Inder Singh vs State of Punjab

A. P. Chowdhri, J.

Inder Singh (40) and his brother Sohan Singh (28) were convicted under section 302, read with section 34, Indian Penal Code, and sentenced to imprisonment for life by learned Additional Sessions Judge, Amritsar, by his order dated 31101986.

Chanan Singh (60), deceased, was living with his son Kabal Singh, PW I in his behak in mand area of village Sabhra, at a distance of about 2/3 kms. from the village abadi. An eyewitness account of the occurrence given by Kabal Singh, PW 1, is that on 11111985, he alongwith his father Chanan Singh were going towards village Sabhra to see off Kabal Singh''s maternal uncle Gurnam Singh, PW 2. Gurnam Singh is a resident of village Pangota, 7/8 miles from village Sabhra. Gurnam Singh had come to consult his brotherinlaw Chanan Singh regarding arrangements to be made for he marriage of his son. The three had proceeded to a distance of about 40 karams from their behak. Chanan Singh was going 1015 karams ahead of Kabal Singh, PW I and Gurnam Singh, PW 2. They reached near the place called `Baba Kala Shah. Inder Singh and Sohan Singh accused came from the side of village Sabhra. Inder Singh was carrying a dang fitted with sammi and Sohan Singh, accused was armed with a dang, to which was attached a takwa. On seeing Chanan Singh. Inder Singh raised a lalkara that his son Kabal Singh had pulled the beard of their father without any reason and that he should be taught a lesson for the same that day. Inder Singh, accused then gave two blows with the dang on the head of Chanan Singh. One blow fell on his head on the right side and Chanan Singh fell down on the ground. The other blow aimed at his head fell on the ground. While Chanan Singh was lying, Sohan Singh, accused gave him a blow with his dang on the left leg. Inder Singh accused gave a dang blow hitting him on the right leg. Kabal Singh and Gurnam Singh raised alarm and the accused persons ran away with their weapons.

The cause of the incident, according to Kabal Singh, PW 1, is that three years earlier there was a quarrel between Inder Singh and Sohan Singh, accused, on one hard and Kabal Singh, PW I and his father Chanan Singh, deceased on the other hand. The matter was not reported to the police, as respectability of the village intervened and got effected a compromise. The accused, however, nursed a grudge against Chanan Singh and Kabul Singh on that account.

Soon thereafter Darshan Singh and Banta Singh (given up as having been won over) reached the place. of occurrence. A cot was arranged and Chanan Singh injured, was removed to the dispensary at Sabhra at about 11 a. m. The doctor posted in the dispensary was not available. Birbal Kumar, PW 4, Pharmacist, Subsidiary Health Centre, Sabhra, entered the arrival of the injured at Sr. No. 9848 in the O.P.D. Register and finding his condition serious referred him to S.G.T.B. Hospital, Amritsar. He also gave him a reference slip. The injured was then taken to General Hospital Patti, where Dr. Sham Lal Gupta, PW, received him at 12.30 noon. The injured, according to the record prepared by Dr. Sham Lal Gupta, PW 3, was at that time accompanied by Darshan Singh son of Harnam Singh and Banta Singh, son of Inder Singh of village Sabhra. In fact. Darshan Singh and Banta Singh, aforesaid, thumb marked the outdoor admission register regularly maintained at General Hospital, Patti, in token of the fact that they brought the injured Chanan Singh to the hospital. Dr. Sham Lal Gupta, PW 3, sent ruqa. Exhibit PF, to Station House Officer, Police. Station Patti, he prepared Bed Head Ticket, Exhibit PJ, with regard to Chanan,Singh.

Assistant SubInspector Gurdip Singh, PW 5, went to the hospital and made application, Exhibit PF, to ascertain the fitness of Chanan Singh to make a statement. Chanan Singh was in deep coma and was declared unfit to make a statement by Dr. Sham Lal Gupta vide Endst. Exhibit PF/1. A.S.1 Gurdip Singh then recorded statement of Kabal Singh, PW 1, at about 3 p,m. The statement is Exhibit PA. With his Endst. Exhibit PA/l, the statement was sent to Police Station Patti, where a case under sections 308/34, Indian Penal Code, was registered.

