Major Singh vs State of Punjab

J.S. Sekhon, J.

Major Singh appellant was found guilty of the charge of murder of Lila Singh punishable under section 302 of the Indian Penal Code, by the learned Sessions Judge, Bhatinda and sentenced to undergo imprisonment for life and to pay fine of Rs. 2,000/ or in default of payment thereof to suffer three months further rigorous imprisonment Feeling aggrieved against the said orders, the appellant has come up in appeal.

The brief resume of facts of the prosecution case is that about 3 years prior to the present occurrence Gurdev Singh PW and his son Lila Singh deceased of this case had given injuries to Major Singh accused over water dispute but the matter was compromised with the intervention of the respectables of the village. It appears that Major Singh continued nourishing illwill against Lila Singh deceased and his father Gurdev Singh. Both the parties resided in village Jethuke and are near collaterals of each other. Gurdial Singh father of Major Singh accused had 10 Biswas of joint land with Gurdev Singh PW. There is an old deserted well in this land.

On 5th October, 1987 Major Singh accused went to the house of the deceased with 3/4th bottle of illicit liquor. He served liquor to Lila Singh deceased. Thereafter, both of them went outside. Lila Singh failed to return to the house which resulted in Gurdev Singh PW and the latter''s son Mohinder Singh searching for Lila Singh Balvinder Singh nephew of Gurdev Singh PW their neighbourer told them having seen both Lila Singh and Major Singh going towards the fields known as Patti Manna Wala in drunken condition. Thus Gurdev Singh and Mohinder Singh witnesses went to their said fields. When they were about 50 Karams short of the tube well of Major Singh accused, they saw Major Singh throwing Lila Singh into the deserted well. These two witnesses raised alarm upon which the accused ran away. On reaching near the well, they found that Lila Singh had drowned and a cot was lying near the parapet of the well. Gurdev Singh also observed an empty bottle of insecticide spray and another empty bottle of liquor besides brass tumbler lying at the spot. Gurdev Singh PW then deputed his son Mohinder Singh to seek the help of the villagers in taking out the victim from the well Mohinder Singh PW brought Tari, Gurtej Singh, Jeet Singh, Harnek Singh, Pritam Singh chowkidar and some other villagers to the spot. Tari and Gurtej Singh then entered the well and took out the dead body of Lila Singh. Leaving other witnesses at the spot Gurdev Singh PW alongwith Jeet Singh and Harnek Singh rushed to Police Station Phul and lodged report Ex PD at 11 PM with Inspector Gurdev Singh. A case under section 302 of the Indian Penal Code was registered against Major Singh accused.

Inspector Gurdev Singh alongwith these witnesses then rushed to the spot and prepared inquest reports Ex. PC and Ex. PC/1 of the dead body. The dead body was entrusted to Constables Lachhman Singh and Hargobind Singh for autopsy vide request Ex. PB. He also inspected the spot and took in possession liquor bottle Ex. P1, brass tumbler Ex P2 and vial meant for containing insecticide Ex. P3 after seating insecticide bottle in a different sealed parcel. The visual site Plan of the spot Ex. PJ was prepared.

The autopsy on the dead body was conducted by Dr. Sat Pal Gupta PW 4 and he found the presence of froth in the larynx and trachea. He, however, failed to find any external or internal injury on the dead body. He preserved stomach, small intestines, large intestines, liver, kidneys, and spleen after putting these in sealed parcels and sent the same to the Chemical Examiner for analysis. On receipt of the report Ex. PF of the Chemical Examiner that organo phosphorus compound and alcohol was found in the lungs, spleen kidneys, stomach and blood, Dr. Gupta gave the opinion that the cause of death in this case was due to organophosphors poisoning. The accused was arrested by Inspector Gurdev Singh on 8th October, 1987. After completion of the investigation, the accused was arranged for trial for the murder of Lila Singh on such like allegations.

Before the trial Court in order to prove its above referred case, the prosecution examined as many as seven witnesses besides tendering formal evidence of Constables Lachhman Singh, Chand Singh and Assistant Sub Inspector Swaran Singh on affidavits being of formal nature. The reports of the Forensic Science Laboratory, Exhibit PF and Exhibit PL were also tendered.

Major Singh accused when examined by the trial Court under the provisions of Section 313 of the Code of Criminal Procedure, came forth with the plea of denial simpliciter and false implication, contending that Lila Singh during that day sprayed insecticide on his cotton crop and consumed liquor and while picking up a cot lying near the well, Lila Singh fell accidentally into the well. The accused, however, led no evidence in defence despite being called upon to do so.

The trial Court, however, believing the ocular evidence of Gurdev Singh and Mohinder Singh witnesses coupled with the corroborative medical evidence convicted and sentenced the appellant as referred above.

We have heard the learned counsel for the parties besides perusing the record.

