Skip to content


Gurcharan Singh @ Billa and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 138 of 1982
Judge
Reported inILR1984Delhi627
ActsIndian Penal code, 1860 - Sections 302
AppellantGurcharan Singh @ Billa and ors.
RespondentState
Advocates: P.P. Grover and; R.P. Lao, Advs
Cases ReferredJagdish Prashad v. The State.
Excerpt:
(i) indian penal code, 1860 - section 302 read with section 34--murder case--non-explanation of injuries sustained by accused--whether necessarily leads to the inference that the prosecution has suppressed the origin of the occurrence? absence of blood near about the place of occurrence--inference to be drawn.; (ii) criminal procedure code - section 172--whether case diaries could be used in evidence.; in the present appeal, directed against the convictions of the appellants under section 302 read with section 34 i.p.c. and section 27 of the arms act it was urged, inter-alia, that (i) absence of a believable explanationn about the injuries on the person of the appellants clearly indicated that prosecution had suppressed the origin of the occurrence; (ii) the attacked by the deceased.....g.r. luthra, j.(1) on may 29, 1982 shri r. c. jain, additional sessions judge, delhi convicted the appellants gurcharan singh alias billa and his two sons kuldip singh and attinder singh in respect of commission of offence punishable under section 302 read with section 34 indian penal code. on account of murdering one kuldip singh son of gurmukh singh (hereinafter referred to as deceased) at basti harphool singh in the evening of may 1, 1979. he 'also convicted the aforesaid appellants except attinder singh under section 27 of the arms act. on the same date, on charge of murder, by means of a separate order, each of the aforesaid appellants was sentenced to undergo imprisonment for life and also to pay a fine of rs. 1000 in default of payment of which to undergo simple imprisonment for a.....
Judgment:

G.R. Luthra, J.

(1) On May 29, 1982 Shri R. C. Jain, Additional Sessions Judge, Delhi convicted the appellants Gurcharan Singh alias Billa and his two sons Kuldip Singh and Attinder Singh in respect of commission of offence punishable under Section 302 read with Section 34 Indian Penal Code. on account of murdering one Kuldip Singh son of Gurmukh Singh (hereinafter referred to as deceased) at Basti Harphool Singh in the evening of May 1, 1979. He 'also convicted the aforesaid appellants except Attinder Singh under Section 27 of the Arms Act. On the same date, on charge of murder, by means of a separate order, each of the aforesaid appellants was sentenced to undergo imprisonment for life and also to pay a fine of Rs. 1000 in default of payment of which to undergo simple imprisonment for a period of three months. Further, Gurcharan Singh and Kuldip Singh appellants were awarded sentence of rigorous imprisonment for two years for the offence punishable under Section 27 of the Arms Act. The present appeal is directed against the aforesaid convictions and sentences.

(2) Briefly, the version of the prosecution is as under. The appellants are carrying on the business of a small restaurant under the name of Bakshi Hotel situated in a street abutting Sadar Thana Road in Basti Harphool Singh. Inimical relations existed between the appellants on the one hand and the deceased and his brothers on the other hand. On December 27, 1978 the appellants lodged a report (F.,I.R.No. 1204 of P. S. Sadar Bazar) under Section 307 Indian Penal Code. against the deceased and his brothers Inder Singh, Narinder Singh and Avtar Singh. On the basis of that report (copy Ex.PW 1O/A) a case is pending trial in a court.

(3) A day before the occurrence i.e. April 30, 1979 Gurcharan Singh appellant lodged a report expressing apprehension of danger to his life from Kuldip Singh (new deceased) son of Gurmukh Singh and his brothers which was recorded at Seriall No. 17-A of the daily diary. S. 1. Jagbir Singh (Public Witness 19) was entrusted with the investigation at 6 p.m. on April 30, 1979 itself. He went to the house of the deceased and his brothers on that as well as following day but they were not available and ultimately proceedings, under Section 107 read with Section 151 Cr. P.C. were started.

(4) Kuldip Singh, deceased plied three-wheeler scooter No. Dhr 1691 on hire. Sometime during the day on May 1, 1979 he parked the said scooter nearabout Bakshi Hotel of the appellants. At about 5.45 p.m. when the deceased, who lived nearby, with a view to go to pursue his avocation, was going to start the scooter, the appellants) emerged from Bakshi Hotel and attacked the former. At that time Gurcharan Singh was armed with a sword and a dagger while Kuldip Singh was armed with a dagger. Attinder Singh did not have any weapon in his hands. They told the deceased that the latter used to abuse and threaten the former and that ho had also committed murderous assault on them and that, thereforee, he would be taught a lesson. After saying that they surrounded Kuldip Singh deceased. Attinder Singh alias Titoo and Gurcharan Singh caught hold of the deceased and appellants Kuldip Singh and Gurcharan Singh gave blows with sword and daggers on different parts of the body of the deceased. A crowd collected .Inder Singh, who is brother of deceased and who was then carrying on a tea shop nearby, came at the spot and shouted at the appellants urging them to stop attack on deceased and warned that further assault would not be tolerated. On hearing that, the appellants left the deceased and started chasing Inder Singh who escaped towards Nala Road.

(5) There is a Nehru Hosiery Building nearby in which, inter alia, Nehru Hosiery and Indian Spinning Factory arc located. The deceased, with a view to save his life, went into a room of Indian Spinning Factory and fell down there.

(6) In the process of attack on the deceased, the appellants accidentally hit each other with their weapons and every one of them received injuries. They also received injuries on account of hitting against the three-wheeler scooter of the deceased.

(7) On hearing the noise Smt. Jaswant Kaur (Public Witness 12), mother of Kuldip Singh (deceased) reached the spot. After some time Inder Singh also came back at the spot. Both Inder Singh and his mother took Kuldip Singh (deceased) to Hindu Rao Hospital. On medical examination by Dr. R. P. Gupta he was declared to be dead vide report Ex.PW17/A.

