GURMAIL SINGHversusSTATE OF PUNJAB

                          [2011] 5 S.C.R. 550


A                          GURMAIL SINGH
                                    v.
                         STATE OF PUNJAB
                  (Criminal Appeal No. 974 of 2008)
                            APRIL 20, 2011
B
        [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                       PRASAD, JJ.]

         Penal Code, 1860 - ss.3021149, 302, 3241149 and 3231
C 149 - Murder - Common intention - Enmity between the
    parties as daughter of one of the accused was teased - Seven
    accused armed with weapons raised lalkara threatening
    retribution - Injuries inflicted on 'RS' and 'BS' by accused-'GS'
    and 'SS' - 'BS' succumbed to his injuries - Conviction of
D   accused 'GS', 'SS' and two others whereas acquittal of the
    remaining accused - Upheld by the High Court - On appeal,
    held: Injury was caused directly and deep into the stomach
    of the victim, a very vital part, which led to death within a short
    time - Thus, it cannot be said that there was no intention to
E   cause that very injury which ultimately led to the death of the
    victim - Accused were all of one family and they were annoyed
    with the members of the victim family - They lived close
    together in the same locality and had come out armed and
    raised a lalkara that the opposite party be done away with and
F   thereafter, the injuries had been caused to 'RS' as well 'BS' -
    One injury proved fatal for 'BS' - Thus, a case of common
    intention is made out - Perusal of the injury attributed to 'SS'
    on the person of deceased would indicate that it is of very
    small dimensions and there is a clear doubt as to whether an
    abrasion could be caused with a lathi which 'SS' was said to
G   be carrying - Therefore, 'SS' is given benefit of doubt and is
    acquitted - However, conviction of the other accused is
    upheld.

         Virsa Singh v. State of Punjab AIR 1958 SC 465;
H                             550
       GURMAIL SINGH v. STATE OF PUNJAB                   551


Laxman Kar/u Nikalje v. The State of Maharashtra 1968 (3) A
SCR 685; Harjinder Singh v. Delhi Administration AIR 1968
SC867; Randhir Singh alias Dhire v. State of Punjab 1981
(4) SCC 484, Tho/an v. State of Tamil Nadu 1984 (2) SCC
133; Arun Nivalaji More v. State of Maharashtra 2006 (2) ·
SCC 613 - Referred to.                                     B

                    Case Law Reference:
    AIR 1968 SC 867          Referred to             Para 6
    1984 (2) sec 133         Referred to             Para 6
                                                      .         c
    AIR 1958 SC 465          Referred to             Para 7
    1968 (3) SCR 685         Referred to             Para 7
    1981 (4) sec 484         Referred to             Para 7
                                                                D
    2006 (2) sec 613         Referred to             Para 7

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 974 of 2008.

    From the Judgment & Order dated 19.01.2007 of the High      E
Court of Punjab & Haryana at Chandigarh in Crl. Appeal No.
609-DB of 1997.

                             WITH

Crl. A. No. 975 of 2008 & 981 of 2011.                          F

     P.N. Puri, Manu Sharma, Sanjay Jain, D.P. Singh, Avneet
Toor, Kuldip Singh for the appearing parties.

    The following order of the Court was delivered
                                                                G
                          ORDER

    1. This judgment will dispose of three appeals, being
Criminal Appeal Nos. 974 of 2008, 975 of 2008 and 981 of
2011 @ SLP(Crl) 4898 of 2008.                                   H
    552      SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A        2. The facts are being taken from the paper book of
    Criminal Appeal No. 974 of 2008 entitled Gurmail Singh v.
    State of Punjab.

