Nahar Singh vs State of Punjab

S.D. Bajaj, J.

On arrival back home in village Majowal from the fields of his employer Jagir Singh, Surat Singh (now deceased) saw his wife accused Hardev Kaur lying down with his nephew Nahar Singh coaccused in a compromising position around 1.00 A.M. on 29th June, 1987 and abused them both. As usual around 9.00 P. M. on 30th June, 1987 Surat Singh aforesaid went to the tubewell of his employer for sleeping thereat. On the following morning around 4.30 A.M. on 1st July, 1987 his son Raj Singh PW 2 who is also the author of the First Information Report was taking tea for his father to the tubewell of Jagir Singh. On the way he met Ajaib Singh P.W. 3; who was going to his neighbouring tubewell for starting the motor. When both of them were one killa behind the land of Jagir Singh they saw accused Hardev Kaur holding the arms of Surat Singh and her coaccused Nahar Singh giving `sota'' blows to Surat Singh on his head. Both of them raised an alarm whereupon the two accused ran away and the two witnesses on arrival at the place of occurrence found the victim Surat Singh lying dead.

On being charged with the commission of the offence under Section 302 of Indian Penal Code accused Nahar Singh and for the charge under Section 302 read with section 34 of the Indian Penal Code coaccused Hardev Kaur both pleaded not guilty thereto and claimed to be tried. Vide its impugned judgment dated 16th December, 1987 learned trial court convicted accused Nahar Singh of the commission of the offence under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay Rs. 500/ as fine. In default of payment of fine accused Nahar Singh was ordered to undergo rigorous imprisonment for a further period of six months. Coaccused Hardev Kaur was convicted. of the commission of the offence under Section 302 read with Section 34 of the Indian Penal Code and awarded life imprisonment for it. feeling aggrieved therefrom both the convicted accused have individually filed Criminal Appeal Nos. 90 DB of 1988 and 9IDB of 1988 respectively in this Court. Since both the Criminal Appeals aforesaid are directed against the same impugned judgment dated 16th December, 1987 of the learned trial court, based on same evidence led against the two before it, both the appeals have been beard and are being disposed of together.

We have heard Shri J. S. Dhillon, Advocate, for the appellants, Shri P. S. Kang, Advocate, for the State, and have carefully gone through the entire evidence on record.

PW 2 Raj Singh, author of the First Information Report, who is also the son of deceased states :

"Surat Singh deceased was my father. Hardev Kaur, accused, is my mother. Nahar Singh accused is the nephew of my father. Nahar Singh had come to reside with us 8 months before the occurrence. My mother developed illicit relations with Nahar Singh. Two days before the occurrence, they were seen lying together by my father. My father abused them and went to the tubewell of Jagir Singh. Nahar Singh and my mother also left the house. About five months back my father was lying on the tubewell of Jagir Singh. At about 5 30 A.M. I took tea for my father to the tubewell Ajaib Singh P.W. Siri of Sajjan Singh was going to the tubewell of Sajjan Singh and he joined me. The tubewell of Sajjan Singh is at a distance of one killa from the tubewell of Jagir Singh. When we were at a distance of one killa from the tubewell of Jangir Singh, I saw my mother holding the arms of my father and Nahar Singh giving sota blows on the head of my father. That was a Chapta Sota. We raised alarm at which the accused ran away towards the fields. We went to the tubewell and found my father lying dead."

In crossexamination the witness states

"The dead body was stiff but injuries were bleeding when we reached the spot. ASI Gurcharan Singh PW had a quarrel with Nahar Singh accused. Nahar Singh was afraid of Gurcharan Singh and used to avoid him".

Ajaib Singh PW 3 asserts :

"About five months back, at about 4.30 A.M. I was going to the tubewell of Sajjan Singh, when Raj Singh met me. He was taking tea for his father, who was Siri of Jagir Singh. We were at a distance of one killa from the tubewell of Jagir Singh when we saw Nahar Singh causing injuries to Surta with a Chapta Sota. Hardev Kaur had pressed the deceased. The deceased was lying on the cot in front of the tubewell when he was caused injuries. We raised alarm at which, the accused ran away. We reached near the deceased and found that he had died."

In crossexamination the witness states :

"We did not chase the accused. The siris are provides tea and meals by their employers. Raj Singh had brought tea from his own house as Surta was not feeling well. When we reached near the dead body it was lying stiff and blood had frozen. Hardev Kaur was sitting on the chest of the deceased. I did not hear any alarm raised by Surta".

The irreconcilable discrepancies and inconsistencies introduced by the two eyewitnesses in regard to the condition of the dead body; as they observed it, Hardev Kaur being on the chest of the deceased while her coaccused Nahar Singh was giving injuries to the deceased; and the `Sota'' mentioned in the First Information Report having been converted into `Chapta Sota'' in the course of narration of occurrence by the two witnesses in Court render their version of the occurrence as wholly, incredible; more so when it is in direct conflict with the expert, medical opinion of Dr. C. S. Naik, PWI who performed autopsy on the dead body of the deceased.

Dr. C. S. Naik PW I states

"On 171987 at 2.30 P.M. I conducted the postmortem examination on the dead body of Surta Singh son of Sudama Singh resident of Mojowal. I found the following injuries :

Incised wound 2 cm. X 112 cm X bone exposed on the right frontal eminence.

Incised wound below injury No. 1 measuring 2 cm x 1 cm bone spicules were coming out.

Incised wound on the right maxillary process which was 1 cm x 1/2 cm X bone exposed.

On opening the scalp fronto partietal bone on right side showed depressed irregular fracture measuring 10.cm x 8 cm.

On dissection of the brain the meanings were congested and there was formation of subdural haematoma and there was subarachnoid haemorrhage. On opening the thorax the right side of the heart was filled with blood. On dissection of the abdomen, liver and kidneys were found pale and the bladder was containing about 3 ozs. of urine. All other organs of thorax and abdomen were healthy.

In my opinion the cause of death was the subdural haematoma and subarchnoid haemorrhage resulting into respiratory failure and irreversible neurogenic shock.

I have brought the original postmortem report. Ex. PA is its correct cabon copy which was prepared at the same time and bears my signatures. I conducted the post mortem examination on the police request Ex. PB and on the basis of the inquest report Ex. PC. The subdural haematoma and subarchnoid hemorrhage was due to the injuries described by me which were sufficient to cause death in the ordinary course of nature. Ex. PD is the query by the police on which I opined that these injuries may be caused by the Chapta Sota vide my endorsement Ex. PD/1. This endorsement is in my hand and is correct.

In crossexamination the witness asserts

"The margins of the wounds in this case were clean, smooth and well defined. These injuries could be caused with a sharpedged weapon. I was not told the dimensions of any Chapta Sota nor I was shown any such weapon before I made endorsement Ex. PD/1."

`Sota'' of the First Information Report which was turned into `Chapta Sota'' by two eyewitnesses while deposing in court was never shown to the expert medical witness Dr. C. S. Naik PW 1 aforesaid. In Ishar Singh v. State of U.P. AIR 1976 SC 2423 their Lordships of the Supreme Court observed :

"It is the duty of the prosecution and no less of the court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.

In this case it is impossible to say with certainty whether the injury was caused by the ballam or the bhala that were seized, and therefore, whether it was Ishwar Singh or Harapal who was responsible for it, even if one believed that on the day of the occurrence the former carried a ballam and the latter a bhala. Ishwar Singh''s conviction cannot also be sustained in these circumstances".

Omission on the part of the investigating agency to show the weapon of the offence to the expert medical witness alone is sufficient to set aside the conviction of both the accusedappellants.

Furthermore, the observation made by Modi at page 220 of his Text Book of Medical Jurisprudence and Taxicology availed of by the learned trial court in para 22 of its impugned judgment to explain the alleged contradiction between ocular account and expert medical opinion aforesaid could not legally be made use of by it for the desired purpose because the book or, the observations made therein were not put by the learned trial court to the expert medical witness. In Piara Singh and others v. State of Punjab, AIR 1971 SC 2274 their Lordships of the Supreme Court observed, "Books on Medical Jurisprudence cannot be relied upon unless the books were put to expert. Recitals in the books do not provide a sufficient guide to determine the truth of falsity of the testimony of an expert."

Then again in Ram Narain v. State of Punjab, AIR 1975 SC 1727 their Lordships of the Supreme Court observed, "Where the evidence of the witnesses for the prosecution is totally inconsistent with medical evidence or the evidence of the ballistic expert, this is most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. Where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence."

In this view of the matter Criminal Appeal Nos. 90DB of 1988 and 91DB of 1988, individually filed by the two convicted accusedappellants are both allowed, impugned judgment dated 16th December, 1987 of the learned trial court is set aside and both the convicted accusedappellants are acquitted.