Puran Singh Jassi vs State of Punjab

Ujagar Singh, J.

The petitioner appeared as PW/1 in Sessions cast State v. Bachna and two others tried in pursuance of registration of a cis., F.I.R. No. 144 of 1977 of Police Station Khalra under Section 341 Indian Penal Code and later on charged to offence under Section 302 read with Section 34 Indian Penal Cole with which offence they ware ultimately charged.

The trial court, during trial, examined, apart from PW/2 Hans Raj Tehsildar, PW/3 Gum Singh, PW/4 Shrimati Banso, PW/5 Shrimati Dato, PW/6 Shri Baldev Singh, PW/7 Nabibux, PW/8 ASI Pargat Singh, PW/9 SI Amar Singh and PW/10 ASI Prem Kishan the petitioner as PW 1.

The learned A.P.P. conducting the case tendered into evidence, affidavits AF/1 of MHC Balkar Singh, AF/2 of Constable Joga Singh and AF/3 of Constable Pritam Singh and closed prosecution case. Counsel for the defence made a statement that he did not want to crossexamine any of the deponents.

The accused were examined under Section 313 of the code or Criminal Procedure and the charges were denied in toto. Bachna accused plead that he was falsely implicated at the instance of Nabibux, PW/7. The other two accused pleaded their false implication without naming the person at whose instances it had been done so. No" evidence in defence was produced.

PW/1 is the petitioner who proved post mortem report, Ex. PG prepared on the inquest, Ex. PC made by the police. He also proved report of the Chemical Examiner, Ex. P 8 in respect of viscera sent by him. Statements, Ex. PD was made by Gura, PW 3, application PE was made by the police and it is initiated by the police. After the receipt of the Chemical Examiner''s report Ex. PF, Ex. PG is the opinion expressed by this witness about the cause of death which was due to asphyxia as a result of throttling and an injury on the neck and was sufficient to cause death in the ordinary course of nature.

PW/2 Shri Hans Raj Tehsildar proved the application, Ex. PE which was produced before him by S.I. Amar Singh, PW/9 on 1561977 for the permission to dig out the dead body of Chhindo deceased from the grave and he gave the permission vide order, Ex. PE/1.

PW/3 is the father of Chhindo deceased and stated that she was married to Kala and, that Bachna accused was brother of Kala and Veero was wife of Bachna accused while Asso is his mother. He further stated that he had come to the village Mari Mogha about 2/3 months before the occurrence. About 71/2 months before he gave the statement i. e. before 27.3.1988, this witness was informed by Banso, PW/4 that Chhindo had died. He, along with his wife and other persons went to village Mari Mogha and found the dead body of Chhindo lying outside the house under a pipal tree. Amri and Banso, PWs came there and found some marks on the neck of the deceased. Persons of the village Mari Mogha were present there and told them that nothing unnatural and happened and thereafter the dead body was burried in the grave and they came back to their village. After some time, this witness came to know from Nabibux, PW/7 that the deceased had been murdered. This witness went to Mari Mogha & found the police present there and A.S.I. recorded his statement, Ex. PT which was thumb marked by him. At the time when the dead body of Chhindo was taken out. of the grave, he was present and Mamo, Ex. PD was prepared which was attested by him. He also attested Inquest Report, Ex PB Reading the whole statement of this witness, the only circumstance appearing against the accused was that this witness was informed by Nabibux, PW/7 about Chhindo having been murdered.

PW/4 Shrimati Banso is the wife of PW/3 Gura Singh and she stated that after hearing the news of her daughter''s death, she along with her husband and other persons went to village Mari Mogha and there she and Amri. PW gave bath to the dead body. She found some marks of violence on the neck and raised an objection but the accused and other persons of the village said at that time the dead body of Chhiddo should not be spoiled and thereafter they did not pursue the objection because of the fear of the accused. Apart from her statement that some marks of violence were found on the neck of the dead body, there is nothing incriminating against the accused in her statement.

PW/5 Shrimati Dato is the wife of Nabibux, PW/7 and she stated that she and her husband got arranged marriage of Chhindo with Kala, brother of Bachna accused. About 1 1/2 month before the occurrence. Kala and Chhindo shifted to village Mari Mogha and used to reside in the house of accused. There was some dispute between them about the house and Bachana accused used to say that he would not allow them to live in the house and there was quarrel between the ladies also. About 8 1/2 months before 2731979 when she appeared as PW, she went to the house of the accused at about 8 P.M. and found all the three accused quarrelling with Chhindo deceased. Kala was not found present and she entreated that they should not quarrel. Veero pushed her out of the house and chained the door from inside. She further states that about 10 P. M. on that night, Kala, husband of the deceased, raised alarm that Chhindo had been murdered. The whole statement provides only circumstantial evidence about the alleged murder.

PW/6 Baldev Singh is a shop keeper in the village and stated that 71/2 months before 2731978, when he appeared as witness, Chhindo deceased came to his shop at about 8.00 P.M. and purchased tea and sugar. Chhindo deceased had come there after picking the chilies and told him that she was upset. He did not notice any injury on her person. On the next day, he came to know that she had died. The statement of this witness also gives some circumstances which by themselves are not incriminating.

