cloud the forthright testimony of these witnesses. For lack of anything better it was sought to be suggested on behalf of the defence that they being interested witnesses, no implicit reliance could be placed on their testimony. The witnesses are, no doubt, relations of the deceased but it has been repeatedly held that they would normally be interested in bringing the real culprit to book. The testimony of such like witnesses has to be judged like that of any other witness on the touchstone of probability, their presence at the time of occurrence and their testimony being consistent with the attending circumstances of the case. The presence of these witnesses at the time and place of occurrence could neither be termed as unnatural nor was devoid of possibility as the learned Counsel sought to paint. their evidence finds corroboration from the statement of the investigating officer who lifted blood-soaked earth from the courtyard of the house of Dalip Singh and this fact stands unchallenged by the defence. In fact, the appellants concede that the occurrence did take place in the courtsyard of Dalip Singh's house. The testimony of the eye-witnesses receives further corroboration from the medical evidence and the recovery of lathis Exs. P3 and P4 at the instance of Sampuran Singh and Romesh. The earth and the weapons were found to be stained with human blood. This circumstance also lends assurance to the prosecution case.
14. It was then casually contended that Dharampal, brother of the deceased, Attar Singh and Harbhajan Singh had collected in the house of Dalip Singh at the alleged time of occurrence but they have not been put in the witness-box, the prosecution case suffers fatally for the non-production of the material witnesses. The submission can hardly hold water. Admittedly, Niranjan Singh was the father of the deceased who had in no uncertain terms deposed about the occurrence. Gurcharan Singh had equally taken this stand. In this context, the testimony of Dharmpal, Attar Singh and Harbhajan Singh could be nothing more then a pure duplication of what has been deposed to by Niranjan Singh and Gurcharan Singh. In these peculiar circumstances, we are of the view that the non-production of the aforesaid three witnessses does not in the least detract from the prosecution case. The learned Counsel then contended that no one of the adjoining house-holders had come up to support the prosecution case. In the cross-examination of the witnesses, it was neither elicited as to how close the other habitations were from the spot where the occurrence took place nor was anyone named or suggested to have come therefrom and witnessed the occurrence. The significant thing is that the appellants had themselves taken up a positive plea that the occurrence took place in the courtyard of the house of Dalip Singh and the latter had assaulted Surinder Singh deceased when he found him molesting his wife. This plea of the defence stands rejected by trial court in the following terms:
The entire statement given by Dalip Singh DW appears to be tissue of lies and he has perhaps given of false statement just to help his two brothers and his nephew who are the accused in this case. No weight, therefore, can be attached to the defence plea of the accused and the evidence led by them.
We are unable to see how the prosecution was obliged to call any other witnesses in the absence of positive suggestion that they had also witnessed the occurrence.
15. The question that falls to be considered in this appeal is whether the offence disclosed by the facts and circumstances established by the prosecution against the appellants is 'murder' or 'culpable homicide not amounting to murder'. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is culpable homicide' but not vice versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder' is culpable homicide not amounting to murder'. For the purpose of fixing punishment proportionate to gravity of this generic offence, the Code practically recognises three degrees of culpable homicide, The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the 1st part of Section 304. Then, there is 'culpable homicide of the third degree, This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
16. Now let us consider the problem before us in the light of the above enunciation. The evidence shows that the occurrence took place at the spur of the moment. The appellants did not possess any lathi when the Panchayat proceedings started. All of a sudden, during the Panchayat proceedings tempers of the appellants ran high when hot words were exchanged between Waryam Singh (since acquitted) and his brother Dalip Singh and the meeting ended in a fiasco, Immediately thereafter the appellants picked up lathis from somewhere and caused three injuries with them on the head of Surinder Singh which proved fatal. The crime was committed without any premeditation. In the circumstances, we are of the view that the appellants though they must be fixed with the knowledge that the blows were such as were likely to cause death were not animated with the intention to cause death. In these circumstances, the trial court found that this case fell within the ambit of Section 304 (Part II) Indian Penal Code and we affirm its finding. The sentence imposed on the appellants is little excessive. We, therefore, reduce their sentence of imprisonment to seven years each. The appeal is allowed to the extent indicated above. As a necessary consequence, Cr. Appeal No. 1484/78 preferred by the State seeking conviction of the appellants under Section 302/34, I.P.C. is hereby dismissed.