A.S.I. Gurdip Singh went to the spot and found Darshan Singh, Banta Singh and Gurnam Singh present there. He inspected the place of occurrence. He did not find any bloodstained earth at the place of occurrence. He prepared the visual site plan, Exhibit PK, and recorded statement of Gurnam Singh, PW under section 161 of the Code of Criminal Procedure.

Chanan Singh died at 7 p.m. the same day in General Hospital, Patti.

Dr. Sham Lal Gupta, PW 3, sent ruqa Exhibit PH to the Station House Officer, Police Station Patti regarding the death. A.S.I. Gurdip Singh converted the offence under section 302, Indian Penal Code. He again went to the General Hospital, Patti. He prepard inquest report, Exhibit PB on 12111985 at about 8.30 am and made arrangement for the postmortem examination report on the dead body. The postmortem examination was carried out by Dr. Sham Lal, PW 3, at 11.30 a.m. on 12111985. Dr. Gupta noted the following injuries in the post mortem examination Exhibit PC :

(1) There was a lacerated wound 2 cm x 1 cm on the inner aspect of right leg, lower onethird part.

On dissection the wound was muscle deep and there was no bone injury.

(2) Incised wound 3 cm x I cm deep to bone on the medial aspect of left leg lower onethird part.

On dissection underlying bones were fractured and clotted blood was present in the muscles.

Defused swelling 15 cm x 9 cm on right temporal region of scalp surrounding the right ear, and there was bleeding from the right ear.

On dissection of the swelling there was subcutaneous haemorrhage underneath the scalp i.e. on right temporal region, right parietal region of scalp. There was depressed fracture on right temporal, right parietal region of skull. It was 5 cm x 4 cm Bone was fractured in many pieces and impregnated in the layers of brain and brain matter. The brain layers were injured and clotted blood was present. Brain matter was lacerated on right hemisphere of brain i.e. right temporal and right parietal region. Clotted blood was present. Haemorrhage of large size was present in the substance of brain on right hemisphere. He found stomach of the deceased to contain a very small quantity of semidigested food. In his opinion, the cause of death was shock and haemorrhage on account of injury No. 3. The injury, was sufficient to cause death in the ordinary course of nature. It was antemortem and caused by a blunt weapon. The seat of injuries were shown in the pictorial diagrams Exhibit PC/1 and PC/2 by Dr. P.C. Gupta.

Copy of the special report was delivered to SubDivisional Magistrate, Patti, at his residence at 6.00 a.m. vide endorsement Exhibit PE/3. Investigation of the case was taken over by S.I. Gajjan Singh. PW 7, on 14111985. Both the accused surrendered before him on 18.11.1985. They were put under arrest on 21.11.1985 Inder Singh accused got recovered dang, Exhibit p5, in pursuance of disclosure statement, Exhibit PL. It was taken into possession vide memo. Exhibit PN/I. Sohan Singh accused got recovered dang, Exhibit P6, in pursuance of his disclosure statement, Exhibit PO. It was taken into possession vide memo Exhibit PO/l. The investigating officer also prepared site plan of the place of recovery.

At the trial, the prosecution examined Kabul Singh, PW I and Gurnam Singh PW 2 as eyewitnesses of the occurrence. Birbal Kumar Pharmacist, Subsidiary Health Centre, Sabhra, PW 4 and Dr. Sham Lal Gupta, PW 3, were also examined Darshan Singh and Banta Singh, who reached the place of the occurrence soon after were given up as having been won over. Both the investigating officers A.S.I. Gurdip Singh, PW 5 and. S.I. Gajjan Singh, PW 7 were examined The plea of both the accused is one of denial. No evidence was produced by the accused in defence.