(8) S. 1. Sham. Lal Chhabra (Public Witness 5) was then posted in Police Control Room. At about 6.27 p.m. on May 1, 1979 he received an information on the telephone from an unknown person to the effect that two murders had taken place at Sadar Thana Road near the shop of Madan Lal Halwai. S. 1. Sham Lal Chhabra then directed the control-room van to reach the spot and also recorded entry in the daily diary of control room, copy of which is Ex.PW 5 A. As telephone of police station Sadar Bazar was out of order, Si Sham Lal directed the control room van to inform the paid police station also. On receipt of information from control room van, Si Bhawani Dass Chopra (PW 22), then posted in P. S. Sadar Bazar, was entrusted with thc investigation of the case. He took along with him Si Prakash Chand, S. Jagbir Singh (Public Witness 19), some constables and reached the spot. There he met Harbhajan Singh (Public Witness 7) whose statement Ex.PW7[Awas recorded. That statement was sent by Si Bhawani Dass Chopra, through a constable to the police station Sadar Bazar for registration of a case. Si L. R. Gautam (Public Witness 15) was acting as duty officer, police station Sadar Bazar. On receipt of recorded statement of Harbhajan Singh, he recorded formal F.I.R.No.308 at 8.10 p.m. on May 1, 1979. Copy of F.I.R., is Ex. Public Witness 15)A. Inspector Trilochan Singh (Public Witness 21) was then Sho police station Sadar Bazar. He was ill and hence Inspector Dalip Singh was officiating as SHO. After S.I Bhawani Das Chopra (PW 1O). Blood was found at three places, namely, in a room Dalip Singh (Public Witness 23) reached the spot at about 7.30 p.m. and took over the investigation in which Si Bhawani Dass Chopra was associated.

(9) Inspector Dalip Singh (Public Witness 23) got some places of occurrence photographed through constable Ramesh Kumar (PWIO). Blood was found at three places, namely, in a room in the Indian Spinning Factory, outside the same and near Bakshi Hotel. Sample blood was taken from all these three places. PW23 (statement on crose-examination) found, on investigation, that the blood near Bakshi Hotel was that of Gurcharan Singh and the one in the room inside Indian Spinning Factory and outside the same was that of Kuldip Singh deceased.

(10) An unsheathed kirpan was lying on the ground near the turning of the street. The same was taken into possession and was sealed into a parcel. Three-wheeler scooter of the decesed, a turban, a 'fifti' and a pair of white chappals were taken possession of from the spot.

(11) In the meanwhile S. I. Jagbir Singh took Gurcharan Singh, appellant, who was injured to Willingdon Hospital, New Delhi and got him admitted there. Statement of Gurcharan Singh was not recorded because he was declared unfit to make a statement. Si Jagbir Singh came back to the spot at about 7.40 p.m. Inspector Dalip Singh (Public Witness 23) instructed Si Jagbir Singh to go to Hindu Rao Hospital and record the statement of Kuldip Singh and Attinder Singh, appellants who were admitted in the said hospital. Accordingly, Si Jagbir Singh went to Hindu Rao Hospital. Kuldip Singh and Attinder Singh, appellants were declared to be unfit to make statements. Raja Sing, younger brother of Kuldip Singh and Attinder Singh, appellants, was also in Hindu Rao Hospital. thereforee, his statement was recorded and that statement was sent to police station Sadar Bazar for recording first information report, under Section 307 IPC. Accordingly, cross F.I.R. No. 309 was recorded on May 1, 1979 and copy of the same is Ex.PW3lA.

(12) At about 11.30 p.m. after deputing police constables and Si Bhawani Dass Chopra to guard the spot, Inspector Dalip Singh (Public Witness 23) went to Hindu Rao Hospital where constable Gian Singh (Public Witness 18) handed over to him a dagger recovered from Kuldip Singh appellant by the doctor examining him. That dagger was recovered from the dub of Kuldip Singh appellant when he was being examined by the doctor. Inspector Dalip Singh prepared a sketch of the said dagger and took the same into his possession. He also took into possession the sheath the said dagger. Constable Gian Singh also produced before Inspector Dalip Singh the clothes of Kuldip Singh and Attinder Singh appellants which were also taken into possession.

(13) By the time inspector Dalip Singh reached Hindu Rao Hospital. The dead body of Kuldip Singh (deceased) had already been placed in the. mortuary of the said hospital. thereforee, Inspector Dalip Singh could not complete the inquest report. Inspector Dalip Singh then went to Willingdon Hospital and from there went to the police station Sadar Bazar and deposited the case property at 1.45 a.m. of May 2, 1979. '

(14) On May 2, 1979 at about 8 a.m. along with Si Bhawani Dass Chopra and two constables, Inspector Dalip Singh Went to the mortuary of Hindu Rao Hospital. The said constables received the said dead body and took the same to the mortuary near Subzi Mandi for post-mortem examination. Before the dead body was sent from the Hindu Rao Hospital, an inquest report was prepared by Inspector Dalip Singh.

(15) On May 2, 1979 at 12.30 p.m. Dr. Bharat Singh, Police Surgeon (Public Witness 1), conducted the postmodem examination on the dead body of Kuldip Singh deceased and found 38 injuries out of which 5 were abrasions and the rest 33 were incised wounds. The injuries found on the person of Kuldip Singh, deceased were as under:

1.One abrasion on the forehead size 1/2''X 2''.

2.Abrasion over the middle of the nose size 2/10'' x 1/10''.

3.One abrasion on right side neck lower part she 4'' X 1/4''.

4.Abrasion on the front of right shoulder 31/2'' x 1/4'.

5.One incised wound over the front of right side chest 1 112' below the mid point of clavicle placed horizontally size 1/4' x 2/10' x 2/10 wound was having one angle more pointed as compared to others.

6.One incised stab wound over the right side front of of chest 2' below and medial to the right nipple placed horizontally. Size 11/4' x 1/2' x? Tail end was on the left side.

7.ONEincised wound over the front of chest in mid line, lower part placed, vertically. Size 1/4' x 2/10' skin deep. Wound was spindle shape.

8.One incised wound over the left side neck. lower part placed vertically. Size 1/2' x 2/10' x 2/10'. end was upwards.

9.One incised stab wound on left side front of chest placed vertically oblique 1 1/2' below and altered to the left nipple. Size 3/4' x 1/2'? Wound was having its tapering end upwards.

10.One incised stab wound on the lower part front of chest on left side 31/2' below injury No. 9 placed vertically oblique. Size 1/4' X 1/2' X? Wound was spindle shape.

11.Two incised stab wounds on the front of right side of abdomen in lumbar area placed very close to each other. One was placed vertically and the other was placed horizontally. Size of both injuries was 1/4' x 1/2' x? Wounds were spindle shape.

12.One incised stab wound over left lumbar area of abdomen placed horizontally Size 1/4' x 1/2' x? I through which a loop of bowel was protruding out. Wound was spindle shape.

13.One incised wound over the right scapular area placed long. Size l' x 1/2' x muscle deep. Wound was spindle shape.

