Avtar Singh and Others vs State of Punjab

R.K. Nehru, J.—This appeal has been directed against the judgment of conviction and the order of sentence, both dated September 18, 1986 whereby the learned Sessions Judge, Ropar, has acquitted Smt. Shero of the offences charged with and convicted the appellants for offence u/s 304, Part II, IPC and as a result thereof sentenced them to undergo rigorous imprisonment for three years each and fine of Rs. 200/- each. In default of payment of fine, they were further directed to undergo rigorous imprisonment for six months each. It may be mentioned here that the accused were tried on a charge u/s 302 read with Section 34, IPC. However, from the evidence led during the trial, the learned Sessions Judge came to the conclusion that the charge u/s 302, IPC has not been proved and instead the accused-appellants were proved to have committed the offence u/s 304, Part II of the IPC.

Criminal Revision No. 1570 of 1986 has also been filed in this case on behalf of the complainant for enhancement of the sentence and the same will be disposed of with this Criminal Appeal No. 632-SB of 1986, by a single judgment.

The prosecution case, as it can be I gathered from the evidence on record, may be summed up in brief thus:--

Sham Singh deceased is the husband of Smt. Kako P.W. 5 and father of Sarmukh Singh P.W. 4, Harnek Singh and Subedar Joginder Singh. Smt. Karamjit Kaur is the daughter of the brother of Sarmukh Singh P.W. 4 (though it has not been brought in the evidence of the prosecution as to who is the i father of Smt. Karamjit Kaur but the fact that i she is the daughter of the brother of Sarmukh i Singh P.W. 4 is not in dispute between the j parties). Appellant Ram Asra is the husband of accused Smt. Shero (since acquitted by the trial Court) and father of Avtar Singh appellant. Smt. Shero is the sister of Smt. Kako P.W. 5.

About a year prior to the occurrence leading to the death of Sham Singh deceased, the appellant Avtar Singh had teased Smt. Karamjit Kaur and this matter had gone to the local panchayat which got the matter compromised after the appellant Ram Asra had apologised before the Panchayat.

On September 1, 1985, Smt. Shero (since acquitted by the trial Court) had quarrelled with the wife of Sarmukh Singh P.W. 4 after their children had some quarrel. On September 2, 1985 at about 6-30/7 p.m., Avtar Singh and Ram Asra appellants and Smt. Shero started abusing the family members of Smt. Kako P.W. 5 on the score that they were defaming Avtar Singh appellant. At that time, Sham Singh deceased and Smt. Kako P.W. 5 were returning to their houses from outside. The two appellants were armed with a soti each while Smt. Shero was having a brick bats. The two appellants inflicted a soti each on the head of Sham Singh deceased. Appellant Ram Asra further inflicted two soti (sticks) blows on the left arm of the deceased. Smt. Shero hurled brickbats hitting Sham Singh deceased on his left eye. Smt. Palo daughter of appellant Ram Asra also hurled two brick bats at Smt. Kako P.W. 5, causing injuries on her forehead and on her nose. Smt. Kako P.W. 5 and her brother Harnek Singh (not examined by the prosecution) were present in their courtyard from where they were raising an alarm and whereupon the accused persons fled away from the spot. Sarmukh Singh P.W. 4 and Harnek Singh removed Sham Singh deceased and Smt. Kako P.W. 5 in an injured condition to Military Command Hospital, Chandigarh as Subedar Joginder Singh, another son of Sham Singh deceased was employed in the Army and he got them admitted on September 2, 1985 to 10-10 p.m. After staying for the night at Chandigarh, Sarmukh Singh P.W. 4 returned to his village on September 3, 1985 from where he went to Police Station at 6-30 p.m. and lodged his report Ex.PD at 7 a.m. with ASI Gurdev Singh P.W. 13 on September 4, 1985.

Thereupon, ASI Gurdev Singh PW. 13 went to the village of occurrence, inspected the spot and prepared its rough site plan Ex.PI, besides examining Sarmukh Singh P.W.4 and Harnek Singh Under Section. 161, Cr. P.C.

Sham Singh deceased was medically examined immediately after his admission in the Command Hospital by Lt. Col. Sarv Sarup P.W. 1, who observed as under:--

He was unconscious at the time of admission. There was no bleeding from the ears. The injured was having lacerated wound on the left fronto parietal region with depressed communited fracture of left fronto temporal region. He also had fracture of ulna, left lower third. He was operated upon on 3-9-1985 at 1-30 a.m. Cleaning of the wound and elevation of the depressed fractured skull was done. On 14-9-1985 at 12 noon the injured suddenly stopped breathing and died.

