Jarnail Singh vs State of Punjab

J.S. Sekhon, J.

Jarnail Singh and his brother Karnail Singh appellants were tried and held guilty and convicted on the charge for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code for the murder of Darshan Singh by the learned Session Judge, Bhatinda. Each one of them was awarded sentence of Rigorous Imprisonment for life and fine of Rs. 2,000/ or in default of payment thereof to undergo further four months Rigorous Imprisonment. Feeling aggrieved against the orders of their conviction and sentence, they have come up in appeal.

Jangir Singh complainant has also preferred Criminal Revision No. 803 of 1993 against the same order of conviction and sentence of the trial court for awarding Rs. 1 lac as compensation to the legal heirs of the deceased. Both these matters would be disposed of by this order as these arise out of the same judgment of the trial Court and rest upon the same evidence.

In brief, the facts of the prosecution case are that Chhota Singh younger brother of Jarnail Singh and Karnail Singh accused was murdered. Darshan Singh deceased of this case alongwith Mithu Singh and Gurdev Singh were prosecuted for that murder. Aforesaid Gurdev Singh died even before the presentation of challan but the other two including Darshan Singh deceased of this case, were acquitted. This is alleged to be sole root cause of murder of Darshan Singh. With this background of strained relations, on 12th November, 1988 at about 12.15 P.M. when Darshan Singh deceased alongwith his uncle Jangir Singh (PW5) was proceeding towards has fields in the area of village Chaoke for availing the turn of canal water. Jarnail Singh accused armed with spade and Karnail Singh with the gandasa accosted them near cotton field of Jarnail Singh. Karnail Singh accused challenged Darshan Singh deceased to face the consequences for committing murder of Chhota Singh. Karnail Singh then gave gandasa blow from its reverse side on right jaw of Darshan Singh which resulted in his fall. Thereafter Jarnail Singh accused chopped off right wrist of Darshan Singh with his spade. He gave further injuries with the spade on the head, neck and back of the victim. Charan Singh PW working in the nearby fields was also attracted to the spot. On the alarm raised by Jangir Singh and Charan Singh, eye witnesses, both the accused with their respective weapons fled away from the spot. Darshan Singh was found dead just thereafter. leaving Charan Singh witness to guard the dead body, aforesaid Jagir Singh PW rushed to Police Post of his village Chaoke and lodged report. Ex. PD with Assistant SubInspector Deep Chand (PW6) at 1.30 P.M. It was recorded in the Daily Diary Register of the Police Post. A copy of this report was despatched to Police Station Phul through constable Dalbir Singh for registration of a case under Sections 302/34 of the Indian Penal Code against the accused. On the basis of the report a case for the above referred offences was registered against the accused by Assistant SubInspector Jagdish Singh vide FIR Ex.PD/I at 3.45 P.M.

Assistant SubInspector Deep Chand after despatching the statement Ex.PD. to the Police Station from the Police Post returned to the spot and found the dead body of Darshan Singh lying in the kacha blind passage leading to the fields in the revenue estate of village Chaoke. He drafted Inquest Report Ex PA on the dead body in the presence of Charan Singh and Jangir Singh witnesses. Dead body alongwith the chopped off right wrist were entrusted to constables Leela Singh and Mithu Singh for autopsy. The Assistant Sub Inspector also seized blood stained earth from the sport after putting it in sealed parcel. Turban of the deceased was also found lying at the spot and taken into possession. The visual site plan Ex. PH of the spot was also prepared. The Assistant Sub Inspector also searched for Jarnail Singh accused but failed to locate him on the day of the occurrence as well as on the following day.

Arrest of Karnail Singh was deferred by Assistant SubInspector Deep Chand after recording statements of Maghar Singh, Darshan Singh and Dhanna Singh on 12.11.1988 during investigation of the case at the spot. The investigation conducted by this Police Officer was verified by Shri Gurdev Singh Inspector and Shri Sukhmandar Singh, Deputy Superintendent of Police Incharge of that area.

