JUDGMENT
K.S. Kumaran, J.
1. The appellants Balbir Singh and Gurmit Singh were accused 2 and 1 respectively before the Sessions Judge, Ferozepur in Sessions Case No. 18 of 1992 decided on 5-12- 1994. They stood charged under Section 302 read with Section 34 of IPC and were accordingly convicted and sentenced to undergo imprisonment for life to pay a fine of Rs. 50()/- each, and in default to further undergo Rigorous Imprisonment for three months, against which they have come forward in this appeal.
2. The case of the prosecution is as follows :-
On the morning of 26-10-1991 Darshan Singh (deceased) had gone to the fields fordoing his work. At about 8 A.M. Parkash Kaur (his daughter) accompanied by her maternal uncle-Avtar Singh, who had on that day visited their house, went to the field with Tea for Darshan Singh. When they reached near the fields, the appellants Gurmit Singh and Balbir Singh, armed with a Sota each, were abusing Darshan Singh and Balbir Singh gave a blow with the sota on the head of Darshan Singh, who fell down. As per the version in the FIR Balbir Singh and Gurmit Singh continued to beat Darshan Singh with Sota, while he was lying on the ground, and Gurmit Singh sat on the chest of Darshan Singh and challenged him to get up. Parkash Kaur and Avtar Singh who were standing at a distance raised alarm, and the appellants ran away with the Sota. Parkash Kaur and Avtar Singh went near Darshan Singh, found him lying unconscious, and took Darshan Singh to their house. Then they along with some others, took injured Darshan Singh in a bullock cart to the Hospital at Lohian where they refused to admit and treat the injured. As per the version found in the FIR, they thereafter removed him to wards Jalandhar but while on the way to Jalandhar, Darshan Singh died because of the injuries, and they brought him back to the house. On 27-10-1991 Parkash Kaur lodged the report at the Police Station, Lohian. The police from that station came and visited the scene of occurrence and informed that it was within the jurisdiction of Police Station Makhu and also told that they will inform police station, Makhu.
3-4. In support of the case of the prosecution Parkas Kaur (PW 2) (who was aged about 13 years at the time of her evidence) stated in her evidence that her father-Darshan Singh had gone to the fields for work on the day of occurrence and that she along with her maternal uncle Avtar Singh, who had come to their house on that day, went to the fields at about 8 A.M. taking tea for her father-Darshan Singh, that when they were 10 karms away from her father, they saw the appellants who were armed with a Tamba each were beating her father Darshan Singh with the same. According to her, appellant-Gurmit Singh first gave a temba blow on the head of Darshan Singh and Darshan Singh fell down. She also stated that Darshan Singh was given more blows with the Tamba while he was lying on the ground. She further stated that when they raised alarm both the accused ran away with their tambas. According to Parkash Kaur (PW 2) her father-Darshan- Singh became unconscious and at first, they took Darshan Singh to their house and thereafter to Hospital, at Lohian, in a Bullock Cart, Where the doctor told them that he should be taken to Jalandhar as his condition Was critical. Parkash Kaur further stated that on the way to Jalandhar, Darshan Singh expired and they brought his body back to their housed that since it had already become dark, they did not go to the police that night due to fear and on the next day they went to the Police Station, Lohian, who told them that the case was within the jurisdiction of Police Station Makhu. She stated that her statement (Ex. PD) was recorded by the Police of Makhu Police Station. According to her the appellants had murdered her father due to the dispute over the boundary of the fields.
5. Avtar Singh (brother-in-law of deceased Darshan Singh and maternal uncle of (P.W. 2), who was examined as PW-3 gave evidence on the lines of the evidence of P.W. 2. But, he also stated that after causing injuries to Darshan Singh. Balbir Singh sat on the chest of Darshan Singh and challenged him to get up. According to him after the occurrence, he went to the village, brought his sister and another person and also a cart and took Darshan Singh to the house which is 3 to 4 killas from the place of occurrence. He also stated that he then went to police station, Lohian, to lodge a report with the police, that the police came and told them to save the injured. He also deposed about taking Darshan Singh to Lohian and from there to Jalandhar and also about bringing back the body of Darshan Singh, who had died on the way to Jalandhar. According to him they reached back the house at 7 p.m. and the police of Makhu came next day and recorded the statement of Parkash Kaur.
