The State of Punjab vs Nazar Singh and Others

S.S. Grewal, J.—This appeal is directed against the order of Additional Sessions Judge, Ferozepore, dated 10th of December, 1985, whereby, Nazar Singh his brother Karnail Singh and Karnail Singh son of Roor Singh were acquitted of the charge for intentionally committing the murder of Jarnail Singh and causing injuries to Mukhtiar Singh and Shangara Singh in furtherence of their common intention.

In brief facts relevant for the disposal of this appeal, as emerge from the first information report lodged by Shingara Singh, father of the deceased and a stamped witness in this case, are that on 3rd of February, 1985 he along with his son Jarnail Singh and other family members had come to attend the marriage of Avtar Singh, his wife''s brother''s son at Gasti Hazi Wali Dakhli Khai Pheme Ke. Nazar Singh, his brother Karnail Singh and Karnail Singh son of Roor Singh, who is wife''s brother of Karnail Singh, also came there. On 4-2-1985, Mukhtiar Singh brother-in-law''s son of Shingara Singh arranged dinner for the brother-hood. A lady singer had been called for this purpose. That lady singer was singing songs on the stage right in front of the house of Mukhtiar Singh aforesaid. At about 4.30 P.M. Nazar Singh and his brother Karnail Singh brought Karnail Singh son of Roor Singh to the stage to sing a song. Jarnail Singh did not permit them to do so and asked them to sing a song after the lady singer had finished her items. All the three accused were annoyed. Nazar Singh armed with an Iron pipe and his brother Karnail Singh armed with a Dang started quarrelling with Jarnail Singh, Nazar Singh opened the attack and gave a blow with the pipe on the front side of the head of Jarnail Singh, Karnail Singh gave a dang blow on the head of Jarnail Singh, who fell down. Mukhtiar Singh armed with a Gandhali and Shingara Singh came forward to rescue Jarnail Singh. Karnail Singh son of Tara Singh pushed Shingara Singh and threw him on the ground. Nazar Singh gave kick blows to Shingara Singh on his hips and nose. Karnail Singh son of Tara Singh gave a dang blow on the right cheek of Shingara Singh Mukhtiar Singh then gave a Gandhali blow to Nazar Singh in order to rescue Jarnail, Singh, which hit him on his fore-head. Mukhtiar Singh gave another Gandhali blow hitting Nazar Singh on his left knee. Karnail Singh son of Roor Singh accused picked a Takwa and inflicted a blow with it on the left side of the head of Mukhtiar Singh, Mukhtiar Singh and Shingara Singh took Jarnail Singh injured to Civil Hospital, Ferozepore on a tractor tralley where Jarnail Singh succumed to his injuries. After receipt of the copies of the medicolegal reports of Mukhtiar Singh and Shingara Singh PWs, Inspector Gurdev Singh went to Civil Hospital, Ferozepore, recorded the statement of Shingara Singh and on its basis formal first information report was recorded at the Police Station at 9.15 P.M.

Post-mortem examination on the dead body of Jarnail Singh was conducted on the next date of the occurrence. Out of the three injuries of the deceased one was a lacerated wound 5 1/2 cm x 1/2 cm x 1 cm on the right side of the fore-head and underlying frontal bone had a depressed fracture. Extra dural and sub dural haemotoma was seen. The other was a swelling 5 cm x 5 cm on the middle of vertex. The third injury was an abrasion 7 cm x 1 cm on the back of abdomen. In the opinion of the doctor, death of Jarnail Singh was due to shock and haemorrhage as a result of head injury which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and could be caused within 24 hours of the post-mortem examination.

Mukhtiar Singh PW received incised wound 4 cm x 0.5 cm x bone deep on the left side of his head. Shingara Singh PW received three injuries on his face. All these injuries could be caused by a blunt weapon. Nazar Singh accused who too was medico legally examined in the same Hospital on 4-2-1985 received two injuries including an incised would on his fore-head 2.5 cm x 0.5 cm x bone deep.

After completion of the investigation, the accused were challenged. A charge u/s 302/34 of the Penal Code was framed against the accused for intentionally committing the murder of Jarnail Singh in furtherance of their common intention whereas a charge under Sections 324/34 and 323/34 was also framed against them for causing injuries to Mukhtiar Singh and Shingara Singh PWs in furtherence of their common intention.

