Avtar Singh vs State of Punjab

Sat Pal, J.

This appeal is directed against the judgment dated 8th August, 1994, passed by the Sessions Judge, Ferozepore. By this judgment, the learned Sessions Judge, Ferozepore, convicted appellant Balkar Singh under Section 302 Indian Penal Code and Avtar Singh appellant for an offence under Section 302 read with Section 34 Indian Penal Code. Both the appellants were sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/ each and in default of payment of fine, they were ordered to undergo R.I. for six months.

Briefly stated, the case of the prosecution is that Kehar Singh deceased who was the brotherinlaw of Gurbachan Singh (PW2) and brother of Mukhtiar Kaur (PW 3) wife of Gurbachan Singh, had come to live with his said brotherinlaw and sister at their place in village Bahawalpur, for helping them in cultivation eight/nine months prior to the date of occurrence. The appellant Avtar Singh and appellant Balkar Singh are real brothers and they were residing in the neighbourhood of said Gurbachan Singh. It has been alleged by the prosecution that on 24th September, 1993, at about 6 P.M. a dispute arose between appellant Avtar Singh and deceased Kehar Singh as Avtar Singh complained to Kehar Singh as to why he had visited his house in his absence. It is further alleged that Gurbachan Singh, PW 2, got the matter settled between them with the help of Karnail Singh Lambardar and thereafter Gurbachan Singh brought Kehar Singh deceased to his house. It is further alleged that on the same day at about 6.30 P.M. Gurbachan Singh (PW 2) and Kehar Singh deceased were sitting in front of their house when appellant Avtar Singh who was armed with Kasia and his brother Balkar Singh (also appellant herein) who was armed with Gandasa came there and told the deceased Kehar Singh that they had come to teach him a lesson for coming to their house. On this, Kehar Singh got up and ran away and both the appellants ran after him along with their weapons while calling him names. PW 2 Gurbachan Singh is alleged to have raised raula (alarm) not to kill him and ran towards them. It is further alleged that on hearing the alarm, Mukhtiar Kaur (PW 3) also came outside from the house through the little door and she also raised alarm but within the sight of Gurbachan Singh and Mukhtiar Kaur, Avtar Singh gave Kasia blow from its reverse side to Kehar Singh while he was running and Balkar Singh gave a Gandasa blow which hit him on his head and as a result of which he fell down in the street. Meanwhile, both the appellants ran away along with their respective weapons towards the house of Avtar Singh. It is further alleged that Gurbachan Singh and PW 3 Mukhtiar Kaur found blood oozing out from the head of deceased Kehar Singh and they found that he had died at the spot. Thereafter, PW 2 Gurbachan Singh gave information about this occurrence to Sarpanch Major Singh and Sukhwinder Singh and meanwhile, Karnail Singh Lambardar reached the spot. After leaving Karnail Singh Lambardar and PW 3 Mukhtiar Kaur for guarding the dead body, PW 2 Gurbachan Singh along with Sarpanch Major Singh came to the Police Station Zira, which is at a distance of 5 miles from village Bahawalpur, on a tractor for lodging the report. The statement of Gurbachan Singh was recorded on 24th September, 1993 at 8.15 p.m. and on the basis of this statement, FIR Exhibit PD was recorded at Police Station Zira. The special report reached the Ilaqa Magistrate at 10 P.M. on the same day.

Thereafter, S.I. Gurmail Singh, SHO P.S. Zira (PW 6) accompanied by the complainant Gurbachan Singh and Sarpanch Major Singh went to the place of occurrence where the dead body of Kehar Singh was lying in the street in village Bahawalpur. He prepared the inquest report, Exhibit PB and entrusted the dead body to Constable Baldev Singh and PHC Volunteer Kashmir Singh for postmortem examination. Then, he lifted the bloodstained earth and simple earth from the place of occurrence and then both were put in separate parcels and taken into possession trough memo Exhibit PE. He prepared rough site plan Exhibit P.O. with marginal notes. Constable Baldev Singh produced the clothes of the deceased which were taken into possession through memo Exhibit PQ and on return to the Police Station, he got deposited the case property with MHC Harbans Singh with seals intact.