In this regard, this doctor proved his summary report Ex.PA and the death certificate issued by him as Ex.PA/1.

On September 2, 1985, at 10-10 p.m. Dr. Virendra Behari Mathur P.W. 14 medically examined Smt. Kako P.W. 5 and found the following two simple injuries on her person:--

Lacerated wound medial end of right eye brow, 2 cm. bone deep.

Bleeding fresh present. Deformity of nasal bridge.

She was discharged from the Command hospital on September 11, 1985.

On September 4, 1985, ASI Gurdev Singh P.W. 13 went to Command Hospital, Chandigarh where the doctor certified that Sham Singh deceased was lying unconscious whereas Smt. Kako P.W. 5 was fit to make a statement. Thereupon, this Investigating Officer recorded her statement proved as Ex. DB.

Subsequently, on receipt of information regarding the death of Sham Singh, this Investigating Officer went to the hospital at Chandigarh on September 15, 1985 and drew inquest proceedings on the dead body and sent it for autopsy under police escort.

On September 15, 1985 at 1-15 p.m., Dr. B.R. Jain, P.W. 3 of General Hospital, Chandigarh conducted autopsy on the dead body of Sham Singh deceased and he observed the following injuries on the dead body:--

Lacerated healed wound left fronto parietal region 2" x 11/2" with underlying depressed fracture.

Fracture left lower one-third ulna.

1" abrasion over the outer aspect of the right elbow.

On opening the scalp, there was a fracture of frontal and parietal bones left side. There was lot of extravasated blood. Both extra dural and subdural over the left fronto parietal region. The stomach was empty and so was the bladder. Other organs were healthy, including the heart.

In the opinion of the doctor, the death was due to head injury and injury to the vital parts of the brain which were ante-mortem and sufficient to cause death in the ordinary course of nature.

On September 9, 1985, the appellants and their co-accused Smt. Shero were arrested by S.I. Maghar Singh P.W. 12 and after completion of the investigation and other formalities, they were sent up for trial for offences Under Sections 302 / 325 / 323 read with Section 34 of the Indian Penal Code. So far as Ms. Palo daughter of Ram Asra appellant is concerned, she was not challaned and her name was placed in column No. 2 of the report. An application u/s 319, Cr. P.C. was moved before the learned Sessions Judge Ropar on behalf of the complainant party to summon Ms. Palo as an accused in this case but the same was rejected by him vide order dated January 6, 1986.

On the basis of the evidence on record, the trial Judge acquitted Smt. Shero whereas the two appellants were found guilty u/s 304, Part II read with Section 34, IPC and were convicted and sentenced in the terms as stated above.

I have heard the learned Counsel for the parties and have also gone through the evidence and other material on record.

With a view to connect the appellants with the crime, the prosecution has led evidence on the following counts:--

i) Motive

ii) Ocular evidence

iii) Medical evidence; and

iv) Recovery of weapons of offence.

On the point of motive, the prosecution case is that about a year prior to the present occurrence, Avtar Singh appellant had teased Ms. Karamjit Kaur, grand-daughter of Sham Singh deceased but that matter was got patched up by the local panchayat. Further, a day earlier to the present occurrence, Smt. Shero (since acquitted) and the wife of Sarmukh Singh P.W. 4 had quarrelled with each other on account of their children having an altercation. So far as this part of the prosecution case is concerned, there seems to be no controversy between the parties inasmuch as there was a specific suggestion given by the defence to Sarmukh Singh P.W. 4 that they were falsely implicated because the appellant Avtar Singh had teased Ms. Karamjit Kaur. The motive, as is well known, is a two edged sword. The accused side can very well have a motive to assault the complainant party. At the same time, there can also be motive for the complainant party for having opened the assault on the accused because of the incident of teasing of Ms. Karamjit Kaur by Avtar Singh appellant. As such, I find substance in the contention of the learned Counsel for the appellants that in order to find out as to which party is an aggressor the prosecution case is to be appreciated by testing the ocular evidence of the prosecution with the aid of medical evidence on the touch-stone of cross-examination.

The case of the prosecution as initially set up during the investigation was that appellants Avtar Singh and Ram Asra were armed with a lathi each while their co-accused Smt. Shero (since acquitted by the trial Court) and Ms. Palo (not challaned by the police) were armed with brickbats.