6. Sub Inspector Surinder Pal (P.W. 5), who was the Station House Officer, Police Station, Lohian, stated in his evidence that when he was present at Bus Stand, Giddar Pindi, Avtar Singh (PW-3) met him and narrated the occurrence to him (P.W. 5). That he accompanied him to Dhakka Basi where the dead body was lying, and on preliminary enquiry came to know that the place of occurrence fell within the jurisdiction of police station, Makhu and, therefore, directed the complainant to inform the police of Police Station, Makhu. He further stated that he sent a wire-less message to police station, Makhu. Sub Inspector Bira Singh (PW 6) who was Incharge of Police Post Kussuwala, under Police Station Kahu, stated in his evidence that on receipt of the Wire-less message from the Station House Officer, Police Station, Lohian, regarding murder of Darshan Singh in Dhaka Basti Wara Kali Raund he went to that village and recorded the statement Ex. PD of Parkash Kaur (PW-2) on the basis of which the formal FIR Ex. PD/2 was recorded. PW-6 stated that the dead body of Darshan Singh was lying in his house, and after inquest had sent the body for postmortem.
7. Dr. P. K. Mangla (PW-21) of Civil Hospital, Zira, stated in his evidence that on 28-10-1991 at about 6-30 A. M. he conducted the autopsy of Darshan Singh. He had made the following among other observations:-
Foly’s catheter was present in the urethrra. Rigor mortis passed of in the neck and upper limbs but was present in the lower limbs. Post mortem staining was present on the back. Leukoplast strips sticking on the right forearm.
He also found the following injuries on the body
1. A bluish black contusion in an area of 6 x 5 cm was present on the right side of fore-head. Swelling around the contusion was present. Both eyes blackened and swollen.
2. A bluish contusion on the back of head in occipital region was present. No marked oedema was present.
8. He also observed the following :-
There was haemotoma involving the whole frontal both parietal regions extending upto the upper border of left temporally region. There was a large shaped fracture on the vault of skull extending from the frontal bone near midline and obliquely placed backwards on the right parietal bone. When fracture pieces were lifted frontal bone chips fell out. instantenously and there apppeared a large haematoma underneath extending on the whole of the right parietal and frontal bone. Haematoma was also present in the subdural space. He gave his opinion that death was due to the injury to brain vessels leading to intracranial haemorrhage and consequently pressure on brain matter which was sufficient to cause death in the ordinary course of nature. The Doctor also opined that the injuries could have been caused by a heavy blunt weapon and were anti mortem death occurred, according to the Doctor, occurred within a few hours from receipt of the injuries and 24 to 36 hours prior to the postmortem. The post-mortem report is Ex.PA. The Doctor stated that the injuries on Darshan Singh could have been caused with a sota.
9. Sub Inspector Bira Singh (PW 6) stated that he went to the place of occurrence, lifted the bloodstained earth and took it into possession through recovery memo and also prepared the site plan Ex. P.M. PW-6 stated that he searched for the accused, and they were not traceable. He also stated that on 28-10-1991 he took into possession the clothes of the deceased produced by Head Constable Santokh Singh. The Sub Inspector (PW-6) also stated that on 6-11-1991 Dara Singh Sarpanch of village Kussuwala produced both the appellants before him. at the turning of Kussueala, and both of them produced one sota each which he recovered through recovery memo Ex. PO and PQ and arrested them. Taking into consideration the materials placed before him the learned Sessions Judge, convicted and sentenced the accused/appellants as mentioned already.
10. We have now to consider whether the prosecution has succeeded in establishing the guilt of the accused/appellants beyond reasonable doubt.
