V.K. Bali, J.
1. Whereas appellant Gurkirpal Singh son of Amrik Singh, aged 20 years, has been held guilty for an offence under Section 302 of the Indian Penal Code for having intentionally caused death of one Harjit Singh, his co-accused Gurmit Singh son of Gurpartap Singh, aged 19 years, has been sentenced for the same offence with the aid of Section 34, I.P.C. Both the appellants vide order of conviction and sentence dated October 24, 1996 recorded by the learned Additional Sessions Judge, Fatehgarh Sahib, have been ordered to undergo RI for life and to pay a fine of Rs. 2500/- or in default of payment of fine, to further undergo RI for three months each. It is against this order of conviction and sentence that the present appeal has been filed.
2. Complainant Bachittar Singh has also filed Criminal Revision No. 284 of 1997 which has been ordered to be heard along with this appeal. Therefore, by this order, we will dispose of both these matters, i.e., Crl. Appeal No. 596-DB of 1996 and Crl. Revision No. 284 of 1997.
3. Inasmuch as Mr. P.S. Mann, Senior Advocate, assisted by Mr. T. P. S. Mann, Advocate, has not made any endeavour for a clean acquittal of both the appellants and has confined his arguments with regard to non-applicability of Section 34, I.P.C. and, thus, to earn acquittal of appellant Gurmit Singh and further argued with regard to nature of offence having been committed by appellant Gurkirpal Singh, which, according to him would not go beyond Section 304, Part III, I.P.C., there is no need to give the evidence in its all details.
4. Briefly put, thus, the prosecution case, as is revealed from the statement made by PW 3 Bachhittar Singh, the first informant and father of deceased Harjit Singh, is that Harjit Singh was the eldest son of the first informant. On July 26, 1994 at about 8.30 p.m. the first informant and his son Harjit Singh were present in the court-yard of their house and were talking with each other while sitting on a cot. Gurkirpal Singh alias Noti son of Amrik Singh, resident of Alian called his son out by calling his name and his son accompanied him because Gurkirpal Singh used to come to their house. After some time, he went out in order to see his son when he reached the shop of Harvinder Singh where Hazara Singh son of Piara Singh was also present. Gurkirpal Singh said to his son 'You had called me names a day before yesterday, I will not allow you to escape today'. Gurmit Singh alias Bobby son of Gurpartap Singh resident of village Talania was Gurmit Singh took his son into the grip of his arms and Gurkirpal Singh picked up a scissor made of iron from the shop of Harvinder Singh and gave a blow with the same on the left side of the chest of his son. His son fell down on the ground. The first informant and Hazara Singh started attending Harjit Singh. Gurkirpal Singh and Gurmit Singh ran away with the scissor from the spot. He further stated that there was electrical light in and outside the shop of Harvinder Singh at that time. Thereafter, the first informant and Hazara Singh took his son in an injured condition to PGI, Chandigarh for treatment and got him admitted there where he died in the morning. The cause of grudge is stated to be that a day before the appellant Gurkirpal Singh and Harjit Singh and abused each other and due to this grouse, Gurmit Singh and Gurkirpal Singh hatched a conspiracy and murdered Harjit Singh with the scissor.
5. As mentioned above, whereas the occurrence took place on July 26, 1994 at 8.30 p.m. at Bazar of village Bahadurgarh, the F.I.R. came to be recorded on the next day at 9.35 a.m. which was recorded by SI PW 5 Balwinder Singh. The special report reached the Magistrate concerned at Bassi Pathana at 11.35 a.m. on July 27, 1994.
6. The prosecution examined PW 3, the first informant and father of deceased Harjit Singh as also Hazara Singh PW 4. These two witnesses have fully supported the prosecution version. SI Balwinder Singh, who was examined as PW 5 detailed the steps that he had taken while investigating the case. PW 6 SI Sewa Singh deposed with regard to arrest of the appellant and recovery of scissor.
7. When examined under section 313, Cr.P.C., the appellant denied their participation in the alleged commission of crime and further stated that they had been falsely involved in the case on account of suspicion. They examined in defence DW 1 Sant Singh, another DW 1 HC Sucha Singh, DW 2 Kanwaljit Singh and another DW 2 Karnail Singh as also DW 3 Dr. Attul Khullar. Sant Singh, DW 1 was once again examined as Court witness (CW 1).