14.One incised wound over the lower part of scapular area placed horizontally. Size l' x 1/2' muscle deep. Wound was spindle shape.

15.One incised wound over the right side of back of chest, lower part placed horizontally. Size 3/4' x 1/2' x muscle deep.

16.One incised wound over the back of right side chest 21/4' medial to injury No 15 Size 3/4' x 1/2' x muscle deep. Wound was spindle shape and placed obliquely. One incised stab wound over the right part axillary fold placed obliquely. Size 1' x 1/2', Wound was spindle shape.

17.Two incised stab wounds on the left scapular area placed in different directions. (One vertical and other horizontal). Size 1' x 1/2' x 1/10 each.

18.Tail end in one wound was upwards and other on left side.

19.Two incised wounds on the left side back of chest below the scapular area placed 21/2' apart from each other in same direction i.e. vertically, size 3/l0' x 2/10' x 2/10' each. Wounds were spindle shape.

20.One incised stab would left lumber area, size 11/4' x 1/2' x? Wound was placed horizontally oblique with more pointed angle on the lower side and medicaly.

21.One incised wound just below injury No. 20 size 1/2' x 2/10' x 1/10' Wound was spindle shape. 22. One incised stab wound over the right upper arm outer part placed vertically. Size l' x 1/2' x muscle deep. Wound was spindle shape.

22.One incised stab wound over the right upper arm placed horizontally 1/2' away from injury No. 22, size of the wound was 1/2' X 4/1O' X muscle deep Wound was in spindle shape.

23.One incised wound on the right forearm back Middle area. Size 3/4' x 1/2' x muscle deep. Wound was placed horizontally and was spindle shape.

24.One incised wound on the outer part of left shoulder placed horizontally. Size 1' x 1/2' x 1' with tail end outwards. No major blood vessel was cut in the track of the wound.

25.One incised wound over the left arm upper outer part 1' below injury No. 25 placed verically. Size 1' x 1/2' x 1' with tail end downward. Wound was covered by blood.

26.One incised wound over the back of lower part of left arm placed horizontally. Size 31/2' x 3/4' x muscle deep. (Depth was same all over the wound).

Both angles were equally pointed.

27.One incised wound over the left elbow outer side. Size 1' x 3/10' x 1/10' with tail end upwards. Wound was placed vertically.

28.One incised wound 1/2' below injury No. 28. Size 2' x 1/2' x muscle deep. Tail end was upwards. Wound was placed vertically.

29.One incised wound over the back of left forearm upper part placed obliquely. Size 1' x 2/10' x 1/10' with tail end upwards.

30.Abrasions on back of left elbow in an area of 2' x 1/2' red.

31.One incised wound on the front of left forearm, in middle placed vertically. Size l' x 1/2' x muscle deep. Tail end was upwards.

32.One incised wound on the front of left forearm, size l' x 1/2' x muscle deep. Tail end was downwards. Wound was placed vertically.

33.One incised stab wound over the left thigh upper outer part. Size 11/4' x 1/2' x 1' spindle shape placed vertically.

34.On incised wound on the left leg upper front part placed horizontally. Size 11/4' x 1/2' x bone deep. Bone was cut in oblique manner 1/4' deep. Both angles of wound were equally pointed.

35.One incised wound over the front of right knee joint placed obliquely, horizontal. Size 1' x 1/2' x 2/10'. Both angles equally pointed.

36.One incised stab wound on the medial side of right knee placed obliquely horizontal. Size 1' x 1/2' x 3/10' Both angles were equally pointed.

37.One incised wound over the back of right thigh at its middle placed vertically. Size 11/2' x 1/2' muscle deep. Both angles were equally pointed.

(16) According to the opinion of Dr. Bharat Singh, injuries Nos. I to 4 and 31 were caused by a blunt object while the remaining injuries were caused by a sharp edged weapon like the sword and the two daggers produced before him by the police. He further expressed an opinion that the injuries Nos. 9, Ii, 12 and 20 were sufficient in the ordinary course of nature to have caused death. He gave the following description of the aforesaid injuries Nos. 9, Ii, 12 and 20 in internal examination:

'INJURYNo. 9 has entered into left side chest cavity through fourth inter costal space and has cut the left lung on its upper lobe near the anterior margins at its lower part. Size of the cut on lung is 3/4' through and through and is then continuous on the pericardium and finally the left ventricle of the heart. Size of cut on heart is 3/4' x chamber deep. Total depth of external injury No. 9 is 5'-'

'INJURYNo. Ii has entered the abdomen cavity and have cut the loop of small bowel separately lumen deep. Total depth is approximately 2'. Injury No. 12 has entered the abdomen and has cut the small bowel at one place lumen deep. Total depth is approximately 2' '.

'INJURYNo. 20 has entered the abdominal cavity and has cut the left kidney lower pole. Size of the cut is 1' x 2/10' x 1/2'. Total depth of injury No. 20 is 21/2'.

(17) Inspector Tirlochan Singh (Public Witness 21) recovered from his illness, resumed his duties as Sho police station Sadar Bazar and took over investigation on May 19, 1979. He called Jagmohan Singh Chadha (Public Witness 11), a private draftsman and the latter prepared a. scaled site plan Ex. Public Witness 11/A. Jagmohan Singh Chadha visited the place of occurrence and on the pointing out of the eye witnesses, namely, Harbhajan Singh (Public Witness 7), Inder Singh (Public Witness 8) and Tilak Raj (Public Witness 6) took measurement and notes at the spot on May 19, 1979 and thereafter completed the plan.

(18) The appellants in their statements under Section 313 Cr. P.C. did not deny the incident. They, however, denied that they committed the murder of Kuldip Singh. According to them, it were the deceased and his brothers who were aggressors. Their case is that Gurcharan Singh appellant was sitting outside his Bakshi Hotel while Kuldip Singh and Attinder Singh appellants were inside, that Kuldip Singh, deceased and his brothers Inder Singh, Narinder Singh and Balbir Singh came armed with swords, kirpans, knives and daggers and pounced upon Gurcharan Singh on account of which he received injuries, fell down and became unconscious and that they also caused injuries to Kuldip Singh, Attinder Singh appellants and Raja Singh, another son of Gurcharan Singh. They showed ignorance as to who had killed Kuldip Singh, deceased. They expressed suspicion that Kuldip Singh was killed by his enemies including his brother Inder Singh. They explained that Inder Singh was interested in killing Kuldip Singh because Inder Singh was carrying on with the wife of Kuldip Singh deceased and wanted to finish off the deceased with a view to marry her. They relied upon the factum of marriage of Inder Singh with the wife of the deceased after the death of deceased in support of that Explanationn.