          3. The facts leading to these appeals are as under:

B        3.1 Sohan Singh, P.W., the complainant, and his co-
    accused Nachhattar Singh and Parshotam Singh, are married
    to real sisters. Nindo is the daughter of Sher Singh, accused.
    Darshan Singh accused is the son of Sher Singh. A few days
    prior to the incident which happened on the 25th March, 1996
C a message was received with regard to the proposed marriage
    of the son of Parshottam Singh accused, on which the accused
    had got together in his house to celebrate the occasion by
    taking liquor. At about 1O:OOp.m. the accused came out in the
    street and raised a lalkara that they would teach the
D complainant party a lesson for having teased Nindo. At that
    time accused Gurnam Singh and Gurmail Singh were both
    armed with small knives (kirch) and Sher Singh, Nachhattar
    Singh, Parshottam Singh, Dharampal Singh and Avtar Singh
    were armed with lathis. Sohan Singh came out into the street
E to persuade them not to abuse and that they would sort out the
    dispute in the morning. While he was still talking to the accused
  . Rajwinder Singh PW and Baljinder Singh also arrived there.
    Nachhattar Singh, Sher Singh, Dharam pal Singh and Avtar
    singh then raised a lalkara saying that they should not be
F allowed to go alive and should be taught a lesson for having
    teased Nindo. Gurnam Singh thereupon gave a knife blow on
    the right side of the abdomen of Baljinder Singh and when
    Rajwinder Singh came forward to help Baljinder Singh, Gurmail
    Singh gave a knife blow on the right side just below his chest
G whereas Gurcharan Singh gave a knife blow on the lower
    portion of his right flank. Rajwinder Singh fell down whereupon
    Sher Singh gave a dang blow on his right shoulder. In the
    meantime, the women folk came out into the street and hurled
    brickbats in self-defence. As a consequence of this counter
    attack the accused ran away from the spot. Baljinder Singh and
H
        GURMAIL SINGH v. STATE OF PUNJAB                        553

Rajwinder Singh were shifted to the A.P. Jain Hospital at A
Rajpura in a truck but the former succumbed to his injuries on
the way. After investigation, the accused, eight in number were
broguht to trial for offences punishable under Sections 302/149,
302, 324/149 and .323/149 of the IPC. The prosecution placed
primary reliance on the evidence of Sohan Singh PW 5, B
Rajwinder Singh PW6, the injured eye witnesses, and also on
the evidence of Dr. Charanjit Singh, PW1 whereby he, had at
the initial stage, declared Rajwinder Singh unfit to make a
statement, Dr. S.M. Birdi who had conducted the medical
examination on the injured and Dr. 0.P. Agarwal PW 4 who had C
conducted the post mortem on the dead body of Baljinder
Singh. The accused in their defence, pleaded false implication
and further that the dispute had arisen because of some election
rivalries. Some of the accused also claimed alibis. The trial court
on a consideration of the evidence, acquitted Avtar Singh,
Dharam Pal Singh, Nacchtar Singh and Parshottam Singh D
whereas Gurnam Singh, Gurmail Singh, Gurcharan Singh and
Sher Singh were convicted for having committed the murder of
Baljinder Singh. This judgment has been affirmed by the High
Court leading to these appeals by way of special leave.
                                                                        E
     4. Before us, the main argument raised by the learned
counsel for the appellants is that even assuming the prosecution
case to be true the matter would still not fall within the definition
of murder but would fall be culpable homicide not amounting to
murder punishable under Section 304 Part I of the IPC. It has           F
also been submitted that in the facts and circumstances of the
case, the provisions of Section 34 of the IPC were not made
out as there was no intention on the part of the accused to
commit murder. It has finally been submitted that Sher Singh
accused, appellant was similarly situated as those acquitted by         G
the trial court as the injury attributed to him on the shoulder of
Rajwinder Singh could have caused as a result of a scuffle during
the incident and was not possible with a lathi.

    5. The learned counsel for the State has, however,
supported the judgment of the trial court.                              H
    554       SUPREME COURT REPORTS                     [2011) 5 S.C.R.


