Criminal Appeal No.506-DB of 2001. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.506-DB of 2001. Date of Decision : JULY 13th, 2010 1. Bhupinder Singh 2. Harbir Singh sons of Lakhwinder Singh son of Dula Singh residents of village Talle, District Amritsar. ......Appellants Versus The State of Punjab ......Respondent CORAM : HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. Vinod Ghai, Advocate, for the appellants. Mr. VK Jindal, Addl. AG Punjab, for the respondent-State. NAWAB SINGH J. This appeal has been filed by above named accused-appellants against the judgment of conviction and order of sentence dated August 4th, 2001 passed by learned Sessions Judge, Amritsar, whereby, they were convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/-, each with default stipulation and acquitted Surinder Singh-accused. 2. The appellants are brothers. Sukhwinder Singh (deceased) was their real uncle. On April 15th, 1999 at about 6 AM Daljit Kaur (PW-5) and Pritam Singh (PW-6) wife and brother respectively of the deceased along with other family members were present at their house situated in village Talle District Amritsar. Bhupinder Singh and Harbir Singh accused-appellants along with their brother Surinder Singh (since acquitted) came to the house of the deceased. The accused-appellants were armed with gandasis. Criminal Appeal No.506-DB of 2001. 2 Surinder Singh raised lalkara saying that previous night deceased managed his escape but now would be killed. Sukhwinder Singh, in order to escape, ran in the street. The accused chased him and caught hold of him in the street where cowdung was lying. Bhupinder Singh caused a gandasi blow on the head of the deceased. The deceased fell down. Harbir Singh also caused gandasi blow from its reverse side on the mouth and teeth of the deceased. An alarm was raised by the complainant shouting 'Do not kill, do not kill'. Sukhwinder Singh died on the spot. 3. Daljit Kaur (PW-5) and Pritam Singh proceeded to Police Station Lopoke to lodge the report. Jagdip Singh, Station House Officer, Police Station Lopoke (PW-7) met them near Government school Tapiala. Daljit Kaur's statement (Exhibit PB) was recorded. Jagdeep Singh, Inspector appended his endorsement (Exhibit PB/3) on the statement (Exhibit PB) and sent the same to Police Station Lopoke. On the basis of information, formal First Information Report (Exhibit PB/1) was recorded. Inquest proceedings (Exhibit PC) were conducted. Blood stained earth were taken into possession vide seizure memorandum (Exhibit PH) from the spot. Rough site plan (Exhibit PJ) was prepared. Clothes of the deceased were taken into possession vide seizure memorandum (Exhibit PK). The dead-body was sent for post-mortem examination. 4. Motive behind the occurrence was that family partition took place between accused-appellants and the deceased. The accused-appellants purchased two Kanals of land after the partition and they wanted that said two Kanals be irrigated from the tubewell which fell to the share of the deceased because they insisted that they had 1/4th share in the tubewell. On the previous day also, accused-appellants tried to kill the deceased but he managed his escape. 5. On April 25th, 1999 accused-appellants were produced before Harbhajan Singh Sub-Inspector, Police Station Lopoke (PW-8) by Dhir Singh and Harbans Singh. Both of them were arrested. They were interrogated. On interrogation, Bhupinder Singh Criminal Appeal No.506-DB of 2001. 3 and Harbir Singh made disclosure statements (Exhibit PL and PM) to the effect that they kept concealed the gandasis in their rooms in the house and could get the same recovered. In pursuance thereto, both the accused got recovered the gandasis from the disclosed places. Sketches (Exhibit PL/1 and PM/1) of the gandasis recovered at the instance of Bhupinder Singh and Harbhajan Singh respectively were prepared and were taken into possession vide memorandums Exhibit PL/2 and PM/3. Rough site plan of the place of recoveries of gandasis (Exhibit PL/3) and PM/3) were prepared. 6. After completion of the investigation and other formalities, the accused-appellants were arraigned for trial. 7. Charge, in respect of commission of offence punishable under Section 302 read with Section 34 of Indian Penal Code was framed against the accused-appellants. They pleaded not guilty and claimed trial. 8. In support of its case, prosecution examined eight witnesses viz Dr. Gurmanjit Rai (PW-1), Mohan Lal (PW-2), Bikramjit Singh, MHC 9PW-3), Swaran Singh (PW-4), Daljit Kaur (PW-5), Pritam Singh (PW-6), Jagdeep Singh (PW-7) and Harbhajan Singh (PW-8). 9. In his examination under Section 313 of Code of Criminal Procedure, the accused-appellants denied the allegations and pleaded that they were implicated falsely. 10. The evidence on record, material circumstances of the case and the arguments addressed by learned counsel for the parties have been appraised. 11. The post-mortem examination report (Exhibit PD) on the dead body of Sukhwinder Singh was conducted by Dr. Gurmanjit Rai (PW-1). He found the following injuries on his person :- 1. Incised wound 7.5 x 1.5 cm was present on top of left side of head, vertically placed. Clotted blood was present. Extra cranial haemotoma was present below injury. On dissection of skull, underlying left temporal and Criminal Appeal No.506-DB of 2001. 4 frontal bones were found out fractured. Membrance and brain were found cut. About 100 cc of clotted and fluid blood was present in the cranial cavity. 2. Incised wound 1.5 x 7 cm was present on left lower eye lid. It was skin deep. Clotted blood was present. 3. Reddish brown abrasion 1.5 x 1 cm was present on left knee. In dissection of abdomen; stomach was having about 30 cc of fluid and organs of abdomen were normal. On dissection of chest; Both lungs and heart were normal. He opined that the deceased died on account of the injury on the head which was sufficient to cause death in the ordinary course of nature. It was also opined by him that clotted blood was present in the mouth and injury No.3 could be suffered by fall. 12. Eye witness account has been given by Daljit Kaur (PW-5) and Pritam Singh (PW-6) widow and brother of the deceased respectively. They have described the occurrence as narrated in paragraph No. 2 of this judgment. To avoid repetition, the same is not being reproduced here. Both of them have stated in one voice that accused caused injuries to the deceased with their respective gandasis. Bhupinder Singh accused caused gandasi blow on the head of the deceased whereas Harbir Singh caused injuries with gandasi on the mouth and teeth of the deceased. Their presence on the spot was natural as they are widow and brother of the deceased. 