11. The learned counsel for the appellants first of all pointed out that though the occurrence is stated to have taken place at 8 A.M. on 26-10-1991, it has been reported to the police only at 2 P.M. on 27-10- 1991 by Parkash Kaur (PW 2), the daughter of Darshan Singh, even though Parkash Kaur (PW. 2) is alleged to have witnessed the occurrence along with her maternal uncle Avtar Singh (PW. 3). He also pointed out that the formal FIR was recorded only at 3-30 p.m. and the special report has reached the concerned Magistrate only at 7 P.M. on 27-10- 1991. The delay is sought to be explained by Parkash Kaur (PW. 2) and Avtar Singh (PW. 3) by stating that they took Darshan Singh to their house and from there to the Hospital at Lohian in a bullock cart, that the Doctor at .Lohian told to take Darshan Singh to Jalandhar, that on the way to Jalandhar Darshan Singh collapsed, and that they returned back to their house. Parkash Kaur (PW-2) stated that since it had already become dark they did not go to the police station in the night due to fear, and went to the police station Lohian on the next day, who told that the case fell within the jurisdiction of police station Makhu. PW-3 Avtar Singh also stated that they brought back the dead body and reached the house at 7 P.M. and that the police of Makhu came on the next day and recorded the statement of Parkash Kaur. That is how the delay is sought to be explained. But, Parkash Kaur (PW. 2) stated in her evidence that they went to the Police Station, Lohian only on the next day while PW-3 Avtar Singh stated in his evidence that they went to the Police Station, Lohian, to lodge the report that the police came and told them to save the injured and then they took injured Darshan Singh to Lohian in a cart. Therefore, it is evident that the police from Lohian had come and seen the injured and had told P.W. 3 to take the injured to the hospital on 26-10-1991 itself. Even if the police from Lohian had come on the next day (as stated by Parkash Kaur (PW-2)) and stated that the case fell within the jurisdiction of Makhu Police Station, atleast at that time a statement should have been recorded from her by the police from the Police Station Lohian. Because it is only later on, according to her, the police from the Makhu Police Station has recorded her statement Ex. PD. Absolutely there is no explanation whatsoever why the police from the Lohian Police Station did not record any statement either on 26-10-1991 or on 27-10-1991 before the police from the police station Makhu recorded the statement of PW-2. Sub Inspector Surinder Pal (PW-5) of Police Station, Lohian, stated in his evidence that on 27-10-1991 Avtar Singh (PW-3) met and narrated the occurrence to him, that he accompanied him to Daka Bassi where the dead body was lying, and on preliminary enquiry, he came to know that the place of occurrence fell within the jurisdiction of Police Station Makhu and, therefore, he directed complainant to inform the Police Station, Makhu. He also stated that he sent a wireless message to Police Station Makhu. It is obvious from his evidence in cross-examination that what he says cannot at all be true. He admitted that he has not mentioned in the Daily Dairy Register on 27-10-1991 as to the area to which he had gone. He also admitted that he did not mention in the Daily Dairy Register that Avtar Singh (PW-3) had given him information about this murder or that he (PW-5) had visited the spot and found the same to be in the jurisdiction of police station Makhu or that he sent a wireless message to Police Station, Makhu.
12. Apart from these inconsistencies and variations, it is seen from the evidence that on 26-10- 1991 and also on the morning of 27-10-1991, the police had come to the village where the occurrence had taken place, but yet no statement was recorded till 2 P.M. on 27-1-1991 when the statement of Parkash Kaur (PW-2) was allegedly recorded. Even the special report had reached the concerned Magistrate only at 7 P.M. on that day. The evidence of Sub-Inspector Surinder Pal (PW-5) is that on 27-1 (V 1991 when Avtar Singh (allegedly) met him he had not informed the names of assailants to him. The appellants examined on their side the record-keeper of Sessions Court Ferozepur as DW-1, who had brought the summoned record and affidavit on the bail application (Ex. DA), though he stated in cross- examination that he cannot say anything about this affidavit. The affidavit purports to have been filled by Avtar Singh son of Sunder Singh son of Ishar Singh, i.e. PW-3, wherein it has been stated that Darshan Singh was injured on the intervening night between 25/26-10-1991 and someone had caused the injuries to Darshan Singh, and that even this information was given to him (deponent) on 27-101991 at about 8 A.M. If we take into consideration these aspects along with the evidence of Sub Inspector Surinder Pal (PW-5) that Avtar Singh did not mention the name of assailants on 27-10-1991. then it will be clear that Avtar Singh (PW. 3) could not have seen the occurrence and could not have known who the assailants were. That was why it took time for the investigating agency to make consultations and deliberations and then to record the First Information Report against the present appellants. Therefore, the delay in this case certainly affects and cuts at the root of the prosecution case.