There is no dispute between the parties as to the time and place of occurrence. The only dispute is as to which party is an aggressor. The prosecution case, during the investigation was that appellants Avtar Singh and Ram Asra caused a lathi blow each on the head of Sarmukh Singh P.W. 4; appellant Ram Asra further caused two lathi blows on the left forearm of Sarmukh Singh P.W. 4; Smt. Shero hurled brick-bats at Sarmukh Singh P.W. 4 hitting him on his left eye; Ms. Palo (daughter of appellant Ram Asra) hurled two brick bats at Smt. Kako P.W. 5 resulting in injuries on her forehead and nose whereas Sarmukh Singh P.W. 4 and his brother Harnek Singh had hurled brickbats at the accused party. However, at the trial, Sarmukh Singh P.W. 4 and Smt. Kako P.W. 5 in their deposition denied to have hurled any brickbat at the accused party in exchange of the brickbat thrown by Smt. Shero accused and Ms. Palo and with this part of their statements before the police, both these witnesses were duly confronted. The prosecution witnesses in their deposition in Court have rather denied to have caused any injury to the accused party much less having hurled brick bats at them, but they are proved to be telling all lies in this regard because, as rightly observed by the learned trial Judge, in the FIR Ex.PD, Sarmukh Singh P.W. 4 is stated to have mentioned that he and his brother Harnek Singh had hurled brick bats at the accused party and this part of his statement is in consonance with the defence plea that there was an exchange of brick bats between the two sides. The stand of the prosecution witnesses that they did not cause any injury to the accused, much less, hurled brick bats at them is even belied by the medical evidence.

Dr. Neelam Bhardwaj DW 1 who had medically examined Harvinder Kaur daughter of appellant Ram Asra and Smt. Shamsher Kaur wife of Ram Asra appellant, found the following injuries on their person:--

Injuries of Ms. Harvinder Kaur:--

An abrasion 2 cm. x 1 cm. superficial 4" away and posteriorly from the left ear and 2" away from the midline. X-ray was advised.

She also complained of pain in the right knee joint and X-ray was advised.

Injuries of Smt. Shamsher Kaur:--

Lacerated wound vertically 5 cm. x 1 cm. muscle deep on the right ring finger posteriorly. The movements of the joint were restricted.

Complain of pain in lumber area but no external injury was seen.

X-ray was advised qua both the injuries. As per medical examination of these two ladies, they had received blunt injuries. Further, the factum of injuries having been received by these two ladies from the side of the accused party stands established even from the statement of Smt. Kako P.W. 5 made by her to the police wherein she alleged that Harvinder Kaur had also intervened and she was also hit by brickbats.

There is admittedly a delay of about twelve hours in lodging of the report by Sarmukh Singh P.W. 4 with the police. The observations of the trial Court that this delay has been satisfactorily explained by the prosecution because the immediate concern of the complainant party must naturally be to provide prompt medical aid to the injured seems to be quite reasonable. Learned trial Court is also right in observing that even if there is a delay in lodging of the FIR, that by itself is not sufficient to discard the prosecution case as a false and in such a situation the scrutiny of the prosecution evidence is to be done by the Court to find out the truth in the prosecution case. But if we scrutinize the evidence of the prosecution on the touchstone of cross-examination even with a little care and caution, that would at least go to suggest that the version given by the defence regarding the occurrence cannot be said to be totally unconvincing. There is big distance between ''Must'' and ''May'' and all this distance is to be covered by the prosecution alone. The onus to prove the guilt of the accused is much heavier on the prosecution than for the accused to prove their innocence. In case, two views are possible, then the one favourable to the accused is to be adopted by the Court. The scrutiny of the evidence of the prosecution witnesses would show that, they have not come to the Court with clean hands and have tried to resile during the trial on material facts from those stated by them during the investigation and their evidence about the actual occurrence is also not supported by the medical evidence on record. If that is so, then the delay in lodging of the report, though reasonably explained by the prosecution, is definitely a circumstance to be taken into account at least to conclude that the possibility of the complainant party in coming out with some coloured version about the occurrence or implicating some of the accused falsely cannot be completely ruled out.

The following circumstances, in my view, go a long way to establish that the defence version is quite probable, at least, to make out a case for benefit of doubt in favour of the accused party.

So far as the injuries received by Smt. Kako P.W. 5 and deceased Sham Singh are concerned, the same stand conclusively proved on record and there is even no challenge to this part of the prosecution case from the side of the defence. Similarly, on the side of the accused party, Harvinder Kaur and Smt. Shamsher Kaur have also received injuries as detailed earlier. No doubt the eye-witnesses examined by the prosecution have denied in their cross-examination about these Injuries having been suffered in this occurrence but they were duly confronted with their respective statements made by them before the police wherein the factum of these ladies having received injuries by the hurling of brickbats is clearly mentioned.

