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CASE NO.:

Appeal (crl.) 819 of 1996

PETITIONER:

Surinder Singh

RESPONDENT:

The State of Punjab

DATE OF JUDGMENT: 08/08/2003

BENCH:

Doraiswamy Raju & H. K. Sema.

JUDGMENT:

J U D G M E N T

D. RAJU, J.

The appellant-accused No.1 and four others stood charged for offences

under Section 302 read with Sections 34, 201 and 511 of the Indian Penal Code

(for short `IPC') for having allegedly committed the murder of one Santokh Singh

alias Sokha on 28.11.1985 at about 8-9 p.m. One of them, by name Darshan

Singh said to be the Sarpanch of the village, could not be apprehended and

eluded arrest, necessitating in his being declared a Proclaimed Offender [for

short "P.O."], resulting in the trial before the learned Additional Sessions Judge,

Jalandhar, being effectively proceeded in Sessions Case No.8 of 1996 â\200\223

Sessions Trial No.11 of 1986 only as against the appellant and three others. The

learned Trial Judge acquitted Bhajan Singh (A-3) and Baksha (A-4) on the

ground that there is no evidence against them for having played any role in the

occurrence, having regard to the evidence let in by the prosecution. Though the

appellant and one Tarsem Singh (A-2) were convicted for the offence under

Section 302 read with Section 34, IPC, and sentenced to life imprisonment, in

addition to the payment of Rs.500/- as fine and jointly filed the appeal in this

Court having lost their appeal before the High Court of Punjab and Haryana at

Chandigarh in Criminal Appeal No.399-DB of 1986. The second accused

appears to have died and on recording the same, his name was deleted from the

array of appellants by an order dated 10.05.1996, leaving the above appellant as

the sole appellant to pursue this appeal. The necessary and relevant facts, as

projected by the prosecution, are as hereunder:-

On 28.11.1986 at about 8.00 p.m., Harcharan Singh (PW-7) along with

Rattan Singh, Jhalman Singh and Avtar Singh were said to be present in the

chowk of Gurudwara, making arrangements for Bhog Ceremony of Gurudwara

Granth Sahib, which was to take place on 29.11.1985, when the deceased

Santokh Singh appears to have come from the side of Tubewell in a drunken

condition. He was said to have proceeded towards the street leading to the

house of Darshan Singh (P.O.). At that time, the appellant, Tarsem Singh and

Darshan Singh (P.O.) also seem to have come in a drunken condition. The

deceased appears to have abused them in the name of sisters and remarked

that the accused had disturbed his family life and subsequently they wanted to

grab his land also. On hearing the same, the accused gave pushes to the

deceased and PW-7 and others seem to have intervened and made the accused

let the deceased go free. As per the further version of the prosecution, all the

accused thereafter dragged the deceased to the house of Darshan Singh (P.O.)

and after some time they heard the raula of `Mar Ditta, Mar Ditta' from the house

of Darshan Singh (P.O.). Since the outer door of the said house was open, PW-

7 along with Rattan Singh, Avtar Singh and Jhalman Singh went there and saw

that Darshan Singh (P.O.) was sitting on the chest of the deceased, who was

lying on the ground in supine position and Darshan Singh was in the act of

throttling the deceased, while the appellant, Surinder Singh, was said to be

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holding the deceased from his arms. Tarsem Singh, the other accused, was

found to be giving fist blows to the deceased. Harcharan Singh and others were

said to have pushed Darshan Singh away from the chest of deceased and the

appellant also released the deceased from his arms. In the process at that

stage, Darshan Singh (P.O.) appears to have given 2-3 kick blows on the

testicles of the deceased stating that the deceased used to abuse daily and the

matter was to be settled once for all. The appellant appears to have asked the

others to go out of the house of Darshan Singh as the matter was between the

brothers. The appellant is said to be the real brother of the deceased and they

had one more brother by name Mohinder Singh, who was also said to be living

with the brothers in their house where the father of the deceased and the

appellant by name Darshan Singh was said to be also living with his wife.