Admittedly, there was no previous illwill between the parties except that two years prior to the occurrence, Lila Singh deceased had given injuries to major Singh accused in a dispute over the turn of water. But that matter was got compromised with the intervention of respectable according to Gurdev Singh PW 5. It appears that thereafter the relations between the accused and the deceased became cordial as they were on visiting terms with each other. Thus it cannot be said that Major Singh accused had any immediate motive to kill Lila Singh. Anyhow, the possibility cannot be ruled out that Major Singh accused continued nourishing a grudge against Lila Singh deceased due to the previous episode and may not have decided it outwardly. However, the motive being doubt edged weapon, it will not only explain the conduct of the accused in killing Lila Singh but also his false implication in case the evidence of the eye witnesses namely Gurdev Singh and Mohinder Singh is found unreliable.

There is considerable force in the contention of Mr. Ghai tha the nonexamining of Balvinder Singh witness but giving him up as unnecessary world militate adversely against the case of the prosecution as he was the only person who had seen the accused and the deceased in drunken condition going towards the fields. The aforesaid Balvinder Singh happens to the nephew of Gurdev Singh, PW 5, father of the deceased. According to Gurdev Singh and Mohinder Singh witnesses they had gone towards the fields in order to locate Lila Singh on the information given by the aforesaid Balwinder Singh just when they came out of their house. Under these circumstances, the testimony of Balwinder Singh was certainly of a material nature especially when both these witnesses had not searched for Lila Singh at the house of Major Singh accused which falls at a distance of about 100 karams from their house but instead they straight away went to their joint deserted well located at a distance of more than one mile from their house. The matter does not rest here as according to Gurdev Singh and Mohinder Singh PWs. Lila Singh deceased had ;taken liquor on the day of this occurrence for celebrating the birth of his son. In case it was so, then Lila Singh would have procured liquor and served to Major Singh accused. But strangely enough according to these witnesses, it was Major Singh accused who had brought a bottle of liquor and then both the deceased and the accused had taken some liquor in the presence of these witnesses in their house at about 6.30 PM on 5.10.87. According to Gurdev Singh PW the accused was then carrying a galas tumbler with him and the deceased as well as the accused had taken liquor in the same glass tumbler. But according to Mohinder Singh PW they had taken a glass tumbler from his house and left that glass tumbler there after taking liquor. These witnesses were expected to notice the tumbler with which the accused and the deceased had taken liquor in their house in their presence and it cannot be said to be a minor contradiction in their testimony because it hits the very root of their version that they had seen the accused and the deceased taking liquor together at their house. Moreover, the accused and the deceased had left the house according to these witness little after 6.30 PM and there was no occasion for these witnesses to become anxious about the safety of Lila Singh just an hour or so thereafter i.e. 7.30/8 PM especially when according to Gurdev Singh PW Lila Singh used to go to the fields and come late some time and they never went for searching him earlier. To crown, it all, it is strange that both these witnesses happened to reach near their joint well at the nick of time and happened to see Major Singh accused throwing Lila Singh in the deserted well. Thus the possibility cannot be ruled out that Gurdev Singh and Mohinder Singh witnesses were not aware about the movements of Lila Singh deceased till they got the information in the village that Lila Singh had fallen in the well and thereafter on observing the presence of an empty can of insecticides near that well, these witnesses had played upon their imagination in coming to the conclusion that the victim was thrown in the well by Major Singh accused after administering some insecticide in the liquor. It is noteworthy that the deserted wellbeing located on the joint land of the accused and that of the deceased and due to the provisions hurt case, suspicion of these witnesses would certainly fails upon Major Singh accused.

According to these witnesses, they had looked into the well just after the accused had thrown Lila Singh therein but they failed to locate his body. Thereafter Mohinder Singh PW went to the village and brought Tari, Jeet Singh, Gurtej Singh, Harnek Panch and Pritam Chowkidar to the spot. Thereafter Tari and Gurtej Singh entered into the well and took out the dead body of Lila Singh Strangely enough the prosecution had not examined any of these persons in order to establish as to what was the earliest version of Gurdev Singh and Mohinder witnesses qua the drowning of Lila Singh Out of these persons Gurtej Singh, Jeet Singh and Pritam Singh chowkidar were cited as witnesses but given up as being unnecessary for the obvious reasons that these witnesses were not prepared to toe the version of Gurdev Singh and Mohinder eye witnesses. The factum that according to Gurdev Singh PW it was got announced in the village that Lila Singh had fallen in the well also shows that he would know of this fact only if he happens to be present in the village at that time which in turn implies that both these witnesses had learnt about the fall of Lila Singh deceased in the well when they were still present in their village. The occurrence took place at about 7/8 PM. The contention of Mr. Sharma, learned Deputy Advocate General Punjab that the report was promptly lodged at 11 PM at Police Station, Phul falling at a distance of 8 miles from the spot is of no consequence in order to render due to the ipsi dixit of Gurdev Singh and Mohinder Singh eye witnesses as after observing the presence of empty bottle of liquor, glass tumbler, and an empty can of insecticide coupled with the previous hurt case wherein the deceased had given injuries to Major Singh accused, these witnesses had played upon their imagination that Major Singh had given some insecticides in alcohol to Lila Singh deceased. Moreover, due to the birth of a son Lila Singh might have started drinking liquor in the evidence in a joyful mood and these witnesses would be aware of this fact even otherwise although the victim may not have taken liquor in their presence. Consequently, the prompt lodging of the first information report is not of much consequence in this case.