(19) It is undisputed that the incident did take place. It is also not denied that Kuldip Singh died as a result of a large number of injuries on his person. The question is as to who was the aggressor. The evidence of the prosecution is that the aggression was committed by the appellants. The prosecution examined three eye withnesses, namely, Tilak Raj (Public Witness 6), Harbhajan Singh (Public Witness 7) and Inder Singh (Public Witness 8). They supported the prosecution version. Tilak Raj (Public Witness 6) after narrating the occurrence stated that he did not remember if the police lifted anything other than blood from the spot. At that stage, at the request of the learned Additional Public Prosecutor he was allowed to put questions as can be asked in cross-examination. Then in reply to leading questions, Tilak Raj supported the entire prosecution case in respect of taking into possession of the articles and sword of Gurcharan Singh appellant from the spot.

(20) The learned counsel for the defense assailed the credibility of Tilak Raj on the ground that he was merely a chance witness because he resided and was also employed at a far off place in Rajouri Garden and thus could not normally be on the spot. He pointed out that Tilak Raj stated that on May 1, 1979 at about 5.15 p.m. he had gone to Basti Harphool Singh for meeting his friend Ashok, that after meeting he was going for catching a bus when in the way he saw the occurrence and that on cross-examination, he admitted that then he was working with M/s. Mahendra & Sons, cloth dealers in Rajouri Garden. Learned counsel for the defense urged that according to Tilak Raj himself he just happended to be present, at the time of occurrence although in normal' way he, was not expected to be there. Learned counsel also pointed out that according to Tilak Raj himself he used to work in the shop of his employer at Rajouri Garden from 9.30 , to 7.30 p.m. and that, thereforee, latter could not be expected to be at the place of occurrence in Basti Harphool Singh, which was miles away from Rajouri Garden, during working hours at 6 p.m. when the occurrence took place. Learned counsel also pointed out that according to Tilak Raj on the ground that the latter, being brother of the deceased, was interested against the appellants.

(21) The circumstances relied upon by the learned counsel for defense (Shri P. P. Grover) do not make Public Witness 6 and Public Witness 8 unsafe for reliance because first information report, by mentioning about their presence at the time of occurrence, lends assurance to their credence and also because Tilak Raj could be present at the spot even during his working hours by obtaining short leave from his employer. But even if we discard the statements of the said witnesses, there is unimpeachable evidence of Public Witness 7 supporting prosecution case. Harbhajan Singh (Public Witness 7), as lie states dealt in metal scrap at shop No. 2660, Sadar Thana Road, Delhi. He had a godown at Plot No. 15, Basti Harphool Singh at a distance of abount' 60 or 70 paces from Bakshi Hotel. On May 1, 1979 he was getting the stocks of scrap arranged in his godown when the occurrence took place. He is, thereforee, a. very natural witness who happened to be near the spot in connection with his business. Further, his statement is corroborated by first information report based on his statement ExPW7/A which was recorded soon after the occurrence which took place at about 6 p.m. The statement Ex. Public Witness 7jA after recording was sent by Si Bhawani Dass (Public Witness 22) to police station at 8 p.m. while first information report Ex, Public Witness 15/A was recorded at 8.10 p.m.

(22) Then there are circumstances which support the version and aforesaid ocular evidence of the prosecution. It is apparent from the post mortem examination on the dead body of Kuldip Singh by Dr. Bharat Singh, Police Surgeon (Public Witness 1) that the deceased received as many as 38 injuries out of which 33 were incised wounds,. The details of those injuries have already been given. Such large number of injuries, out of which four injuries Nos. 9.11, 12 and 20, with deep penetration into the body, could not be inflicted, had the deceased been the aggressor.

(23) As against such large number of injuries on the person of Kuldip singh (deceased), the appellants and Raja Singh had received very few and those too simple injuries. According to the version of the defense, the attack was by Kuldip Singh deceased and his brothers. Had there been such an attack, the injuries inflicted on the appellants and Raja Singh would have been much more and of grievous nature because in that event the attack on the appellants was surprise one. .Further, it is very significant' to note that there are no injuries on the person of Inder Singh and his two brothers who, according to the cage of the appellants, were aggressors. Had those three brothers been a party to the attack on the appellants, they must also have received some injuries.

(24) The injuries received by the appellants and Raja Singh are indicated by their own evidence. Dr. V.S. Bhalla (DW1) examined Kuldip Singh appellant and Raja Singh on May I, 1979 at about 6.55 p.m. He deposed that he found the following injury on the person of Kuldip Singh:

ONE incited wound 1' x 1/2' about 1' posterior to the posterior axillary line, 4' below the lower margin of scapula on the left side.

Kuldip Singh, appellant, was referred to Surgical Ward and was there examined by Dr. Anita Bansal (DW3) who on May 1, 1979 was working as Medical Officer (Surgical). She expressed the opinion that the injury on the person of Kuldip Singh was simple.

(25) Dr. V. S. Bhalla also stated that on medical examination, following injuries were found on the person of Raja Singh:

1.A transverse incised wound on right arm on lateral aspect 6' below the tip of shoulder, size 1' x 1/2'. There was no active bleeding.

2.An abrasion 1' long on the tip of left shoulder.

3.An abrasion ' below left ear on the neck. It was about 11/4' long.

On cross-examination he expressed an opinion that injuries 2 and 3 on the person of Raja Singh were superficial in nature because they were only on the skin.

(26) Raja Singh was referred to Surgical Ward where he was examined by Dr. Anita Bansal (DW3). She stated that she Saw the medico-legal report relating to Raja Singh and also examined, him and found that the injuries on his person were simple in nature.

(27) Ram Niwas (DW2) is a record clerk in Dr. Ram Manohar Lohia Hospital, New Delhi. He brought medico legal register of the year 1979 containing on M.L.C. Ex. DW2/A in the hand writing of Dr. (Miss) Kiran Vij. The said doctor, as was stated by Ram Niwas (DW2), had left Dr. Ram Manohar Lohia Hospital and that her whereabouts were not known. Ram Niwas also proved an endorsement of Dr. D. P. Chawla and stated that the said doctor had also left the hospital. The aforesaid medico-legal report relates to the injuries on the person of Gurcharan Singh. The said injuries are mentioned as under:

1.Incised wound left cheek 4' x 1/4' in size.

