Mela Singh vs State of Punjab

V.K. Bali, J.

This appeal is preferred by Mela Singh, who was tried with his coaccused Jit Singh and Malkiat Singh (since acquitted) against the order of conviction and sentence recorded against him by the learned Sessions Judge, Ferozepur, dated May 8, 1993. The appellant herein was convicted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 200/ or in default thereof to further undergo RI for six months under Section 302 IPC. He was further sentenced to undergo RI for two years and to pay a fine of Rs. 100/ or in default thereof to further undergo RI for three months under Section 27 of the Arms Act. Both the substantive sentences were, however, ordered to run concurrently.

The occurrence leading to the death of Karnail Singh was reported by Jarnail Singh PW2 to SI Nagor Singh, PW4 at village Maluke at 9.00 AM on September 16, 1991 on the basis of which formal FIR came to be recorded at 9.40 AM on the same day. The special report with regard to the incident was received by the Magistrate at Zira at 11 AM on the same day.

Jarnail Singh stated that they were six brothers, younger to him being Karnail Singh. Earlier he was a truck driver and now engaged in doing cultivation. House of all the brothers were adjacent, and adjacent to their houses, there was house of Jit Singh, Malkiat Singh and Mela Singh sons of Arjan Singh. At about 10 PM, an electric bulb, which was temporarily installed on the door of the house of his brother Karnail Singh, was emitting light. Their neighbours, namely, Jit Singh, Malkiat Singh and Mela Singh were hurling abuses loudly to his brother Karnail Singh and he came out in the street and asked them as to why they were hurling abuses to them. Mela Singh was armed with a single barreled .12 bore licensed gun of his father whereas Jit Singh and Malkiat Singh were having sotis with them. On their making enquiry as to why they were hurling abuses, Jit Singh and Malkiat Singh told Mela Singh, "Mela, fire a shot. Today they should not be allowed to escape." Thereupon, Mela fired a shot towards them with the gun which he was holding. The shot hit near the left ear of his brother Karnail singh, as a result of which he fell down with his face downward. He raised an alarm of ''Killed, Killed'' and ran into the house of Karnail Singh. They fired two more shots and continued hurling abuses loudly. Malkiat Kaur wife of Karnail Singh and he shut the door. Malkiat Kaur had also seen the occurrence. They did not come out of the house during night out of fear. The cause of grudge was that the filed of his brother Karnail Singh was adjacent to the fields of Jit Singh, Malkiat Singh and Mela Singh. They had narrowed down his passage by cutting the boundary line and also quarreled on that account during the day and Karnail Singh had lodged a protest in this regard with their father Arjan Singh. They dragged the dead body of Karnail Singh to the door of their house. He reported the matter to Hardayal Singh, Sarpanch, who accompanied him to lodge the report to the police station. He had left his brother Mukhtiar Singh near the dead body and when Nagor Singh SI met him, he got his statement recorded.

The prosecution, with a view to bring home the offence against the appellant and his acquitted coaccused, examined PW1 Dr. Pawan Kumar, who stated that he had conducted autopsy on the dead body of Karnail Singh on September 16, 1991 at 2 PM and had observed following injuries on his person :

"A lacerated punctured wound with inverted margins measuring 6 x 5 cm present on the upper part of left side of neck. The lower helix of left ear was lacerated. Clotted blood was present.

Multiple circular lacerated punctured wounds each measuring .2x.2 cm scattered over the left and central forehead and left temporal and left parietal region. Clotted blood was present. Area around each entry was blackened."

In the opinion of the doctor, the death was due to injury to brain and its covering and the neck vessels individually as well as collectively as a result of firearm which was sufficient to cause death in the ordinary course of nature. All the injuries were opined to be antemortem in nature. The death occurred within few minutes after receipt of injuries and the time that elapsed between death and postmortem was within 24 hours. The doctor also stated that there was rigor mortis in all the four limbs and postmortem staining was present on the back. In his cossexamination, PW1 stated that generally speaking, there would be blackening if the muzzle of the firearm was at a distance of five feet from the victim and that injury No. 1 was single one and there were no injuries of scattered pallets.

Jarnail Singh was examined as PW2. He deposed in tune with the FIR. He also stated that on receipt of firearm injury, Karnail Singh had fallen down with his face downward. He also stated that Mela Singh had fired two more shots and thereafter he opened the door slightly and noticed that Karnail Singh was being dragged by Jit Singh and Malkiat Singh by holding his legs towards their house. The witness also stated that at about 12 AM it started raining. He and Malkiat Kaur put a Palli (Plastic sheet) on the dead body of Karnail Singh. He also stated that in the morning at about 5 AM he had gone to Sarpanch Hardial Singh and narrated the occurrence to him, and since it was still raining, Hardial Singh took about three house to accompany him to the police station. In his crossexamination, Jarnail Singh stated that temporary electric bulb was fitted on the outer wall of the house of Karnail Singh. He was confronted with his statement with regard to Malkiat Kaur standing by his side at the time of occurrence as this part he had not stated in his statement before the police. He admitted having not stated before the police that dead body of Karnail Singh was covered with a Palli as also that they were late in reporting the matter as it was raining. He also stated that the house of Sarpanch was only at a distance of two killas from his house. He also stated that when the dead body was covered with Palli, it was lying with face downward. He, however, denied the suggestion that he was not present at the scene of occurrence. Smt. Malkiat Kaur was examined as PW3. She too supported the prosecution version and deposed in tune with her statement recorded by the police under Section 161 of the Code of Criminal Procedure. She also stated that on receipt of gun shot injury, Karnail Singh fell down with his face downwards while she and Jarnail Singh had run into their house. She also stated that the police had come in the village but her statement was not recorded. In her crossexamination, she stated that Jarnail Singh had gone to the house of Hardial Singh Sarpanch at about 9 AM and that out of fear they had not moved out of the house and had not gone to any person in the village to inform about the occurrence. She also stated that Mukhtiar Singh, elder brother of Karnail Singh deceased had a licensed gun but on account of disturbed circumstances, he was not having it with him during the days of occurrence and had kept it some where. She further stated that the walls intervening the houses of other brothers of her husband were of small height and that there was no interconnecting space in the intervening wall between their house and that of Jarnail Singh but one could see the persons moving about on both sides. She further stated that there was interconnecting open space in the intervening walls between the houses of Jarnail Singh and his other brothers. She also stated that the police had reached the place of occurrence at about noon time. She further stated that she had seen the dead body of her husband Karnail Singh in the morning and it was lying with face downwards and that three empty cartridges were also seen lying near the dead body. She too, like PW2 Jarnail Singh, denied the suggestion that she was not present and had not witnessed the occurrence. Vide statement made on that behalf, learned Public Prosecutor gave up Rajinder Singh, Draftsman, Mukhtiar Singh and Hardial Singh, PWs as unnecessary. Nagor Singh, Sub Inspector, who appeared as PW4, apprised the Court of the way and manner in which he conducted the investigation of the case. However, in the crossexamination, he stated that he could not state as to when it started raining and when it finished and that he had not given the note that the empty cartridges were wet on account of rain. It appears that the trial judge saw the cartridges and observed, in the note made by him while recording the statement of PW4, that cartridges, Ex. P2/1 to P2/3 bore no sign of dampness or having been wet at all. This witness also stated in his crossexamination that he had not mentioned in column No. 7 of the inquest report that dead body of Karnail Singh was covered with a cloth (Palli) and if the dead body had been so covered, the cloth (Palli) had to be taken into possession. He also stated that he had not shown in the site plan the place where Malkiat Kaur was stated to be standing. He also stated that for going from the house of one brother to another brother of the deceased, there were openings in the walls of their houses. He further stated that he had not mentioned that the sample earth taken into possession was wet. Vide separate statement made by the Public Prosecutor, PW Hardev Singh, ASI was given up as unnecessary.

When examined under Section 313 of the Code of Criminal Procedure, the appellant stated that he was innocent, and was arrested by the police from his house on the next day of the occurrence. The police had also taken into possession the licensed gun of his father and he was detained by the police in police station for 810 days and thereafter he had been falsely implicated in this case. The police had fired the licensed gun of his father in the police station in order to strengthen the prosecution case. The accused led evidence in defence. Arjun Singh, DW1 was examined to state that accused were his sons and he was licensee of .12 bore single barrel gun. Karnail Singh of his village was murdered and police came to the scene of occurrence on the next day and took away his licensed gun and cartridges as also his sons.

Mr. R.S. Ghai, learned Senior Advocate, appearing for the appellant, in support of the appeal, preferred by him, vehemently contends that from the statements of main prosecution witnesses, namely, PW2 Jarnail Singh and PW3 Malkiat Kaur, it is apparent that the occurrence had not taken place in the way and manner as suggested by the prosecution. In fact, PW2 Jarnail Singh and PW3 Malkiat Kaur had not witnessed any one causing the death of Karnail Singh and had named the appellant and his coaccused on suspicion alone, contends the learned counsel. Mr. Mehtab Singh, learned Deputy Advocate General, Punjab, has, however, joined issues with the learned defence counsel on the contentions, noted above.

We have heard learned counsel for the parties and with their assistance have gone through the records of the case minutely. We are, however, inclined to accept the contentions of learned defence counsel as, in our considered view, there are lot of chinks in the prosecution version, thus, making the same highly suspect. It is proved from the records of the case that deceased Karnail Singh had his house adjoining the houses of his other brothers, who would have been normally present at their houses if the occurrence had taken place at the time so suggested by the prosecution. It is also proved that the intervening walls of their houses were very small and it was not at all difficult for them to interact with each other, even though they had not to go to each other''s house as such. There are openings or interconnecting spaces in the walls of their respective houses. It is rather strange that when one brother died having been brutally murdered, PW2 Jarnail singh and PW3 Malkiat Kaur had simply locked themselves in their house and but for seeing some part of the occurrence either through chinks of the door or by slightly opening it, they even did not bother to talk about the matter to the inmates of the adjoining houses which happened to be of none other than their close relations i.e. brothers of deceased Karnail Singh. Although the night and even in the morning upto the time, of course, when PW2 Jarnail Singh went to report the matter to the Sarpanch and took him along to the police to report the matter, the brothers even did not talk to each other least telling the incident to the people in the neighbourhood. Even the wife of the deceased, who would have been most anxious to know as to whether, even after receipt of fire injury, her husband was dead or alive, did not bother to come out of the house throughout the night. Some vague attempt has been made to show that PW2 Jarnail Singh and PW3 Malkiat Kaur had come out of their house at night with a view to cover the dead body of Karnail Singh with a cloth (Palli) when it was raining in the night but this part of evidence, in our view, is nothing but an improvement from the original prosecution version. Nothing like that was stated while lodging the FIR. The inquest report does not show that the dead body of Karnail Singh was found either covered by a cloth, or the same was lying anywhere near the dead body and it is for that precise reason that the investigating officer stated that he had not shown the same in the inquest report, and if the same was there, he would have certainly taken it into possession. The matter does not rest there as the empty cartridges, said to have been found from near the dead body of Karnail Singh, were not found to be wet nor anyone stated including the Investigating Officer, that the clothes worn by deceased Karnail Singh were wet when dead body was recovered. It is, thus, proved from the records of the case that not only the wife of Karnail Singh and his brother Jarnail Singh, who were the eye witnesses of the occurrence, had locked themselves in their house but even other brothers, who were living in the adjoining houses, kept completely quiet over the incident all through the night and even in the morning as well. This, in our view, is totally against the natural human conduct and if the occurrence had taken place in the way and manner, as suggested by the prosecution, there was no question for these witnesses to have kept silent by locking themselves in the house all through the night and even upto 9 AM in the morning. The FIR in the present case also appears to have been lodged after a considerable delay and we are quite convinced that only a crude attempt has been made in this case to explain the delay in lodging the FIR. Whereas, PW2 Jarnail Singh states that he had started in the morning at about 5 AM and had gone to the Sarpanch so that he accompanies him to the police station, PW3 Malkiat Kaur states that PW2 Jarnail Singh had left his house at 9 AM. The statement of PW3 Malkiat Kaur appears to be more near the facts and the version of PW2 Jarnail Singh that he had left his house at 5 AM but the Sarpanch could not accompany him for three hours as it was raining, appears to us to be incorrect. The rain alone could not detain the Sarpanch of the village or PW2 Jarnail Singh from going to the police station for reporting a serious matter where brother of PW2 Jarnail Singh had been killed at night. The theory of rain, in our considered view, has been introduced simply with a view to explain the delay in lodging the FIR. While discussing the matter with regard to unnatural conduct of PW2 Jarnail Singh and PW3 Malkiat Kaur, we have expressed our opinion that there was perhaps no rain at night or in the morning. There may, thus, be some explanation in not reporting the matter to the police at night as it is being said that out of fear no body used to go to lodge the report at night particularly in those days when terrorism was in its peak, there is no explanation for not reporting the matter at least early in the morning. Further, Sarpanch, who could corroborate the version of PW2 Jarnail Singh that they had waited for three hours as it was raining, was given up as unnecessary. We also doubt the presence of PW2 Jarnail Singh and PW3 Malkiat Kaur at the scene of occurrence as their statements do not fit in with the medical evidence. As referred to earlier, PW1 Dr. Pawan Kumar clearly stated that postmortem staining was present on the back of the deceased whereas it is consistent case of PW2 Jarnail Singh and PW3 Malkiat Kaur that Karnail Singh, after receipt of firearm injury, had fallen down with his face downwards and when his dead body was recovered, he was in the same posture in the morning. In that event, the postmortem staining could not be on the back of the deceased.

From the discussion made above, we are quite convinced that the occurrence had not taken place in the way and manner as suggested by the prosecution and, in all probability, PW2 and PW3 had not witnessed the occurrence and did not know as to how actually Karnail Singh was done to death. Thus, giving the benefit of doubt, we acquit the appellant of the charges framed against him. Consequently, this appeal is allowed and the order of conviction and sentenced recorded by the learned Sessions Judge, Ferozepur, is set aside.