P.K. Jain, J.@mdashThis appeal is directed against the judgment/order dated November 9, 1994, passed by the Sessions Judge, Ferozepur, whereby the appellant has been convicted under Sections 302/307, I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs. 500/- or in default to further undergo rigorous imprisonment for six months u/s 302, I.P.C. and to undergo imprisonment for ten years and to pay a fine of Rs. 500/- or in default to further undergo rigorous imprisonment for six months u/s 307, I.P.C. Both the sentences of imprisonment have been ordered to run concurrently.
2. The facts necessary for the disposal of this appeal, which can be gathered from the record of the trial Court, are that Chand Singh (deceased) was married to Gurnam Kaur and out of this wedlock a son-Harjinder Singh (PW-5) was born. Gurnam Kaur left Chand Singh on account of certain dispute with him but Harjinder Singh (PW 5) continued to live with Chand Singh. Thereafter Chand Singh arranged a karewa marriage with Balwant Kaur (co-accused since acquitted). The appellant is the son of said Balwant Kaur from her previous husband (i.e. pichhlag). Thus, Chand Singh was residing in the same house alongwith his wife Balwant Kaur, the appellant and Harjinder Singh (PW-5), although a separate room had been given to Harjinder Singh. Mehar Singh (PW-4), the elder brother of Chand Singh (deceased), along with his son Sukhdev Singh has been residing in the immediate neighbourhood.
3. On July 2, 1993 at about 9 or 9.30 p.m., on hearing a noise emanating from the house of Chand Singh-deceased, Sukhdev Singh and Mehar Singh (PW-4) went to that house and found the appellant while quarrelling with Chand Singh. The appellant was having a knife in his hand. Balwant Kaur caught hold of Chand Singh by his arms and the appellant gave a knife blow which landed on the left side of his chest due to which he fell down in the court-yard of his house. When Sukhdev Singh tried to catch hold of the appellant, the latter gave two knife blows which landed on the left side of the chest of Sukhdev Singh. Then the appellant succeeded in escaping. Chand Singh succumbed to the knife injury at the spot itself. Gurbachan Singh, Ex-Sarpanch and other people had collected there.
4. Mehar Singh (PW-4) removed the injured Sukhdev Singh to Civil Hospital, Zira, where Dr. Mukesh Gupta (PW-2) provided first aid and referred the injured to Civil Hospital, Forezepur, for treatment. Dr. Gupta also sent a ruga-Exhibit PJ at 11.30 p.m. to the S.H.O., Police Station, Zira. Dr. Devinder Kumar (PW-1) examined Sukhdev Singh on 3-7-1993 at 2.15 a.m. and found the following injuries on his person :-
(1) Incised wound 8 cms x 2 cms. on the front and left side of chest, 1 cm. below the left nipple. Clotted blood was present. Advised x-ray.
(2) Incised wound I cm. x 0.25 cm. on the left side of chest, 9 cms. from the anterior axillary fold. Clotted blood was present. He was advised x-ray. Injuries Nos. 1 and 2 were kept under observation and these were inflicted by sharp-edged weapon within 6 to 24 hours.
On receipt of ruga-Exhibit PJ, ASI Lakhwinder Singh (PW 8), Police Station, Zira, reached Civil Hospital, Ferozepur. On his written request-Exhibit PB, Dr. Devinder Kumar (PW 1) certified at 3.05 a.m. vide his endorsement (Exhibit PB/1) that Sukhdev Singh was fit to make a statement. Accordingly, ASI Lakhwinder Singh recorded the statement-Exhibit PT made by Sukhdev Singh, put his endorsement-Exhibit PT/1 thereunder and sent the same to Police Station, Zira, where, on the basis of the said ruqa, formal first information report (Exhibit PT/2) under Sections 302/324/34, I.P.C., was recorded.
5. On July 3, 1993, ASI Lakhwinder Singh along with Mehar Singh (PW 4) and others reached the spot of occurrence. He examined the dead body of Chand Singh and prepared the inquest report (Exhibit PG). The dead body along with the inquest papers was sent to Civil Hospital, Zira, for post mortem purposes through Constable Kashmir Singh and Amarjit Singh. Bloodstained earth was lifted from the spot of occurrence and was converted into a sealed parcel and seized vide memo-Exhibit PL. Rough site plan (Exhibit PU) of the place of occurrence was also prepared. Statements of the witnesses were recorded. He made search for the accused persons but none of them was traceable.
