Kojha Masih and others vs State of Punjab

S.C. Malte, J.

The accusedappellants have preferred this appeal against their conviction and sentence under dection 302, read with Section 34, I.P.C. The incident of assault on Waris Masih and Tara Masih took place at about 3.30 p.m. on 12.9.1989. The deceased Waris Masih along with his brothers Kashmir Masih (complainant), Tara Masih and Surjit Masih was proceeding towards the tubewell of their land. While they approached near their land, accused Lal Masih (since acquitted) gave a challenge that these persons should be done to death. Lal Masih was then armed with Khurpa (sickle). On the above call given by Lal Masih, the accused Kojha Masih and accused Chhinda Masih (the present appellants), both armed with gandasis (weapons like butcher''s big knife) charged towards these four persons mentioned above. Thereupon, these four brothers, who were without any arm, started running away from the spot. While running away, the deceased Waris Masih stumbled and fell down. These accused then arrived near him. Accused Kojha gave gandasi blow on the back of the neck of Waris Masih. It was followed by two blows with gandasi by accused Chhinda Masih on the back of the neck of Wari Masih. On seeing that Waris Masih was being attacked, his three brothers mentioned above stepped back to his rescue. Thereupon both these accused had also attacked Tara Masih and caused injuries with their respective weapons. Shouts were raised by these persons. As a result of that, all the accused fled away. The motive for commission of offence is said to be a dispute over the turn of water for irrigating the lands from common watercourse. Soon after the incident, arrangement was made for a vehicle. The injured were then taken in a bullockcart and were brought to the Civil Hospital, Ramdas. On arrival at Civil Hospital, the doctor examined Waris Masih and declared him dead. The other injured Tara Masih was also examined. At a later stage, I will refer in detail the injuries of these persons.

Kashmir Masih, who was also an eyewitness to the incident, gave the report which was recorded as F.I.R. at Police Station, Ramdas on 12.9.1989 itself at about 5.15 p.m. and was registered at the same police station at about 5.45 p.m. The special report of the F.I.R. was received by the Judicial Magistrate 1st Class, Ajnala at 7.30, p.m. on 12.9.1989. The investigation had thus commenced. In the course of the investigation, police then prepared inquest report on deadbody of Waris Masih and sent the deadbody for autopsy. According to the doctor, Waris Masib died on account of shock and haemorrhage, as a result of injury to the skull. The accused were also apprehended. At the instance of the accusedappellants, a gandasi by each of them was recovered as per Section 27 of the Evidence Act. The gandasi was sent to the Chemical Analyser. Though the blood was detected on both these gandasis the origin of the blood on one gandasi could not be determined, whereas in respect of the other gandasi blood was found to be human, but the blood group of it could not be ascertained.

On completion of the evidence, the accused were questioned under Section 313 Code of Criminal Procedure. The accused denied the prosecution case in toto. They examined defence witness Natha, who stated that he noticed the deceased having injuries, lying dead in the land. He further claims that he then sent for Kashmir Masih (the complainant) and Surjit Masih (the prosecution witness). They took the deadbody to the police station. He further claims that later in the course of conversation with said Kashmir Masih and Surjit Masih, while near the tubewell in the land, they stated that they have mentioned the names of the accused on suspicion that they must have killed Waris Masih. D.W. Natha Masih further claims that the said conversation had been taperecorded by him. Moreover, the evidence of the taperecord was not brought on record. The accused claimed that they were falsely involved out of enmity.

The Additional Sessions Judge, Amritsar, held both the appellants guilty of the charge under section 302, read with Section 34 I.P.C. He, however, acquitted the accused Lal Masih who had not taken part in the actual assault, but he is said to have simply raised the lalkara (call) to do away with the deceased and his brothers who were then approaching towards their land.

In this court, on behalf of the appellants, it was submitted that P.W. 4 Kashmir Masih (the complainant) and P.W. 5 Surjit Masih, who claimed to be eyewitnesses to the incident, had in fact not witnessed the incident. To substantiate this argument, our attention was invited to the postmortem report and the evidence of P.W. 3 Dr. Raman Kumar Sharma. That evidence taken together indicates that in the course of postmortem, stomach of Waris Masih (deceased) was found empty and the chyma (semifluid mass of partly digested food passed from the stomach into the deodenum) was found, a state that happens after a period of three hours from the food intake. It was contended that as per the evidence of P.W. 4 Kashmir Masih and P.W. 5 Surjit Masih, the deceased Waris Masih had consumed food some time at about 2.30 p.m.3 p.m. It was claimed that in that case, the stomach of the deceased would not be found empty if according to the prosecution case, assault had taken place at about 3.30 p.m. It was further contended that the doctor states that the death was immediately after the injuries. In this respect, on scrutiny of evidence, we find that in the crossexamination, the doctor had stated that Waris Masih could have survived for few minutes after the injuries, but was not possible for him to be alive for a period of an hour or more. The evidence of the doctor in such cases should be considered in the light of other circumstances. The complainant Kashmir Masih was an illiterate person, as is seen from his thumbmark on the F.I.R. The time of taking food as quoted by him, therefore, deserves some allowance for mistake in the assessment of time. Secondly the evidence of Kashmir Masih coupled with the F.I.R. clearly shows that Waris Masib breathed till he reached the hospital. The evidence of P.W. 5 Surjit Masih also states so in the course of crossexamination. On close scrutiny of the medical evidence, we further find that though the injuries to the occipital region had also caused a cut to the underneath skull, the vertebra and the brain membrane and spinalcord was found to have been not damaged. Under these circumstances the opinion given by the doctor regarding the certain hypothetical possibility of time of death after the incident could not be considered as quite a decisive factor. Besides that, the digestion process being partly a chemical action, once set in, would continue for some time even after the death of a person. Thus, on considering all these aspects together, we do not find any favour with the above referred submissions made by the Advocate for the appellants.