On 25th September, 1993, at 10.15 A.M. Dr. Rachhpal Singh, Medical Officer, Zira (PW 1) conducted the postmortem examination on the dead body of Kehar Singh and he found following injuries on the dead body :

"1. Incised wound 4 cm. x 1 cm. present on the left parietal region 10 cms. above the left pinna. Underlying bone was found out. Clotted blood and brain matter in the wound was present.

Incised wound 5 cms. x 1 cm. was present in the upper lip on its right side extending upto the inner side of the lip. Clotted blood was present.

An abrasion 1 x 1 cm. was present on the front aspect of right chest 2 cms. from the middle line and 9 cms. medial to right nipple.

An abrasion 2 x 1 cm. present on the lateral aspect of left chest in its lower 1/3rd x 16 cm below and lateral to left nipple.

Abrasion 4 cm. x 1 cm. present on the back of right lumber region 5 cms. from the middle line.

Abrasion 1 x 1 cm. present on the medial side of left elbow joint.

Abrasion 1 cm. x 1 cm. present on the medial side of left elbow 1.5 cm. below injury No. 6. On dissection of cranial cavity left parietal bone was found cut. Dura and brain matter also found out underneath the cut bone. Cranial cavity contains dark coloured blood.

On opening the chest cavity internal organs found healthy. On opening the abdominal cavity spleen found enlarged and lacerated from its outer surface. Abdominal cavity contains dark coloured blood.

P.W.1 further found that the stomach contained undigested food particles and in his opinion, the cause of death was haemorrhage and shock as a result of injury to the vital organ i.e. brain and spleen which was sufficient to cause death in the ordinary course of nature. He also found that all the injuries were antemortem in nature and the probable time that elapsed between the injuries and death was immediate and between death and postmortem was within 24 hours.

On 29th September, 1993, appellant Avtar Singh was arrested from his village by ASI Gurjant Singh (PW 4) when Major Singh Sarpanch is alleged to have produced him before said Gurjant Singh. It is further the case of prosecution that Avtar Singh was interrogated by ASI Gurjant Singh in the presence of said Sarpanch Major Singh and H.C. Daljit Singh, and as a result of his disclosure statement, Exhibit PF, one Kasia which was lying concealed in the heap of bricks of his house, was recovered. This Kasia was taken into possession through Memo Exhibit PG. The rough site plan with regard to recovery of said Kasia is Exhibit PH. Appellant Balkar Singh was arrested on 4th October, 1994 from his house.

After the completion of the investigation, challan was filed before the Ilaqa Magistrate who committed the accused to the Court of Session.

To sustain its case, the prosecution examined six witnesses. PW 1, Dr. Rachhpal Singh is the doctor who conducted the postmortem examination of deceased Kehar Singh vide post mortem report Exhibit PA. PW 2 Gurbachan Singh (brotherinlaw of the deceased) and PW 3 Mukhtiar Kaur (sister of the deceased) are the eyewitnesses who proved the ocular version of the case. PW 5 Ravinder Singh is the Draftsman who had prepared the scaled site plan Exhibit PJ, with the marginal notes recorded therein. PW 6 SI Gurmail Singh who was the SHO P.S. Zira at the material time, is the I.O. who has proved the investigation of the case. PW 4 ASI Gurjant Singh partly investigated the case and recorded the disclosure statement of appellant Avtar Singh and as a result of this disclosure statement, he recovered Kasia which was used for causing injuries to the deceased.

In their statements recorded under Section 313, Cr.P.C., both the appellants denied the allegations and stated that they were innocent and had been falsely implicated in this case. The appellants, however, did not examine any witness in defence.

Relying on the evidence of the prosecution the learned Sessions Judge, Ferozepore, convicted and sentenced both the appellants as stated herein above, vide impugned judgment dated 8th August, 1994.