8. PW 1 Dr. Inderjit Dewan, Professor of Anatomy and Forensic Medicine, PGI, Chandigarh, stated that on July 27, 1994 at 2.15 p.m. he along with Dr. Dalbir Singh, Assistant Professor, Department of Forensic Medicine, conducted post mortem on the dead body of Harjit Singh, aged 22-23 years. As per bed head ticket, the death took place at 4 a.m. on July 27, 1994. The doctors found following injury on the dead body of Harjit Singh :-
'1. Oblique stitched wound 22 mm long directing above downward and slightly medially present on the left anterior aspect of thorax in the intercostal space, just lateral to the left lateral border of the body of the sternum. On opening the stitches, it was found that wound was spindal shaped, 12 mm wide in its middle. Margins of the wound were irregular with both ends rounded. On exploration of the wound, it was found directing above downwards, backwards and medially and after passing through the intervening structures including sterno-costal surface of left lung near its anterior border, left pleura and anterior mediastinum, which extended up to anterio-medial wall of the ascending aorta, 3 cm above its commencement, Wall of the ascending aorta at this level was found stitched. Distance between the wound of entry to the aorta was 2 cm.'
9. The doctor also deposed about other operational wounds which need no mention as, concededly, Harjit Singh, died on account of one injury, said to have been caused by Gurkirpal Singh. In the opinion of the doctor, the cause of death was shock due to extensive haemorrhage as a result of injury to ascending aorta. The injury was ante-mortem in nature and could be caused as a result of stab. The weapon used was blunt and pointed. The probable time that elapsed between injury and death was within 12 hours and between death and post mortem 10 hours and 15 minutes as calculated by them. The doctor confirmed that there was one injury on the person of deceased. It could be caused with scissor Ex. P1. In his cross-examination, the doctor stated that chances of survival could be more if the patient was operated upon within an hour of the receipt of injury. He did not notice any injury on the heart itself. However, the big blood vessel (aorta) was damaged. The function of the aorta is to take the blood from the heart to other blood vessels of the body. To the Court question, he answered that they had not mentioned in the post mortem report that injury on the dead body was sufficient to cause death in the ordinary course of nature and that he had replied for the first time in Court in reply to the Court question. He denied the suggestion that injury observed by them was not sufficient to cause death in the ordinary course of nature and that it was for that reason that they did not make a mention in the post mortem report to that effect.
10. As mentioned above, learned counsel for the appellants has addressed arguments only with regard to non-applicability of Section 34, I.P.C. as also that even if the prosecution version is accepted in its entirety, the offence would be 304, Part II of the Indian Penal Code and not Section 302 of the Code.
11. We have heard learned counsel for the parties and with their assistance very carefully gone through the records of the case. It appears to us that the contention of the learned counsel for the appellants deserves to be accepted, even though half way through. We have no hesitation in holding that Section 34, I.P.C. can not be attracted in the facts of the present case and that the appellant Gurkirpal Singh cannot be convicted under section 302, I.P.C. and instead, he deserved to be held guilty under section 304, Part I of the said Code. No evidence whatsoever was brought on record to show that the appellants Gurkirpal Singh and Gurmit Singh were in any way related to each other. It is not even the case of the prosecution that the appellants were close friends. They even belonged to different villages. It may be recalled at this stage that while giving identity of the appellants, the first informant himself stated that whereas appellant Gurkirpal Singh was resident of village Arian, Gurmit Singh alias Bobby was resident of village Talania. No evidence was brought on record of the case so as to show that both the appellants had come together and whereas Gurkirpal Singh had gone to the house of Harjit Singh to call him, appellant Gurmit Singh was, by a design asked to stand at a place where Harjit Singh was given the injury. Insofar as previous background is concerned, exchange of hot words of abuses was also between Harjit Singh on the one side and appellant Gurkirpal Singh on the other. Insofar as appellant Gurmit Singh is concerned, he did not figure any where in the said exchange of hot words or abuses two days before the occurrence leading to death of Harjit Singh. Further, it is not a case where appellant Gurkirpal Singh was already armed. As per the prosecution version itself, when Gurmit Singh had caught hold of Harjit Singh by his arms, appellant Gurkirpal Singh had picked up a scissor from a nearby shop and given one injury with that to Harjit Singh. In the circumstances, as have been mentioned above, Gurmit Singh cannot be pinned down with the vicarious liability under Section 34, I.P.C. No evidence at all has been brought on record that might show that he shared the intention of Gurkirpal Singh appellant in causing death of Harjit Singh. He could not even in his wildest dreams think that Gurkirpal Singh would pick up a scissor from a nearby shop and cause injury with the same to Harjit Singh. The threat that 'You had called me names a day before yesterday, I will not allow you to escape today', has also been attributed to appellant Gurkirpal Singh.