PW/7 Nabibux has stated that About 71/2 months before 2731978, when be appeared as a witness, Chhindo died and about 5 days thereafter, he told her father that she had been murdered by the accused. This witness does not state from whom he got this information about this murder having been caused by the accused. He admits his presence at the time bath was given to the dead body and also at the time the dead body was burried. He was confronted about his omission in his police statement, Ex. PT that he informed Gura Singh that Chhindo had been murdered by all the three accused He frankly admitted in his crossexamination that he had only suspicion against the accused as there was some dispute between them about the house.

PW/8 ASI Pargat Singh is the Investigating Officer and was present on 1481978 in village Mad Mogha Gura Singh PW/3 met him there and statement, Ex PE was recorded at 5.00 P. M., with his endorsement Ex PD/1, FIR PD/2 was recorded by MH.C. Balkar Singh. Site plan, Ex. PK was prepared by him along with marginal notes on it. He recorded statement of the witness and thereafter investigation was taken over by SI Amar Singh.

PW/9 SI Amar Singh conducted the remaining investigation and made application Ex. PE to the S D M and Shri Hans Raj Tehsildar, who was working in his place, gave his permission Ex. PE/I to dig out the dead body of Chhindo on 1581977 and the same was taken into possession vide Memo, Ex. PI which, was attested by Gura Singh, PW/3 and others. Inquest report, Ex PB was prepared by him and attested by witnesses. Inquest report was sent with the dead body for postmortem. Clothes of the deceased were taken into possession vide Memo. PL.

PW/10, ASI Prem Kishan made an enquiry vide Ex. PH/1 On 21111977 and the doctor gave his opinion Ex. PH. He arrested all the accused on 27111971.

After appreciating evidence, the trial Court acquitted the accused but passed the following remarks against PW/1 :

"I cannot say anything about the ulterior motive about the Doctor, but one thing is clear that he was most indiscrete in conducting the post mortem examination. The medical evidence and the opinion of the Doctor in such a case provides help to the Court for determination of the guilt of the accused but this Doctor by his conduct has made the medical evidence most suspicious, which is most objectionable. If the injury was not ante mortem, and sufficient to cause death in the ordinary course of nature and the death was not due to asphyxia, as a result of the throttling, then it is very serious misconduct done by this Doctor to later on give such an opinion in whatever circumstances that may be and if, on the other hand, the injury was antemortem and sufficient to cause death in the ordinary course of nature and the cause of death was asphyxia as a result of throttling, then it is also similarly objectionable conduct on the part of this Doctor of not recording it in the post mortem examination report. Such like cases are not to be treated casually where life and death of the accused person is involved and already a death of a person has taken place. It is suffice to say that this Doctor has not acted in a proper bona fide manner in conducting the medical aspect of this case, which is a vital part for the determination on merits of this case. However, as the things are the benefit is to be given to the accused as in view of (sic) of opinion of the Doctor, on this aspect in the post mortem examination report, which he committed without any rhyme or reason, his evidence cannot establish beyond suspicion his opinion which he gave later on and not at the proper time"

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"In view of the observations made above, it is a very serious state of affairs if the Government Doctors bring themselves into such a criticism and make their evidence to be, suspicious themselves in such cases punishable with extreme punishment of death & the Doctors in such cases are required to be above board so that to their conduct no criticism can be made."

The trial Court, while appreciating the statement of PWs 3 to 7 came to the conclusion that their statements were not reliable and the circumstantial evidence brought on the file to prove their veracity was not sufficient to connect the accused with the crime and therefore, the guilt of the accused. A reference to the judgment will show that the prosecution relied upon only circumstances and there was no direct evidence. According to the version or the prosecution, the deceased had a dispute over a house with the accused and a, quarrel took place at about 8 p.m. on the night of occurrence. The prosecution tried to prove this through the statement of PW 5 Smt. Dato who stated that she had told about this dispute to the parents of the deceased, but in her statement before the Police she had not made such a statement. The house of this witness was 5 to 6 Killas from the house of the accused and there was no explanation with the prosecution as to how she happen to be near the place of occurrence. Another factor taken into consideration against her testimony was that she happened to be the sister of the mother of the deceased. Her testimony was in no way found to be sufficient to establish any alleged dispute or quarrel on the night of the death or Smt. Chhindo. PW 3 Gura father of the deceased, and PW 4 Smt Banso, mother of the deceased has stated that marks of violence were visible on the dead body, but it was an afterthought, as in the FIR PW 3 had not stated so and in the Police statement of PW 4. Smt. Banso, it was not so stated. If these two witnesses had seen any marks of violence on the neck of the deceased, they would not have allowed the dead body to be burried, as stated in this case, and nothing in this respect was done till the report was lodged after about 6 days. According to PW 3, he was informed by PW 7 Nabi Bax who had come to his village after 5 days of the occurrence that Smt. Chhindo had probably been murdered and only then be lodged the report. PW 7 was found to have stated that he got suspicion that the accused might have murdered Smt. Chhindo on account of a dispute over the house. His statement mentions a suspicion only and was not corroborated by any other evidence.

