Sawinder Singh and anr. Vs. State of Punjab - Court Judgment

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criminal - murder - alteration of charge - sections 302, 304 part ii and 34 of indian penal code, 1860 (ipc) - appellants convicted by under sections 302 and 34 of ipc - hence, present appeal - held, appellants had given injuries to deceased believing deceased to be possessed by evil spirit - murder was perpetrated as there was no intention on part of appellants to cause death - but appellants had knowledge that death could be caused in such situation - therefore, appellants are liable to be convicted under section 304, part ii of ipc and not under section 302 of ipc - accordingly, appeal allowed in above terms - hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - underlying right fronto parieto bones of the brain badly lacerated.pritam pal, j.1. appellants --sawinder singh (70 years) and his wife, smt. rachna (70 years), have filed this appeal against judgment and order dated 6-2-1997 whereby they were convicted under section 302 of the indian penal code and section 302 read with section 34 of the indian penal code respectively and sentenced to undergo imprisonment for life with a fine of rs. 2000/- each and in default of payment of fine to further undergo ri for one year each under section 302, ipc and 302 read with section 34, ipc respectively.2. the prosecution story, as divulged by sukhwant kaur (p.w. 4), complainant, wife of sukhdev singh (since deceased), is as under :--complainant-sukhwant kaur (35 years) was under the influence of some evil spirit. it was on 13-8-1994 that she along with her husband sukhdev singh (since deceased) had gone to the house of harjinder singh (p.w. 5), who 1s husband of sister of said sukhdev singh. on 14-8-1994, sawinder singh, accused-appellant (hereafter referred to as 'the appellant') came to the house of harjinder singh (p.w. 5) in village shakri for taking milk. there, he enquired about sukhwant kaur, complainant and her husband sukhdev singh. thereupon, harjinder singh told that they both were his relations. he further told that sukhwant kaur (p.w. 4) was suffering from some evil spirit. then, appellant sawinder singh told that he would cure her at his dera and as such, she should be brought there. accordingly, on the same day, in the afternoon, harjinder singh (p.w. 5) along with sukhdev singh and his wife sukhwant kaur (complainant) went there. appellant sawinder singh then started giving his treatment through mantir and tantrik means and continued doing so till 16-8-1994 but she (complainant) did not feel any improvement in the condition with the said treatment of the appellant. then, the appellant told her that in fact, her husband sukhdev singh is to be treated first, who is also under the influence of evil spirit. on 16-8-1994, at about 9.00 p.m., appellant sawinder singh asked harjinder singh (p.w. 5) and the complainant to sleep in a room of the dera. he further told that he would thereafter treat her husband. accordingly, they went asleep. the appellant then made her husband sukhdev singh (deceased) to sit near a fire (dhuni). at about 11.15 p.m. she heard shrieks of her husband and on going out of the room, she saw in the light of electric bulb that he had been made to lay on embankment of a pond in the dera. his legs were tied up with an iron chain and hands were also tied with a rope on his back. appellant sawinder singh and his wife rachna (appellant no. 2) both were present there. in the presence of the complainant, appellant sawinder singh asked his wife rachna to bring a sotta (a wooden rod, meant for crushing salt etc.) and a sword from inside. accordingly, she brought and handed-over the same to appellant sawinder singh, who then started giving blows with the said sotta on the head, face, chest and waist of sukhdev singh (deceased). thereupon, he started crying. then, appellant rachna gagged his (sukhdev singh's) mouth with a piece of cloth. thereafter, appellant sawinder singh also gave kirpan blows on the person of sukhdev singh. on seeing so, sukhwant kaur (complainant) made harjinder singh (p.w. 5) to wake up. he also reached there and then they tried to intervene, but they were scared as he (appellant-sawinder singh) started wielding his sword. so due to the fear they pulled-back. sawinder singh also pulled the beard of sukhdev singh (deceased). on seeing so, complainant sukhwant kaur laid-down on her injured husband, as a result of which her shirt and salwar also got smeared with blood. but in the meantime, sukhdev singh had breathed his last at the spot. appellant sawinder singh then took the complainant aside and told that she should not worry and that he would keep her and provide all comforts. harjinder singh and the complainant then shouted 'mar dita, mar dita' (killed-killed), whereupon, both the appellants had runaway along with their weapons from the spot. out of fear, they did not move-out during the