Mr. Cheema, learned Senior Counsel, appearing on behalf of the appellants submitted that as per the story of the prosecution, the occurrence happened at 6.30 P.M. on 24th September, 1993. He drew our attention to the statement of Dr. Rachhpal Singh (PW 1) and submitted that as per postmortem report, Exhibit PA, proved by this witness, the stomach of the deceased contained undigested food particles. He also drew our attention to the cross examination of PW 3 Mukhtiar Kaur and submitted that this witness had stated that she had not prepared meal before the occurrence. She further stated that they used to take evening tea at about 3 P.M. and they took some food in the evening tea in the shape of Chapatis. He further submitted that immediately before the time of occurrence, the deceased Kehar Singh had not taken any food but as per post mortem report, as stated above, the stomach of the deceased contained undigested food. He, therefore, contended that the medical evidence in this case falsifies the prosecution case. In support of this submission, he placed reliance on a judgment of the Supreme Court in Shamboo Missir v. The State of Bihar, 1990 SCC (Cri.) 518.

The learned counsel further submitted that as per the statement of PW 2, Gurbachan Singh and PW 3 Mukhtiar Kaur, deceased Kehar Singh after receipt of injuries had fallen on the ground with his face downward and they had not tampered with the dead body and had continued to remain lying in the same position till the I.O. PW 6 visited the place of occurrence, at about 10 P.M. He also drew our attention to the statement of PW 1 Dr. Rachhpal Singh and submitted that as per his statement, the postmortem staining was present at the back at the time when the post mortem was conducted i.e. at about 10.15 AM on 25th September, 1993. He, therefore contended that these facts show that the alleged eye witnesses PW 2 and PW 3 were not present at the time of occurrence.

The learned counsel for the appellants further submitted that the prosecution story that at about 6 P.M. on 24th September, 1993, Kehar Singh deceased and appellant Avtar Singh had exchanged hot words on the ground that Kehar Singh had visited his house in his absence, was totally false and concocted story. He submitted that PW 2, in his examinationinchief, has stated that he and Karnail Singh had intervened and separated them after the hot words were exchanged between Kehar Singh deceased and appellant Avtar Singh but Karnail Singh Lambardar who could have been an independent witness for this alleged happening of 6 P.M. on that day, had not been examined by the prosecution and this clearly created suspicion in the story of the prosecution about the alleged happening of 6 P.M. He further submitted that the said Karnail Singh Lambardar has also been shown as a witness regarding lifting of the blood tainted earth and fixing the place of occurrence and he was the first person to reach the place of occurrence after murderous assault on the deceased but still the prosecution gave up this witness as unnecessary.

The learned counsel further submitted that genesis and the origin of the occurrence has been suppressed by the prosecution. The prosecution has examined only the sister and brotherinlaw of the deceased but have failed to corroborate their statement by independent witness, namely Karnail Singh Lambardar, who was available to the prosecution and who could have thrown light on many points including the fixing of the place of occurrence and also the details of occurrence as told to him by PW 2 and PW 3 as he was the first person to reach the place of occurrence immediately after the happening. He also contend that time was gained by the prosecution to postpone the occurrence.

The learned counsel further submitted that appellant Avtar Singh has been falsely implicated as no specific injury was attributed to him. He submitted that in the statements recorded under Section 161, Cr.P.C., the complainant Gurbachan Singh had stated that Avtar Singh gave Kasia blow from its reverse side to Kehar Singh while he was running away and Balkar Singh gave Gandasi blow which hit him on his head. He, therefore, deliberately did not mention the seat of injury allegedly caused by Avtar Singh. He further submitted that PW 1 Dr. Rachhpal Singh, in his crossexamination, admitted that he had been asked to give opinion in the Court for the first time regarding the possibility of injury No. 5 having been caused by the reverse side of Kasia. He stated that the opinion regarding injury No. 5 was sought by the prosecution only with a view to rope Avtar Singh also.