In support of its case, the prosecution examined Dr. Jaspal Singh, PW. 1, who conducted autopsy on the dead body of Jarnail Singh and also deposed with regard to injuries received by Mukhtiar Singh and Shingara Singh PWs and Nazar Singh accused all of whom were medico legally examined by Dr. Partap Singh, who died before his testimony could be recorded. Shingara Singh PW. 2 and Mukhtiar Singh PW. 3 gave the ocular account as stated earlier. Sunder Singh PW. 4 is the Draftsman who prepared the site plan to the scale of 1". 30'' Inspector Gurdev Singh appeared as PW. 5 and gave the various details of the investigation carried out by him. Affidavits of Constables Karam Singh, Surinder Singh and Das Raj PW. 6 to PW. 8 respectively and reports of the Chemical Examiner Ex. PM and that of the Serologist Ex. PN were tendered in evidence and the prosecution closed its case.

In their statements u/s 313 of the Criminal P.C. Nazar Singh and Karnail Singh son of Roor Singh accused admitted their presence at the spot at the time of the occurrence. The plea taken by the said accused is to the effect that on the reception function of Avtar Singh, Nazar Singh accused asked Karnail Singh accused to sing a song, on which Jarnail Singh deceased who was drunk quarrelled with Nazar Singh and gave two blows with a Toki, one from the sharp side on his head and the other with blunt side on his left knee and in his self-defence Nazar Singh gave one injury with a small pipe (which he picked up from that place) on the head of the deceased who fell down and received other injuries. Karnail Singh brother of Nazar Singh accused, however, denied his presence at the spot and pleaded false implication, because of his relationship with Nazar Singh accused. None of the accused, however, led any evidence in defence.

We have heard the learned counsel for the parties and have carefully perused the record with their help.

The ocular account, in the instant case, rests on the testimony of Shingara Singh father of the deceased and latter''s wife''s brother''s son Mukhtiar Singh both of whom have imprint of injuries on their person. Their presence at the spot at the time of the occurrence has been denied by all the accused in their statements u/s 313 of the Criminal P.C. The first and the fore-most question which arises for determination in this case is as to whether presence of Shingara Singh and Mukhtiar Singh PWs at the spot at the time of the occurrence is natural, probable and convincing. Marriage of Avtar Singh real brother of Mukhtiar Singh had been solemnised a day prior to the present occurrence. Mukhtiar Singh PW had himself arranged reception on the day of occurrence for serving meals to the brother-hood. Shingara Singh PW and his son Jarnail Singh deceased being closely related to Mukhtiar Singh were also invited to attend that reception. For this purpose both of them naturally stated with Mukhtiar Singh PW on their return with the marriage party. Shinagara Singh has given cogent reason for his presence at the spot at the time of the occurrence. Presence of Mukhtiar Singh PW who had arranged that reception in front of his house is also quite natural, probable and convincing.

Medical evidence produced on the record shows that Shingara Singh had received three injuries, out of which two were abraded contusions on the nose and right knee and the third is an abrasion on the middle of the upper lip. Mukhtiar Singh PW received one incised wound on the left side of his head. Taking into consideration the number, nature and seats of the injuries of Shingara Singh and Mukhtiar Singh PWs, it is quite unlikely that the said injuries could be either self-suffered or caused by a friendly hand. The duration of all these injuries also tallies with the time of the occurrence given by these two eye-witnesses in their ocular account. Dr. Jaspal Singh PW. 1 in his cross-examination did state that there is possibility that simple injuries could be suffered on any part of the body from a friendly hand. This opinion obviously was given by the medical expert in answer to a general question and not with regard to specific injuries of Shingara Singh and Mukhtiar Singh. The trial Court was thus not at all justified in drawing the following inference from the opinion of the medical expert referred to above :--

The injuries of Mukhtiar Singh and Shingara Singh are very minor in nature and according to the doctor these can be self inflicted and can be suffered from a friendly hand and this fact that the injuries are fabricated is further supported by medical evidence.

It is true that according to the copies of medico legal reports proved on the record Mukhtiar Singh arrived at Civil Hospital. Farozepore at 5.10 P.M. and was medically examined at 5.45 P.M. whereas Nazar Singh accused who too arrived at the Civil Hospital, at 5.10 P.M. was examined at 5.15 P.M. on the day of occurrence. It has also come in evidence that Shingara Singh was medically examined at 7.30 P.M. His arrival in the Hospital is shown as 7.15 P.M. According to the prosecution story after the occurrence, Mukhtiar Singh and Shingara Singh PWs and Baj Singh took Jarnail Singh to Civil Hospital Ferozepore. However, Jarnail Singh succumbed to his injuries as soon as he reached near the hospital. Shingara Singh natually would be under great shock after the death of his son Jarnail Singh, who was merely about 27 or 28 years old. In that situation it would be quite natural for Shingara Singh to stay with the dead body of his son without caring for simple injuries on his face. Thus mere fact that Shingara Singh appeared before the doctor for his medico legal examination at 7.15 P.M. in our opinion, would not be sufficient to draw an inference that he did not receive injuries at the time of the main occurrence or that he has fabricated these injuries later on. No fresh bleeding is mentioned in respect of any of the injuries of Shingara Singh and Mukhtiar Singh PWs. This aspect of the case belies the defence plea that both these witnesses subsequently got their injuries fabricated in order to probabilise their presence at the spot at the time of the main occurrence.

