Nirbhai Singh and others vs The State of Punjab

The appellants question their conviction, inter- alia, under sections 302/34 IPC for causing death of Gurtej Singh, husband of Karnail Kaur PW 2 and son of Bachan Kaur P.W. 3.

Case of the prosecution, as per statement Ex.PD made Karnail Kaur P.W. 2 before Daya Singh 1.0. P.W. 11 is that on 24.2.1997 at 8 PM, she was present in her house alongwith deceased Gurtej Singh, PW 3 Bachan Kaur, her son Harjit Singh and daughter Shinder Kaur. They had already taken their meals and were talking to Gurnaib Singh, her brother who had come to meet her. They heard some ''lalkara'' (exhortation) calling the naive of her husband. They stood up and saw Nirbhai Singh, Jagsir Singh @ Sira, Gora Singh alias Gori, accused, who forcibly entered the house after breaking the door. Out of fear, Gurtej Singh ascended the roof. The accused shouted asking him to come down. Karnail Kaur, her brother and her mother-in-law tried to make the accused understand but they followed Gurtej Singh to the roof. Gurtej Singh threw bricks from the upstairs in his defence. Karnail Kaur, her brother and mother-in-law followed the accused but accused Nirbhai Singh caught hold of right arm, Jagsir caught hold of left arm and Gora Singh caught hold of legs of Gurtej Singh and dragged him. Jarnail Singh, who was standing in the street, shouted asking the co- accused to throw Gurtej Singh down and to kill him. All the accused threw Gurtej Singh in pucca street on the back side of the house towards the house of Baldev Singh with an intention to kill him. Jarnail Singh said that the other accused had done well and had ended the dispute once for all. He also gave kick blows to Gurtej Singh. Karnail Kaur and other members of the family, who were present, tried to catch hold of the accused but they fled away. electric bulbs installed at the parapet and also in the street were on. Karnail Kaur went near Gurtej Singh and found that he had died. The motive was annoyance of the accused on account of Gurtej Singh objecting to their passing through the field as there was no other pathway for the accused. The deceased had told Karnail Kaur about the altercation which had taken place earlier in the day. She alongwith her brother-in-law Gurmit Singh, who came to the place of occurrence later, was proceeding to inform the police and she met Inspector Daya Singh PW 11 on the way, who recorded her statement at 12 in the night which led to registration of FIR.

Inspector Daya Singh PW 11 went to the place of occurrence, prepared inquest report Ex.PC, inspected the place of occurrence and lifted blood stained earth. He also recovered one left foot wear outside the house. He sent the dead body for post mortem examination, took into possession clothes of the deceased, prepared rough site plan and after completing investigation, he challaned the accused. During interrogation of Nirbhai Singh accused, he recovered one right footwear of his foot. He also got identification of the foot recovered from the place of occurrence and the foot recovered from Nirbhai Singh under orders of SDM, which was conducted by PW 12 Surinder Kaur, Naib Tehsildar. Post mortem was conducted by Dr. Dr. SK Singhal PW 1, who found following injuries on the person of the deceased:

"1. An abrasion 2 cm x 1.5 cm over the front of right knee joint.

An abrasion 4 cm x 3 cm over the lateral aspect of left knee joint.

An abrasion 4.5 cm x 1.5 cm on the front of left knee joint.

A contusion 6 cm x 3 cm over the back of middle 1/3rd of the left forearm 13 cm above the left wrist joint.

Multiple abrasion in an area of 7 em x 3.5 cm over the back of right elbow joint.

A lacerated wound 2.5 cm x, 1.5 cm over the left side efface 4.5 cm from the angle of mouth.

On dissection of thorax 4th, 5th, 6th and 7th ribs on left side were fractured. On deeper dissection Pleura over the left lung was found torn. Underlying lung was also torn at several places and haemotoma was also present at that place.

A lacerated wound 3 cm x 3.5 cm over the left side of forehead. 7 cm from the left eye brow and 1 cm from midlinc. On dissection a haemotoma measuring 6 cm x 7 cm in the underlying tissue was found present. On further dissection a fishered fracture of the underlying frontal bone extending from nasion to suture joining frontal and parietal bone. On opening the skull haemotoma was present on the underlying duramatter. On removing the duramatter haemotoma was also found and brain matter was lacerated. Fracture base of skull was also present."

According to him, cause of death was shock and haemorrhage as a result of injury No. 8, which was sufficient to cause death in the ordinary course of nature. Time between death and injuries was feW minutes and between death and post mortem was within 24 hours. Injury No. 8 could be possible by fall from height.

The prosecution, apart from above referred PW Dr. S.K. Singhal, PW 2 Karnail Kaur, PW 3, Bachan Kaur and PW 11 it, Daya Singh 1.0., examined PW 4 MHC Nirmal Singh, PW 6 Constable Anoop Singh, PW 7 Constable Malkiat Singh, PW 8 Constable Jagsir Singh, PW 9 Dinesh Kumar, PW 10 Constable Baldev Singh, PW 12 Surinder Kumar, Naib Tehsildar and PW 13 AS1 Manjit Singh, which evidence is by and large of formal nature.

The accused denied the prosecution allegations and stated that they had a separate passage to their land and they never passed through the fields of the deceased. The deceased was in fact found lying near the liquor vend at night time and the police had taken up the blood stained earth from that place. The accused were falsely implicated. They examined DW 1 Mela Singh, who produced the Jamabandi of the land and stated that land of the accused adjoined the passage.