The learned counsel for the appellant made an alternate submission that there was no previous enmity between the complainant party and the appellants and as submitted by him, the first occurrence of 6 P.M. was totally concocted. He further submitted that besides, as per the case of the prosecution the blows were given to the deceased when he was running. The alleged lalkara was also to teach a lesson and not to kill. He submitted that these facts showed that there was no intention to kill the deceased as it was a sudden flare up. He submitted that as per statement of PW1 Dr. Rachhpal Singh, the cause of death in this case was due to haemorrhage and shock as a result of injury to the vital organs, i.e., brain and spleen which was sufficient to cause death in the ordinary course of nature. He however submitted that the injuries caused to the brain and spleen were not sufficient to cause death in the ordinary course of nature.

The learned counsel, therefore, contended that no case was made out against the appellants under Section 302, Indian Penal Code and at the most the appellants could have been convicted under Section 304 Part I IPC. In support of this submission, the learned counsel placed reliance on the following judgments :

(1)

(2) Jai Raj v. The State of Tamil Nadu, AIR 1976 SC 1519; Radha Kishan v. State of Haryana, 1987 Cr.L.J. 713;

(3) Sunder Singh v. State of Rajasthan, 1988(1) RCR (Crl.) 617 : AIR 1988 SC 2136 ; and

(4) Surinder Kumar v. Union Territory, Chandigarh, 1989(2) R.C.R. (Crl.) 140 : AIR 1989 SC 1094.

Mr. Dhaliwal, learned Deputy Advocate General submitted that injury No. 5 was attributed to appellant Avtar Singh and as per opinion of the doctor,to this injury could have been caused by the reverse side of Kasia and as per the case of the prosecution, Avtar Singh was armed with Kasia at the time of occurrence. He submitted that only the seat of the injury with regard to the blow with the reverse side of the Kasia has not been mentioned as the deceased was running when the blow with Kasia was given to him. As regards the contention of the learned counsel for the appellant that undigested food was found in the stomach of the deceased at the time of conducting the post mortem, the leaned Deputy Advocate General submitted that PW 3 in the cross examination had clearly stated that on the day of occurrence, the deceased had gone to the fields for reaping and he remained in the fields upto 5 P.M. Thereafter, on his way back he had some exchange of hot words with Avtar Singh at 6 P.M. and then he had taken the evening tea with Chapatis on that day. He, therefore, contended that these facts fully tally with the medical evidence. As regards the nonexamination of Karnail Singh Lambardar, he submitted that since the appellants were the residents of the same village where Karnail Singh was residing, he avoided to appear against the appellants. Regarding the place of occurrence, he referred to the statements of the eye witnesses PW 2 and PW 3 and submitted that the time of occurrence as stated by these witnesses was fully corroborated by the evidence of PW 1, Dr. Rachhpal Singh.

As regards the first incident of 6 P.M. on the day of occurrence, the learned counsel for the State submitted that this has been fully proved by the evidence of PW 2 and PW 3, who are the eyewitnesses.

The learned counsel for the State further submitted that the promptness in recording the FIR and receipt of special report by the Ilaqa Magistrate also proved that the two eyewitnesses PW 2 and PW 3 were present at the time of occurrence. He submitted that the occurrence happened at 6.30 P.M. and the formal FIR was recorded at 8.15 P.M. and admittedly the Police Station was at a distance of 5 miles from the place of occurrence. He further submitted that the special report reached the Ilaqa Magistrate at 10 P.M. and thus there is no delay at all to concoct a false case and particularly when in the FIR the names of the accused, the weapons used by them and the place of the occurrence have been mentioned. He submitted that even the place of occurrence cannot be doubted as the blood tainted earth was lifted from point ''A'' as per exhibit PJ which is in front of the house of Gurbachan Singh and as per the report of the Chemical Examiner this earth contained human blood. As regards the nonmentioning the seat of injury attributed to appellant Avtar Singh, the learned counsel submitted that in any case common intention of murderous assault has been proved in this case because of lalkara given by Avtar Singh.