The ocular account given by Shingara Singh and Mukhtiar Singh PWs has been disbelieved by the trial Court mainly on the ground no independent witness was produced by the prosecution even though 200 to 300 persons were present at the time when the singing party was giving its performance at the wedding reception. It is true that large number of independent persons were present at the time of the said reception. However, in such like situation the people are normally reluctant to come forward and depose as eyewitnesses in order to avoid risk to their own lives or to avoid creating enmity. Mere non-examination of any independent witness thus cannot be considered as a cogent ground to disbelieve the ocular account given by Shingara Singh and Mukhtiar Singh PWs altogether. Nor on that account any adverse inference can be drawn against the prosecution. However, as a matter of prudence, it would be desirable to seek independent corroboration to the version given by Shingara Singh and Mukhtiar Singh PWs.

The main question which further arises for determination is as to whether the testimony of Shingara Singh and Mukhtiar Singh PWs is credible and trustworthy. According to the version given by these two eye-witnesses, Nazar Singh accused opened the attack and gave injuries with an iron pipe to Jarnail Singh on his head and thereafter Karnail Singh brother of Nazar Singh gave a Dang blow on the head of Jarnail Singh. The medical evidence on the record shows presence of two injuries on the head of the deceased, one lacerated wound 5 1/2 cm x 1/2 cm x 1 cm on the right side of the fore-head whereas the second is a swelling at the middle of the vertex. Lacarated wound i.e. injury No. 1 on the bead of Jarnail Singh could be caused by a direct blow with an iron pipe whereas injury No. 2 could be a result of Dang blow and not due to fall on the leg of the cot as opined by the doctor. The pictorial diagram shows that the second injury is virtually on the middle of the head and receipt of such an injury due to fall seems highly improbable. The third injury on the back of the abdomen which is a mere abrasion obviously could be caused due to a fall. This part of the ocular account given by Shingara Singh and Mukhtiar Singh PWs finds independent corroboration from the medical evidence on the record.

The next part of the ocular account given by Shingara Singh and Mukhtiar Singh PWs is to the effect that in order to save his son Jarnail Singh deceased, Shingara Singh PW came forward. He was pushed by Karnail Singh brother of Nazar Singh accused and fell down, Nazar Singh accused kicked Shingara Singh PW in his face whereas Karnail Singh brother of Nazar Singh accused gave a dang blow on his right cheek. Medical evidence reveals that injuries on the face of Shingara Singh PW are two abraided contusions and one abrasion. Two injuries one on the nose and the other on the upper lip could be caused by kicks whereas the third injury on the cheek could be caused by a direct Dang blow. Mukhtiar Singh gave two blows with a Gandhali to Nazar Singh accused, one on his fore-head and the other on his left knee whereas Karnail Singh son of Roor Singh accused gave a Takwa blow to Mukhtiar Singh on his head. Injury on the head of Mukhtiar Singh is an incised wound and could be caused by a sharp edged weapon like a Tekwa. This aspect of the case corroborates the ocular account as far as head injury received by Mukhtiar Singh PW is concerned.

However, the trial Court on the basis of the statement of Mukhtiar Singh PW that he gave a Gandhali blow dangwise to Nazar Singh accused and that Gandhali was sharp from the front and its sides were blunt, observed that Gandhali could not cause an incised wound on the head of Nazar Singh accused if it was used Dangwise. Careful perusal of the medico legal report of Nazar Singh accused reveals that head injury was only bone deep and its width was only .5 cm. Such an injury could also be caused if sharp side of the Gandhali strikes or grazes against the seat of the said injury. Even otherwise head is like a closed vessel.

Dr. R.M. Jhalla and Dr. V.B. Raju in their Medical Jurispridence, Fifth Edition, at page 321, observed that any injury on this stretched scalp even by a blunt weapon leads to tear. This results in injury apparently looking like incised wound, but in reality is a lacerated wound.