According to Sarmukh Singh P.W. 4 and Smt. Kako P.W. 5, appellants Ram Asra and Avtar Singh were armed with lathis with which they caused one injury each on the head of the deceased, while appellant Ram Asra had also inflicted two lathi blows on the left forearm of the deceased and Smt, Shero accused (since acquitted) had hurled brickbats hitting the deceased on his left eye. However, the medical evidence belies to a great extent the testimony of Sarmukh Singh P.W.4 and Smt. Kako P.W.5 when they deposed that the deceased had suffered two injuries on his head and two injuries on his left forearm. If we look at the medical evidence of the deceased, it is clear that the deceased had only one depressed fracture on fronto parietal bone and another fracture on lower third of ulna (left forearm).

Further both Sarmukh Singh P.W. 4 and Smt. Kako P.W. 5 deposed in the Court that Ms. Palo daughter of appellant Ram Asra had caused injuries to Smt. Kako with brick bats on her forehead and nose, but they were duly confronted with their police statements wherein they had clearly stated that Ms. Palo had not caused any injury to Smt. Kako with brick bats so much so that Ms. Palo had not participated in the occurrence.

Again, neither Sarmukh Singh P.W. 4 nor Smt. Kako P.W. 5 during the trial stated a word if Smt. Shero (since acquitted) had caused any injury to Smt. Kako P.W. 5 although this was their case during the investigation and it was for this reason that the learned trial Judge rightly acquitted Smt. Shero of the offences charged with.

The allegations of the prosecution that Smt. Shero accused had caused injuries with a brickbat to Sham Singh deceased on his left eye is otherwise belied by the medical evidence inasmuch as no such injury was found by the doctor on the body of Sham Singh deceased. As per the consistent case of the prosecution, these injuries were received by the deceased by means of lathi blows. However, in the same breath, the prosecution witnesses also admitted that there was exchange of brickbats between the parties. According to Sarmukh Singh P.W. 4, there was a rain of exchange of brickbats and that she and Sham Singh deceased had suffered injuries from those brickbats so much so that Sham Singh deceased had suffered injuries on his head from the brickbats. In the above background, there is every likelihood that the accused side might not have used any lathi or soti in the occurrence and in this situation, the possibility that exchange of brickbats between the parties might have resulted in injuries to the deceased as also to Smt. Kako P.W. 5. Smt. Shero accused and her daughter Harvinder Kaur cannot be said to be an improbable inference. This is even the conclusion drawn by the learned Sessions Judge on the scrutiny of the prosecution evidence and in my view, this conclusion has been rightly arrived at by the learned trial Judge.

From the perusal of the judgment of the trial Court and the various observations made therein by the learned Sessions Judge, expressing his doubts about the truthfulness of the prosecution story regarding the injuries on the person of the deceased having been caused by lathi blows lead to no other inference than the one that the prosecution allegations of the appellants having participated in the occurrence, much less, having used lathis are definitely not free from suspicion and there is lot of substance in the submission of the learned Counsel for the appellants that the learned trial Court was not right in its approach in holding the appellants guilty u/s 304, Part-II, IPC read with Section 34, IPC. Otherwise also, if we scrutinize the ocular evidence in the light of the injuries as found on the body of the deceased, it is difficult to say as to who was the author of the fatal injury on the person of the deceased. In this background, coupled with the fact that when the learned trial Judge has ruled out the possibility of injuries on the person of the deceased having been suffered by means of lathis, thereby concluding the participation of the appellants in the occurrence as doubtful, then there was no material before the learned trial Court to have coined his own version regarding the occurrence, which is inconsistent not only with the story of the prosecution but also with the plea of the defence. Once the participation of the appellants in the occurrence becomes doubtful and the possibility of the injuries having been suffered by exhange of brickbats is shown, the very foundation of the prosecution case is eroded, with no other conclusion than the one that the prosecution case becomes highly doubtful regarding the manner in which the occurrence had taken place and who all from the accused side had participated in this occurrence. If that is so, then there is no other option with the Court but to acquit the appellants for the offences charged with by giving them the benefit of doubt.

In the circumstances discussed above, I hold that the learned Sessions Judge was not right in recording a finding of conviction against the appellants.

Accordingly, I accept the appeal, set-aside the judgment of conviction and the order of sentence passed by the learned trial Court. I, therefore, acquit the appellants of the offence under which they stand convicted by the learned trial Court.

Criminal Revision No. 1570 of 1986 is dismissed.