The autopsy on the dead body of Darshan Singh was conducted by Doctor Sat Pal Gupta of Civil Hospital Rampura Phul on 13th November 1988 at 8.00 A.M. This Doctor found 17 injuries on the dead body out of which injury No. 10 comprised of four linear incised wounds while injury No. 11 three linear incised wounds and injury No. 12 two linear incised wounds. Injuries No. 1, 2 and 3 located on the different portions of the skull were found sufficient to cause death in the ordinary course of nature due to internal damage to the skull bones and brain matter. All the injuries were antemortem in nature.

Jarnail Singh accused continued absconding till his arrest on 28.11.1988. On interrogation in the presence of constable Dalbir Singh (PW7) and Charan Singh witness, accused disclosed having kept concealed spade underneath heap of ''turi'' in his ''turiwala'' kotha vide his statement Ex. PK. Thereafter he led the Police Party to the said place and got recovered spade therefrom. It was seized after putting it in a sealed parcel. The parcels of blood stained earth lifted from the spot and spade Ex. P. 1 of Jarnal Singh accused were sent to the Chemical Examiner who found blood thereon while the Serologist confirmed the origin of blood to be of human on both these articles.

After completion of investigation, Jarnail Singh accused was arranged for that on such like allegations while Karnail Singh appellant was found innocent and his name was placed in column No. 2 of the final report under Section 173 of the Code of Criminal Procedure.

The Committing Magistrate committed the case against Jarnail Singh accused only to the court of Sessions. The trial court, however, took cognizance of the offence against Karnail Singh accused also after recording statement of Jangir Singh eye witness. A charge for an offence under Section 302 read with Section 34 of the Indian Penal Code was framed against both the accused appellants. They pleaded not guilty to the charge and claimed trial.

In order to prove its above referred case before the trial court the prosecution examined seven witnesses including the tendering of formal evidence of Head Constable Major Singh and constable Mithu Singh on affidavits which were ordered to be read as statements of PW3 and PW4 respectively as these witnesses were not required by the defence for crossexamination purposes. The reports Ex. PM and Ex. PN of the Chemical Examination and Serologist, respectively, were also tendered in the evidence. Jangir Singh eye witness PW5 supported the above referred version of the prosecution while the other witness namely Charan Singh was not examined on the pretext of having been won over by the accused.

Both the accusedappellants set up the plea of denial and false implication in their statement under Section 313 of the Code of Criminal Procedure recorded by the trial court. Jarnail Singh accusedappellant further stated that Jangir Singh PW was not cultivating any land and on the day of the occurrence he had gone to his fields in order to irrigate the land purchased by him from Mohinder Singh as turn of canal water started from 9.12 A.M. to 9.36 A.M. He saw the dead body of the Darshan Singh lying near the water course at about 9 A.M. After diverting the flow of water he returned to the village. His brother Karnail Singh resided separately from him since long. He further stated that Jangir Singh had no turn of canal water on the day of the occurrence. He also asserted having been arrested by the police on 13.11.1988. He denied having made any disclosure statement or got recovered of spade. Karnail Singh accused also adopted the above referred version of his brother.

When called upon to enter their defence, the accused examined Darshan Singh PW1 who deposed having seen an unknown person with muffled face causing injuries with gandasa to Darshan Singh deceased at 9 A.M. near water course outlet of Jarnail Singh accused. He also stated that Jarnail Singh accused came there at about 9.15 A.M. in order to avail the turn of water pertaining to the land purchased by him from Mohinder Singh and after diverting flow of water he went to his house. He also maintained having informed Jangir Singh PW of this occurrence in the village. The police came to the spot and he narrated the entire occurrence. The certified copies Ex. DA of the varabandi, Ex. DB of the jamabandi for the year 19851986 and Ex. DC to Ex. DG of the extract of entries of Talfi register were also tendered in evidence.

The trial court believing the ocular evidence of Jangir Singh PW5 coupled with the medical evidence and other circumstantial evidence convicted and sentenced the appellants as referred above. The defence version did not find favour with the trial court.