While dealing with this aspect of the case, it was mentioned in Modi''s Medical Jurisprudence and Toxicology, Twentieth Edition, at page 262 as follows :--

Scalp wound by a blunt weapon may resemble an incised wound, hence the edges and ends of the wound must be carefully seen to make out a torn edge from a cut and also to distinguish a crushed hair bulb from one cut or torn.

It is significant to note that Dr. Partap Singh while conducting medico legal examination of Nazar Singh accused, had not cared to Note whether nature of edges of the injury on the fore-head were clean cut or merely torn. In the absence of such important data in respect of head injury, it would not be possible to say with any degree of certainty that injury on the fore-head of Nazar Singh was an incised wound. Thus probability that the said injury was caused by a blunt weapon cannot be ruled out altogether. In such a situation the medical evidence on the record certainly is not of that conclusive nature which can be safely relied upon to contradict the ocular account given by Shingara Singh and Mukhtiar Singh as far as head injury of Nazar Singh accused attributed to Mukhtiar Singh PW with a Gandhali is concerned. However, on all other aspects of the prosecution story the medical evidence lends independent corroboration to the ocular account given by Shingara Singh and Mukhtiar Singh PWs on the salient features of the prosecution story. The trial Court has gravely erred in not properly weighing the ocular account given by the two eye-witnesses and disbelieved the same merely on the ground that head injury of Nazar Singh could not be caused by a Gandhali in the manner suggested to by the said eye-witnesses.

Another factor taken into consideration by the trial Court to disbelieved the ocular account given by Shingara Singh and Mukhtiar Singh was that the occurence was shrouded in mystery and its origin and manner of fight had been suppressed from the Court. Reliance in this respect was placed on the authority of the apex Court in Mohammad Khan and Others Vs. State of Madhya Pradesh, In that particular case civil and criminal proceedings were pending between the accused and the deceased. The accused all of a sudden came armed with a Bhalla and gave a blow on the left side of the chest of the deceased. The latter caught hold of one side of Bhalla while the handle portion remained in the hand of the accused. In snatching process of the Bhhalla the handle portion came out of the blade portion and the accused ran away with the Bhalla. The facts of the case in hand are entirely different inasmuch as both the accused and the deceased were present at the marriage reception when after altercation between the accused and the deceased, the accused opened the attack and assaulted the deceased. The two eye-witnesses who were present there throughout had given all the wealth of details concerning the manner in which the entire occurrence took place and as such it cannot be reasonably inferred that the origin of the right has been suppressed or is shrouded in mystery. The authority in State of Bihar v. Mohammad Khursheed''s case (supra) is not applicable to the facts of the case in hand and is clearly distinguishable.

Apart from the deceased both Shingara Singh and Mukhtiar Singh PWs received injuries during the occurrence at the hands of the accused. After the accused had run away from the spot, all the aforesaid three injured from the complainant side were brought by Baj Singh in a tractor trolley to Civil Hospital, Ferozepore. The deceased died just after reaching the hospital. The first enxiety on the part of the injured would be to save their lives and that of Jarnail Singh deceased. As such mere fact that they passed in front of the Police Station before reaching the hospital would not make any material difference. There is no cogent reason to disbelieve Shingara Singh and Mukhtiar Singh PWs that the deceased died near the hospital at about 5 P.M. or so and Shingara Singh PW remained with the dead body of his son. For the reasons best known Dr. Partap Singh who too died during the pendency of the trial first examined Nazar Singh accused and thereafter the complainant party. After receipt of ruqa Inspector Gurdev Singh reached Civil Hospital, Ferozepore at 9 P.M. and recorded the statement of Shingara Singh PW at 9.15 P.M. and the first information report was received by the Ilaqa Magistrate at his residence at 11 P.M. The first information report contained all the wealth of details i.e. the names of the accused, weapons used by them and the names of the witnesses. The post-mortem examination on the dead body of Jarnail Singh was conducted on the next morning of the occurrence much after the special report had reached the Ilaqua Magistrate. In case Shingara Singh and Mukhtiar Singh had not been present at the spot at the time of the occurrence as pleaded on behalf of the defence, it would not be possible for Shingara Singh PW to give all such vivid details in the first information report. The earliest version contained in the first information report lends further credence to the ocular account given by Shingara Singh and Mukhtiar Singh PWs during the trial.