night time. in the morning of 17-8-1994, a message was sent to the relations of the complainant. thereafter, sukhwant kaur, complainant, along with bakshish singh, sarpanch, left for the police station to lodge the fir leaving behind harjinder singh (p.w. 5) to guard the dead-body. the police met her near village gill where, she made her statement (ex. pf), in the above narration of facts before asi william masih (p.w. 9). he made his endorsement ex. pf/1 and the same was sent to police station, dhariwal. ultimately, fir (ex. pf/2) was recorded at 1.45 p.m. on the same day i.e. on 17-8-1994 by si kulwant rai.3. the investigation of this case was taken into hand by asi william masih (p.w. 9), who after recording the statement of the complainant, rushed to the place of occurrence. there, he prepared inquest report ex. pd. he also prepared rough site plan ex. pn with correct marginal notes in his hand. from the spot, he took into possession a parna with which, the mouth of the deceased was gagged, vide memo ex. pj. the rope and iron chain were also taken out from the arms and legs of the deceased and the same were taken into possession vide respective memos ex. ph and ex. pg. besides that, some hair of the beard of the deceased were also taken into possession from the spot vide memo ex. pm. the dead-body was sent to the hospital for post-mortem examination. in the meantime, sukhwant kaur, complainant, also produced her clothes which were smeared with the blood. her clothes were taken into possession vide memo ex. pl. on return to the police station, he deposited the case property with the mhc. asi william masih (p.w. 9) then searched for the accused and they could be arrested only on 23-8-1994. it was on 25-8-1994 that during interrogation, appellant sawinder singh made his disclosure statement, ex. pq, in pursuance of which, he got recovered the sword and sotta. the weapons of offence, which were taken into possession vide recovery memo ex. ps and pr respectively. at the spot, site plan of the place of recovery ex. pt was also prepared.4. after completion of the formal investigation of the case, both the appellants were challaned by sho kulwant rai and then they were charge-sheeted vide order dated 22-11-1994 under section 302, ipc and 302 read with section 34 of the indian penal code, to which they pleaded not guilty and claimed trial.5. prosecution, in order to substantiate its case, examined as many as 9 witnesses, namely, p.w. 1 dr. harbhajan singh, medical officer, rural hospital, maqsudpur, district kapurthala. he proved the mlr (ex. pa/1) of appellant sawinder singh, which was conducted on 24-8-1994; p.w. 2 dr. ashok mahajan, surgical specialist, civil hospital, gurdaspur, he had conducted the autopsy on the dead-body of sukhdev singh (deceased) and in that behalf, he prepared the pmr ex. pb; p.w. 3 jagir singh, draftsman,, he proved scaled site-plan (ex. pe); p.w. 4 sukhwant kaur, complainant, she is an eye-witness to the occurrence; p.w. 5 harjinder singh, he is brother-in-law (jija) of the deceased, another eye-witness; p.w. 6 surjit singh, patwari halqa, daduwal, he proved the scaled site plan; p.w. 7 gurdev singh, photographer, he proved the photographs ex. p.w. 7/1 and ex. p.w. 7/2 and negatives thereof ex. p.w. 7/3 and p.w. 7/ 4; p.w. 8 constable rajinder singh, he proved his affidavit ex. p. k. and p.w. 9 asi william masih, he is the investigating officer in this case. role assigned to him has already been given while narrating the prosecution story in the earlier part of the judgment. affidavits ex. ph of mhc jasbir singh, ex. pg of constable sukhwinder singh, ex. pj of amhc palwinder singh and fsl report ex. pl were also tendered into evidence before the learned trial court.6. after closure of the prosecution evidence, the appellants were examined in terms of section 313 of the code of criminal procedure wherein they denied all the incriminating evidence appearing against them in toto. the appellants led no defence evidence.7. learned trial court after appraisal of the evidence and hearing learned counsel for the parties convicted and sentenced both the appellants, as indicated in the opening part of this judgment. this is how feeling aggrieved, the appellants have come up in this appeal.8. we have heard shri p. c. chaudhary, amicus-curiae, learned counsel for the appellants, shri a.s. virk, learned additional advocate general, for the state of punjab and have carefully gone through the record.9. learned counsel for the appellants has putforward his three-fold arguments. at the first place, he submitted that in fact, none of the two eye-witnesses of this case was present at the place of occurrence and that is why, they have given contradictory version with regard to sending message to their relatives in the village after the occurrence and also pertaining to the point of waking up of harjinder singh (p.w. 5). at the second place, he argued that there is a delay of about 12 