Learned Additional Sessions Judge, Amritsar, convicted and sentenced the appellants. Hence this appeal.

The contention of learned counsel for the appellants is that no reliance could be placed on the testimony of Kabul Singh, PW I and Gurnam Singh. PW 2. We have scrutinized the record with the assistance of learned counsel for the appellants and learned counsel for the State. After careful consideration, we are of the view that the testimony of the alleged eyewitnesses cannot be accepted and their presence at the time of occurrence appears to be highly doubtful.

We state our reasons for coming to the above conclusion.

The place of occurrence near the mazzar of Baba Kale Shah is not fixed on account of nonrecovery of blood stained earth. It was admitted by A.S.1 Gurdip Singh, PW 5 that no blood stained earth was found at the place of occurrence.

While considering the evidence of the two eyewitnesses, it has to be remembered that admittedly Kabal Singh, PW is the son of the deceased and Gurnam Singh, PW 2 is brotherinlaw of the deceased and maternal uncle of Kabul Singh, PW 1. Both the witnesses are thus highly interested and their evidence is to be scrutinized with more than usual care. In the case of Gurnam Singh, PW 2, it has further to be born in mind that he belongs to Village Pangota, 78 miles from the place of occurrence and there is undeniably an element of chance in his being present in the area of village Sabhra at the time of occurrence. The prosecution is required to satisfy from all available circumstances that the presence of Gurnam Singh at the time of occurrence is established. It was to be expected that if Gurnam Singh, PW 2, was really present. his presence would be noted, either at the Subsidiary Health Centre, Sabhra or at the time of admission of the injured at General Hospital. Patti. Not only that the presence of neither Kabal Singh, PW I nor of Gurnam Singh, PW 2 was noted at either of the abovementioned two places. The injured was brought to the General Hospital, Patti by Darshan Singh and Banta Singh, residents of Sabhra.

The evidence of both the eyewitnesses suffers from from a serious infirmity in that they made improvements in their testimoney in Court on vital facts of the case. In the FIR the categorical stand of Kabul Singh PW I was that the two accused were armed with dangs. At the trial, Kabal Singh, PW 1, stated that the dang carried by Inder Singh, accused had an iron covering called sammi and the dang carried by Sohan Singh, accused, had a takwa, with sharp edged weapon attached to it. The witnesses also improved on their statements made to the police with regard to the details of the assault. According to FIR Inder Singh after uttering the lalkara gave two dang blows on the head of Chanan Singh, as a result of which he fell down. In the Court he stated that Inder Singh gave one blow on the head of Chanan Singh, as a result of which he fell down and his second blow also aimed at the head of Inder fell on the ground. This improvement has been made in order to bring the ocular testimony in line with the medical evidence. Dr. Sham Lal Gupta, PW 3, in crossexamination stated that the blow resulting in injury No. 3, as per postmortem examination report must have been given with considerable force. Kabul Singh, PW I and Gurnam Singh, PW 2 were duly confronted with the material portions of the FIR Exhibit PE and the statement, Exhibit DA (made by Gurnam Singh) respectively and they had no explanation to offer for the material omissions made by them before the police.

Yet another improvement in the ocular testimony is that while in the FIR it was stated that after Chanan Singh had fallen, Sohan Singh and Inder Singh continued giving him blows on both his legs. In the evidence in Court, the witnesses Kabul Singh, PW 1 and Gurnam Singh, PW 2 stated that Sohan Singh gave a blow on the left leg of Chanan Singh with the takwa and Inder Singh gave one blow on the right leg with his dang. This improvement has been made in order to make ocular testimony consistent with the medical evidence and, more importantly to furnish an explanation as to the presence of incised injury described as injury No. 2 in the person of Chanan Singh. If these witnesses had seen the occurrence, there was no reason why a mention of takwa fixed to the dang carried by Sohan Singh could not be made in the FIR by Kabul Singh PW 1.