Lastly, the learned counsel submitted that the doctor who conducted the postmortem examination, had given an opinion that the death was due to haemorrhage and shock as a result of injury to the vital organs i.e. brain and spleen. He, therefore, contended that since both brain and spleen are vital organs, injury on any one of them was sufficient to cause death in the ordinary course of nature.

We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records carefully.

As regards the contention of the learned counsel for the appellant that medical evidence in this case falsifies the case of prosecution as the stomach contained undigested food, we do not find any merit in this contention. In fact, PW3, in her crossexamination, though stated that they used to take their evening tea at about 3 P.M. but she added that on the day of occurrence, the deceased was busy in loading paddy upto 5 P.M. and thereafter he returned home. From this it is clear that the deceased must have taken his evening tea with Chapatis between 5.30 P.M. and 6 P.M. and as such the medical evidence that his stomach contained undigested food does not falsify the prosecution case. In view of these facts, the judgment of the Supreme Court in the case of Shamboo Missir (supra) relied upon by the learned counsel for the appellant is of no assistance to him.

We also do not find any merit in the contention of the learned counsel for the appellants that any injury attributed to any of the appellants was not sufficient to cause death in the ordinary course of nature. From the evidence of PW1, Dr. Rachhpal Singh, it is evident that the doctor has clearly stated that in his opinion the cause of death was due to haemorrhage and shock as a result of injuries to the vital organs i.e. brain and spleen which were sufficient to cause death in the ordinary course of nature.

It has been proved by SI Gurmail Singh 10 (PW6) that on 25th September, 1993, he inspected the place of occurrence and lifted bloodstained earth and simple earth from that place and as per rough site plan Exhibit PO, the place of occurrence marked ''A'' is just opposite the house of Gurbachan Singh. These samples were sent to the Chemical Examiner and as per report of the Forensic Science laboratory, Exhibit PN, the blood stained soil sealed sample was found similar to the control soil sample. The time of occurrence is 6.30 P.M. and PW3 Mukhtiar Kaur was cooking food at that time. In view of these facts, the presence of PW2 Gurbachan Singh and PW3 Mukhtiar Kaur at the place of occurrence is natural.

The eyewitnesses PW2 and PW3 have stated in their evidence that at about 6.30 P.M. they saw that the appellant Avtar Singh who was armed with Kasia and appellant Balkar Singh who was armed with Gandasa were chasing deceased Kehar Singh who was running and within their sight, Avtar Singh gave a kasia blow from its reverse side to Kehar Singh and Balkar Singh gave a Gandasa blow on the head of the deceased and on receipt of these injuries, Kehar Singh fell down on the ground in the street. They raised raula and meanwhile both the appellants ran away towards their house along with their weapons and they found blood oozing out from the head of Kehar Singh and he succumbed to his injuries at the spot. Thereafter Karnail Singh Lambardar reached the spot, then PW2 informed Major Singh Sarpanch and PW2 and Major Singh then went to the Police Station on the tractor of Major Singh Sarpanch. Admittedly the distance between the place of occurrence and the Police Station is 5 miles and the FIR was recorded at 8.15 P.M. and the special report also reached the Ilaqa Magistrate at 10 P.M. From these facts it is clear that there was no delay at all in recording the FIR and sending the special report to the Ilaqa Magistrate. Keeping in view these facts, we are of the considered view that the ocular version of the eyewitnesses PW 2 and PW 3 with regard to the murderous assault on the deceased Kehar Singh by the appellants is true and correct. This ocular version is also corroborated by the medical evidence of PW 1, Dr. Rachhpal Singh who found 7 injuries on the body of the deceased including incised wound on the brain portion of the head and abrasion 4 cm. on the back of the right lumber region 5 cm. from the middle line. It is true that PW 2 and PW 3 did not mention about the seat of injuries attributed to Avtar Singh who had given the Kasia blow from its reverse side but this omission is not of any consequence as PW 1 Dr. Rachhpal Singh has stated in his evidence that Injury No. 5 which was on the back of the deceased was caused by the reverse side of the Kasia, particularly when this injury was caused, the deceased was running.