Thereafter, they seem to have dispersed and on the next day it appears they

came to know that Santokh Singh died. PW-7 and others seem to have

discussed the matter among themselves and thereafter PW-7 went to Police

Station at Banga and gave a Statement (Ext.P.2) before the Police, on the basis

of which a formal FIR (Ext. P.1) was said to have been recorded.

During the course of investigation, inquest was said to have been

conducted and the body sent to post mortem. Blood stained earth was also said

to have been lifted from the place of occurrence and a sketch of the place of

occurrence was also said to have been prepared. After inquiring and recording

Statements from all concerned and arresting the accused and after receiving the

post mortem report in which it was stated by PW-1, the Doctor who conducted

the post mortem examination, that the death was due to Injury No.4 on the

testicles of the deceased resulting in neurogenic shock cardiac arrest, combined

with asphyxia due to injury to the neck by Injury No.1; that those injuries were

sufficient to cause death in the ordinary course of nature. Thereupon, the charge

was laid as noticed supra and in the absence of Darshan Singh, the Sarpanch,

who was declared to be a Proclaimed Offender, the trial was continued and

completed against the other accused. The learned Trial Judge was convinced of

the case of the prosecution so far as Accused Nos.1 and 2 are concerned and

convicted them, as noticed earlier, but acquitted the remaining two, A-3 and A-4.

Aggrieved, A-1 and A-2 pursued the matter on appeal before the High Court.

The Division Bench of the High Court concurred with the conclusions and

findings recorded by the learned Trial Judge and found no substantial merit in the

challenge made to the same, resulting in the dismissal of the appeal. Hence, this

appeal.

While matter stood thus, it appears that Darshan Singh, who could not be

initially traced, arrested and brought to trial along with the other four, was

arrested, interrogated and challaned before the Trial Judge to face trial under

Section 302, IPC, in Sessions Case No.98 of 1989 with reference to the original

FIR No.365 dated 29.11.1985. During the course of this trial against Darshan

Singh, the said accused pleaded not guilty. The prosecution seems to have

examined the Doctor, who conducted the post mortem, as PW-1 as in the case of

the earlier trial, and one Avtar Singh (PW-2), Rattan Singh (PW-3), Harcharan

Singh (PW-4) (who was PW-7 during the earlier trial), Madan Lal Sharda (PW-5)

and Sub-Inspector Jasbir Singh (PW-6). The Doctor (PW-1) seems to have

spoken in the same manner as he did on the earlier occasion in the other trial.

Avtar Singh (PW-2) and Rattan Singh (PW-3), who were alleged to be also the

eyewitnesses to the occurrence along with PW-4, have not supported the

prosecution story to any extent whatsoever since they seem to have stated that

they do not know who committed the murder of Santokh Singh alias Sokha. It is

useful to point out at this stage that Avtar Singh and Rattan Singh, who were

examined in the subsequent trial as PWs-2 and 3, were given up by the

prosecution in the earlier trial as having been won over by the accused.

Harcharan Singh, who was examined as PW-4 in the subsequent trial, seems to

have asserted that Darshan Singh, Ex-Sarpanch, who was one of the accused

and in whose house the occurrence was said to have taken place, was a person

different from Darshan Singh, who is facing the second trial. On that premise of

his, he appears to have stated in the second trial that he never stated that the

accused, then facing the second trial as Darshan Singh, has caused the murder

of Santokh Singh alias Sokha. All the said three private witnesses examined as

P.Ws were got declared as hostile and were cross-examined by the prosecution,

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with no favourable response whatsoever to support the case of the prosecution.