12. In view of the discussion made above, we are of the firm view that appellant Gurmit Singh alias Bobby cannot be convicted under section 302 with the aid of Section 34, I.P.C. The charge framed against him, thus, could not be substantiated by the prosecution. Giving, thus, benefit of doubt, we acquit him.
13. Insofar as appellant Gurkirpal Singh is concerned, we are again of the view that he cannot be pinned down for an offence under section 302, I.P.C. Neither at the time when he went to the house of Harjit Singh, was he armed nor had he armed himself at any stage before of course, he picked up a scissor from a nearby shop and caused single blow with that to Harjit Singh. He did not have the intention to cause such an injury which would result into death of Harjit Singh. As mentioned above, he caused only one blow with the scissor and did not repeat the same. Learned counsel for the appellant has placed reliance on a judgment of the Supreme Court in Mavila Thamban Nambiar v. State of Kerala, 1997 SCC (Cri) 726 : (1997 Cri LJ 831) to canvass that the offence in the present case would not go beyond 304, Part II, I.P.C. The facts of the case aforesaid reveal that the incident had taken place at 8 p.m. on May 10, 1988. On that day, a village ballet was arranged by Madhavan in the evening and for that purpose, he needed a petromax which was available in the shop of the appellant. Madhavan had gone to the shop of the appellant and requested him to give a lighted petromax. The appellant refused to oblige. Earlier in the day, brother of Madhavan had also gone to the shop of the appellant and requested him to give him two benches to celebrate the said festival. When Madhavan had gone to the shop of the appellant with a request to give him a lighted petromax and on the latter's refusal, there was exchange of words which was followed by a scuffle. PW 1, who happened to be in the shop, intervened and separated them. PW 6, who was running a tea shop near the shop of the appellant, also reached the place of incident and held Madhavan with a view to take him away. The appellant, who was then sitting on a stool picked up a pair of scissors lying on the table in front of him and caused a stab injury on the right side of the chest of Madhavan. The appellant again tried to inflict one more blow which landed on the right cheek of Madhavan who thereafter fell down on the ground. On the facts, as have been mentioned above, it was held by the Hon'ble Apex Court that 'the offence of the appellant would more appropriately fall under section 304, Part II of the Indian Penal Code as the appellant had given one blow with a pair of scissors on the vital part of the body of Madhavan and, therefore, it would be reasonable to infer that he had knowledge that any injury with the pair of scissors on the vital part would cause death though he may not have intended to commit the murder'.
14. What distinguishes the present case and the one cited before us is that whereas in the present case, the injury was on the left anterior aspect of thorax in the intercostal space, just lateral to the left lateral border of the body of sternum, the injury caused by the appellant in the case aforesaid was on the right side of chest of deceased as also that whereas in the present case there was no scuffle preceding the causing of injury by the appellant Gurkirpal Singh, there was such a scuffle in the case referred to above. Considering the injury on the vital part of the body and which was sufficient to cause death in the ordinary course of nature, we are of the view that offence committed by appellant Gurkirpal Singh would fall under Section 304, Part I of the Indian Penal Code. The interest of justice would be well served if the appellant Gurkirpal Singh is held guilty under S. 304, Part I and sentenced to undergo RI for eight years. We order accordingly. We further order that appellant Gurkirpal Singh would pay a fine of Rs. 10,000/- and in default of payment of fine, appellant Gurkirpal Singh would further undergo RI for a period of one year. If fine is realised, the same would be paid to father of the deceased Harjit Singh.
15. For the reasons mentioned above, this appeal is partly allowed. Conviction of appellant Gurkirpal Singh under section 302, I.P.C. is set aside and instead he is held guilty under section 304, Part, I, I.P.C. and sentenced as mentioned above. Insofar as appeal preferred by Gurmit Singh is concerned, the same is allowed and he is acquitted of the charge framed against him. Order of conviction and sentence recorded by the learned Additional Sessions Judge is accordingly modified.
16. In view of our findings in the appeal, as mentioned above, Crl. Revision No. 284 of 1997 has no force and the same is dismissed.
17. Order accordingly.