6. On July 5, 1993, ASI Tarlok Singh (PW 7) arrested Balwant Kaur in this case. On 19-7-1993, the appellant was arrested by the said A.S.I. from village Shekhwan. The sealed sample parcels of the case were sent to the office of the Forensic Science Laboratory and the report (Exhibit PS) was received. After completing the investigation, a chargesheet was submitted to the Court against the appellant and his mother Balwant Kaur (since acquitted).
7. The appellant was charged under Sections 302/307, I.P.C., whereas his mother Balwant Kaur was charged under Sections 302/34 and 307/34, I.P.C. Both the accused pleaded not guilty and claimed trial.
8. In support of its case, the prosecution examined 8 witnesses. Dr. Devinder Kumar (PW 1) had examined the injured-Sukhdev Singh in Civil Hospital, Ferozepur, as stated above. Dr. Mukesh Gupta (PW 2) had performed autopsy on 3-7-1993 at 1.30 p.m. on the dead body of Chand Singh and found the following injuries on his person :-
(1) Incised wound 5*/i cms. x Wt cms. on the left side of chest between 6th and 7th ribs, 8 cms. below the left nipple, AVi cms. from mid-line. Clotted blood was present on and around the wound, wound was entering into the chest cavity.
(2) Abrasion 5 cms. x Wi cms. on the left side of chest 5Vi cms. above the left nipple.
According to the said doctor, the injuries were ante mortem in nature and the death was due to shock and haemorrage due to the said injuries which were sufficient to cause death in the ordinary course of nature. He was also of the view that the probable time between injuries and death was immediate and between death and post mortem was 24 hours. He proved Exhibit PF, the carbon copy of the post mortem report and Exhibit PF/1, the pictorial diagram showing the seat of injuries.
9. Ravinder Singh (PW 3) is a Draftsman. On July 29, 1993, he prepared scaled site plan-Exhibit PL in respect of the spot of occurrence on the pointing out of Mehar Singh (PW 4). Mehar Singh (PW 4) and Harjinder Singh (PW 4) are the eye-witnesses to the occurrence. Sukhchain Singh (PW 6) is a Junior Engineer of the Punjab State Electricity Board, the then Incharge, sub-station 132 KV Katkaror, near Talwandi Bhai. According to the official record, he has explained that on 2-7-1993 electric supply to village Sodhiwala remained unaffected from mid night of 1st July to mid night of 3rd July. ASI Tarlok Singh (PW 7) and ASI Lakhwinder Singh (PW 8) are the Investigating Officers.
10. In his examination u/s 313 of the Code of Criminal Procedure, the appellant admitted the relationship between him and the deceased as well as Balwant Kaur. He also admitted that Mehar Singh (PW 4) is the elder brother of the deceased-Chand Singh and Sukhdev Singh injured is the son of Mehar Singh. He also admitted that the house of Mehar Singh (PW 4) is situated near the house of the deceased. He has further admitted that Sukhdev Singh injured has gone to Dubai for the last more than one year. He has also admitted that on 2-7-1993 at about 9 or 9.30 p.m. Mehar Singh (PW 4) and his son Sukhdev Singh had come to the house of the deceased, although he has denied if there was any noise. He has explained that he" was taking bath at the site of hand-pump and Chand Singh started causing injuries to him by a dang. He has admitted that he (the appellant) was armed with a knife and he had gone away from the house. He has further admitted that Harjinder Singh (PW 5) and Gurbachan Singh, Ex-Sarpanch had also reached there. He has denied having given any knife injury either to the deceased Chand Singh or Sukhdev Singh. He has admitted that he was arrested by the police on 19-7-1993 from village Shekhwan. He has given the explanation that the deceased had sold his entire land to Mehar Singh, that Mehar Singh and his sons after taking liquor had tried to kill him but the matter was settled at the intervention of respectables of the village and that since he was a pichhlag. the deceased did not give any land to him although he gave some land to other son. Co-accused Balwant Kaur denied the allegations of the prosecution and pleaded false implication. No evidence in defence was produced.
11. On an appraisal of the evidence produced on the record, the trial Court acquitted Balwant Kaur of the charge under Sections 302/34 and 307/34, I.P.C. However, the appellant was found guilty of the offences punishable under Sections 302/307, I.P.C and was convicted and sentenced, as stated above. Feeling aggrieved, the convict has come up in appeal.