hours in lodging the fir of this case and as such, a coloured version has been introduced to involve the appellants falsely. in the last, he also submitted that here, in the instant case, at the most, only offence of culpable homicide not amounting to murder, punishable under section 304, part ii of the indian penal code, is made out against the appellants as there was no such intention to cause the death of sukhdev singh (deceased). in this regard, he also submitted that it was only injury no. 1, caused by blunt weapon, which ultimately proved to be fatal. all other injuries were simple in nature. he further submitted that there was no injury alleged to have been caused by sword. in support of his last point of argument, he also relied upon nga po tha v. emperor, indian cases vol. xliv 679 : air 1918 upper burma 24 and state of punjab v. kewal nath 2001 (4) all clr 414.10. on the other hand, learned additional advocate general appearing on behalf of the state of punjab, repelled the aforesaid points of arguments raised on behalf of the appellants and submitted that presence of both the eye-witnesses, namely p.w. 4 sukhwant kaur and p.w. 5 harjinder singh is very much proved on the file as they both were there along with the deceased in the dera of the appellants right from 14-8-1994 till the date and time of the occurrence. in that behalf, he also made reference to the report of fsl ex. pl wherein the human blood was found on the shirt and salwar of p.w. 4 sukhwant kaur, who had laid down on her injured husband immediately after the occurrence. he further argued that the delay in lodging the fir of this case was due to the fact that the death of the husband of the complainant had taken place at the dera of the appellants during night-time. therefore, due to fear, she could not. move to the police station unless her relations reached there on 17-8-1994. he then also made reference to the statement of p.w. 8, constable rajinder singh, who had handed-over the special report of this case to the illaqa judicial magistrate at gurdaspur on the same day i.e. 17-8-1994 at 4.55 p.m. according to learned additional advocate general, punjab, appellant sawinder singh had an evil eye on the complainant p.w. 4 sukhwant kaur, who is the wife of the deceased and as such, he intentionally caused the death of sukhdev singh by causing as many as 13 injuries. at the fag end, he prayed for upholding the judgment and order passed by the learned trial court.11. we have given our thoughtful consideration to the above submissions raised on behalf of the parties and for the reasons given hereinafter, all the aforesaid points, except the last one, raised on behalf of the appellants are devoid of any merit. if we read the statements of two star witnesses, namely, p.w. 4 sukhwant kaur, complainant and p.w. 5 harjinder singh as a whole, then we find that there is no such substantial contradictory version which could go to the root of the case. according to p.w. 4 sukhwant kaur, a message was sent to her relatives before the noon time. against this, p.w. 5 harjinder singh stated that the message regarding the occurrence was sent to their relatives in the afternoon.12. before we proceed further, it is pertinent to mention here that according to both these p.ws. 40-50 persons had collected at the place of occurrence on the next day of the occurrence at around 12.00 noon. it further goes unchallenged that p.w. 4 sukhwant kaur had left for the police station before noon time in the company of bakshish singh, sarpanch. ultimately, her statement, ex. pf was recorded at 12.45 p.m. by p.w. 9 asi william masih and formal fir ex. pf/2 was recorded at 1.45 p.m. at. police station, dhariwal by si kulwant rai. the distance of the police station from the place of occurrence is of 14 kms. the special report in this case reached to the illaqa judicial magistrate at gurdaspur on the same day at 4.55 p.m. p.w. 8 constable rajinder singh, who had taken the special report, has tendered his affidavit, ex. pk, wherein, he had stated that from the police station, he had first gone to the bus stand where he had to wait for about half an hour for boarding the bus for gurdaspur. keeping in view the aforesaid factual position duly proved on the file, no weight can be given to any of the aforesaid contentions relating to the contradictions and delay in lodging the fir of this case, inasmuch as there is no much difference of time between the before-noon and afternoon. it can be safely inferred that in fact, relatives and other co-villagers of p.w. 4 and p.w. 5 had reached at the dera, of appellant-sawinder singh between 11.00 to 12.30 p.m. and before that there were only p.w. 4 and p.w. 5 who remained sitting near the dead-body of sukhdev singh (deceased). complainant sukhwant kaur is the wife of the deceased, who must be in trauma on seeing the tragic death of her husband and as such, she alone did not dare to go to the police station. it is only after