2.CLWs vertex posteriorly 1/2' x 1/4' x 1/2' x 1/4' in size

(28) The statement of Dr. Anita Bansal (DW3) is further to the effect that Attinder Singh appellant was referred to Surgical Ward and that she found Following injuries on his person:

1.One incised wound on interior lateral aspect of left thigh about 9' below interior superior iliac spine. The wound was muscle deep and extended interiorally. Wound measured I cm. Fresh bleeding was present.

2.One incised wound 1/2 cm X 1/2 cm on interior aspect of the left thigh 2' below inguinal ligament. It was muscle deep. Fresh bleeding was present.

3.One incised wound 4 cm X 1/4 cm X skin deep on left parietal region 2' above left pillar and 3' above outer angle of left eye Wound was skin- deep. Stitching was done.

4.Skin deep transfers situated incised wound on left upper arm 21/2' above left elbow.

Rajinder Singh, record clerk, Hindu Rao Hospital (DW7) identified the hand writing and signatures of Dr. R. P. Gupta on the original medico-legal report relating to Attinder Singh, appellant. He stated that Dr. Gupta was no longer in Hindu Rao Hospital and his whereabouts were not known..

(29) Further, were the deceased and his brothers aggressors they must have been in possession of some weapons like daggers, knives etc. while circumstances appearing on record indicate that they had none and that is why not even a single weapon, alleged by appellants to have been in possession Kuldip Singh, deceased and his brothers' was recovered by the police. It is apparent from the evidence, which is being mentioned hereafter, that police was keen to know the case of the appellants and had there been any weapons of the deceased or his brothers, those or at at least some of them would have been recovered and taken possession of by police. It is apparent from the statement of Si Jagir Singh (Public Witness 19) that he was keen to record the statement of Gurcharan Singh appellant when the former took the latter to Willington Hospital (now named as Dr. Ram Manohar Lohia Hospital), but he could not do so because he declared unfit to make a statement. It is further apparent from the statement of Si Jagir Singh that then he went to Hindu Rao Hospital, he recorded the statement of Raja Singh on the basis of which a case under section 307 read with section 34 Indian Penal Code was registered against Kuldip Singh deceased and his brothers. Si Jagir Singh (PW19) further stated that he was investigating officer of (hat case till June 1, 1979. Afterwards a report under section 173 Cr. P.C. was lodged and the case was tried as Session Case No. 59/79. It is, thereforee, clear that when the police was not ignoring the allegations of the appellants and in fact instituted a cross case, had Kuldip Singh, deceased or his brothers been in possession of any weapon like dagger or sword, either all or some of them must have been taken possession of by the police.

(30) It is further very important to note that weapon in the hand of Kuldip Singh, deceased, if he possessed any, must have fallen down at the spot, and must have been easily taken possession of by the police, because it is apparent from the prosecution evidence that Kuldip Singh was totally incapable of running away and fell down in a room of Indian Spinning Factory which was near to the place of occurrence. It was physically impossible for him to take away or conceal his weapon. The fact that he fell down besmeared with blood in a room of Indian Spinning Factory stands proved from the statement of Prem Chand (Public Witness 16) who deposed that on May 1, 1979 he was working in the aforesaid factory and that about 6 or 6.15 p.m. while he was searching keys of the locks for closing the factory, one young Sikh besmeared with blood fell down after entering in one of the rooms of the factory. Narinder Kumar Jain (Public Witness 9) tells about Kuldip Singh lying outside the aforesaid factory. He,ss he tells, is proprietor of India Spinners & Processors. He stated that his father was proprietor of Nehru Hosiery situated in the Nehru Hosiery Building in which his factory was also located, that on May, 1 1979 at about 6.30 or 7 a.m. on hearing the call bell he came from the second floor of the house and found Kuldip Singh, deceased in an injured condition outside the gate of India Spinners & Processors.

(31) Counsel for the appellants argued that there were number of circumstances, appearing from the evidence of the prosecution. which belied or in any case made improbable the version of the prosecution and that, therfore, the conviction' of the appellants was, totally unjustified. He contended that the prosecution evidence did not exclude the possibility that aggression was commenced by Kuldip Singh, deceased and his brothers and that not only the said assault was repulsed by the appellants but also Kuldip Singh, deceased was killed in exercise of right of private defense by Kuldip Singh appellant.

(32) Learned counsel for the appellants stated that the aforesaid version was not taken up by the defense during the trial but that the appellants were entitled to take up any defense which appeared plausible or probable from the evidence of the prosecution itself. During trial, as already mentioned, the case of the appellants (revealed from statements under section 313 Cr. P. C.) was that Kuldip Singh, deceased and his brothers committed assault on the former and went away and that the former did not know as to who killed Kuldip Singh, deceased. According to them, Kuldip Singh might have been killed by his own brother Inder Singh or any of the enemies. They laid great emphasis on the probability of Inder Singh killed Kuldip Singly deceased because Inder Singh was keen to marry the wife of the deceased with whom he had illicit relations and for achieving that purpose wanted to remove the hurdle of Kuldip Singh, deceased. The appellants in support of that defense went to the extent of examining Smt. Manjit Kaur (DW8) who was the wife of Kuldip Singh deceased. She stated that Kuldip Singh, deceased was her previous husband and that after his death, she had married Inder Singh. But that defense was not pressed by the counsel for the appellants during arguments, obviously because the said defense is totally absurd and it cannot be accepted that Inder Singh would kill his own brother on the same day when all the brothers had joined to commit assault on the appellants. Further, it cannot be expected that the appellants were ignorant as to how Kuldip Singh died, when he died near about the time of incident between him on the one hand and appellants on the other and he died of such large number of injuries on his person just across inc road from Bakshi Hotel of the appellants. It is obvious that appellants were actually feigning ignorance with a view to absolve themselves of having any connection between them and the murder of Kuldip Singh. It was for these reasons that the learned counsel for the appellants did not rely upon the defense of the appellants during trial.

(33) The first circumstance relied upon by the counsel for the defense (Shri P. P. Grover) was the absence of any believable Explanationn of the injuries on the person of every one of the appellants and Raja Singh. His contention was that the Explanationn about these injuries given by the prosecution to the effect that these injuries were caused by the weapons of each other during the scuffle and on account of striking against the three wheeler scooter belonging to Kuldip Singh, deceased was absolutely not believable because it could not be expected that the appellants would cause injuries to each other. According to the learned counsel, the appellants and Raja Singh could not be so careless as to cause injuries to each other with their own weapons and that even if accidentally one injury was caused to any one by the other, the person causing injuries would have been injuries made such an Explanationn totally absurd and unacceptable. In this respect the learned counsel relied upon a judgment of the Supreme Court in Lakshmi Singh and others etc. v. State of Bihar : 1976CriLJ1736 in which the following proposition of law was laid down:

IN a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following interference : (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and thereforee their evidence is unreliable; (3) that in case there is a defense version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The learned counsel, on the basis of the aforesaid judgment, concluded that the absence of a believable Explanationn about the injuries on the person of the appellants clearly indicated that prosecution had suppressed the origin of the occurrence, that the appellants had been wrongly described as aggressors and that injuries to the appellants were caused only when they were attacked by Kuldip Singh. deceased and his brothers while Kuldip Singh. deceased was killed as a result of exercise of right of private defense.