Since we have come to the conclusion that eyewitnesses PW 2 and PW 3 were present at the spot at the time of occurrence and their evidence inspires confidence, we do not find any substance in the contention of the learned counsel for the appellants that appellant Avtar Singh had been falsely implicated as no specific injury was attributed to him. For the same reasons, we reject the contention of the learned counsel for the appellants that PW2 and PW3 were not present at the time of occurrence.

We are, however, unable to accept that part of the prosecution story that half an hour before the occurrence i.e. at about 6 P.M. deceased Kehar Singh and appellant Avtar Singh had exchanged hot words on the ground that Kehar Singh had visited his house in his absence. PW2, in his statement, has stated that when the said hot words were exchanged between Avtar Singh and Kehar Singh, he and Karnail Singh Lambardar had intervened and separated them and he had then brought Kehar Singh to his house. From this, it is evident that the occurrence was witnessed by Karnail Singh Lambardar and he had been the proper and necessary witness to prove this incident. Though Karnail Singh Lambardar was cited as one of the prosecution witnesses but as per the statement of the Public Prosecutor dated 22nd April, 1994, this witness was given up as unnecessary. Nonexamination of Karnail Singh Lambardar, according to us, has damaged the prosecution case with regard to the alleged first occurrence of 6 P.M.

There is another substantial discrepancy about this alleged incident of 6 P.M. Eyewitness PW3 Mukhtiar Kaur, in her examinationinchief, had stated that she had witnessed that at about 6 P.M. her brother Kehar Singh and Avtar Singh appellant had exchanged hot words on the ground that Avtar Singh had told her brother as to why he had visited his house in his absence and then her husband Gurbachan Singh and Karnail Singh intervened and her husband had brought her brother to her house but in her crossexamination, she stated that the exchange of hot words at 6 P.M. took place when the deceased was returning from the fields but PW 2 Gurbachan Singh, in his statement, has clearly stated that his wife was present in her house, at that time. In this connection, reference may be made to a judgment of the Supreme Court in The State of U.P. v. Jaggo alias Jagdish, AIR 1971 SC 1586. In this judgment, it was held by the Hon''ble Supreme Court that "it is true that all the witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is necessary and essential to the unfolding of the narrative should be called."

In view of the above facts, it appears more natural that when the appellants came to their house, they found that Kehar Singh was present in the house of Avtar Singh and having found that Kehar Singh had visited their house in their absence, they became annoyed and Avtar Singh picked up a kasia and Balkar Singh took a Gandasa and both started chasing Kehar Singh who must have started running towards his house to avoid the injuries. This fact is substantiated from the scaled site plan, Exhibit PJ which shows that the house of Avtar Singh is in the gali on the right side and if one goes from this house to the house of Gurbachan Singh, one has to cover first the lane where the house of Avtar Singh is situated and then on the main road which is 16 ft. wide and then one has to turn to the lane to the right side to reach the house of Gurbachan Singh where the occurrence had taken place. This is further proved from the fact that when deceased Kehar Singh was running appellant Balkar Singh gave a gandasa blow on the head of Kehar Singh and appellant Avtar Singh gave the Kasia blow from its reverse side which hit him on his back and these injuries are corroborated by the medical evidence of PW1 Dr. Rachhpal Singh.

We are, therefore, of the considered view that the above mentioned circumstances warrant the conclusion that the appellant on account of grave and sudden provocation must have picked up weapons and caused injuries and two of which (one attributed to Balkar Singh and one attributed to Avtar Singh) proved fatal, thus attracting Exception 4 to Section 300 IPC. The view we have taken finds support from the judgments of the Supreme Court in the case of Radha Kishan (supra) and Surinder Kumar (supra).

We, therefore, modify the conviction of the appellants from Section 302 IPC to Section 304 Part I IPC and award for the said conviction 10 years rigorous imprisonment to each of the appellants.

For the reasons recorded above, the appeal is partly allowed.