Mr. T.S. Sangha, the learned counsel for the appellants, contends that the order of conviction of the trial court cannot be maintained being based on the solitary statement of Jangir Singh PW5 who is not only uncle of the deceased but inimical towards accusedappellants. He further pressed into service the delay in conveying the Special Report to the Illaqa Magistrate at 8.30 P.M. although the F.I.R. was registered at 3.45 P.M. at the Police Station in order to persuade the court that both the appellants were implicated on suspicion and enmity as the dead body of Darshan Singh was found lying in the passage near the fields of Jarnail Singh accused. He further stressed that Jangir Singh PW5 or Darshan Singh deceased had no business to go to their fields as they were not cultivating their land themselves. The nonproduction of the varabandi of the canal water turn was also stressed.

Shri K.S. Sidhu, learned Additional Advocate General Punjab, on the other hand supported the findings of the trial Court contending that presence of Jangir Singh PW5 alongwith Darshan Singh deceased is natural as they had to avail canal water turn on the day of the occurrence at 12.56 P.M. He further stressed that the medical evidence renders due assurance to the testimony of Jangir Singh PW and nonexamination of Charan Singh PW would be of no consequence as his evidence was not essential to unfold the prosecution case. He further stated that the first Information Report was promptly lodged in this case and the dead body alongwith police papers having been received by the Senior Medical Officer in the Mortuary at 5.50 P.M. on the day of this occurrence further rules out the possibility of giving twist to the real facts.

Admittedly for the murder of Chotta Singh younger brother of the accusedappellants, Darshan Singh deceased alongwith Gurdev Singh and Mithu Singh were prosecuted. Testimony of Jangir Singh (PW5) in this regard was not at all challenged by the prosecution during crossexamination. On the other hand, it was elicited from him that aforesaid Gurdev Singh died in custody even before the presentation of challan in that case while Darshan Singh deceased of this case and Mithu Singh were ultimately acquitted. He also stated that both these persons remained on bail during the pendency of that case for about 2/3 years. He further stated that Jarnail Singh and Karnail Singh accused of this case had appeared as prosecution witnesses against Darshan Singh and aforesaid Mithu Singh in the earlier murder case. Jangir Singh PW also stated in the examinationinchief that Darshan Singh deceased of this case was acquitted in the said case by Additional Sessions Judge, Bhatinda on 7.11.1988 i.e. only five days prior to this occurrence. Thus there is no escape but to conclude that both the accusedappellants had motive to kill Darshan Singh for taking revenge of the murder of their brother Chhota Singh. The mere factum that Darshan Singh accused remained on bail for a period of three years during the pendency of the trial relating to the murder of Chhota Singh or that the accused had not assaulted him during that period is of no consequence since the accused could have reasonably excepted that Darshan Singh deceased and his accused Mithu Singh would be convicted and awarded sentence by the trial court. Consequently there is no escape but to hold that accused had motive to commit the murder of Darshan Singh. However, enmity being a double edged weapon, it will not only explain the conduct of the accused in committing murder of Darshan Singh but also provide a reason for their false implication if in fact Jangir Singh PW had not seen the occurrence. Thus the fate of this case hinges upon the reliability of the solitary testimony of Jangir Singh.