(34) Learned counsel for the appellants then argued that right of private defense must have been exercised only by Kuldip Singh, appellant. He explained that. Gurcharan Singh fell down near about his Bakshi Hotel and thus became incapable of any action while Attinder Singh, being unarmed, could not cause any incised wounds which were found on the body of Kuldip Singh, deceased. For the purpose of showing that Gurcharan Singh fell down near Bakshi Hotel, learned counsel referred to the statements of eye witnesses (Public Witness 6 to Public Witness 8) and Si Jagir Singh (PW19). The relevant portions of those statements are being reproduced below : Relevant portions of statement of Tilak Raj ( Public Witness 6).

NO other person received injuries except Kuldip Singh deceased in that scuffle. Inder Singh brother of Kuldip Singh deceased also came there. Inder Singh raised Lalkara that 'Jo Ho Gaya So Ho Gaya Aab Aur Bardasht Nahin Hoga'. All the three accused ran towards Inder Singh. Gurcharan Singh accused fell. I do not know why Gurcharan Singh fell in the chowk

(examination-in-chief).

'IT is correct that when Gurcharan Singh fell in chowk he was also bleeding and had injuries on his person.' ( In reply to questions by Assistant Public Prosecutor who was allowed to cross-examine the witness) 'Gurcharan Singh fell after I or 2 minutes of running after Inder Singh. Gurcharan Singh fell down while running after Inder Singh.' (Cross-examination). Relevant portions of statement of Harbhajan Singh (Public Witness 1) 'Inder Singh on seeing accused rushing towards him ran away towards Sadar Nalah Road.'

'KULDIP Singh accused and Attinder Pal Singh accused went towards Sadar Thana Road while Gurcharan Singh accused fell near Bakshi Hotel. Gurcharan Singh was rubbing the sword he was carrying ageist his clothes which sword also fell on the ground when Gurcharan Singh.'

( Examination-in-chief)

GURCHARAN Singh accused fell in the street opposite Bakshi Hotel and kept on lying there till the time the police reached the spot. Gurcharna Singh accused was not lying there when police took sword into possession, sword fell by side of where Gurcharan Singh had fallen and was lying within a distance of about 6' to I ft. from body of Gurcharan Singh accused.

(Cross-examination). Relevant portion of statement of Inder Singh (Public Witness 8)

In either went to lodge a report with the police nor telephoned police station. Rather I came back to my brother and removed him to hospital. None of the accused was seen by me at the spot when I came back. I saw Gurcharan Singh falling down after he got out of his shop. (cross-examination).

Relevant portion of the statement of Si Jagir Singh (Public Witness 19)

ON reaching the spot, I found Gurcharan Singh accused lying at the spot in injured condition. I removed him to the hospital at my own accord and not on the asking of Si Bhawani Dass. The other injured accused had already been removed to hospital. It is correct that report No. 24-A was entrusted to ST. Bhawani Dass on the basis of which we proceeded to the spot. St Bhawani Dass was present when I took accused Gurcharan Singh to hospital. Since accused Gurcharan Singh was in semi-conscious state on account of large number of injuries that I could not inquire from him as to who had injured him.

(35) According to the counsel for the appellants the aforesaid statements indicated that Gurcharan Singh fell down as soon as he got out of Bakshi Hotel which meant that he could not take any part in inflicting any injury on the person of Kuldip Singh, deceased. For aforesaid interpretation of the statements of these witnesses, counsel for the appellants laid great emphasis on the sentence (underlined) occurring in the statement of Public Witness 8. Learned counsel contended that that sentence clearly indicated that falling down of Gurcharan Singh took place as soon as he emerged from the hotel before the occurrence started.

(36) Learned counsel in the alternative argued that even if the plea of right of private defense did not emerged out of the prosecution evidence, it was clear that neither Gurcharan Singh nor Attinder Singh took part in causing death of Kuldip Singh (deceased). He explained that Our Haran Singh was totally incapable of action because the evidence of the prosecution, already pointed out, indicated that Gurcharan Singh fell down as soon as he came out of his hotel. In respect of Attinder Singh he explained that the said appellant, even according to the evidence of the prosecution, was not possessed of any weapon and that, thereforee, the said appellant could not inflict any injury on the person of Kuldip Singh (deceased).

(37) First of all role of Gurcharan Singh is being dealt with. It has been wrongly urged by counsel for appellants that the evidence of the prosecution shows that Gurcharan Singh fell down as'soon as he emerged out of his hotel. A reading of the relevant portions of the statements of the witnesses, which have been reproduced already, clearly indicates that it was after injuries were inflicted on the person of Kuldip Singh (deceased) and the chase of Inder Singh by the appellants commenced that Gurcharan Singh fell down. The sentence. 'I saw Gurcharan Singh falling down after he got out of his shop' occurring in the statement of Inder Singh (Public Witness 8) is not to be rend in isolation from his remaining statement which is clearly to the effect that he saw Kuldip Singh (deceased) being given blows by the appellants with swords and daggers, that he shouted that the same should be stopped and that then the appellants after leaving Kuldip Singh (deceased, started chasing him (Inder Singh). It is apparent from above statment. that Gurcharn Singh was taking, active part in the attack on deceased and that hence it was during chase of Inder Singh that he fell down. It is, thereforee, clear also from the statement of Public Witness 8, read as a whole, that Gurcharan Singh was not incapable of causing injuries to Kuldip Singh (deceased). His incapacity was confined only to chasing Inder Singh after he had already taken part in causing injuries on the person of Kuldip 'Singh (deceased).

(38) The evidence of the prosecution proves that Attinder Singh also took part inasmuch as he caught hold of Kuldip Singh (deceased) when the latter was being subjected to dagger and sword blows. thereforee, Attinder Singh cannot escape liability.