the arrival of her relatives and villagers that she, in the company of bakshish singh, sarpanch, had left for the police station for lodging the fir around noon time. even otherwise, in this case, it is an admitted fact that death of an innocent person of 35 years had taken place in the dera of appellant sawinder singh, where he was residing with his wife smt. rachna (appellant no. 2). on the fateful night, only five persons were present in the dera, two were the appellants, one was the deceased and the other two were p.w. 4 sukhwant kaur and p.w. 5 harjinder singh. it is also an admitted fact that there was no bias or animus on the part of these two star-witnesses for implicating the appellants falsely in this case. faced with such a situation, no significance can be attached to such minor contradictions and delay in lodging the fir, as pointed out above by learned counsel for the appellants. even otherwise, it cannot be expected from rustic and illiterate people that they would give the photographic version of the events, which had taken place about more than a year back prior to their deposition in the court. 13. now, adverting to the last contention of learned counsel for the appellants for converting the offence against them from section 302/34 to 304 part ii of the indian penal code, before we proceed further, it would be appropriate to reproduce the injuries found by p.w. 2 dr. ashok mahajan at the time of conducting the post-mortem examination of the deceased and the same are as follows :--1. reddish contusion 9.5 cm x 4 cm on the right side of forehead, right temporal, right parietal regions of head.on dissection -- underlying bones, right fronto parieto fractured. extra-dural and sub-archnoid haemorrhage present. underlying right fronto parieto bones of the brain badly lacerated. intra cerebral haemorrhage present and blood clots present.2. right lower eye-lid swollen.3. reddish contusion 2 cm x 1 cm on the middle of nose. underlying bone normal.4. reddish contusion 3 cm x 2 cm on the right cheek. underlying bone was normal.5. reddish contusion 4 cm x 2.5 cm on left cheek. underlying bone normal.6. both lips swollen.7. reddish contusion 4 cm x 3 cm on left wrist. underlying bone was normal.8. reddish contusion 3 cm x 2 cm on left elbow (posterio lateral aspect). underlying bone normal.9. reddish contusion 4 cm x 2.5 cm on right wrist. underlying bone normal.10. reddish contusion 5 cm x 3.5 cm on the right forearm lower one third, underlying bone normal.11. two reddish contusions 4 cm x 3 cm, 5 cm x 4 cm on right scapular region on back. underlying bone normal.12. reddish contusion 4 cm x 3 cm on right ankle medial aspect. underlying bone was normal.13. reddish contusion 4 cm x 3 cm left ankle, medial aspect. underlying bone normal.14. according to the opinion of this aforesaid doctor (p.w. 2), the cause of death in this case was due to injury no. 1, which was also sufficient to cause death in the ordinary course of nature. all the injuries were ante-mortem in nature. in his cross-examination, he has categorically stated that except injury no. 1, rest of the injuries were simple and caused by blunt weapon. all this goes a long-way to show that appellant no. 1, sawinder singh, who is now 70 years of age, had caused injury no. 1 with a blunt weapon, which ultimately proved to be fetal.15. in the given facts and circumstances, as discussed above, appellant sawinder singh had given the injuries believing sukhdev singh (deceased) to be possessed by evil spirit. so, we are of the opinion that a case of murder is not spelt out as there was no intention on the part of the appellants to cause death, but they could safely be attributed with the knowledge that death could be caused in such a situation. we accordingly, convict, both the appellants for commission of offence punishable under section 304, part ii of the indian penal code, but at the same time considering the nature and extent of injuries caused to sukhdev singh (deceased), a young man of 35 years, and to serve a warning on unscrupulous individuals such as the appellants herein, who misled and exploited gullible and innocent individuals, some deterrent sentence is called for.16. we, therefore, sentence appellant no. 1-sawinder singh to undergo rigorous imprisonment for ten years and to pay a fine of rs. 2000/- and in default of payment of fine to further undergo r.i. for six months, for offence punishable under section 304, part ii of the indian penal code, whereas, smt. rachna, appellant no. 2, who admittedly herself had not caused any injury, though assisted in the commission of crime of this case, is sentenced to undergo r.i. for five years with a fine of rs. 2000/- and in default of payment of fine to further undergo r.i. for six month for offence punishable under section 304, part ii of the indian penal code. the fine, if realised, shall be paid to complainant -- sukhwant. kaur.17. the appeal stands allowed in the above terms.