It is not disputed that Jangir Singh PW is the uncle of Darshan Singh deceased and that they have a joint Khatta of land holdings in village Chaoke and that their land is located near the land of accused. It is consistent version of Jangir Singh PW that he alongwith Darshan Singh deceased was proceeding towards their fields at about 12.15 P.M. for availing the turn of canal water which started at about 1.00 P.M. Jangir Singh PW also admitted during crossexamination that he had three kilas of land out of which 11/2 kilas of land is on lease with Chhota Singh and Gurmel Singh and in the remaining 11/2 killas he had sown Nirma crop. Simply because this witness had not kept bullocks or camel for cultivating small piece of land holdings, it cannot be said that he was not cultivating it especially when he could do so after hiring the plough or tractor or rent basis. This witness also admitted that Darshan Singh deceased had given the entire land on lease to Chhota Singh and Gurmail Singh for the last one year prior to the day of this occurrence. The above referred commission of this witness sounds truthful as Darshan Singh continued facing trial for three years for the murder of Chhota Singh brother of the present accused and thus he failed to cultivate the land himself and gave it on lease. It is also admitted by Jangir Singh PW that the accused were irrigating the land which they had purchased from Mohinder Singh and the water was actually flowing through water course running across the kacha passage which they were following. He further stated during cross examination that he had joint khata of land with Darshan Singh deceased and Charan Singh witness and that they used to avail turn of water at 12.56 P.M. by mutually agreeing that on one occasion this witness will avail the turn of water lasting for one hour and 39 minutes and on the other occasion other will do so. In view of the short spell of their joint turn of water, this arrangement to avail entire turn of water by each one of them sounds truthful especially when turn of water falls on every Saturday. He also stated that Charan Singh was to assist him in availing the turn of water. Keeping in view that canal water in the dry tract in Bhatinda district is...... dearer to the cultivators.....at their subsistence depends upon agricultural produce, there is nothing abnormal in the conduct if Jangir Singh, Darshan Singh deceased and Charan Singh for helping each other in availing the turn of canal water. Jangir Singh PW also stated that Charan Singh witness had gone to the fields earlier while he and Darshan Singh left a little later after taking their meals. The presence of semidigested food in the stomach of the deceased during autopsy by Doctor Sat Pal Gupta further renders due assurance to the presence of Jarnail Singh PW in the company of the deceased at the time of this occurrence. No doubt Jangir Singh PW is a relation of the deceased being his real uncle as well as inimical towards the accused, but all the same his relationship with the deceased or enmity with the accused is not by itself sufficient to discard his testimony. On the other hand, it will at the most call for appraisal of his evidence with a check of due caution. The mere factum that Charan Singh eye witness was not examined by the prosecution but given up as having been won over is of no consequence since he was attracted to the spot on hearing cries of the deceased and Jangir Singh (PW5), and his evidence was not essential to unfold the persecution case. On the other hand Jangir Singh PW was accompanying the deceased and thus, was in a position to observe the inception of the occurrence. The law is well settled by now that it is the quality of the evidence that matters and not its quantity. The observations of the Apex Court in Vadivelu Thevar v. State of Madras, A.I.R. 1957 S.C. 614 can be safely referred in this regard.

The question then arises whether the testimony of Jangir Singh PW is wholly reliable or partly reliable. In this regard it is noteworthy that medical evidence of Doctor Sat Pal Gupta PW2 renders due assurance to the ipsidixit of this witness qua the participation of Jarnail Singh accused. However, the evidence of this witness qua participation of Karnail Singh accused in this occurrence sounds rather doubtful as Karnail Singh accused being brother of aforesaid Chhota Singh was equally inimical towards Darshan Singh deceased. Thus he would not feel contended by giving a single blow and that too from the reverse side of the gandasa on the right jaw of Darshan Singh deceased especially when as many as 17 injuries were detected by Doctor Sat Pal Gupta during autopsy on the dead body of Darshan Singh. A gandasa being more effective weapon of offence than the other agricultural implement like spade the testimony of this witness that Karnail Singh dealt only one blow to the deceased is not acceptable being unnatural. However, the medical evidence lends assurance to the testimony of this witness qua participation of Jarnail Singh accused in this occurrence.

To appraise the medical evidence it would be worthwhile to reproduce the injuries and internal damage detected by Doctor Gupta during autopsy on the dead body. Doctor Gupta found the following injuries on the dead body:

An incised wound 3 cm. x 1 cm. on the left parietial region of the skull 5 cms. above and in line with pinna of left ear. The injury was bone deep and underlying bone was fractured.

An incised wound 3 cm. x 1.5cm. x bone deep, 2 cm. medial and below the injury No. 1. On dissection occipital bone was fractured into multiple pieces.

An incised wound 4 cm. x 0.5 cm. x bone deep on the occipital region of the skull 2 cm. below the central part of Union parietal and occipital bones. Underlying bone was fractured.

An incised wound 3 cm. x 1 cm. x muscle deep on the left side of the neck, 1 cm. below the lobe of ear and 2 cms. behind the angle of jaw.

An incised wound 5 cm. x 0.5 cm. x muscle deep on the back of the neck, 2 cm. above the hair line.

A bruise 2 cm. x 1 cm. on the zygomatic process of right cheek. On dissection underlying tissue lacerated. Zygomatic process of the mandible fractured.

An incised wound 2.5 cm. x 0.5 cm. x muscle deep on the left side of the neck, 5 cm. below the mastoid process.

As incised 3 cm. x 1 cm. x muscle deep on the back of the neck tailing towards left side was present.

An incised wound 1.5 cm. x 0.5 cm. x muscle deep on the back of the neck 1 cm. below injury No. 8.

Four linear incised wounds 7 cm., 5 cms., 8 cms., and 6 cms., 0.3 cm. broad and parallel to each other on the top of left shoulder above the spine of scapula. All wounds were skin deep.

Three linear incised wounds 2 x 2.03 cms., 4 x 0.3 cms. and 6 x 0.3 cms. all skin deep on the left shoulder near the acromion process.

Two linear incised wounds 6 x 0.3 cms. and 5 x 0.3 cms. skin deep on the left scapular region.

An abrasion 15 cms. x 0.3 cms. over right scapular region.

An abrasion 6 x 0.3 cms. on the back over left 10th and 11th ribs.

A bruise 10 cms. x 2 cms. on the left side of the chest over 7th, 8th and 9th ribs.

Right hand amputated by an incised wound 2 cms. above the wrist.

left hand amputated by an incised wound 2 cms. above the wrist. hanging by tag of skin on the posterior part of the forearm.

On dissection of the skull and occipital bones were fracture into multiple pieces. Membrances were lacerated. Left parietal and occipital lobes of the brains were lacerated. Blood was present in the cranial cavity. Chest was normal. Semisolid material was present in the stomach. Digested material was present in the small intestines and faecal matter was present in the large intestines.

Death, in my opinion, was due to shock and haemorrhage. Injuries No. 1, 2 and 3 were sufficient to cause death in ordinary course of nature. All the injuries were ante mortem in nature. Probable time that elapsed between injuries and death was immediate and between death and postmortem was within 24 hours."

A bare glance through the above referred injuries leaves no doubt that all these injuries except injuries No. 6, 14 and 15, are the result of sharp edged weapon. Mr. Sidhu learned Additional Advocate General contended that injury No. 6 attributed to Karnail Singh could be caused with the reverse side of the gandasa and thus renders due assurance to his participation. We fail to agree with him as this injury and other blunt weapon injuries could else be caused with the reverse side of spade and it looks rather improbable in the circumstances of this case that Karnail Singh would give only one injury to this deceased. Injuries No. 1, 2 and 3 are located on the head resulting in fracture of the parietal and occipital bones. On dissection under the head injuries occipital lobes of the brain were found lacerated. Thus this Doctor rightly opined that these injuries were sufficient to cause death in the ordinary course of nature. Five incised wounds are located on the back or left side of the neck. Four linear incised wounds parallel to each other were located on the top of left shoulder and the other three linear wounds on the left shoulder and other two on the left scapular region. The location of these injuries lends due assurance to the ipsidixit of Jangir Singh PW that these were caused with spade after the fall of the victim with his face downward. Injury No. 1 is located on the left parietal region and injuries No. 2 and 3 are located on occipital region. Thus all the major injuries could be suffered by the victim after his fall on receipt of any one of the injuries. Thus medical evidence lends due assurance to the testimony of Jangir Singh PW especially when he had given the location of first few injuries death by Jarnail Singh accused and thereafter simply deposed about the having given injuries on the back of head and neck.