Jhalman Singh, who was said to be one of the eyewitnesses to the occurrence

and was examined as PW-8 in the earlier trial, appears to have been given up by

the prosecution in the second trial as having been won over by the accused. In

the light of such turn of events and total lack of legally acceptable evidence to

implicate Darshan Singh during the second trial, the learned Additional Sessions

Judge, Jalandhar, by his judgment dated 4.3.1991, acquitted the said Darshan

Singh.

Materials have been placed on record, with the leave granted on

10.5.1996 to the counsel for the appellant to ascertain information about the filing

of any appeal as against the acquittal of the co-accused Darshan Singh, in the

form of a communication dated 17.6.1996 said to have been received from the

office of the Advocate General of Punjab at Chandigarh that according to the

record maintained in that office the State of Punjab had not filed any appeal

against the accused Darshan Singh in the case noticed in the subject read in the

said letter as State Vs. Darshan Singh as FIR No.365 dated 29.11.1985 under

Section 302/34, IPC, decided by the learned Additional Sessions Judge,

Jalandhar, on 4.3.1991.

Before adverting to the relevant contentions of the parties, it is useful as

well as necessary to refer to the relevant summary of the evidence tendered by

the prosecution in the earlier trial, which resulted in the conviction of the

appellant and another. As noticed earlier, PW-1 was the Doctor, who conducted

the post mortem examination. He broadly spoke with certain essential details as

to the condition of the body when it was received for post mortem examination,

the nature of injuries found on external examination and after internal

examination and the reasonable cause, in his opinion, for the death of Santokh

Singh, as disclosed in the post mortem report (Ext. P.21). Out of those who were

said to have witnessed the occurrence, Harcharan Singh and Jhalman Singh

were examined as PWs-7 and 8 and it is their evidence that become not only

relevant but gains importance, as alleged eyewitnesses to the occurrence. The

other witnesses, PWs-2 to 6, were merely witnesses for various steps taken in

the course of investigation and PWs 10 and 11 were respectively the ASI and SI,

who conducted the investigation. PW-7, as could be seen from the evidence

given by him, stated that he and the others, as noticed earlier, were standing

when the deceased came that side abusing the accused and about their

separating the deceased and the accused thereafter dragging them inside the

house of Darshan Singh and further as to what they saw inside the house. So far

as the appellant was concerned when the deceased was lying down with

Darshan Singh sitting on his chest trying to throttle, he was said to be holding the

deceased from his arms. Neither this witness nor PW-8 attributed any other

overt act of either beating the deceased or causing any injury of any kind on any

part of the body. The witness spoke about the PWs pushing the accused

Darshan Singh away from the chest of the deceased and the appellant not only

releasing the deceased from his arms, but also asking the others to leave the

place since it was a matter purely between the brothers. This witness spoke very

categorically that Darshan Singh was not only stating that the deceased used to

abuse daily and the matter was to be settled once for all, but apart from his sitting

on the chest and trying to throttle the deceased, gave 2-3 kick blows when he

was released from the chest of the deceased. It appears that this witness is not

that well deposed towards Darshan Singh as could be seen from some of the

suggestions made in the cross-examination, but that does not by itself indicate

that he was talking any falsehood. PW-8, the other witness to the occurrence,

though broadly concurred with the version spoken by PW-7, stated that Santokh

Singh came from the side of the Tubewell leading towards the house of Darshan

Singh, the accused, and when Darshan Singh and others came from the

opposite direction the deceased abused them and then all the three accused

caught hold of the deceased; that those, who were present including the

witnesses, released the deceased from the accused and that it is the deceased

who thereafter entered the house of Darshan Singh following the other accused.