A      6. Mr. D.P. Singh has submitted that in the light of the
  judgments of this Court reported as Virsa Singh v. State of
  Punjab AIR 1958 465, Laxman Karlu Nikalje v. The State of
  Maharashtra 1968 (3) SCR 685, Harjinder Singh v. Delhi
  Administration Al R 1968 867, Randhir Singh alias Dhire v.
8 State of Punjab 1981 (4) SCC 484, Tho/an v. State of Tamil
  Nadu 1984 (2) SCC 133 the injury caused to the deceased
  would not fall under clause "thirdly" of Section 300 and as such
  the conviction ought to have been recorded under 304 Part I
  or II of the Indian Penal Code. We have considered the
C submissions very carefully and have examined the judgments
  aforesaid with the assistance of the learned counsel.

          7. It is true that clause thirdly of Section 300 of the IPC deals
    with a case where the intention was to cause the very injury
    found on the dead body. In the case of Virsa Singh, Laxman
D   Karlu's case and Arun Nivalji More's case, the injuries had been
    caused on non vital parts but the death had occurred because
    of the fact that some artery beneath the injured part had been
    cut. The Court, in that eventuality, held that it could not have been
    presumed that the appellants wanted to cause that very injury
E   which ultimately led to death. It is true that in Randhir Singh's
    case the injury had been caused by a kassi on the head of the
    dece?sed. It appears, however, that what had weighed very
    heavily with the Court was the fact that attack was not pre-
    planned, the accused was only 18 years of age and the kassi
F   had been brought by his father and given to him to cause a blow
    on the victir.i, only one injury had been caused and that the
    death had occurred after six days of the incident. In Tholan's
    case it was held that though the injury had been caused in the
    chest but the facts were that the appellant had not intended to
G   give the blow with a knife in the chest. In the case before us,
    we find that a lalkara had been raised by the accused
    threatening retribution on account of the misbehaviour of
    Darshan Singh, son of Sher Singh with Nindo a few days earlier
    and that the accused had been drinking together in the house
H   of Parshottarn Singh and haq thereafter come out leading to
        GURMAIL SINGH v. STATE OF PUNJAB                       555


the incident. It has been held in all the afore-cited cases that      A
the question as to whether the injury had been caused with the
intention to cause death would be a matter of objective
satisfaction of the Court. We are, therefore, of the opinion, that
the injury in the present case had been caused directly and
deep into the stomach of the deceased, a very vital part, which       B
had led to death within a short time. It cannot, therefore, be said
that there was no intention to cause that very injury which had
led ultimately to the death of the deceased. In a somewhat
similar situation, it has been held in Arun Nivalaji More v. State
of Maharashtra 2006 (2) SCC 613 that where the injury had             c
been caused in the stomach which was a vital part of the body,
it could be said that the injury had been caused with the
intention of causing death in the background of the facts that
preparations for the attack on the deceased had earlier been
made.                                                                 D
      8. We now take up the question of common intention in
the facts of the case. Once again it needs to be highlighted that
the accused were all of one family and they were annoyed with
the members of the victim family as they had teased Nindo.
They also lived close together in the same locality and had           E
come out armed and raised a lalkara that the opposite party
be done away with and that the injuries had been caused
thereafter. It is also clear that several injuries had been caused
to Rajwinder Singh PW as well and that one injury had been
proved fatal for Baljinder Singh. A case of common intention          F
is, thus, spelt out.

     9. We, however, find some merit in the argument of the
learned counsel that Sher Singh appellant should be given the
benefit of doubt in the circumstances. The injury attributed to       G
him on the person of Baljinder Singh is a "Red abrasion 2.5cm
X 0.5cm on the right super scapular region obliquely placed 3
cm back ward from the upper tip of the right shoulder joint." A
perusal of this injury would indicate that it is of very small
dimensions and there is a clear doubt as to whether an
                                                                      H
    556     SUPREME COURT REPORTS                [2011] 5 S.C.R.


A abrasion could be caused with a lathi which Sher Singh was
  said to be carrying. We are, therefore, of the opinion that Sher
  Singh is similarly placed as the accused who have been
  acquitted by the trial court.

8       11. We, accordingly, allow the appeal of Sher Singh. The
    appeals of the other accused are dismissed.

    N.J.                                        Appeal allowed.