It was further submitted that the eyewitnesses claimed that the blow was on the back of the neck, but the injuries were found on the occipital region. On this premise, argument was that the witnesses were not reliable. We verified the location as shown in the figure attached to the medical report and we found that it is on the lower portion of the occipital region which is close to the back portion of the neck.

Some argument was sought to be built on the basis of the preparation of the inquest report in the police station. Submission was, since while in the hospital, Waris Masih was declared dead, the inquest report should have been prepared in the hospital, where the deadbody was lying at the initial stage. We do not find any substance in this argument because after the incident, initially both the injured were rushed to the hospital, and on finding that out of the two injured, the injured Waris Masih had breathed his last, the complainant took the deadbody to the police station with a view to lodge his report.

In this case, in all two persons were injured. Out of these, Waris Masih breathed his last. On his skull there were following injuries

(i) Incised injury 5 cm x 11/2 cm, at the location of 1 cm below the occipital protuberance. The underneath bone was cut through and through.

(il) Incised wound 5 cm x 1 cm, 1 cm below injury No. 1. It was muscle deep.

(iii) Incised injury, 5 cm x 3/4 cm and was at the location of 1 cm below injury No. 2. It was skin deep.

(iv) A contusion, 3 cm x 3 cm, on the top of the head. Haematoma was present on the skull. On dissection of the skull, it was found that the brain was covered with big clot and there was about 100 cc of freefluid blood in the cranial cavity.

The doctor further states that all these injuries were antemortem. Injuries Nos. 1, 2 and 3 were caused by sharp edged weapon and injury No. 4 by blunt weapon. Nothing abnormal was detected in respect of vertebrae, membrane, brain and spinalcord. The other material part of the medical evidence is already referred above.

It was contended that injury No. 4, the contusion on the top of the head was not referred to by the eyewitnesses. In our opinion, nothing could be spelt out of that omission, because, according to the prosecution case, the deceased while running away, had stumbled and fell before he was assaulted with gandasi.

The other injured was Tara Masih. The evidence of P.W. 2 Dr. Satinder Singh Bedi, indicates that Tara Masih was brought to the hospital at about 5.15 p.m. on 12.9.1989. The time at which Tara Masih was thus brought at the hospital also renders support that the F.I.R. in this case was within reasonable time since the incident. The distance between the place of the incident and the police station is little more than 2 kms, and the injured were carried in the bullockcart. Injured Tara Masih had passed away before his evidence could be recorded. The date of his death, however, could not be ascertained from the record. Also, it could not be ascertained as to whether his death related to the injuries sustained by him in the incident. However, injuries caused to him are sufficiently proved, and were as follows :

(i) Incised injury 4 cm. x 1 cm on the left parietal region. Blood was oozing from the injury;

(ii) Laceration 1 cm x.75 cm over the left mastoid process;

(iii) Tenderness and swelling over the back of the left shoulder joint;

(iv) Left wrist joint was swollen and pains were felt during movement.

Injuries Nos. 1 and 4 were kept under observation. These injuries were subjected to xray which revealed that fracture was not caused at the location of those injuries. The evidence of Tara Masih further indicates that he sustained those injuries in attack on him while making effort to rescue deceased Waris Masih from the assault.

No argument was advanced regarding the defence witness in this case. On scrutiny of the evidence, we found it most unnatural. It is unnatural that the said defence witness (D.W. Natha Masih) would call the complainant Kashmir Masih and Surjit Masih at his tubewell, and that there they would make any statement to the effect that accused were involved on suspicion against them. It also looks very unnatural that he made a record of it with the help of the taperecorder. It is very difficult to believe that complainant Kashmir Masih and Surjit Masih would make such statements, so that it may be recorded. Besides that the evidence of the said recorded tape is not before the Court. The evidence of the eyewitnesses Kashmir Masih and Surjit Masih in unshaken, and finds support from other pieces of evidence, such as F.I.R. and medical evidence.

The evidence thus clearly established that both these appellants in furtherance of their common intention have caused the murder of Waris Masih. In the result, the appeal is dismissed.