As to what transpired inside the house also, this witness affirmed the version of

PW-7 about the appellant catching the deceased from his arms and Tarsem

Singh, the other accused, since dead, was found giving fist blows to the

deceased. All these persons were said to have pushed Darshan Singh from the

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chest of the deceased and at that time the said Darshan Singh seems to have

given 4-5 kick blows on the testicles of the deceased. This witness also deposed

that on the next day on coming to know the death of Santokh Singh during the

night, the others including this witness deputed PW-7 to report the matter to the

Police. It is in the light of such evidence the learned Trial Judge, after concluding

the earlier trial and after examining the accused under Section 313, Cr. P.C.,

analysed the materials on record and came to the conclusion that the occurrence

took place inside the house of Darshan Singh (P.O.); that even after separation

of the deceased and the accused, when they quarreled outside, the accused took

the deceased inside the house of Darshan Singh and that, at any rate, the

deceased was found equally to have abused the others as deposed by these

witnesses. The learned Trial Judge further, in the concluding portion after

noticing the evidence of PWs-7 and 8, has held as follows:-

"23. The learned counsel submitted that Surinder

Singh accused was only holding the arms of the

deceased and that he be held guilty u/s 323 IPC

whereas Tarsem Singh was giving fist blows to the

deceased which resulted in fractures and that he

would be responsible u/s 325 IPC. It was injury No.4

on the testicles, which resulted in neurogenic shock,

cardiac arrest, combined with asphyxia due to injury

to the neck. I agree with the contention of the learned

counsel that since Darshan Singh (PO) is not facing

trial in this Court. To any allegations alleged to him

are not to be adjudged at present. In the opinion of

the doctor, the injury to the testicles combined with

asphyxia due to injury to the neck corresponding to

injury No.1 was collectively sufficient to cause death

and injury No.4 could be sufficient to cause death and

other injury are contributory. But the earlier statement

of the doctor shows that this injury No.4 on the

testicles as also injury No.1, which caused asphyxia

had caused the death of Santokh Singh. I hold

Tarsem Singh and Surinder Singh, accused guilty u/s

302/34 IPC and convict them accordingly."

The consideration by the learned Trial Judge seems hardly to be an

objective one judiciously made before indicting a person guilty charged with a

serious offence of murder.

The learned Judges of the Division Bench, after observing that they have

closely perused the evidence on record and the judgment recorded by the Trial

Court, were of the view that for the reasons stated in the judgment of the Trial

Court, the prosecution was able to establish the motive for the grouse against the

deceased and since, in their view, PWs-7 and 8 gave a consistent account as to

what happened at the time of occurrence, their evidence taken together with the

medical evidence supported the case of the prosecution and inasmuch as on the

totality of the facts, the inference of common intention was found irresistible,

conviction under Section 302 read with Section 34, IPC, was justified.

The learned Senior Counsel for the appellant strenuously contended that

the action of the appellant in holding the arms of the deceased when he was

lying down with Darshan Singh sitting on his chest, could not justify any

conviction against him and, at any rate, conviction under Section 302 read with

Section 34, IPC. The further submission very strongly made on behalf of the

appellant was that when the principal offender as could be seen to be, namely

Darshan Singh (P.O.), even as per the evidence of PWs-7 and 8 in the present

trial, which was earlier in point of time, who was attributed with all overt acts of

attempts to throttle as well as giving ultimately 3-5 kick blows on the testicles of

the deceased himself, came to be acquitted, it would not only be unjust but

contradiction in terms to convict the appellant for an offence under Section 302

read with Section 34, IPC. Argued the learned counsel further that there cannot

be two contradictory and inconsistent findings in respect of the same occurrence

to somehow convict the appellant, unmindful of the insignificant role that was

attributed to the appellant, particularly in the absence of any premeditated

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scheme or design to kill the deceased. Inviting our attention to the nature of

evidence actually let in, it was finally contended on behalf of the appellant that

the appellant could not be convicted for any offence and ought to have been

acquitted, in toto.

The learned counsel for the respondent-State also invited our attention to

the relevant portions of the evidence and the judgments rendered by the High

Court in the present case and those rendered by the learned Additional Sessions

Judge, Jalandhar, both in the present case and the one after the subsequent

trial, in respect of Darshan Singh.