12. We have heard the learned counsel for the parties and have gone through the record of the trial Court.
13. Shri J. L. Malhotra, Advocate, learned counsel for the appellant, while assailing the order of conviction, has argued that the first information report of this case was not recorded at the purported time but was manipulated later on after due deliberations and consultations. It has been pointed out by the learned counsel that the first information report is stated to have been recorded at Police Station, Zira, at 5.20 a.m. but the special report of the case was delivered to the Sub Divisional Judicial Magistrate, Zira, at 10.30 a.m. and the prosecution has not given any explanation for the delay caused therein. It has been further argued by the learned counsel that according to the prosecution case the best witness was the alleged injured Sukhdev Singh who has not been examined by the prosecution due to which an adverse inference ought to be raised against the prosecution. It has also been contended that Gurbachan Singh, Ex-Sarpanch, who is also stated to be an eye-witness has been withheld without any reason. It has been, thus, urged that once the two material witnesses have not been examined, the conviction of the appellant on the basis of the testimony of Mehar Singh (PW 4) and Harjinder Singh (PW 5) cannot be sustained.
14. After giving our careful thought to the arguments advanced by the learned counsel for the appellant, we do not find ourselves in agreement therewith.
15. According to the testimony of the eyewitnesses Mehar Singh (PW 4) and Harjinder Singh (PW 5), the occurrence in question had taken place on 2-7-1993 at 9 or 9.30 p.m. in the court-yard of the house of the deceased in village Sodhiwala, which fact stands admitted even by the appellant in his statement recorded u/s 313 of the Code of Criminal Procedure (hereinafter referred to as ''the Code''). Chand Singh succumbed to his injuries on the spot. Injured Sukhdev Singh was removed to Civil Hospital, Zira, on the same night at 11.30 p.m. The injured was referred to Civil Hospital, Ferozepur, for further treatment and the ruqa-Exhibit PJ was sent to Police Station, Zira, informing the arrival of injured Sukhdev Singh in the said hospital and the fact that the injured had been referred to Civil Hospital, Ferozepur. On the receipt of this ruga. A.S.I. Lakhwinder Singh reached Civil Hospital, Ferozepur and moved application (Exhibit PB), on which the doctor declared Sukhdev Singh fit to make a statement on 3-7-1993 at 3.05 a.m. Statement-Exhibit PT made by Sukhdev Singh was recorded by ASI Lakhwinder Singh and after making his endorsement thereunder at 4.10 a.m. the same was sent to Police Station, Zira, on the basis of which first information report-Exhibit PR/2 was recorded at 5.20 a.m. These facts are duly established by the testimony of Mehar Singh (PW 4), Dr. Devinder Kumar (PW 1), Dr. Mukesh Gupta (PW 2) and ASI Lakhwinder Singh (PW 8). It is correct that the special report of this case reached Ilaqa Magistrate through Constable Darshan Singh on 3-7-1993 at 10.30 a.m. It is also correct that the Court of the Ilaqa Magistrate is situated at Zira itself. In other words, there can be said to be a delay of about 41/2 hours in delivering the special report to the Ilaqa Magistrate. But keeping in view the facts and circumstances of this case this delay cannot be said to be deliberate in any manner. The police or the complainant had no oblique motive either to introduce false eye-witnesses or to implicate innocent persons. The presence of the eye-witnesses as well as the presence of Balwant Kaur and himself is admitted by the appellant himself in his statement u/s 313 of the Code. Once the F.I.R. has come into existence without any delay by 5.30 a.m., the mere fact that there was a delay of 41/2 hours in taking the special report to the Ilaqa Magistrate cannot be said to have caused any prejudice to the appellant in any manner. Therefore, this contention of the learned counsel for the appellant has no merit in it.
16. Mehar Singh (PW 4) and Harjinder Singh (PW 5) have fully supported the prosecution case. According to their testimony, on 2-7-1993 at about 9 or 9.30 p.m. there was a quarrel between the appellant and the deceased Chand Singh and Balwant Kaur (since deceased) was trying to intervene and separate them. But the appellant, who was armed with a knife, gave a knife blow on the left side of the chest of Chand Singh, as a result of which the latter fell down and succumbed to his said injury at the spot. When Sukhdev Singh son of Mehar Singh (PW 4) tried to catch hold of the appellant, the latter gave two knife blows on the left side of the chest of Sukhdev Singh. According to the testimony of Mehar Singh (PW 4), there was a quarrel between the appellant and the deceased due to some demand of money by the former. Admittedly, Mehar Singh (PW 4) has been residing in the neighbourhood. He along with his son Sukhdev Singh, on hearing a noise emanating from the neighbourhood, had rushed to the house of the deceased and witnessed the occurrence. It is also an admitted fact that Harjinder Singh (PW 5) has'' been residing in the same house where this occurrence has taken place. His presence at the time of occurrence has been admitted by the appellant in his statement u/s 313 of the Code. Injured Sukhdev Singh could not be produced and examined by the prosecution for the simple reason that he had left for abroad immediately after some time of this occurrence. However, it stands established from the testimony of Dr. Devinder Kumar (PW 1) that injured Sukhdev Singh was examined by him on 3-7-1993 at 2.15 a.m. in Civil Hospital, Ferozepur and had found two incised wounds on the left side of his chest. It is further established from the testimony of Dr. Devinder Kumar that both the injuries on the person of Sukhdev Singh could be caused by a knife.
