Criminal Appeal No. 50-SB of 1997 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 50-SB of 1997 Date of decision : 19.5.2008 Piara Singh .....Appellant Versus State of Punjab ...Respondent **** CORAM: HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr. H.S. Gill, Senior Advocate with Mr. Vivek Goel, Advocate for the appellant. Mr. D.S. Brar, Deputy Advocate General, Punjab S. D. ANAND, J. Appellant Piara Singh son of Makhan Singh son of Bhola Singh was convicted by the learned Trial Judge under Section 304-I IPC on a charge of having committed culpable homicide not amounting to murder of Mithu Singh who was his real brother. 2. The prosecution allegations, as evident from the record and upheld at the trial, were as under:- 3. PW-8 Mst. Surjit Kaur daughter of Mithu Singh was living with her father and mother PW-9 Basant Kaur during the period under reference as she was unmarried at that time. Appellant Piara Singh, a real brother of deceased, was residing in the adjacent house. On the relevant date, at about 10.00 P.M., the appellant and Criminal Appeal No. 50-SB of 1997 -2- **** his wife Gurdev Kaur got engaged in a verbal altercation. In the light thereof , Surjit Kaur and Basant Kaur initially went over to the house of the appellant to intervene. They were closely followed by the deceased who, on reaching there, advised the appellant to refrain from belabouring his wife. The appellant told the deceased to leave former's house lest something serious should happen. At that very time, the appellant gave a dang blow on the head of Mithu Singh and fled the spot immediately thereafter. Surjit Kaur and Basant Kaur raised a Raula. Thereafter, both of them brought injured Mithu Singh to their house. They did not step out of the house during night out of fear. The next morning, they took Mithu Singh to G.G.S. Medical College, Faridkot in an arranged conveyance. It was there that the offence was notified to the police by PW-8 Surjit Kaur vide Ex. PF. 4. PW-1 Dr. K.K. Aggarwal, Assistant Professor, Forensic Medicine, G.G.S. Medical College, Faridkot had conducted the post- mortem examination on the dead body of the deceased and had found the following injury on it ( The injury was opined by him to be anti-mortem in nature and having been caused by a blunt weapon.):- “A stitched wound 6 cm in length with 7 stitches intact present on middle of head starting from anterior hairline and going vertically backwards. Clotting blood was present. On dissection, huge clotted blood was present on front and top of skull. On removal of haemotoma fissured fracture of the skull corresponding to injury No. 1 was present underneath. On removal of skull, subarchnoid haemotoma involving both cereberal Criminal Appeal No. 50-SB of 1997 -3- **** hemisphere was present. About 500 cc of fluid and clotted blood was present in caranial cavity.” 5. PW-1 Dr. K.K. Aggarwal further opined that the cause of death in this case was “intracranial haemorrhages as a result of injury No. 1 which was sufficient to cause death in ordinary course of nature.” On the presentation of application Ex. PE by the Police, Dr. Aggarwal made an endorsement Ex. PE/1 to the effect that the possibility of the injury aforementioned having been caused by a Dang (blunt weapon) could not be ruled out. 6. PW-2 ASI Joginder Singh, then posted at Police Station Sadar, Faridkot, had received ruqqa Ex. PF and had recorded formal FIR Ex. PF/1 on the basis thereof. Apart there from, it was before him that Gurnam Singh, Sarpanch (given up at the trial as having been won over by the accused) produced the appellant before him, along with the weapon of offence. The accused was taken into custody. Dang Ex. P1 was taken into possession, vide memo Ex. PG. 7. PW-3 Constable Jasbir Singh, PW-4PHG Dilbag Singh, PW-5 Constable Gurjant Singh, PW-6 Constable Angrej Singh and PW-7 HC Rajinder Pal tendered formal affidavits Ex. PH, Ex. PJ, Ex. PK, Ex. PL and Ex. PM respectively into evidence. Those affidavits contained averments of formal character. 8. PW-8 Surjit Kaur and PW-9 Basant Kaur are daughter and wife respectively of Mithu Singh deceased. 9. PW-10 Dharam Singh, Draftsman, prepared scaled plan (Ex. PO) of the spot on 25.8.1995 on the pointing of PW-8 Surjit Criminal Appeal No. 50-SB of 1997 -4- **** Kaur. 10. PW-11 Jugraj Singh, a son-in-law of the deceased, had attested the inquest report Ex. PB. 11. PW-12 ASI Mohinder Singh had investigated this case. 12. Ex. PD is the FSL report. 