The dead body of Smt. Chhindo was burried at about 3/4.00 p.m., on the next day of the occurrence after sending for her parents Her husband was there from 10 p.m. and if she had been murdered by the accused, her dead body would not have been allowed to be burried after such a long time and her husband would not have kept mum so long. PW 6 Baldev Singh came out with a statement that the deceased had purchased tea and sugar from his shop at about 8 a.m. and she was stating that she was feeling up set due to heat. This statement would also lead to the conclusion that she might have died due to natural death. The trial Court rightly came to the conclusion that there was no evidence and the accused were correctly acquitted.

From the foregoing discussion, it is clear that the statement of the doctor, whatever it was could neither be a support to the prosecution evidence nor could it falsify the same and the prosecution evidence, as it is, was not sufficient to prove anything against the accused. In these circumstances, it has to be seen, whether the remarks of the trial Court against PW 1 could be justified, or not, especially when he had been examined as a witness and there was every opportunity to point out the contradictions or improvements made by him. The trial Court was of the definite opinion that it could not say anything about the ulterior motive of PW 1.

While being examined, PW I stated that on post mortem examination of cornua of hyoid bone was found fractured. He also observed that viscera was being sent and cause of death was subject to the chemical examination. After looking into the report of the Chemical Examiner, he gave the opinion on 2111087 that the injury was ante mortem in nature although he had reserved his opinion till the receipt of the Chemical Examiner''s report, in answer to a question in crossexamination, he stated as under:

"It is incorrect that I had not mentioned in the post mortem report that the injury (sic). His opinion was that viscera was sent for chemical examination to ascertain, whether the death may not be by poisoning even if the injuries noted by him has caused death. This is the reason given by him for not describing the injury as sufficient to cause death in the post mortem report. According to him, the fracture of bone found by him during post mortem could be possible by a fall, but only if the place of injury strikes against hard surface. In reexamination by the learned Public Prosecutor, PW I accepted that there could be a visible mark of injury if caused by fall and there was also likelihood of some other injury on the dead body if the injury was caused by a fall.

The criticism levelled by the trial court is only on the basis that in the circumstances of the case, the medical evidence could provide help to the Court for determination of the guilt of the accused and that statement of PW 1 had made the evidence most suspicious and this was objectionable. According to Medical Jurisprudence, asphyxia could be as a result of poising, as also by throttling. As poisoning was not found, according to the Chemical Examiner''s report, PW 1 had no option, but to say any that asphxia was as a result of throttling. As a matter of fact, there was no direct evidence of death having been caused by violence. The evidence was only based on suspicion with the help of circumstantial evidence. This is the conclusion drawn by the trial Court itself.

From the reading of the judgment it becomes clear that the remarks passed by the trial Court did not form an integral part of the judgment and are distinctly separable. The point in issue in the case was as to whether the accused in the case was in any way connected with the crimes as there was no direct evidence. Whatever evidence was alleged in an attempt to connect the accused directly with the crime, it was either an improvement on the previous version or an addition to it and it has to be disbelieved in the circumstances of the case. In these circumstances the remarks sought to be expunged were wholly irrelevant to any point in issue and were not necessary either to the conclusion of or for arguments before the Court concerned. The petitioner was in the witness box and if anything was to be remarked against him, he could be easily confronted with the same. The learned counsel has pointed out that no such thing was asked from the petitioner who appeared as PW 1 and every question asked was satisfactorily explained. He has referred to a Division Bench case of Sardar Lal Singh Kang v. The State, AIR 1959 Punjab 211 wherein a Division of this Court gave a note of caution that as the adverse remarks are likely to injure the reputation or prejudicially affect the means of livelihood or the career, of the person concerned this power should be exercised by the trial Court with great reserve and moderation so as to ensure that the witnesses are not restrained from coming forward to give evidence and giving their real opinion for fear of displeasing the trial Court. It was further observed that the need for this caution is still greater in case of remarks against officials whose entire career is likely to be affected by such remarks.

The learned counsel has also referred to case of S.K. Viswambaran vs E. Koyakunju and others, 1987 (2) Recent Criminal Reports 175 (SC) 1989(1) C.L.R. 151 wherein their Lordship referred to State of U.P. v. Mohd. Naim''s case, AIR 1964 SC, 702 wherein it was observed that it has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.

The learned counsel for the State has vehemently opposed the expunging of the remarks against the petitioner from the judgment of the trial Court.

After considering all the circumstances or the case discussed above, I feel that in view of the absence of any direct testimony for the crime, the evidence of the petitioner was separable and in either case his statement could not help either of the parties, whatever opinion he might have given He bid reserved the opinion about the cause of death because earlier he was doubtful if the asphyxia could be by poisoning. After receiving the report of the Chemical Examiner, he could safely exclude and actually excluded the possibility of poisoning as the case or asphyxia and therefore, alternatively he gave the present opinion.

25 This petition, is therefore, accepted and the disparaging remarks passed by the trial Court against the petitioner are hereby ordered to be expunged.