(39) The entire edifice of the plea that Kuldip Singh (deceased) and his brothers were aggressors and that there was exercise of right of private defense by the appellants, has been built by the counsel for the appellants on the basis that there is no convincing Explanationn as to how appellants received injuries. But obviously the aforesaid Explanationn is probable and believable. It is, a matter of common knowledge that when there is giving of blows with swords and daggers by a number of persons, the victim resists and any blow warded off can fall on one of the aggressors. Further, there is also possibility of causing of injuries accidentally to one of the aggressors by his associate during such a scuffle but in such cases the injuries are generally not serious which has exactly happened in the present case. The incised wounds on the person of the appellants are all simple, many of them being only skin deep. The injuries on the person of Attinder Singh could also have been received when he was. struggling to keep hold over Kuldip Singh (deceased) while the latter must be trying to extricate himself. In that situation some blows inflicted on the body of Kuldip Singh by force of struggle of Kuldip Singh might have diverted towards Attinder Singh. Further, the abrasions on the person of the appellants could have been caused by striking against the three-wheeler scooter. It is very significant that the aforesaid Explanationn as to how the appellants received injuries was given by Harbhajan Singh at the very first opportunity soon after the occurrence at the time of recording of his statement (Ex.PW 7/A) on the basis of which first information report was recorded. That statement is thus worthy of belief.

(40) Learned counsel for the appellants, Shri P. P. Grover, laid great emphasis on the factum of absence of blood near about the three-wheeler scooter of the deceased. He pointed out that according to the statement of the investigating officer (Inspector Dalip Singh, Public Witness 23) blood was found at three places i.e. outside Bakshi Hotel, in one of the rooms of Indian Spinning Factory and outside the said factory and that there was no blood near the three-wheeler scooter. Learned counsel argued that the absence of blood at the place, where according to the case of the prosecution, occurrence had taken place, was fatal to the case of the prosecution. He stressed that such absence of blood indicated that the occurrence did not take place, as stated by the prosecution. According to the learned counsel, the aforesaid circumstance was, thereforee, fatal to the very core of the prosecution case and made the genesis of the occurrence shrouded in mystery on account of which the appellants were entitled to acquittal. In support of his contention, he relied upon three judgments of the Supreme Court. In Akoijam Ranbir singh v. The Government of Manipur, : 1976CriLJ1712 , following observation was made in para 3:

THE Sessions Judge also found that there was a discrepancy regarding the place of the incident, and he noticed the fact that no blood stains were found in or near the verandah of Bharat Shoe House where the incident was said to have taken place.

In Karunakaran v. State of Tamil Nadu. : 1976CriLJ331 , following observations occurring in para 12 of tht judgment were relied upon by the counsel for the appellants ;

ASSUMING that his earlier version in the first information report is true that the deceased chased the accused as the latter was running away after the assault we would have expected some evidence of a trail of blood stains from the place where he fell dead. On the other hand we find that there is a mention about a pool of blood only where the dead body was found at No. I in the site plan. There were also no blood stains on the bench were he was said to be sleeping.

The relevant observations on which reliance was placed by the counsel for the appellants occurring in para 15 of the judgment in Keshav Ganga Navge and another v. The State of Maharashtra, : 1971CriLJ798 , read as under:

THERE is no evidence of blood being found at the bus stop nor at the place where Dinker hailed a taxi to take the deceased to the police station. Even if the Explanationn is accepted because it was a thoroughfare and sighs of bloodstains may have been obliterated, there was other evidence which could have been produced.

(41) It is true that inexplicable absence of blood on the place of occurrence weighs against the prosecution. But in the present case such absence of blood is explicable. The learned trial judge rightly expressed an opinion that there was a possibility that the blood did not immediately fall on the ground, that the same first of all soaked the clothes worn by Kuldip Singh, deceased and that by the time the same started falling down, deceased was already in a room of Indian Spinning Factory where his blood was found. In the present case Kuldip Singh (deceased), as the evidence of Public Witness 6, Public Witness 7 and Public Witness 8 is, ran for the safety when after leaving him, appellants started chasing Inder Singh. Statement of Public Witness 16 shows that he, besmeared with blood, entered into a room of Indian Spinning Factory and fell down. That room of Indian Spinning Factory is very near to the place of occurrence. It is, thereforee, clear that before blood could start falling on the ground, after soaking clothes. Kuldip Singh (deceased) ran away from the place of occurrence, in a bid to save himself from further assault. It was on account of soaking of the blood by the clothes that he was described by Public Witness 16 as 'besmeared with blood'.

(42) Learned counsel for the appellants then contended that the sword of Gurcharan Singh, which was taken into possession at the spot, did not have any stain of blood and that, thereforee, that also indicated that the version of the prosecution to the effect that the sword was used for inflicting injuries on the person of the deceased was totally false. Learned counsel relied upon a judgment of the Supreme Court in Jagdish Prashad v. The State. : 1979CriLJ1125. In that case. there was no eye witness to prove that the accused inflicted any knife blows on the deceased and the knife which was stated to have been snatched from the accused did not have any blood stains. It was held that mere possession of the said knife did not exclude the possibility of innocence of the accused.

(43) Firstly the argument is based on wrong facts. The sword along with other articles was sent to CFSL. The report of the CFSL is Ex. Public Witness 21/C-1 dated 18th July 1979. It says that 15 parcels were received out of which one was parcel No. 7 which contained Exhibit 7. The description of Exhibit 7 has been given as under:

EXHIBIT7 : One all metallic sword (Approx. 58.0 cms) with a shinny white metallic blade (approx. 48.5 cms) and a handle made of yellow metal. The exhibit had a few small sized rust-like stains at places.

The result of analysis, in respect of that sword is mentioned in the words, 'blood, too small for serological analysis, was detected on Exhibit 7.' That means that blood was there but the quantity was small. That does not mean a total absence of blood.

(44) Absence of large quantity of blood on the sword is explicable. Substantial quantity of blood might have dropped down. Further, the evidence of the prosecution (statement of PW7 already reproduced in paragraph 34 of this judgment) is that Gurcharan Singh was rubbing his swords against his clothes, that rubbing also must have taken away some amount of blood from the sword. That evidence of the prosecution was assailed by the counsel for the appellants on the ground that if the same were true, blood of the deceased should have appeared on the clothes of Gurcharan Singh. But that argument is not convincing because may be the quantity of the blood on the clothes was so small that the same was incapable of detection on examination by the CFSL.

(45) Secondly, in the case before Supreme Court possession of knife by an accused was the only circumstance proved and there was no eye witness of the occurrence. Here there are three eye witnesses who support the prosecution case. Hence Supreme Court judgment relied upon by the learned counsel for the appellants has no application.