The defence plea set up by Nazar Singh and Karnail Singh son of Roor Singh accused that after Jarnail Singh deceased who was drunk quarrelled with Nazar Singh for not allowing Karnail Singh accused to sing at the marriage reception, the deceased gave two blows with Toki to Nazar Singh accused one from the sharp side on his head and the other from its blunt side on the left knee; he acted in self defence and gave one injury with small pipe on the head of the deceased does not seem probable and sounds highly unnatural inasmuch as the same does not explain one of the two head injuries of the deceased nor does it explain any of the injuries on the person of Shingara Singh and Mukhtiar Singh PWs, which as already discussed earlier could neither be self-inflicted not self-suffered. Even otherwise it does not sound probable that after Nazar Singh accused received the head injury and injury on his left knee normally he would be in a position to hit back. In the instant case, Nazar Singh accused was the aggressor the lady singer was already giving her performance when Nazar Singh accused insisted that Karnail Singh accused should also be allowed to sing. The deceased rightly objected as he did not like the act of Nazar Singh accused to spoil the function. Nazar Singh accused felt aggrieved, opened the attack and caused injuries to the deceased and both Shingara Singh and Mukhtiar Singh PWs, whereas, out of the accused party only Nazar Singh accused received two injuries, the defence plea set up in this case is highly improbable, does not sound natural or convincing and we have not the least hesitation in rejecting the same.

Since the occurrence took place without any premeditation and the accused party had not gone armed to the marriage reception where the occurrence took place, it cannot be held that all the three accused acted in furtherance of their common intention to commit murder of Jarnail Singh or to cause injuries to Shingara Singh and Mukhtiar Singh PWs. All the accused would thus be liable for their individual acts alone. Injury No. 1 on the fore-head of the deceased, is attributed to Nazar Singh accused with an iron pipe which he picked up from near the spot. The underlying frontal bone had a depressed fracture, besides, meninges were torn, extra dural as well as sub dural big haemotoma were seen and this injury in the opinion of the doctor was the only fatal injury. However, Nazar Singh accused did not cause any further injury to the deceased. There was no previous ill-will or enmity between the parties and the occurrence took place all of a sudden over a minor matter in the heat of moment.

From the nature and extent of injury on the forehead of the deceased, it seems that the same has been caused with the intention of causing injury which was only likely to cause death and in all probability was not sufficient to cause his death in the ordinary course of nature. As such the prosecution has only been able to bring home charge u/s 304, Part I of the Penal Code against Nazar Singh accused beyond reasonable doubt and we convict him accordingly. Taking into consideration the over all circumstances of the case and the fact that a period of six years had elapsed after the occurrence, the age of Nazar Singh convict and the manner in which the occurrence took place, Nazar Singh accused is sentenced to undergo rigrous imprisonment for five years and to pay a fine of Rs. 2000/-under Section 304, Part I of the Penal Code. In default of payment of fine to undergo further rigorous imprisonment for six months. The prosecution has also been able to bring home charge u/s 323 of the Penal Code against Nazar Singh accused for causing simple injury to Shingara. He is also sentenced to undergo rigorous imprisonment for six months u/s 323 of the Penal Code. The substantive sentences of imprisonment awarded to Nazar Singh accused shall, however, run concurrently.

The prosecution has been able to bring home charge u/s 323 of the Penal Code for causing simple injury to Jarnail Singh deceased and u/s 323 of Penal Code for causing simple hurt with blunt weapon to Shingara Singh PW, against Karnail Singh son of Tara Singh accused and we convict him accordingly.

The prosecution has also been able to bring home charge u/s 324 of the Penal Code against Karnail Singh son of Roor Singh accused for causing simple hurt with sharp edged weapon to Mukhtiar Singh PW and he is convicted accordingly.

However, taking into consideration the facts and circumstances of the present case, we deem it fit to release both Karnail Singh son of Tara Singh and Karnail Singh son of Roor Singh accused on probation of good conduct u/s 4(1) of the Probation of Offenders Act for a period of one year subject to their furnishing personal bonds to the satisfaction of Chief Judicial Magistrate, Ferozepore. They shall keep peace and be of good behaviour and shall undertake to appear and receive sentence as and when called upon to do so during the said period of probation. We order accordingly.

For the foregoing reasons, the order of acquittal passed by the trial court, which is grossly perverse and the same cannot be legally sustained is hereby set aside and the State appeal is allowed to the extent indicated above. Warrant of arrest be issued against Nazar Singh accused to undergo the remaining period of sentence awarded to him. It is further directed that fine imposed on Nazar Singh accused, if realised, shall be paid as compensation to the legal heirs of the deceased.