The trial court held that the evidence of eye witnesses PW 2 Karnail Kaur and PW 3 Bachan Kaur was truthful, which was ''corroborated by medical evidence. There was no major contradiction or discrepancy and the offence fell u/s 302 IPC as far as Nirbhai Singh, Jagsir Singh and Gora Singh were concerned, while the offence fell u/s 109 read with Sections 302/34 IPC as far as Jamail Singh was concerned.

We have heard learned counsel for the parties and perused the record.

Learned counsel for the appellants made following submissions:

(i) Motive for the offence was not proved. The accused had passage adjoining to their. field as proved by DW 1 Meta Singh.

(ii) The genesis of the occurrence given by the prosecution was not probable. If the accused had to assault the deceased, they would not have gone unarmed inside a house inhabited by family members. When accused were empty handed, the family members would have certainly intervened and saved the deceased.

(iii) The story of breaking open of the door was not corroborated by the site plan Ex.PM, as the accused had not gone through the door but through passage available because of broken piece of the wall, as admitted by PWs. The witnesses were not intact present, which is shown by the fact that the deceased was not taken to the hospital for a possible chance of survival and their non-intervention.

(iv) From the medical evidence, possibility of death having been caused in an accident was not ruled out, as there were injuries on the front, left side as well as back and according to the doctor, the injuries were possible by different falls but not a single fall.

(v) The inquest report Ex.PC was at 10.30 PM and brief statement of facts annexed to the inquest report contained a version, which was at variance with the version given in the FIR. Role of Jarnail Singh of giving a kick blow was not mentioned therein nor the role of Jarnail Singh of appreciating the conduct of the accused was mentioned therein. FIR was prepared after the inquest.

(vi) In any case, the offence did not fall u/s 302 IPC. There was no intention to cause death or to cause the particular fatal injury. The object of the accused was to teach the deceased a lesson and if prosecution version was to be accepted that they threw him from the roof to the street, it could not be said with certainty that a particular bodily injury may be caused or that in all probability, death will be caused.

Learned counsel for the appellants placed reliance on judgements of the Hon''ble Supreme Court in Balaka Singh and Others Vs. The State of Punjab, Yudhvir and others. v. State of Haryana, JT 1996 (10) SC 241, para 8 Mathura Prashad and another Vs. State of Madhya Pradesh, , Paras 14 and 15 and State of U.P. Vs. Shri Krishan, All India Criminal LR (S.C.) 663], to submit that where inquest report is prepared first and FIR is later, the version mentioned in the inquest may be more reliable.

Reliance has also been placed on judgments in State of Karnataka Vs. Shivalingaiah alias Handigidda, Pirthi Vs. State of Haryana, , S.D. Soni Vs. State of Gujarat, , Attepalli Gopaiah v. State of AP, 1978 Crl.J (1) 798 (A.P), para 27, Harjinder Singh alias Jinda Vs. Delhi Administration, and Laxman Kalu Nikalje Vs. The State of Maharashtra, , to submit that where intention to cause particular injury could not be inferred, the offence will not fall u/s Thirdly of Section 300 IPC and offence will fall u/s 304 Part II IPC.

Learned counsel for the State supported the stand of the prosecution.

We are unable to accept the submission that eye witnesses were falsely introduced and the occurrence had not taken place, as deposed to by the eye witnesses. Mere fact that the accused did not go armed, may at best, show that the accused had not gone prepared for killing the deceased but the version of the eye witnesses that they went and called the victim and then entered the house, does not become false, merely because they were not armed. Accused were three in number and their going to the house of accused cannot be held to be improbable. The sequence of events clearly shows that the accused were stronger than the victim and the victim out of fear tried to run to the roof. It is not always possible for the witnesses to intervene and save the situation.

Intention to cause death as also common intention may develop suddenly and throwing a person from the roof to the street could certainly lead to an inference that such an act was done to kill the victim. The street was a pucca street. Injury No. 8 has been found to be sufficient to cause death, which was direct result of fall. Sudden anger cannot be compared to sudden provocation. There is nothing improbable in the version of the witnesses that the accused caught hold of the victim and view him from the roof resulting in instant death. Case clearly as u/s 300 IPC. The judgments relied upon are on their peculiar facts and are distinguishable.

As regards motive, it is well established that when direct evidence is available, inadequacy or absence of motive was not significant.

Mere mention of time of 10 PM in the inquest which was prior to FIR and even preparing inquest prior to the FIR does not, in the circumstances of the present case, affect the case of prosecution, as against accused Nirbahi Singh, Jagsir Singh and Gora Singh.

If the version in the inquest is to he accepted in the line with the judgements relied upon on this point, at best, role of Jarnail Singh given to him in the FIR, which is not mentioned in the inquest report, is to be ignored, which may have bearing on the role of Jarnail Singh accused.

As regards Jarnail Singh, since possibility of accused not having prior plan to cause death of the victim is not ruled out from the manner of occurrence, Jarnail Singh did not participate in the occurrence and role attributed to him in the FIR is not mentioned in the inquest report which carries time anterior to the time mentioned in the FIR, we consider it Safe to give benefit of doubt to him and acquit him.

Case of the prosecution against Nirbhai Singh, Jagsir Singh and Gora Singh is proved beyond reasonable doubt. Their conviction and sentence is upheld.

The appeal is disposed of accordingly.