(46) The contention of the learned counsel for the appellants also was that case diaries of May 1 & 2, 1979 relating to this case had been replaced by some one in police department which showed that the police was biased and the investigation was tainted on account of which prosecution version should not be believed. Reliance is on the statements of Shri V. K. Malhotra, Metropolitan Magistrate. Delhi (DW6) and Inspector Dalip Singh (Public Witness 23). DW6 stated that on May 3, 197) Inspector Dalip Singh, police station Sadar Bazar, Delhi presented an application before the former seeking remand of Gurcharan Singh, Kuldip Singh and Attinder Singh (appellant) to police custody and that the former in his order granting remand motioned that the former had signed the case diaries produced before him. The relevant portion of statement of Inspector Dalip Singh (PW23) on cross-examination reads as under:

APPLICATION for obtaining the police remand of the accused persons was made for the first time to the court of Shri V. K. Malhotra, Metropolitan Magistrate on 3-5-1979. Ex. Public Witness 23/DA is the copy of the said application. Ex.PW23/DB is the copy of the said order passed by the said learned Magistrate. I had produced the case diaries, up to 2-5-1979 by making this application. As far as I remember the Magistrate signed the case diaries. Thereafter I again made an application for Judicial remand, copy of which is Ex. Public Witness 23/DC and copy of the order made thereon is Ex.PW23/DD. I had produced up to date case diaries along with this application. So far as I remember those case diaries were not signed by the learned Metropolitan Magistrate. I have seen the case diaries of 1-5-1979 and 2-5-1979 but the same. are not signed by the magistrate. It is observed that in the order Ex. Public Witness 23/DB it is mentioned that the case diaries have been signed by the Magistrate. It is wrong to suggest that I have replaced the signed zinnias with the present ones.

(47) The argument of the learned counsel for the appellants is totally hollow for the following reasons:

(A)The argument is based on inadmissible evidence. The entire evidence regarding the case diaries (which are called zinnias in Urdu by the police officers) is prohibited by section 172 of the Criminal Procedure Code which reads as under: 172.(L)Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. (2) Any Criminal Court may send for the diaries of a case under inquiry or trial such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court; but, if they are used by the police officer, who made them, to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be. of the Indian Evidence Act, 1872, shall apply.

It is clear from the aforesaid provision that the case diaries cannot be used as evidence in the case and that Court can use the same as an aid in the inquiry or trial. Sub-section (3) specifically prohibits the accused and his agents from calling such diaries or from seeing the same unless and until either they are used by the police officer who made them, to refresh his memory or court uses them for contradicting such police officer. In the present case none of the aforesaid situations exist. Inspector Dalip Singh, who recorded the diaries on May I and 2, 1979 did not use the same for refreshing his memory. None of the said diaries was used by court for contradicting Inspector Dalip Singh. thereforee, the appellants did not have any right whatsoever to see, or cross-examine with respect to the said diaries Learned Additional Sessions Judge who permitted cross-examination of Inspector Dalip Singh in respect of the said diaries was, thereforee, in error. When the aforesaid diaries could not be seen or called by the appellants and the same could not be used as evidence, obviously any evidence regarding their replacement and as to whether the diaries which were produced in court were signed by Shri V. K. Malhotra, Metropolitan Magistrate or not, cannot be looked into. Under these circumstances it is to be deemed as if no evidence, sought to be relied upon by the learned counsel for the appellants, exists. That being so. the argument of the learned counsel becomes without any basis and foundation.

(B)There could not be any motive on the part of Inspector Dalip Singh or any police officer connected with the case to have replaced the case diaries. As has already been mentioned above, the case diaries could not be used as evidence. thereforee, the prosecution could not get any advantage on account of replacement.

(C)Even if we assume (although there is no legal evidence to prove that fact) that there was replacement of diaries, the same does not in any way, help the appellants. Learned counsel for the appellants did not tell as to how the original diaries of May I and 2, 1979 were advantageous to the case of appellants and as to how replacement was prejudicial to them. During cross-examination, a suggestion was put to Inspector Dalip Singh that in the diaries of May I and 2, 1979 a suspicion of the murder by Inder Singh (Public Witness 8) was expressed. Inspector Dalip Singh denied that suggestion. At that time the case of the appellants was that Inder Singh might have committed murder of his brother Kuldip Singh but that case was not pressed by the learned counsel for the appellants during arguments before us, obviously for the reason that that case is totally absurd. thereforee, when it cannot be said that replacement benefited the prosecution or prejudiced the appellants, there is hardly any reason to infer that the investigation was biased against the appellants or was tainted.

(48) There is a clear case of murder of Kuldip Singh (now deceased) by the appellants in furtherance of common intention of them all which is punishable under section 302 read with section 34 Indian Penal Code. Offence of murder is defined in Section 300 Indian Penal Code. Clause Firstly of the said section says that a culpable homicide is murder if the act by which the death is caused is done with the intention of causing death. Obviously, all the three appellants had common intention to cause death because Attinder Singh caught hold of the deceased while the other two appellants inflicted as many as 38 injuries on the person of the deceased, out of which 33 were incised wounds. The incised wounds were of very serious nature. Specially injuries No. 9, Ii, 12 and 20 were obviously highly dangerous. Injury No. 9 had cut the left lung through and through and had entered life ventricle of the heart. Both heart and lung are very vital organs. in Injuries No. Ii and 12 were right the abdomen. Injury No, 20 had cut the left kidney which is also very vital organ.

(49) The Case is also covered by clause 3rdly of section 300 Ipc which Says that if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In the present case all the injuries on the person of the deceased were intentional. Injuries No. 9, Ii, 12 and 20, as was opined by Dr. Bharat Singh (Public Witness 1), were sufficient in the ordinary course of nature to have caused death.

(50) Under the above circumstances, every one of the appellants had been rightly convicted for the offence punishable under section 302 read with section 34 Indian Penal Code. The appellants Gurcharan Singh and Kuldip Singh were also rightly convicted for the offence punishable under section 27 of the Arms Act because they were in possession of daggers and swords with intent to use the same for an unlawful purpose, which in the present case was committing murder of Kuldip Singh. In the present case the unlawful purpose was even carried into effect. The punishment awarded in respect of murder is the minimum that can be awarded. The sentence awarded for the offence, under section 27 of the Arms Act is very reasonable. We, thereforee, dismiss the appeal. I agree.

--- *** ---


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //