Kashmir Singh vs State of Punjab

V. K. Bali, J.

Appellants, Kashmir Singh and his two brothers, Kulwant Singh and Puran Singh, have filed the present appeal against the order of conviction and sentence recorded against them by the learned Sessions Judge, Amritsar, who vide his judgment dated November 30, 1994 held Kashmir Singh appellant guilty under Section 302 of the Indian Penal Code for killing Dalip Kaur whereas his brothers, Kulwant Singh and Puran Singh were held guilty under Section 302 read with Section 34 IPC. The appellants were sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/ each in default whereof, they were further sentenced to undergo rigorous imprisonment for six months.

The facts leading to the death of Dalip Kaur, wife of Ujaggar Singh were brought to the notice of Sub Inspector Swaran Singh by PW 2 Budh Singh on June 16, 1992 at 5.30 p.m. Swaran Singh, SI, thus, recorded the statement of Budh Singh at 5.30 p.m., on the basis of which formal FIR, Ex. PW 8/B came to be recorded at 7 p.m. The special report was delivered to the Magistrate concerned at Amritsar on June 16, 1992 at 12.50 p.m. Budh Singh got in his statement recorded that he was resident of village Mudhal and was engaged in cultivation. His house and house of Kashmir Singh, Puran Singh and Kulwant Singh sons of Harbans Singh were adjoining to each other. On account of quarrel between children, the ladies had an altercation earlier also. Last night at about 9 p.m., his brother Kashmir Singh @ Bau, Roor Singh son of Harbans Singh residents of Mudhal and he were standing in the lane, outside their house and were talking when Kashmir Singh @ Sheera son of Harbans Singh, armed with a Bahi of the cot (arm of the cot), his brother Puran Singh @ Poobi, armed with a Dang and their third brother Kulwant Singh @ Kanta, armed with a Dang, came towards their house. Immediately on their arrival, Puran Singh raised an alarm saying "catch hold of them in order to teach them a lesson as their children are creating trouble daily." Upon this, all the three inflicted blows to them with their respective weapons but they stepped backward and saved themselves from sustaining injuries. On hearing the noise, his mother Dalip Kaur came at the spot and persuaded Sheera and his companions to stop fighting. At this, Sheera gave Bahi blow to his mother which hit on her hand. Kulwant Singh gave a dang blow which hit her on her right cheek and near the eye. His mother became unconscious and fell down on the ground. He raised an alarm saying ''killed, killed'' whereupon the assailants together with their respective weapons, fled towards the railway line. At that time, electric bulb was on in the lane. It was a moonlit night. He and others did not remove his mother for treatment as no arrangement for conveyance could be made due to night time. Dalip Kaur was, however, removed to the house. At about midnight, his mother expired. Due to prevailing disturbed circumstances and due to fear, they could not lodge the report during night. He was going to the Police Post to lodge a report that Swaran Singh, SI met him. He further stated that the cause of fight was that earlier their ladies had an altercation with the ladies of Kashmir Singh and others on account of quarrel between the children. Day before yesterday, they had remonstrated Kashmir Singh, but Kashmir Singh and his partymen had taken ill of it. Due to this grudge in mind, Kashmir Singh, Kulwant Singh and Puran Singh had murdered his mother.

The prosecution, with a view to bring home the offence against the appellants, examined Dr. R. K. Goria, Assistant Professor, Forensic Medicines, Medical College, Amritsar as PW 1. He stated that on June 16, 1992 at 1.50 p.m. he conducted postmortem on the dead body of Dalip Kaur. The dead body was brought in the mortuary on that day at 1.45 p.m. by Constable Balwinder Singh and PHG Sardara Singh and was identified by Budh Singh and Dayal Singh. Rigor mortis were present throughout the body, postmortem staining was also present on the back of the body. Clothes were blood stained. The doctor found following injuries on her dead body :

"1. A reddish bruise 5x2 cm on the right molar prominent. Diffused swelling under the injury and of both eyelids of right eye.

A diffused reddish swelling on the right parietal region of the head, 8 cm above the ear.

A diffused reddish swelling on right side of forehead, 6 cm above the eye brow."

On dissection, extra cranial haematoma was found present on the right frontal region, right parietal region and right side of occipital region. A depressed fracture was present on the right parietal bone and fissure fracture was extending from the depressed fracture on sides. Duramater and brain were lacerated under the depressed fracture. Subdural haematoma was present over the right hemisphere. About 100 CC of clotted blood was present. Both the lungs were congested. Stomach contained 100 CC of semidigested food. Small intestines contained chyme and large intestine contained faecal matter. All the injuries were antemortem in nature. In the opinion of the doctor, the cause of death in this case was due to laceration of the brain which was sufficient to cause death in the ordinary course of nature. The probable duration between injuries and death was within a few hours and between death and postmortem about 12 to 24 hours.

Budh Singh and Kashmir Singh, who are real brothers and sons of deceased Dalip Kaur, were examined as PW 2 and PW 3 respectively. The third eye witness, Roor Singh, was examined as PW 5 but he did not support the prosecution version. He was declared hostile and crossexamined by the learned Public Prosecutor and was confronted with his statement recorded by the police under Section 161 Cr.P.C. PW 6 is Constable Karnail Singh. He only stated that when he was posted at Police Post Sohian Khurd on June 26, 1992, he was associated in the investigation of this case by SI Swaran Singh. At the bus stand of village Mudhal, Jarnail Singh had produced the three accused along with their respective weapons. Kulwant Singh had produced dang, Ex. P1, Puran Singh had produced dang, Ex. P2 and Kashmir Singh had produced Bahi, Ex. P3. The accused were then apprehended in the case and the dangs and bahi were taken into possession vide recovery memo Ex. PW 6/A. Rishi Ram, Draftsman was examined as PW 7. He prepared the scaled site plan, Ex. PW7/A. Swaran Singh, SI was examined as PW 8. He apprised the trial Court, the way and manner in which the investigation had progressed in the case culminating into putting of the challan against the accused in Court under Section 173 of the Code of Criminal Procedure.

The accused, when examined under Section 313 of the Code of Criminal Procedure, simply stated that they were innocent and had been falsely implicated. They, however, led evidence in defence. Dr. Inderjit Singh, Medical Officer, PHC, Verka, was examined as DW 1. He stated that on June 18, 1992 at 8.30 p.m. he had medically examined Datto wife of Harbans Singh and had found following injuries on her person :

"1. One sharp incised wound present at the right parietal bone. It measured 1.3 cm in length in a horizontal direction. The wound was 1 cm deep. Blood clot was present. The wound was muscle deep. The underlying bone was intact. The wound was present 11.8 cm from the superior surface of right pinna on the right parietal bone. It was also present 12.5 cm from the hair line of frontal bone and 57 cm from the midline to the right side of the skull.

1.3 cm abrasion was present on the prominence of right maxila. It was situated 3.5 cm lateral and inferior to the lateral border of right eye. Blood clot was present.

Gross bluish colouration of skin with swelling was present on the inferiolateral of left scapula and upper lateral part of the left upper arm. It measured about 15 cm x 5 cm.

Gross swelling over the medial and inferior part of the right scapula, 5 cm x 4 cm.

Gross swelling over the right and left side of the spine and injuries intermingled with each other.

Left lower first premolar tooth was broken and swelling was present on the inner surface of the cheek and outer part of the cheek.

Right lower lateral incisor was also broken. Swelling at the gums and inner tooth surface of the cheek was also swollen and abrasion was present.

Incised wound was present on lateral surface of right hand. It was situated 5.5 cm distal to the lower end of right ulna and 2.5 cm proximal to the base of right little finger. The wound was 3.5 cm and 0.5 cm in breadth. The underlying fifth metacarpal bone was cut. Blood clot was present."

Injuries 1, 2, 3, 4 and 5 were simple in nature and injuries No. 6, 7 and 8 were declared grievous. The duration of injuries was within 72 hours. Whereas, injuries 1 and 8 were caused by sharp edged weapon, rest were caused by blunt weapon. Datto, who was injured and medically examined by DW 1, stepped into the witness box as DW 2. She stated that about one and a quarter year ago, at about 88.15 p.m., she was present in her house. On hearing the noise, she went out and saw Dalip Kaur with a dater and her daughterinlaw with a sota standing in the street. The noise was being raised regarding some children, who had quarrelled with each other. All of a sudden, the two ladies gave blows with their respective weapons on her and she fell down and became unconscious. The police thereafter came at the spot but they did not give any hearing to her. She was not allowed to leave her house for two days by the complainant party. She also stated that none of the accused was present at the time of occurrence nor the occurrence took place in the way and manner as has been suggested by the prosecution. She was crossexamined and all that requires to be mentioned at this stage is that she was not questioned with regard to her not being permitted to leave the house for medical treatment. After resultant trial, appellants were convicted and sentenced as detailed in the earlier part of the judgment.

We have heard Mr. M. S. Rakkar, learned Senior Advocate in support of the appeal preferred by the appellants as also Mr. Mehtab Singh, learned Deputy Advocate General, Punjab, and with their assistance we have gone through the records of the case. Mr. Rakkar, learned counsel appearing for the appellants, vehemently contends that the occurrence has not taken place in the way and manner as suggested by the prosecution and in fact the very genesis of the fight leading to death of Dalip Kaur is shrouded in mystery. He also contends that Budh Singh and Kashmir Singh were not present at the spot and they had not witnessed the occurrence. The origin of dispute, as can be gathered from the facts and circumstances of this case, was on account of children quarrelling with each other and then ladies of two respective houses quarrelling with each other resulting into death of Dalip Kaur and serious injuries to Datto, contends the learned counsel. Mr. Mehtab Singh, learned Deputy Advocate General, Punjab, however, joins issues with Mr. Rakkar on the contentions noted above and has endeavoured to sustain the order of conviction and sentence recorded by the learned Sessions Judge.

We have given our thoughtful consideration to the controversy in issue and are inclined to accept the points raised by Mr. Rakkar, learned counsel for the appellants. Site plan, Ex. PW 7/A prepared by PW 7 Rishi Ram, Draftsman, would show that the houses of accused party and that of the complainant party are located very close to each other. The place of occurrence is stated to be a street in between the houses of respective parties. It is an admitted position at both ends that origin of the occurrence lies in quarrel of children and the ladies of the two sides. It is proved on records of the case that Datto, DW 2, who is wife of Harbans Singh, was injured about the same time when Dalip Kaur died of injuries inflicted upon her. She was medically examined by Dr. Inderjit Singh, DW 1 on June 18, 1992 at 8.30 p.m. and the doctor examining her clearly stated that the duration of injuries was within 72 hours. She had sustained eight injuries, out of which injuries 6, 7 and 8 were found to be grievous. Whereas injuries 1 and 8 were caused by sharp edged weapon, rest of the injuries were caused by blunt weapon. Left lower first premolar tooth was broken and there was swelling on the inner surface of the cheek and outer part of the cheek. Her right lower lateral incisor was also broken and there was swelling present at the gums and inner tooth surface of the cheek was also swollen and there was an abrasion. There was also an incised wound on lateral surface of right hand. Other injuries, although were simple, but injury No. 1 was on the right parietal bone. The wound was 1 cm deep and blood clot was present. The wound was present 11.8 cm from the superior surface of right pinna on the right parietal bone. It was also 12.5 cm from the hairline of frontal bone and 57 cm from the midline to the right side of the skull. The second injury was on the prominence of right maxilla. The third injury was on the inferiolateral of left scapula and upper lateral part of the left upper arm. All these injuries, in our view, could not be self suffered. If the matter is looked in the backdrop of what we have said above and then the evidence of PW 2 and PW 3, who are stated to be the eye witnesses and closely related to deceased, is examined, it will clearly appear that Dalip Kaur did not die in the way and manner as has been projected by the prosecution and, in all probability, the said witnesses were not present at the time of occurrence. PW 2 in his crossexamination said that during the time the fight took place, Datto did not come to the place of fight and she was not seen by them on the day on which the incident took place. He further stated that he had come to know for the first time today i.e. 24.8.1993 that Datto was also injured. He admitted that there was a fight about 34 days prior to the occurrence but he further stated that in that altercation neither Dalip Kaur nor Datto had received any injury. He further stated that Dalip Kaur and Datto had never fought with each other on any date up to the incident. From the above statement of the witness, it is not difficult to decipher that he is not speaking the truth. It is proved on the records of the case that Datto was injured and at the same time when Dalip Kaur died. This witness does not admit Datto having been injured at any time whatsoever. His statement that he came to know when he appeared in the Court that Datto was injured, is far from truth. Further, he stated that accused had raised a lalkara immediately after coming out of the door. He further stated that on hearing the lalkara, he had withdrawn a bit and had not gone inside his house and closed the door. He further stated that when the accused attacked them, even then they had not gone to their house and kept standing at a distance of 78 feet from the door of their house. He was confronted with his statement recorded by the police wherein he had stated that he had withdrawn after the accused had attacked them and that it is for that reason that they had not received any injury. He also stated that when his mother was being given injuries by the appellants, he did not intervene in order to save her. He further stated that after giving injuries, Kashmir Singh stood aside and thereafter Kulwant Singh gave a blow and stood aside and Puran Singh did not give a blow but kept standing there. PW 3 Kashmir Singh when cross examined, stated that the women folk had fought amongst each other but he qualified this statement by saying that women folk excluded Datto. He also stated that the accused had raised noise for about 5 or 10 minutes and on hearing the noise, Roor Singh had also come to the spot. His mother Dalip Kaur came there after some time and she had come to the spot when they had withdrawn on seeing that the accused were duly armed. They had gone inside their house and hidden themselves in the room. On the aforesaid material issue, he, thus, completely differed with the version of his brotherPW 2. He denied having knowledge with regard to Datto, mother of the appellants, having received injuries. These two witnesses, in our view, have contradicted each other on such issues which was not possible if they had actually seen the occurrence. That apart, the conduct of these two witnesses, who are sons of the deceased Dalip Kaur, in either keeping on standing there and watching their mother being beaten to death or withdrawing themselves and locking themselves in a room of their house, does not appear to be natural. The accused were, if at all, armed with dangs and an arm of the cot. These were not such deadly weapons that the said two witnesses might have been scared enough to completely withdraw from the scene or watch their mother being beaten like helpless spectators. Their house is at a distance of 1012 feet and it was not difficult for them to arm themselves with dangs or some such other weapons which could easily be found in their house itself. Both these witnesses are naturally interested in the success of the prosecution version. Their evidence does requires to be scrutinized with great care and caution and if that test is applied, we are of the considered view that they do not pass through the said test. Added to it, it is a fact that the third eye witness, Roor Singh, who was examined as PW 5, did not support the prosecution version and, therefore, there is no corroboration to the statements of these two witnesses.

PW 8 Swaran Singh, SI, who investigated the case, stated in his cross examination that during investigation, the medicolegal report of Datto had never reached him and it was not brought to his notice when the bail application of the accused was being heard. He further stated that he was present in the Court on the day of bail hearing but he had not made any enquiries as to why the accused were bailed out. Ex. DB is a copy of order passed by Shri G. L. Chopra, Additional Sessions Judge, Amritsar on the bail application that was preferred by the appellants. In paragraph 4 of the said order, learned Additional Sessions Judge has mentioned that "the learned counsel Shri Behal has placed on record a medicolegal report in respect of the injuries of Datto, mother of the present applicants, showing that she suffered as many as eight injuries and the doctor found injuries on her head and face. Some injuries are also incised in nature. The submission of the learned counsel is that three injuries, namely, injury Nos. 6, 7 and 8 were found to be grievous. His submission is that the prosecution is not coming forward with any explanation about the injuries suffered by Smt. Datto." It was further observed by the learned Addl. Sessions Judge that "the period of injuries has been mentioned to be 72 hours duration. In the circumstances, it is quite probable that these injuries were suffered in the course of the same occurrence. Keeping in view this medicolegal report and the role attributed to accused/applicants, Puran Singh and Kulwant Singh, I am inclined to give them concession of bail." It is strange that the Investigating Officer had not come to know about the injuries sustained by Datto even on August 29, 1992 when the bail application of the two appellants, Puran Singh and Kulwant Singh was allowed. From the totality of the facts and circumstances of this case, we are quite convinced that the prosecution has suppressed some material facts and has not given correct version of the circumstances leading to the death of Dalip Kaur. It may be possible in this case that on account of quarrel between the children of two respective families, the ladies might have quarrelled with each other with some blunt weapons and whereas, Datto received as many as eight injuries on her person, out of which three were grievous, Dalip Kaur succumbed to the injuries sustained by her at the hands of Datto, either alone or with the help of somebody else. Once the defence version is probable and the prosecution has not come up with complete truth, with regard to origin of the occurrence, the appellants deserve the benefit of doubt. The present appeal, thus, deserves to be allowed and is accordingly allowed. By giving the appellants benefit of doubt, we acquit them, thus, setting aside the judgment passed by the Sessions Judge.