13. The appellant pleaded innocence by averring, in the course of the statement under Section 313 Cr.P.C., that “Mithu Singh had received the injury by a fall from the cycle during the night and he was got admitted in the hospital by Nazar Singh and Basant Kaur. They had made the statement before the Doctor to this effect, but as I was having strained relations with the brothers of Basant Kaur Hakam Singh and Mohinder Singh, them they reached the hospital, then they got this story cooked up in order to involve me. I am innocent.” 14. DW-1 Dr. M.S. Brar, Registrar, Department of Forensic Medicines, G.G.S. Medical College, Faridkot and DW-2 Nazar Singh, a real brother of the appellant, were examined in the defence evidence. 15. The prosecution presentation was believed by learned Trial Judge and the verdict under challenge followed. 16. The appellant is in appeal. 17. I have heard Shri H.S. Gill, learned Senior counsel on behalf of the appellant and Shri D.S.Brar, learned Deputy Advocate General, Punjab on behalf of the State and have perused the record. 18. The impugned finding at the hands of the learned Trial Judge deserves to be invalidated for the reasons indicated Criminal Appeal No. 50-SB of 1997 -5- **** hereunder:- 19. The material obtaining on the file gives an indication that the prosecution has withheld the genesis of the version and PW-8 Surjit Kaur and PW-9 Basant Kaur were brought into picture only subsequently with a view to buttress the prosecution plea. PW-8 Surjit Kaur was categorical in asserting that Nazar Singh did not accompany them to the hospital. She was equally categorical in reaffirming that the medicines (required for the treatment of Mithu Singh at the hospital) had been brought by her mother and not her uncle Nazar Singh. That affirmation was in continuation of her earlier statement that Nazar Singh did not arrive at the house of the accused (at the time of impugned occurrence) or even immediately thereafter. She is completely falsified on that point by the statement of none else or other than her own mother. PW-9 Basant Kaur who testified that Nazar Singh had accompanied them to the hospital. 20. PW-8 Surjit Kaur wanted the Court to believe that her mother went over in the morning and brought along former's maternal uncle Mohinder Singh and Hakam Singh, who accompanied them to the hospital. PW-9 Basant Kaur does not at all state either her having gone over to fetch her brothers or their having accompanied them to the hospital. Further, at that point of time PW-8 Surjit Kaur told the Court that Gurdev Singh, Sarpanch accompanied them to the hospital in tempo. PW-9 Basant Kaur does not testify his presence. 21. Infact, PW-8 Surjit Kaur would appear to give a complete lie to the prosecution case in the course of cross-examination when Criminal Appeal No. 50-SB of 1997 -6- **** she averred that “we had asked from my father during night as to who had caused injuries to him but he could not tell.” If Surjit Kaur had witnessed the impugned occurrence, there was obviously no occasion for her to call upon her father to indicate the identity of those who had assaulted him. 22. PW-9 Basant Kaur informed at the trial that “after the death of Mithu Singh, myself, my son, my brother and my son-in-law came to the hospital during the night.” The presence of her son, maternal uncle and son-in-law is not owned by PW-8 Surjit Kaur. 23. It would appear to be a case in which prosecution presentation in the statement of PW-9 Basant Kaur and PW-8 Surjit Kaur would appear to defy logic. It is common ground that Mithu Singh was retained at the house through out the night. None in the village was informed during night that Mithu Singh had been belaboured by the appellant. PW-9 Basant Kaur further testified that “no Doctor or Compounder was brought during the night to give treatment to Mithu Singh in our village”. It is in her statement that her husband had three brothers, all of whom are residing in one enclosure, though they are separate in mess and residence otherwise. It was not the averment on behalf of the complainant that other two brothers of Mithu Singh were inimical towards him. The house of Gurmukh Singh, Ex-Sarpanch, is located just opposite to the house of the deceased. The only distance intervening her house and that of Gurmukh Singh is 10 Karams. In that view of things, it is illogical on the part of the complainant party to allege that they did not step out of the house during the night out of fear. PW-8 Surjit Criminal Appeal No. 50-SB of 1997 -7- **** Kaur and PW-9 Basant Kaur are unanimous in the deposition that they did not even inform the Doctor or the attending Nurse about the circumstances under which Mithu Singh had sustained injury and they also did not indicate to him the identity of the appellant. That statement of theirs defies logical comprehension. 24. The defence plea is that the deceased sustained injuries when he had a fall in the street while he was under the influence of liquour. Though it was denied as a fact, the material obtaining on the file indicates that possibility of defence plea being truthful cannot be ruled out. It would appear from the evidence that the relations between the deceased and appellant were strained and since the former had a fall under the influence of liquor and sustained an injury thereby, his wife and daughter were inclined to keep that fact concealed and it was for that reason that they retained the injured at their house throughout the night. The defence relied upon the statement Ex. DA which Basant Kaur and Nazar Singh had made before the hospital authorities at the time of admission of Mithu Singh in the hospital. In the course thereof, they indicated that deceased sustained injury accidentally while he was under the influence of liquor and that none was responsible for it. 25. I do not find that document to be reliable. The identity of the person who scribed it, is not proved on the file. DW1- Dr. M.S. Brar, who proved Ex. DA at the trial, conceded that “the statement was not written by me in my hand. It must have been written by some employee whose name I do not know”. He had earlier stated that “at that time Pharmacist Chitranjan was present in addition to Criminal Appeal No. 50-SB of 1997 -8- **** two class IV employees. I do not know their names.” Chitranjan Pharmacist was not examined at the trial. There indeed was no occasion for either Basant Kaur or Nazar Singh to have made that statement because the police had to be and were indeed notified by the Medical Officer, who treated Mithu Singh. 26. DW-2 Nazar Singh also does not appear to be a reliable witness. Though he averred that “I had appeared before the officers and had given applications regarding the false implication of accused Piara Singh,”, no documentation whatsoever was produced on the file in corroboration thereof. It is evident from his conduct that he was not on good terms with the deceased and it was for that reason that he opted to enter the witness box as a witness for the defence. 27. None-the-less, the finding stays that the prosecution presentation had not been proved by unimpeachable evidence and the possibility of defence plea being truthful cannot be ruled out. That finding would appear to stem from the abnormal conduct on the part of PW-8 Surjit Kaur and PW-9 Basant Kaur in having retained Mithu Singh through out the night at the house and their refrain from getting any medical aid for him during the night and also their abstinence from informing the Doctor or the attending Nurse the circumstances under which Mithu Singh sustained that injury. 28. The following points can be safely culled out from the above discussion:- 1. It appears highly unnatural and improbable that the injured was retained at the house through out the night and no steps were taken to provide medical Criminal Appeal No. 50-SB of 1997 -9- **** aid to him. 2. There is noticeable variation in the statements of PW-8 Surjit Kaur and PW-9 Basant Kaur on very relevant points including whether Nazar Singh had reached the spot and accompanied the injured to the hospital or not. The own statement of PW-8 Surjit Kaur quoted in para No. 21 of the judgments sounds the death-knell for the prosecution plea qua her competency and credibility. 3. The facts proved on the file indicate that possibility of the defence plea being correct can not be ruled out. 29. In the light of the foregoing discussion, the appeal shall stand allowed. The impugned finding of conviction shall stand set aside. The appellant is acquitted of the charge. May 19, 2008 (S. D. ANAND ) Pka JUDGE