SHIBU ALIAS BOGHA Vs. THE STATE OF PUNJAB

JUDGEMENT

(1.) THIS is an appeal by Shibu. It is directed against the judgment of Shri Kartar Singh, Sessions Judge, Kapurthala, dated April 3, 1963. By that judgment, the Appellant has been convicted under Section 304 (II), Indian Penal Code and sentenced to rigorous imprisonment for seven years. He was tried along with Jit Pakhar and Dharma. Dharma was acquitted. Jit and Pakhar were convicted under Section 323 read with Section 34, Indian Penal Code and sentenced to imprisonment till the rising of Court and to pay fine of Rs. 100 or in default of payment of fine to further suffer rigorous imprisonment for two months

(2.) THE facts of the prosecution case are as under: - Griboo is the deceased. He is father of Gurnam and brother of Mangtu. On the day of Diwali, which fell on November 1, 1967, Batna Gurnam, Mangtu, the Appellant and Jit and Pakhar accused were present in the room of the Gurdwara called the Gurdwara of Addharmis in village Rampur Sunra. They were gambling with kaudis. While gambling, Gurnam and the Appellant picked up controversy and an altercation. All those present in that room came out wrangling into the courtyard of the Gurdwara. It was 10 p. m. Jit and Pakhar carried sotas in their hands while the Appellant had a khundi with him. The house of the deceased is at a distance of 14/15 karams from the Gurdwara. The deceased reached there and separated Gurnam and the Appellant, who were seen by him quarrelling with each other. This enraged the Appellant and Jit and Pakhar accused. They assaulted the deceased. The Appellant gave a sota blow on the top of his head The deceased fell down. On hearing noise, Dharma accused, whose house is close to the Gurdwara, was also attracted and joined the party of the accused Although he was empty -handed, he gave out a lalkara exhorting the other accused not to spare their victim. Jit and Pakhar accused are also said to have caused injuries to the deceased while he was lying. Mangtu tried to intervene to rescue the deceased from the clutches of his assailants, but Jit and Pakhar accused dealt one blow each to him with their sotas. Mangtu had a kirpan with him. To avert an attack on the part of Mangtu against the party of the accused, Jit and Pakhar accused grappled with Mangtu and tried to snatch the kirpan. While gripping the kirpan to avoid its being snatched by the accused Mangtu received injury on his right ring finger. On alarm raised by Batna, Gurnam, Mangtu, the Appellant and his companions led away carrying their weapons with them. The deceased was removed to his house. He remained unconscious after the receipt of injuries and expired at 4 a.m. on November 2, 1967. Apprehending further trouble at the hands of the Appellant and his companions, none of the party of the complainant stirred out of the house to lodge report with the police.

(3.) AFTER recording the first information report, Raja Singh Sub -Inspector reached the place of occurrence at 11 a. m. He drew up inquest report, Exhibit P. L and sent the dead body for post mortem examination, He recorded the statements of Mangtu, Gurnam, Rakha Singh, Shankar Singh and Mela Ram, who were present in the house of the deceased. He visited the precincts of the Gurdwara, where the occurrence had taken place. He found the remnants of the wax -candles lying on the parapets of the roof of the Gurdwara. The accused were not available in the village on November 2, 1967. Dharma and Pakhar accused were taken in custody. At that time, Pakhar accused carried sota. Exhibit P. 3. It was taken in possession. Memo pertaining to its recovery is Exhibit P. J, The Appellant and Jit accused were produced by their relations before Kosh Raj, Inspector, on November 3, 1967. On interrogation, Jit disclosed that he had kept concealed a sota in the fodder of cherry and that he could get the same recovered. Disclosure statement made by him is Exhibit P. G. It is thumb marked by him. It led to the recovery of sota Exhibit P. 2. Memo relating to its recovery is Exhibit P. G./l. Similarly, on interrogation, the Appellant made disclosure statement saying that he had kept concealed a sota in the heap of tandas in the courtyard of his house and that he could get recovered the same, Disclosure statement made by him is Exhibit P. H. It is thumb -marked by him. It led to the recovery of sota, Exhibit P. J. Memo pertaining to its recovery is Exhibit P. H./l