The medical evidence of Dr. Sat Pal Gupta PW 4 reveals that during autopsy except for observing froth in the larynx, trachea, oesophagus all the internal organs including lungs, heart, wall of the stomach, abdomen were healthy. He had sent the viscera and blood in a sealed cover for chemical analysis and after receipt of the report Ex. PF of the Chemical Examiner about the presence of organphosphorus poison, an insecticide and alcohol in the viscera, he had concluded that the cause of death of Lila Singh was organ phosphorus insecticide. During investigation, this doctor admitted that the presence of whitish froth in the month, pharynx, larynx and trachea suggests that the deceased was alive when he was thrown in the water and that the presence forth is the sign of ante mortem dowrying. No doubt, according to Moodi''s Medical Jurisprudence and Toxicology, Twentyfirst Edition, Part II PAge 66, frothing is also one of the symptoms of ingesting organ phosphorus compound, yet all the same if frothing had occurred due to the impact of this insecticide then one would expect congestion of the mucosa or submucous petechial haemorrhage in the buccal cavity or larynx or trachea. But during autopsy this doctor had not observed any such thing. Consequently, it appears that the death of Lila Singh had taken place due to drowning. The mere factum that no water was found in his lungs or stomach is of no consequence as the possibility of his death due to cardiac arrest as a result of shock resulting from the sudden fall in the well cannot be ruled out and in that case water will not enter the internal orifices. The factum that the Chemical Examiner had detected 92.0 mgms of liquor in 10 mls of blood of the deceased also reveals that the possibility of the victim having fallen down in the well under the influence of liquor by accident cannot be ruled out.

There is no reliable evidence in this case to rule out the possibility of tampering with the sample of viscera and blood sent to the Chemical Examiner as Dr Sat Pal Gupta PW 4 had simply stated having handed over the viscera in a sealed parcel to constable Lachhman Singh. He has not stated the particulars of the seal used by him but simply stated that the sample seal was also sent alongwith the viscera. Constable Lachhman Singh then produced this sealed container before Inspector Gurdev Singh who took it in possession vide memo Ex. PK. For the first time in this memo the description of the seal used by the doctor is given as either `LIS'' of `US''. In his affidavit Lachhman Singh PW had not at all stated that Dr. Sat Pal Gupta had handed him over this parcel or that he has kept it intact till he deposited the same with Moharrir Head Constable Swaran Singh or produced it before Inspector Gurdev Singh. On the other hand, he has stated that the case property of this case was handed over to him by Moharrir Head Constable Swaran Singh on 7.10.87 and one parcel containing viscera bearing 25 seals of superscription US'' together with the specimen of the seal besides other articles were entrusted to him and that he failed to deposit the same in the office of the Chemical Examiner, Patiala due to some objection. Then he went to the Police Station on 9.10.87 and again deposited this property with Moharrar Head Constable Swaran Singh. He was again entrusted with this parcel on 11.10.87 and he deposited the same in the office of the Chemical Examiner on 11.0.87. The Chemical Examiner in his report Ex.PF had not given the description of the seals on the parcel containing viscera of the deceased. He had simply stated that the seals on the parcels tallied with the seal impression on invoice thereto attracted but the said invoice has not been produced by the prosecution. It was not even confirmed from Dr. Sat Pal Gupta whether he had used the seal bearing impression `DIS'' or `US''. Consequently, the possibility of tampering with viscera cannot be ruled out. If that is so then it can be well said that the prosecution had failed to prove that the death of Lila Singh had taken place due to organ phosphorus poison especially when the possibility cannot be ruled out that the parcels were not accepted on 7.10.87 due to lack of proper sealing.

For the reasons recorded above the evidence of Gurdev Singh father and Mohinder Singh brother of the deceased about observing Major Singh accused having thrown Lila Singh deceased in the well being wholly unreliable, there is no option but to set aside the order of conviction and sentence of the trial Court by accepting this appeal. It is ordered accordingly. The appellant be set at liberty forthwith, if not required in any other case. The fine, if paid, shall be refunded.

JUDGMENT accordingly.