13. The first submission advanced by learned counsel for the appellant to assail the prosecution case was that the occurrence did not take place at 6.30 AM as stated by the witnesses rather it was a blind murder because it has been opined by the Medical Officer that rigor mortis was present when he examined the Criminal Appeal No.506-DB of 2001. 5 dead body at 4.30 PM, that is, after 10 hours of the occurrence. As per Medical Jurisprudence & Texicology 22 nd Edition of Modi , the time when rigor mortis sets in varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates and it may take two to three hours to develop. In India, it usually commences after one to two hours after death. Hon'ble Supreme Court in State of Haryana vs. Ram Pal 1999(1) RCR (Criminal) 810, observed that a reading of the extract from the text book of Medical Jurisprudence and Toxicology would make it clear that rigor mortis may set in between one to two hours and would spread over within 12 hours. One cannot be definite as to the time when rigor mortis sets in and particularly, in summer the deterioration of the body would be much faster and hence one cannot rule out the possibility of rigor mortis spreading in less than 12 hours and therefore, medical evidence cannot be stated to be inconsistent with the evidence tendered by the eye witnesses. The occurrence in this case took place on April 15th, 1999, that is, the summer season. In view of this, there is no force in the submission of learned counsel for the accused-appellants and is therefore, rejected. 14. Next circumstance which was highlighted by learned counsel for the appellant is that during inquest (Exhibit PC), it was mentioned by the investigator in coloumn No.11 that blood was clotted on the mouth of the deceased which again suggests that the occurrence did not take place at 6.30 AM. The inquest was prepared at 8.15 AM, that is, after one hour and 45 minutes of the occurrence. In Modi's Jurisprudence (supra), it has been mentioned that it is impossible to give the exact time at which the blood begins to coagulate after death. This being so, the point raised is of no consequence and it cannot be held that occurrence did not take place at 6.30 AM. 15. In view of this, it is not possible to hold that it was a blind murder as convassed by learned counsel for the appellants rather Daljit Kaur (PW-5) and Pritam Singh (PW-6) witnessed the Criminal Appeal No.506-DB of 2001. 6 occurrence. 16. Another important piece of evidence in this case is that the gandasi (Exhibit P1) recovered at the instance of Bhupinder Singh accused was sent to the Chemical Examiner, Punjab Patiala for analysis. The Chemical Examiner vide its report (Exhibit PN) opined that the gandasi contained blood. It shows that the gandasi was used by Bhupinder Singh for committing the murder of Sukhwinder Singh. 17. It was also argued by the learned counsel for the appellants that there is glaring inconsistency between the ocular and medical evidence qua the injury attributed to Harbir Singh accused- appellant. It is the case of the prosecution that Harbir Singh accused- appellant also caused an injury from the reverse side of the gandasi on the mouth and teeth of the deceased. A perusal of the post- mortem examination report (Exhibit PD) shows that there was no injury at all on the mouth or the teeth of the deceased. One injury, that is, injury No.2 was found on the face of the deceased. The said injury was incised wound 1.5 x .7 on the left lower eye lid. The same was absolutely contrary to the eye witness account rendered by Daljit Kaur (PW-5) and Pritam Singh (PW-6). In Mani Ram and others vs. State of U.P., 1994(3) RCR(Criminal) 127, Hon'ble Supreme Court held that it is well settled by long series of decisions of this Court that 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, therefore, it would be difficult to convict the accused on the basis of such evidence. If the evidence of the prosecution witnesses is totally inconsistent with the medical evidence this is a most fundamental defect in the prosecution case and unless this inconsistency is reasonably explained it is sufficient not only to discredit the evidence but the entire case. In view of this, it will be extremely unsafe and hazardous to maintain the conviction of Hardip Singh appellant. This Court, therefore, allows the appeal qua him and orders his acquittal. 18. For the reasons aforesaid act of Bhupinder Singh Criminal Appeal No.506-DB of 2001. 7 accused in committing the murder of Sukhwinder Sigh is proved to the hilt. The account given by the witnesses is thoroughly consistent and convincing. The learned defence counsel could not point out any flaw in their testimony so far as involvement of Bhupinder Singh is concerned. The medical evidence qua the injuries caused by Bhupinder Singh also supports the story propounded by the eye witnesses. The gandasi used in committing the murder of the deceased by Bhupinder Singh having the blood stained proves that Bhupinder Singh used gandasi for causing the murder of the deceased. All these factors establish the complicity of Bhupinder Singh accused-appellant in committing the murder of the deceased. 19. In view of above, the appeal is allowed partly. The conviction and sentence passed by learned trial Judge qua Harbir Singh appellant is set-aside and he is acquitted of the charges framed against him. He is on bail. His bail/surety bonds shall stand discharged. The appeal filed by Bhupinder Singh accused-appellant is dismissed. He was released on bail by this Court during the pendency of the appeal. His bail/surety bonds are cancelled. He be arrested and sent to jail to undergo the remaining part of sentence. Learned trial Judge is directed to comply with this order forthwith under intimation to this Court. (ASHUTOSH MOHUNTA) (NAWAB SINGH) JUDGE JUDGE July 13th ,2010 SN