We have carefully considered the submissions of the learned counsel

appearing on either side. That in a criminal act, where several persons are

engaged or concerned in the commission of it, they may be guilty of different

offences by means of their own acts. No doubt when such criminal act is done

by several persons in furtherance of the common intention of all, each of such

persons is liable for that act in the same manner as if it were done by him alone.

If an offence is committed by any member of an "unlawful assembly" in

prosecution of the common object of that assembly or such as the members of

that assembly knew to be likely to be committed in prosecution of that object,

every person who, at the time of the committing of that offence, is a member of

the same assembly, is guilty of that offence. The fact that any one of them may

at times even stood wrongly acquitted and no appeal was filed by the State

against such acquittal does not ipso facto impede the conviction of the other(s)

accused. Equally the conviction of one such does not automatically result in the

conviction of every one said to be involved in the occurrence, even dehors their

actual role, the general and basic principle of criminal liability being that only that

person, who commits the crime, would be held guilty and punished, except in

cases where the concept of vicarious liability is recognized under law â\200\223 to that

extent and that too subject to the conditions therefor being strictly shown to exist

in a given case.

So far as the case on hand is concerned, Surinder Singh (Accused No.1)

and Tarsem Singh (Accused No.2), since dead, were convicted under Section

302 with the assistance of Section 34 for causing the death of Santokh Singh @

Sokha â\200\223 the brother of Accused No.1. The positive evidence firmly stated by

PW-7 and PW-8 regarding the role of the appellant is that he was holding the

hands of the deceased, when he was found lying down and Darshan Singh,

Sarpanch, who was proclaimed offender, sat on the chest of the deceased and

was said to be trying to throttle him. PW-7 was said to have pushed Darshan

Singh away from the chest of the deceased and the appellant also seemed to

have released the hands held by him. It was at that stage Darshan Singh was

said to have given 3-5 kicks on the testicles of the deceased. The death does

not seem to have been instantaneous and the evidence on record is that the

occurrence was at 8-9 p.m., but the death occurred late in the night in his house.

As per the evidence on record, accused Darshan Singh only was said to have

played the major role and caused primarily the fatal injuries on the testicles and

even the injury found on the neck or on the chest. The kicks given on the

testicles were after he was pushed away by PW-7 from the chest and after the

present appellant also released his hands, which the appellant was initially seen

to be holding. The said Darshan Singh was a proclaimed offender during the first

trial with which we are directly concerned, and in the second trial of Darshan

Singh after he was apprehended, the court acquitted him, in spite of examining

the very witnesses PW-7 and PW-8, in addition to Avtar Singh and Rattan Singh

who were stated to be the other eye witnesses to the occurrence. So far as the

appellant is concerned, it could not be held that his holding the hands of the

deceased facilitated Darshan Singh to inflict any of the fatal injuries and kicks on

the testicles were said to have given and could normally be possible also to be

given only after Darshan Singh was pushed away from the chest of the deceased

by PW-7, when it is stated by the witnesses that simultaneously the hands of the

deceased also came to be released by the appellant. The acquittal of Darshan

Singh has attained finality in the absence of any appeal by the State against his

acquittal. The appellant cannot, therefore, be indicted as having in any manner

been responsible or having rendered it possible for Darshan Singh to inflict the

fatal injuries. Section 34, IPC, seems to have been resorted to in case

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mechanically and merely because, the assault was by the accused in a group, in

the manner spoken to by the witnesses and not on account of any other

circumstance indicative of any common intention or premeditation to commit

such an act. In the teeth of the acquittal of Darshan Singh, the main accused,

and in the absence of any concrete evidence to prove common intention to kill,

the appellant is entitled to be extended the benefit of doubt and exonerated.

For the foregoing reasons, we set aside the conviction of the appellant,

accused No.1. The appeal in so far as he is concerned shall stand allowed. The

bail bonds shall stand discharged.