Nafe Singh vs State of Haryana

V. K. Bali, J.

Appellants, Nafe Singh and four others, seek setting aside of the order of conviction and sentence passed against them by Addl. Sessions Judge, Jind, who vide his judgment dated September 15, 1993, held all of them guilty of an offence punishable under Section 302 of the Indian Penal Code and sentenced them for life and to pay a fine of Rs. 200/ each and in default whereof to further undergo rigorous imprisonment for six months under Section 302 read with Section 149 IPC as also for one year each under Section 148 IPC as also for one year each under Section 324 IPC read with Section 149 IPC and for three months each under Section 323 read with Section 149 IPC. All the sentences were, however, ordered to run concurrently.

The events culminating into murder of Samunder Singh were brought to the notice of Dharam Pal, PW 15, Sub Inspector of police station Sadar, Jind by PW 7 Sat Pal, whose statement was recorded at 11.25 a.m. on September 16, 1992. PW 7 Sat Pal reported that they were four brothers and two sisters. All the four brothers were residing separately. On the eventful day i.e. September 16, 1992, at about 6 a.m. his aunt (father''s brother''s wife) Bhartho, wife of Sube Singh and her son Bhupinder Singh had gone to their old house to collect niar (fodder). His uncle (father''s younger brother) Maha Singh son of Nathu Ram and Nanhi, wife of Chand did not allow them to do so. For this, they had an altercation. In the meantime, his brother Samunder Singh reached there and in his presence Maha Singh inflicted a gandasa blow on the head of his aunt. He gave a gandasa blow from its reverse side on the head of Bhupinder Singh and thrustwise on his chin. His brother Samunder Singh separated them and brought his aunt and her son Bhupinder to their house. At about 6.30/7 a.m. on the same day, he along with his brother Samunder Singh and mother Bhartho, reached near the house of Dalip Singh, son of Gulzari, from their house for taking them to the hospital at Jind. Ranbir, Sultan and Ram Mehar sons of Nafe Singh and Nafe Singh and Maha Singh sons of Nathu Ram, armed with gandasis, after having connived with one another, appeared in the public street all of a sudden and opened an attack while raising lalkara on his brother Samunder Singh and mother Bhartho with an intention to kill them. Within their sight, Ranbir gave one gandasa blow to his brother Samunder Singh hitting on his right knee and two gandasa blows hitting below his right calf. Sultan gave three gandasa blows to him on his left calf and two gandasa blows below his left knee. Ram Mehar inflicted two gandasa blows on his head and one gandasa blow near the elbow of his right hand. Nafe Singh and Maha Singh dragged his brother, as a result of which he sustained scratches on his back. Nafe Singh gave two gandasa blows to his mother hitting on the right side of her head. Maha Singh gave two gandasa blows to her hitting on the left side of her head. Ranbir gave a gandasa blow to her hitting on the left side of her chin and Sultan inflicted a gandasa blow near her right eye with an intention to kill his mother. At this, they raised an alarm saying "MAR DIA MAR DIA" (Killed, killed) which attracted many people to the spot. Thereafter, Ranbir and others fled away from the spot together with their gandasas. Later on, he along with his father Hoshiar Singh, put his brother Samunder Singh and mother Bhartho in his tempo and reached Hospital at Jind from their village. His brother Samunder Singh succumbed to his injuries on the way and his mother was admitted in the hospital. Nafe Singh and his sons suspected that his brother Samunder Singh was helping his aunt Bhartho and due to that, Ranbir, Sultan, Ram Mehar, Nafe Singh and Maha Singh, having connived with each other, had committed the murder of his brother Samunder Singh and inflicted gandasa injuries to his mother with the intention to kill her, as well. The occurrence, as per the FIR, referred to above, took place at about 6.30/7 a.m. on September 16, 1992 and the FIR came to be recorded on the same day at 11.25 a.m. This statement was recorded at General Hospital, Jind, which is at a distance of 7 kms. from the place of occurrence. The special report with regard to the incident aforesaid reached the Magistrate concerned at 3 p.m. on the same day i.e. September 16, 1992. Whereas, Samunder Singh died, Bhartho, wife of Hoshiar Singh and another Bhartho wife of Sube Singh and Bhupinder were injured in this incident.

PW 1 Dr. G. D. Gupta, Medical Officer, Civil Hospital, Jind radiologically examined Bhartho, wife of Hoshiar Singh and found no bony injury. He also examined Nafe Singh, son of Nathu Ram and found no bony injury. PW 3 Dr. V. K. Satija medically examined Smt. Bhartho wife of Hoshiar Singh and found following injuries on her person :

"1. There was an incised wound 4 cm x 1 cm x skin deep just below the left ear. Fresh bleeding was present.

There was another incised wound 5.5 cm x 1 cm x skin deep over the left parietal bone of skull, 11 cm from the left ear. There was defused swelling around it. It was advised xray and kept under observation.

There was another incised wound 1.5 cm x 0.5 cm x skin deep, 7 cm above the left eye. It was advised xray and kept under observation.

Another incised wound 3 cm x 1 cm x skin deep over the right eye brow. Fresh bleeding was present. Black eye was there. It was tender. Advised xray and kept under observation.

Another incised wound 1 cm x 0.5 cm x skin deep over the right cheek. Fresh bleeding was present.

Incised wound 3.5 cm x 1 cm x skin deep over the right frontal bone present 4 cm above the right eye. It was tender and was advised xray and kept under observation."

Injuries 1 and 5 were declared simple whereas injuries 2, 3, 4 and 6 were subjected to xray and kept under observation. Probable duration was within 24 hours and the kind of weapon used was opined to be sharp. PW 3 on the same day at 9 a.m. also examined Bhartho, wife of Sube Singh and found following injury on her person :

"There was an incised wound 1.5 cm x 0.5 cm x skin deep over the right parietal bone of the skull, 9 cm above the right ear. Fresh bleeding was present."

The injury was declared simple, caused by a sharp edged weapon. Probable duration was opined to be within 24 hours.

On the same day at 9.10 a.m., the said doctor also medically examined Bhupinder Singh son of Sube Singh and found the following injuries on his person :

"1. There was an abrasion 0.5 x 0.4 cm over chin.

There was another abrasion 4 cm x 1 cm over the left parietal bone of skull, 11 cm above left ear".

Both the injuries were opined to be simple in nature having been caused by blunt weapon. Probable duration, in the opinion of the doctor, was within 24 hours.

PW 5 Dr. Satish Aggarwal, conducted postmortem on the dead body of Samunder Singh on September 16, 1992 at 5.30 p.m. and found following injuries :

"1. Incised wound 12 cm x 4 cm on the right knee joint on lateral aspect opening the wound lateral portion of lower end of femur was elapped off. Muscles were cut. Blood clots were present.

Incised wound 10 cm x 3 cm on lateral aspect of right leg in lower portion 5 cm above ankle joint. Tibia was cut and exposed on dissection tibia and fibula were cut. Muscles were cut and blood clots were present.

Incised cut wound 8 cm x 3 cm on right leg on lateral aspect 3 cm above injury No. 2 on dissection fibula was cut muscles cut. Blood clots were present.

12 cm x 4 cm incised wound in back of left leg, just below knee joint. On post medial aspect, muscles were cut. Blood clots were present.

12 cm x 4 cm incised cut wound on lateral aspect of left leg. Muscles cut. Fibula was cut. Blood clots were present.

11 cm x 4 cm incised wound 2 cm below injury No. 5. Muscles cut.

12 cm x 1/2 cm reddish contusion on front of lateral aspect of left thigh, 10 cm above knee joint.

Incised wound 3 cm x 1 cm on back of right arm, 5 cm above elbow joint. Muscles cut.

Incised wound 5 cm x 1 cm on back of right forearm, 5 cm below elbow joint.

12 cm x 1/2 cm contusion mark on back of chest of middle portion.

7 cm x 1/2 cm contusion mark on the back of left side of chest, 3 cm below injury No. 10.

6 cm incised wound on scalp on right side, 10 cm above left pinna.

6 cm incised wound on skull on top of the midline, joining two pinna. On dissection, skull bone was intact".

The cause of death, in the opinion of the doctor, in this case was due to haemorrhage and shock and the injuries were antemortem in nature and sufficient to cause death in the ordinary course of nature. The time interval between injuries and death was opined to be within 24 hours and between death and postmortem within 12 hours.

The prosecution, besides relying upon the medical evidence, that has been detailed above, also relied upon statements of PW 7 Sat Pal, PW 8 Bhupinder Singh and PW 9 Bhartho. Other Bhartho wife of Sube Singh, even though injured, was given up on the statement made by the Public Prosecutor on that behalf on May 4, 1993. PW 10 Bhim Singh was examined to prove recovery of gandasas from the accused Sultan Singh, Ranbir Singh, Maha Singh and Ram Mehar. PW 12 Krishan was examined to prove arrest of the accused and recovery of gandasa from Nafe Singhappellant. PW 13 Ram Phal, Head Constable only stated that on September 16, 1992, on receipt of ruqa from the Civil Hospital, Jind, regarding Nafe Singh, injured, he had sent the same to Police Station Sadar, Jind. PW 14 Phul Singh, Constable was examined to prove that copy of F.I.R. was handed over to him by Constable Bhisham Singh, as the latter was not feeling well and that he had delivered copies of F.I.R. to the Ilaqa Magistrate and the Superintendent of Police. Copy of FIR was handed over to the Ilaqa Magistrate at 2.30 p.m. PW 15 Dharam Singh, SI Investigating Officer deposed with regard to way and manner in which the investigation had progressed in the case.

When examined under Section 313 of the Code of Criminal Procedure, whereas accused Ranbir, Sultan and Ram Mehar have pleaded innocence and nonparticipation in the incident, accusedappellants Nafe Singh and Maha Singh pleaded that Samunder Singh was sleeping in his field on the night preceding the alleged occurrence and some unknown persons had caused injuries to him. In the morning, Bhupinder Singh and Bhartho, PWs, went to the fields and found Samunder Singh in an injured condition. They suspected that Maha Singh might have caused injuries to Samunder Singh and as such they went to his baithak, which adjoins the house of Nafe Singh. An altercation took place there between Maha Singh, on one side and Bhupinder Singh and his mother Bhartho, on the other side. Maha Singh entered the house of Nafe Singh. Bhupinder and Bhartho tried to assault Maha Singh but Nafe Singh made out that he would not allow them to beat Maha Singh in his house. Thereupon, they threatened Nafe Singh to teach him a lesson and caused injuries to him. Nafe Singh and Maha Singh caused injuries to Bhupinder Singh and his mother Bhartho in self defence. Maha Singh had no male issue and Nafe Singh and his sons had been falsely implicated in this case in connivance with the police. Accused appellants, however, led no evidence in defence.

It is true that Bhartho wife of Sube Singh, who too was injured, was given up as unnecessary and as such was not examined but it is also equally true that Sat Pal and the two other injured witnesses, namely, Bhupinder and Bhartho have fully supported the prosecution version. The witnesses with regard to recovery of gandasas from the five accused have also proved the same with the only criticism that whereas, Bhim Singh is uncle of deceased Samunder Singh, PW 10 Kishan was also related to the deceased. Learned defence counsel, with all his legal acumen, could not make even a slight dent in the sworn testimony of the eye witnesses. With his assistance and that of learned State counsel, we have minutely gone through the statements of the eye witnesses and are of the firm view that their evidence is consistent and inspires confidence. Learned defence counsel, however, contends that not only the FIR in this case was lodged after a considerable delay, giving sufficient time to the witnesses to cook up the story and the details thereof, but so much so that even evidence with regard to time when the special report reached the concerned Magistrate has been fabricated. With a view to strengthen this plea, it is being argued that Samunder Singh and his injured relations had reached Civil Hospital, Jind, at 7.45 a.m. on September 16, 1992 and yet no effort at all was made to lodge the F.I.R. upto 10.15 a.m. despite the fact that it is a local case i.e. the occurrence took place at Jind, hospital was at Jind and so was the police station. It is further being argued that the endorsement on the FIR, Ex. PW 14/A recorded by the Magistrate clearly mentions "Received today at 3 p.m. through Bhisham Singh, Constable No. 139. Be registered". Whereas, Phul Singh, PW 14 has stated in his examinationinchief that Bhisham Singh, Constable No. 139 had handed over a copy of the F.I.R. to him which was in turn handed over to Bhisham Singh by Mohrir Head Constable and as Bhisham Singh was not feeling well, he gave two envelopes, one for the Ilaqa Magistrate and the other for the Superintendent of Police to him and that he had handed over the FIR to the Ilaqa Magistrate at 2.30 p.m. This is nothing but an attempt to forge or fabricate the evidence with regard to receipt of FIR by the Magistrate, contends the learned defence counsel.

We have given our anxious thought to the contention of learned defence counsel but, on scrutiny, we find the same to be without any substance whatsoever. The facts of the case clearly reveal that whereas one person had died, three were injured. The obvious and immediate concern of the injured and the persons accompanying them was the welfare of those who needed immediate attention i.e. the injured persons. It is for that precise reason that on receipt of an information from the hospital with regard to death of Samunder Singh, the police reached the General Hospital, Jind where statement of Sat Pal was recorded. It may be recalled, the narration of facts in the FIR clearly reveals that Sat Pal had taken Samunder Singh and three other injured persons to the hospital and it is only his father, Hoshiar Singh, who was accompanying him. These two persons were looking after one person, who in their view, might have still been alive or who still could be saved whereas there were three more injured persons. They must have been running around for them and if in their anxiety to treat the injured first, they did not immediately rush to the police station, no fault can be found in their conduct. Insofar as contention of learned counsel with regard to fabrication of time of special report reaching the concerned Magistrate is concerned, it is true that the Magistrate has, in his endorsement, mentioned that the same was received by him through Bhisham Singh, Constable whereas PW 14 Phul Singh, Constable stated that it is he who had delivered the same to the concerned Magistrate at 2.30 p.m. Insofar as time recorded by the Magistrate and the one given by PW 14 is concerned, the variation is of half an hour and PW 14, who was examined after one year, could not be faulted on the sole ground that he could not remember the precise time when the special report was handed over to the concerned Magistrate. Read as a whole, we do not find any attempt on the part of the prosecution to fabricate the record as is endeavoured to be made out by the learned defence counsel. PW 14 Phul Singh, in his cross examination stated that the Magistrate had not asked his name when he had delivered the copy of the said report to him. From his examinationinchief, it is well made out that it is Bhisham Singh, who was to deliver the copy of FIR to the Magistrate but because he was not feeling well, he requested Phul Singh to do the needful. It is, thus, possible that on the two envelopes, that were handed over to Bhisham Singh by Mohrir Head Constable, name of Bhisham Singh was written and it is from that only that the Magistrate mentioned in his endorsement that Bhisham Singh had delivered him copy of the special report. The contention of learned counsel with regard to delay in lodging the FIR and receipt of special report by the Magistrate is, thus, repelled.

The next contention of learned counsel is that the occurrence had not taken place at the time as suggested by the prosecution. It is being argued that PW 5 Dr. Satish Aggarwal has deposed that semi digested food was found in the stomach of Samunder Singhdeceased. If that be so, Samunder Singh must have had his last meal around 4.30/5 a.m. and it is at that time only or about 15 minutes thereafter that he must have been murdered. The eye witnesses have stated that Samunder Singh had his last meal sometime before he had walked out of his house so as to take his aunt to the hospital and it is at that time, as per the prosecution version, that he was attacked by the accused and murdered in the way and manner, mentioned above. Learned defence counsel relies upon Babu & others v. State of Uttar Pradesh, 1983 Crl.L.J. 334, to contend that if semi digested food was found in the stomach of the deceased, it would be a case where the deceased had taken his last meals 23 hours before his death. With a view to strengthen the argument, noted above, it is being further argued that the doctor, who conducted postmortem on the dead body of Samunder Singh, further deposed that the bladder was full of urine and there was also faecal matter in the large intestine and that Samunder Singh may not have started his normal pursuits at the time when he was killed.

After careful scrutiny of the evidence brought on records, we find no merit in this contention as well. It is, no doubt, true that the witnesses have stated that Samunder Singh had his last meals sometimes before he was taking his aunt to the hospital as also that the doctor, who conducted post mortem on the dead body of Samunder Singh did state that semi digested food was found in his stomach but that, in our view, is not enough to reject the prosecution version as the other facts proved on records would show that this evidence is not contradictory to the occular version of the incident given by the eye witnesses. The occurrence took place at about 6.30/7 a.m. If we take a meantime of these two timings, given by the prosecution, we can fix the time of occurrence at 6.45 a.m. If Samunder Singh had taken his last meals about half an hour earlier, it can well be said to be at 6.15 a.m. Samunder Singh, whether dead or alive, had reached the hospital at 7.45 a.m. Taylor, in his book titled as "Taylor''s Principles and Practice of Medical Jurisprudence" Vol. I, 8th Edition, says, "The rate of digestion varies with different individuals and with the state of the gastric mucosa.......Again it must be remembered that death does not at once cause the process of digestion to stop, as we know that the stomach can even digest itself after death. With all this uncertainty too much stress must not be placed on such evidence". From the facts, as have been given above, it thus appears that Samunder Singh had taken his last meals at about 6.15 a.m. and even if it is accepted, as per the prosecution version, that he died on the way to the hospital, it is possible that he died around 7.45 a.m. or a few minutes before that. It means that he died about 11/2 hours after he had taken his last meals. That apart, it all depends as to what kind of food he had taken. It is only if it is precisely known as to what meal a person had taken that from the contents of the food found in the stomach and the kind thereof, it may be possible to give some definite time between his taking last meals and the death but, concedely, there is no such evidence in the present case, i.e. it is absolutely not known as to what kind of food Samunder Singh had taken which was his last meal. Insofar as urine in the bladder and faecal matter present in the large intestine is concerned, it all depends upon the habits of an individual. Some people feel the necessity of going to bathroom immediately when they get up whereas others take lot of time before they like to ease out. That apart, the two events, one involving the injuries to his aunt and the other to himself were in such quick succession that even though Samunder Singh might have felt like easing himself, he might still not be in a position to do so, the condition of his aunt worrying him more than anything else.

The next contention of learned defence counsel is that there are injuries on the person of Nafe Singh accused and the said injuries have not been explained by the prosecution. PW 4 Dr. H. N. Sehgal medically examined Nafe Singh son of Nathu Ram on September 16, 1992 at 9.20 a.m. and found following injuries on his person :

"1. There was a lacerated wound 11/2 cm x 1/3 cm x skin deep present on right side of forehead, vertically placed. Bleeding seen.

There was lacerated wound 31/2 x 1/2 x 1/2 cm in size present on left eyebrow in the margin of left eye brow. Bleeding seen. Advised x ray.

There was an incised wound 8 cm x 41/2 cm muscle deep visible tendens cut, present on left forearm on back just in middle. Advised xray and after surgeon opinion.

There was lacerated wound 11/2 x 1/2 x 1/2 cm present on the back of right forearm.

There was lacerated wound 31/2 x 1/2 x 1/2 cm in size present just below the chin region of face. Blood seen. Advised xray".

It is contended that if there is no explanation with regard to the injuries found on the person of the accused, the whole prosecution case becomes doubtful. Learned State counsel, however, contends that it is not essential in every case that such nonexplanation would always be fatal to the prosecution case. For his aforestated stand, learned counsel relies upon Paras Nath Singh v. State of Bihar, 1988 SCC (Crl.) 280. In the context of the facts and circumstances of this case, we do not find any substance in this argument of the learned defence counsel, as well. As is made out from the prosecution version, there were three persons, who were injured whereas one died. Out of the three, two were examined and they have supported the prosecution version in all material details. It is possible that Nafe Singh received some injuries when Samunder Singh was being brutally attacked by five people, from his own men or for that matter even from the deceased or his companions. So many injuries were inflicted upon the deceased and other injured witnesses that it is possible, that in this case, the injured witnesses might not have come to know as to how Nafe Singh got injuries. That apart, all the injuries on the person of Nafe Singh were opined to be simple and the doctor also opined that these injuries could be caused by fall on hard surface or by friendly hands.

Learned defence counsel has also pointed out small discrepancies in the statements of the eye witnesses and has also argued that on both the occasions, when the aunt of Samunder Singh was given injuries or even when Samunder Singh himself along with his mother was attacked by the accused, there were so many people who were present and had actually witnessed the occurrence and yet it is only the relations who have come forward to depose in support of the prosecution version. These arguments, in our view, are totally insignificant. It may be seen here, that Maha Singh, Nafe Singh, Hoshiar Singh and Sube Singh are real brothers. It is Hoshiar Singh''s son Samunder Singh, who has been murdered whereas Bhartho wife of Hoshiar Singh and another Bhartho wife of Sube Singh and Bhupinder Singh son of Sube Singh, have been injured. The accused in this case are Nafe Singh, Maha Singh, Ranbir Singh, Sultan Singh and Ram Mehar. Ranbir Singh, Sultan Singh and Ram Mehar are sons of Nafe Singh. It is, thus, a case where the accused, deceased and injured are very closely related. That being the situation, those who witnessed the occurrence, might not have chosen to support either of the sides. Small discrepancies in the statements of the eye witnesses are wholly insignificant in this case as, it is proved, that Bhartho and Bhupinder Singh received injuries in the same incident in which Samunder Singh died. They are, thus, stamped witnesses and their presence cannot be doubted in any manner whatsoever.

No other point has been raised by learned defence counsel.

Finding no merit in this appeal, we dismiss the same and confirm the order of conviction and sentence dated September 15, 1993, recorded by the Additional Sessions Judge, Jind.