PEPSU HIGH COURT

                                                   Nazar Singh

                                                         Vs

                                                  State (Pepsu)

         Criminal Appeals Nos. 184 and 185 of 1950 and C. R. and Revn. No. 282 of 1950

                                  (Teja Singh, C.J. and Gurnam Singh, J.)

                                                    30.11.1950

                                                  JUDGMENT

Teja Singh, C.J.

1. Nazar Singh ft his brother, Gajjan Singh were tried by the Sea. J., Bhatinda on the charges of
murder, lurking house trespass, wrongful confinement and causing simple hurts with a sharp-
edged weapon. The learned Ses. J. convicted them under Sections 304, Part I, 458 and 324, Penal
Code and sentenced each of them to 10 years R. I. on count 1, 2 years' R.I. on count 2 and 1
years' R. I. under count 3. Gajjan Singh who had also been charged with illicit possession of a
spear was convicted under Section 19, Indian Arms Act ft was sentenced to 4 months R. I. All
these sentences were ordered to run concurrently. The convicte have preferred separate appeal
from jail against their convictions and sentences while the State has made an appln. for revn. for
the enhancement of the sentences awarded to both the convicts under Section 304, Part I. The
appeals as well as the revn. ptn., will be disposed of by one order.

2. The facts of the case are very simple Nazar Singh applt. who was also called Bhuria was
married to Mt. Bibi daughter of Arjan Singh of village Bachak about 12 years ago. It appears that
differences arose either between the husband and the wife or between the husband and the
parents of the wife at a very early stage, with the result that Mt. Bibi did not visit Bhuria's house
except once and Bhuria did not care to send for her later on. In course of time Mt. Bibi got
married to another person and gave birth to a female child. The occurrence is alleged to have
taken place on the night between 6th and 7th sawan 2006 samvat. Mt. Bibi had gone to her
parents' house and we are told that she was sleeping in the court yard along with her mother Mt.
Santi and younger sister Mt. Kartaro. Gurdial Singh, Mt. Bibi's brother ft Mota Singh, her uncle,
were sleeping on the roof of house. The prosecution version is that both the Appellants . came to
the house sometime after midnight and tried to take away Mt. Bibi by force. Her outcries awoke
Mt. Santi and Kartaro as well as Gurdial Singh and Mota Singh. Because of the noise made by
these persons the Appellants . did not succeed in their mission and so they both attacked Mt. Bibi
and hit her on the head. The eye-witnesses deposed that Bhuria was armed with a gandasa and
Gajjan Singh with a spear and both of them used their weapons. Mt. Santi and Kartaro came to
Mt. Bibi's rescue and they also received injuries at the hands of the culprits. By the time Gurdial
Singh and Mota Singh came down the culprits had left the place. They were pursued but when
they had gone some distance Bhuria was heard urging his companion to fire at their pursuers.
Terrified at this Gurdial Singh and Mota Singh returned to their house. Mt. Bibi had evidently
expired by that time and after Gurdial Singh had attended upon Mt. Santi and Kartaro and had
spoken to Mota Singh and some other persons of the village to organise a pursuit party and run
after the accused, be proceeded to the Police Station for the report. The distance between the
village and the Police Station is 13 miles and the time of the first information report recorded by
Gurdial Singh is given as 10 a.m. The prosecution story proceeds that Mota Singh with the help
of a number of residents of the village chased Bhuria and Gajjan Singh and overtook them near
village Raike. That place is about 5 miles from Bachak and about 4 miles from the village of the
Appellants . On seeing them the accused made an effort to run away and when overtaken they
offered obstruction. The pursuit party, however, proved to be too strong for them and they were
both apprehended after some struggle and exchange of injuries. Bhuria was even fired at by one
of the members of the pursuit party and received a few gunshot wounds.

3. According to the evidence of the Doctor who conducted the post mortem examination on Mt.
Bibi's dead body, she had two incised wounds and 15 abrasions. Both the incised wounds were
on the head, one 5 ½" x ¼" running from front backwards just above the right ear and the other 3
½" x ½" above the first wound and parallel to it. These injuries had resulted in the fracture of the
right parietal, frontal and temporal bones and the cutting of the small membranes and brain. The
Doctor's opinion was that each of these injuries was sufficient individually to cause death in the
ordinary course of nature. Mt. Santi had five incised wounds spread on different parts of the
body. They were all simple. Mt. Kartaro had only one incised wound somewhat slight, but bone
deep, on the lower part of the left side of the back. Indar Singh and Maghar Singh who claimed
to have been injured in the course of the struggle with the accused at the time they were
apprehended had respectively two incised wounds and an abrasion. The injuries of Bhuria
consisted of two incised wounds, 30 gun-shot wounds scattered in an area of 8" x 6" on the right
side of the chest, a punctured wound on the front side of the lower side of the chest and a few
contusion marks behind the left shoulder. Gajjan Singh had multiple contusion marks of different
sizes on the left leg.