The above facts clearly bring out a conflict between ocular testimony of the eyewitnesses and the medical evidence. Injury No., 2 noted by Dr. Sham Lal Gupta, PW 3, was an incised wound 31/2 cm x 1 cm deep upto the bone on the medial aspect or the left leg, lower onethird part. Such an injury could not be received with an ordinary dang. In order to get over this difficulty, both the eyewitnesses made material improvement in their testimony in Court. The conflict between ocular testimony and medical evidence is thus with regard to the weapon used by Sohan Singh, accused. In order to explain the extent of damage caused to the head of the deceased, Kabul Singh, PW.1, made the improvement that the dang carried by Inder Singh, accused, was fitted with an iron covering.

From the evidence on, record Chanan Singh, injured reached General Hospital Patti at about 1230 pm. There is a police station at Patti, which is SubDivisonal Headquarter. Apart from others, Kabal Singh P.W. 2 and Gurnam Singh P.W. 3 were present in the hospital along with the Injured. No explanation has been rendered why one of them could not inform the police. It was argued that they were more concerned with saving the life of Chanan Singh rather than in reporting the matter to the police. This explanation is not adequate in the facts of the present case. A.S.I. Gurdip Singh, PW 5, reached the hospital on receipt of ruqa from the doctor and he recorded statement, Exhibit PA, of Kabal Singh at 3.00 p.m.Gurnam Singh, who claims to be eyewitness was present there and admittedly his statement was not recorded by A.S.I. Gurdip Singh, PW 5, in the hospital. It was later in the village after inspecting the spot that the statement of Gurnam Singh was recorded by A.S.I. Gurdip Singh, PW 5. This renders the presence of Gurnam Singh, PW 2, in the hospital even upto 3.00 p.m. open to serious doubt It bears repetition that the presence of neither Kabal Singh, PW I nor Gurnam Singh PW 2 was either recorded or mentioned by Birbal Kumar, Pharmacist, Subsidiary Health Centre, Sabhra (PW 4) or by Dr. Sham Lal Gupta, Medical Officer, General Hospital, (PW 3) when the injured was taken to the two places respectively. Instead Dr. Sham Lal Gupta, PW 3, noted in the admission register of the General Hospital that the injured had been brought by Darshan Singh and Banta Singh. If the son and brotherinlaw of the injured had accompanied the injured there was no understandable reason why their presence would not have been recorded in the admission register produced in the trial Court by Dr. Sham Lal Gupta, PW 3. This renders the presence of both the witnesses open to doubt.

The prosecution also failed to prove the motive. Not that motive in a case depending on the eyewitnesses is material but where motive is attributed, the Court has to consider how far the same had been proved and whether the existence of the alleged motive rendered the prosecution version probable. In the FIR it was stated by, Kabal Singh, PW 1, that he had pulled the beard of the father of the two accused. The matter was, however, got compromised by some respectables of the village about three years prior to the present occurrence. At the trial, Kabal Singh, PW 1, made an improvement and stated that the earlier incident involved not only him, but his father Chanan Singh on the side of the complainant and only Sohan Singh on the side of the accused. In his evidence, as PW 1 Kabal Singh introduced Inder Singh besides Sohan Singh accused as the one involved in the earlier incident. No evidence was produced to show that such an incident did really happen and that the matter was compromised through the good offices of some respectables of the village. According to the motive mentioned in the FIR Kabal Singh had pulled the hair of the head of the father of the two accused. The grievance of the two accused was thus against Kabal Singh and it would be highly improbable that the accused would attack Kabal Singh''s father Chanan Singh. It is also highly improbable that such an incident occurred and no report thereof was made to the police or even to the Gram Panchayat. There was no history of any untoward incident during the long period of three years in between the earlier incident and the present occurrence. It is thus clear that Kabal Singh tried to improve in his statement in so far as motive is concerned by involving Chanan Singh on the complainant''s side and Inder Singh on the side of the accused in the incident, which took place three years prior to the occurrence in question. The motive part of the prosecution has thus not been substantiated.

In the result the appeal is allowed and both the accused are acquitted.