17. Coming to the merits of the case, once the presence of Mehar Singh (PW 4) and Harjinder Singh (PW 5) at the time and scene of occurrence is not only established but also admitted by the appellant in his statement u/s 313 of the Code, no reason has been put forward by the learned counsel for the appellant to disbelieve the testimony of these witnesses. None of these two witnesses has got any ill-will against the appellant, nor any oblique motive to implicate him falsely in this case. Since the probable time between injury to Chand Singh deceased and his death was immediate, the question of any other person from outside being present at the spot of occurrence could not have arisen. Gurbachan Singh, Ex-Sarpanch, arrived at the spot only after hearing about this incident. He was not present at the spot during the course of occurrence. Therefore, non-examination of Gurbachan Singh does not affect the prosecution case in any manner. The appellant himself admitted that he was having a knife at the relevant time. He has also admitted that he had run away along with the knife. These admissions on the part of the appellant further lend support to the testimony of Mehar Singh (PW 4) and Harjinder Singh (PW 5). The medical evidence regarding the post mortem conducted by Dr. Mukesh Gupta (PW 2) further corroborates the ocular version of these two eye-witnesses that the appellant had given one knife blow which landed on the left side of the chest of the deceased. It may be noted that the appellant himself has disclosed a motive on his part in stabbing Chand Singh deceased. He has stated that Chand Singh had sold his entire land to his uncle Mehar Singh and did not give any piece of land to him although he had given some land to his other son. This fact stated by the appellant himself can be said to be sufficient motive for the appellant to commit the murder of Chand Singh deceased.
18. On a careful analysis of the testimony of these two eye-witnesses read with the medical evidence and the admissions made by the appellant in his statement u/s 313 of the Code, we are of definite view that the trial Court was fully justified in convicting the appellant u/s 302, I.P.C.
19. Next question is as to whether the conviction of the appellant u/s 307, I.P.C., is justified on the facts and circumstances revealed in this case. It is the admitted case of the prosecution that after stabbing Chand Singh, the appellant tried to escape. When Sukhdev Singh tried to catch hold of the appellant, the latter gave two knife blows, which landed on left side of the chest of Sukhdev Singh. Dr. Devinder Kumar (PW 1) examined Sukhdev Singh on 3-7-1993 at 2.15 a.m. and found two incised wounds on his person, as already reproduced in the earlier part of this judgment. According to his testimony, both the injuries were kept under observation. Exhibit PC is the report of the Radiologist of General Hospital, Ferozepur, which shows that x-ray of left chest of Sukhdev Singh was taken, but no rib fracture was found, nor surgical emphysema was seen and the lung was found to be clear. On the basis of the report of the Radiologist, injury No. 1 found on the person of Sukhdev Singh was declared simple in nature. There is nothing on the record to show that any of the two injuries found on the person of Sukhdev Singh was either dangerous to life or grievous in nature.
20. To constitute an offence u/s 307, I.P.C., what the Court has to see is that the accused must do an act with such guilty intention and knowledge and in such circumstances that but for some intervening fact the act would have amounted to murder in the normal course of events. The intention or knowledge must be such as is necessary to constitute murder. Without this there can be no attempt to murder. In the case in hand, the two injuries inflicted by the appellant upon Sukhdev Singh cannot be said to have been caused with such intention and knowledge and in such circumstances that the said act would have amounted to murder in the normal course of events. The obvious reason is that the appellant had caused the injuries to Sukhdev Singh only to get himself released with a view to escape from the scene of occurrence. He had no intention or knowledge as is required to constitute an offence u/s 307, I.P.C. Therefore, the conviction of the appellant u/s 307, I.P.C., cannot be sustained. He ought to have been convicted u/s 324, I.P.C., for causing injuries with a knife to Sukhdev Singh.
21. As a result of the above discussion, the conviction and sentence of the appellant u/s 302, I.P.C., as recorded by the Sessions Judge, Ferozepur, are hereby affirmed. His conviction u/s 307, I.P.C., is altered to one u/s 324, I.P.C. For this offence, the appellant is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200/- and in default of payment of fine, to further undergo rigorous imprisonment for one month. Substantive sentences of imprisonment shall run concurrently.
22. With the said modification, finding no merit in this appeal, we dismiss the same.