4. The Appellants . denied their guilt. They also denied that they went to the house of Mt. Bibi's
parents with the intention of abducting her or that they were pursued and apprehended in the
manner alleged. As regards the injuries found on their respective persons, Bhuria's explanation
was that he was caught hold of while he was going along on a road and assaulted. Gajjan Singh
stated that he was apprehended in his village. His brother had already been arrested and when he
saw him being beaten he wanted to help him and consequently he was also belaboured.
5. The principal evidence examined by the prosecution can be divided into two heads. (His
Lordship then proceeded to discuss the evidence and stated:) Our attention was drawn to those
parts of the statements of P. Ws. Indir Singh, Sainsi, Bakhtawar Singh, Punjab Singh and Maghar
Singh who averred that when Gurdial Singh came to them after the occurrence be told them that
Bhuria and Gajjan Singh had killed Mt. Bibi and inflicted injuries upon others. But this does not
constitute legal evidence, because being the previous statement of Gurdial Singh to the witnesses
it could only be used to corroborate him and since Gurdial Singh made no mention of it in his
statement at the trial it does not amount to corroboration and is, therefore, not relevant. (His
Lordship continued further discussion of the evidence and stated:) In view, however, of what I
have said above, I do not believe that Gajjan Singh was apprehended in the manner deposed to
by the witnesses or that the spear was found in his possession. In the result I would accept his
appeal, set aside his conviction and sentences under the various counts and direct that he be
released forthwith.

6. As regards Bhuria, the case is entirely different. It was not denied that he was married to Mt.
Bibi and consequently neither Gurdial Singh nor the other witnesses could have had any
difficulty in recognising him. Mt. Santi and Kartaro were in the courtyard when Bhuria caused
injuries to Mt. Bibi and then Mt. Kartaro herself was attacked and injured by him. His name was
mentioned in the first information report and it is also proved that he was pursued and was
apprehended after considerable struggle. The number and the nature of the injuries found on his
person belie the story that he was apprehended in his village. Evidently he not only made an
effort to make good his escape but he even offered resistence. Mt. Santi and Kartaro are agreed
that they saw him hitting Mt. Bibi on her head with his gandasa and since the opinion of the
Doctor was that both the head injuries of the deceased were individually sufficient to cause death
in the ordinary course his offence amounted to murder, pure and simple. The learned Ses. J. has
held that be was guilty of culpable homicide not amounting to murder and the reason that he has
given for so holding is that the primary object of the culprits was not to kill Mt. Bibi but to
abduct her. I have no hesitation in coming to the conclusion that the learned Judge has
misdirected himself on this point. Whatever may have been the primary object of the culprits
when they trespassed into the house as soon as they attacked. Mt. Bibi and inflicted injuries upon
her head with highly dangerous weapons and each of the injuries caused by them was found to be
fatal, it must be held that even if they had no intention to kill, at least their intention was to cause
injuries sufficient to cause death in the ordinary course. It must be remembered that every sane
person must be presumed to intend the result that his action normally produces, and if a person
hits another on a vulnerable part of his body like the head and the weapon used by him is such
that can produce fatal results and death occurs as a result of the blow or blows inflicted by him, it
is idle to suggest that his intention was other than to take the life of his victim. It is, however, not
necessary for me to go into this matter in greater detail, because in the revision petn. put in by the
State Govt. no exception is taken to the legality of Bhuria's conviction under Section 304, part i,
and all that is urged is that the sentence awarded to him is mild and not consistent with the
gravity of the offence. The learned Advocate-General argues that inspite of the fact that the
revision petn. is silent on the point, since the convict has appealed it is open to us to examine the
legality of his conviction and if we come to the conclusion that he committed a graver offence
than the one for which he has been convicted, it is open to us to convict him under the proper
section. In support of his contention he relied upon two F. B. decisions of the Punjab H. C. Bawa
Singh v. Emperor1, and Ranjha v. Emperor2, S. Tirath Singh counsel for the applt.,
does not accept the correctness of the view taken in the above-mentioned cases and contends that
a different view was taken by the President of the Judicial Committee of the Ijlas-i-Khas of
Patiala in one of the cases decided by him. Since the legality of the applt's conviction under
Section 304, Part I has not been questioned in the revision petn. and notice has been issued to the
applt. only to show cause why his sentence should not be enhanced, I am of the opinion that even
if we had the power to alter the applt's conviction we should not exercise it in the present case.
As regards the sentence actually awarded by the Judge of the Ct. below under Section 304, Part I,
I have no hesitation in agreeing with the learned Advocate-General that is was very mild and did
not take into consideration the gravity of the offence. Even though the deceased was Bhuria's
wife in view of the fact that they had been living separate for a number of years and she had in
the meanwhile got married to someone else, be had no business to compel her to go with him and
when she refused to injure her fatally. There were no extenuating circumstances at all and I do
not understand why the maximum penalty leviable for the offence which he was held to have
committed should not have been awarded.

7. In the result I dismiss Bhuria's appeal, allow the revision petn. and enhance his sentence under
Section 304. Part I, to transportation for life. The sentences awarded to him under the other
counts will stand but they shall all run concurrently along with the sentence of transportation for
life.

Gurnam Singh, J.

8. I agree.

Order accordingly.

Cases Referred.

1 a. I. R. (28) 1941 Lah. 465 : (197 I. C. 669 F.B)
2 a. I. R. (35) 1948 Lah. 74: (49 Cr. L. J. 106)