The learned counsel for the appellants on the basis of hypothetical opinion of this Doctor that the possibility of the injuries having been received by the victim at 9 A.M. cannot be ruled out if he had taken some food at 6 A.M., is of no consequence because as the turn of Jangir Singh PW was to start at 12.56 A.M. There was no question of going to the fields earlier. Moreover on 12.11.1988 the sun arose at about 6.55 A.M. and there was no question of having full meal at 6.00 A.M. On the other hand the evidence of Doctor Sat Paul Gupta reveals that the stomach of the dead body contained some digested food material while digested food was present in the small intestines and faecal matter was present in the large intestines which in turn implies that the deceased had taken his food three/four hours prior to his death. Consequently testimony of Jarnail Singh that they had taken their food and left for irrigating their land at about 12.15 P.M. found due corroboration from the medical evidence.

The delay in conveying the Special Report to the Illaqa Magistrate at 8.30 P.M. although the recording of the F.I.R. was started at 3.45 P.M. at Police Station Phul is of no consequence especially when the Inquest Report and the other papers were received by Senior Medical Officer of Civil Hospital Rampura Phul at 5.50 P.M. as is apparent from his endorsement on the request Ex. PB for post mortem examination on the dead body of Darshan Singh. The fact contained in the Daily Dairy Report Ex. PD recorded by Assistant Sub Inspector Deep Chand on the statement of Jangir Singh PW5 at 1.30 P.M. have been fully reproduced in the brief facts of the Inquest Report. Since the dead body was despatched from the spot before the receipt of the copy of the formal First Information Report by Assistant SubInspector Deep Chand there is no question of the number of the F.I.R. figuring in the same.

Even if it is taken that there is some delay in recording First Information Report it would be of no consequence qua the participation of Jarnail Singh accused in the occurrence but it can at the most may have some bearing qua implication of Karnail Singh appellant in this occurrence.

There is no force in the contention of the learned counsel for the appellants that since the turn of canal water of the land purchased by Jarnail Singh accused from Mohinder Singh etc. fell from 7.54 A.M. to 9.36 A.M. on the day of this occurrence, there was no question of his availing turn of the canal water to the fields purchased by him from Mohinder Singh at 12.15 P.M. when the occurrence took place as only a part of the varabandi Ex. DA has been tendered in evidence but the detailed varabandi pertaining to the ancestral land of Jarnail Singh and Karnail Singh accused had been withheld. The possibility of the accused irrigating the land purchased by them from Mohinder Singh from their own turn of canal water of their ancestral land cannot be ruled. This circumstance is not sufficient to hold that the occurrence had taken place prior to 9.A.M. on that day. The testimony of Darshan Singh DW1 in this regard that one unknown person with muffled face had given injuries to Darshan Singh (deceased) at 9 A.M. in his presence is not acceptable because in that case he was expected to cry hoarse and approach the higher authorities as according to him Jarnail Singh accused was falsely implicated in this case. Moreover, it is not case of that type where the Investigator had shown interestedness in the complainant party, on the other hand Assistant SubInspector Deep Chand appeared to have conducted investigation in a fair and impartial manner as after recording statements of Maghar Singh and others he had deferred the arrest of Karnail Singh accused.

For the foregoing reasons the offer of conviction and sentence of the trial court qua Jarnail Singh appellant being well founded is affirmed by rejecting his appeal. However, the prosecution has failed to prove the case against Karnail Singh appellant beyond reasonable doubt. He is, therefore, ordered to be acquitted by accepting his appeal and setting aside the orders of conviction and sentence of the trial court, simply because no substantive charge sheet was framed against Jarnail Singh accusedappellant for an offence under Section 302 of the Indian Penal Code, it cannot be said that it resulted in prejudice or failure of justice as the crossexamination conducted by his counsel clearly shows that the accused was aware that fatal injuries were attributed to him.

Keeping in view that Darshan Singh was unmarried and his father Balbir Singh was earlier murdered and that he as the sole bread winner of his widowed mother, it is ordered that the entire amount of fine if realised shall be released to the mother of the deceased by way of compensation. The Revision Petition stands accepted to the extent referred above.

Appeal partly accepted.