13. We shall now examine whether the evidence of Parkash Kaur and Avtar Singh (PWs. 2 and 3) is trustworthy even with regard to the occurrence, and whether they were really present when occurrence took place, In the first information report Parkash Kaur (PW. 2) has stated that her father had gone to the field for doing work, and at about 8 A.M. she and Avtar Singh (P.W. 3), who had come to their house to see them, went to the fields taking with them tea for her father. This is the evidnce of both Parkash Kaur and Avtar Singh (PW. 2 and P.W. 3). So both of them are chance witnesses even if, this version of the prosecution is accepted. Because Avtar Singh PW-2 is only the brother-in-law of the deceased and he is alleged to have gone to the house of Darshan Singh just to see them. Parkash Kaur (PW-2) stated that tea was taken in a Dabba and they had also taken a glass with them. But, this glass and dabba, alleged to have been taken by them, were not recovered by the police from the scene of occurrence, it is only to make their presence at the scene and time of occurrence natural, that she is stated to have taken tea in a dabba, along with a glass. Realising that this dabba and glass were not recovered from the scene of occurrence both Parkash Kaur and Avtar Singh (PW. 2 and PW. 3) were made to say that Avtar Singh had taken the dabba and glass after the occurrence. This aspect of the evidence of both Parkash Kaur and Avtar Singh is unnatural and unacceptable. If they had seen Darshan Singh being injured their natural instinct will be to leave everything at the spot, run to the injured, and take necessary steps to save him. In such a situation, to say that Avtar Singh carried back the dabba and glass with him is unbelievable, and it is only an attempt to cover up the fact that these articles were not found at the scene of occurrence by the police. When they wanted to show that P.Ws. 2 and 3 were present at the scence of the occurrence, they had to give some reason and cooked up the story of their having taken tea in a dabba and a glass with them but, they overlooked this aspect that the question would arise as to what happened to the dabba of tea and glass. The fact that no such articles were recovered from the scene of occurrence clearly shows that there was no reason for them to have been present and that they were not in fact present at the scene of occurrence, if we take into consideration the other circumstances also, pointed out by me above and to be mentioned below. 14. One other circumstance is that in the first information report Parkash kaur (PW. 2) has stated that Gurmit Singh sat on the chest of her father and challenged her father Darshan Singh to get up, but, she stated during the course of her evidence in cross- examination that Gurmit Singh had been giving blows with his knee on the chest of her father. Apart from this slight variation we find Avtar Singh’s (PW-3’s) evidence in chief-examination is that it was Balbir Singh who sat on the chest of Darshan Singh and challenged him to get by. During cross- examination PW. 3 stated that it was Gurmit Singh who gave blows with his knee on the chest of Darshan Singh. It is not as if several people attacked Darshan Singh thereby making it difficult for these witnesses to say which accused inflicted which blow. The accused were only two in number and if, one of them placed his knee on the chest and challenged Darshan Singh to get up, there could have been no reason for such variations. Further, Parkash Kaur (PW. 2) stated in her evidence that her father Darshan Singh was mending the boundaries with a kassi, which was lying there at that time. If really that were so, it is improbable that when Darshan Singh was allegedly attacked by two persons with one sota each Darshan Singh would have kept quiet without retaliating if really he was in possession a kassi at that time. No such kassi has also been recovered by the police. The investigating officer (PW. 6) stated that nothing else except the blood-stained earth was recovered from the spot. This is also a circumstance which goes against the case of the prosecution. Parkash Kaur (PW. 2) stated during the course of her evidence in cross-examination not only that her father was given 10/15 tamba blows but also that his neck was strangulated. But Dr. P. K: Mangla (PW- I) found only two injuries on the head with corresponding internal injuries on the head. He did not find any-other injury on any other part of body nor any evidence of any strangulation. Further Sub Inspector Bira Singh (PW. 6), who investigated this case, stated in his evidence that the occurrence had taken place in the fields of Mangal Singh, whereas the evidence of Parkash Kaur (PW-2) is that her father had gone to work in the field, that when they went to the fields they found both the accused present in their fields and beating Darshan Singh. It is not as if the occurrence took place in the fields of Mangal Singh. Therefore, if we take into consideration all these inconsistencies, variations and contradictions between the evidence of PWs. 2, 3, 5 and 6, it will be clear that both Parkash Kaur and Avtar Singh (PW. 2 and 3) could not have been present at the scene of occurrence at the time of occurrence as alleged by the prosecution. Therefore, the contention of the learned counsel for the State that P.W. 2 is only a small girl and there is no reason for her to utter falsehood and, therefore, her evidence is reliable cannot at all be accepted. It is evident that she must have been tutored to prop up the case of the prosecution.
15. From the evidence placed on record, it is even highly doubteful whether the occurrence took place in the fields of Darshan Singh and at the time as mentioned by the prosecution. Because, according to the prosecution the occurrence took place in the fields of Darshan Singh, but his body was not located by the police at the scene of occurrence. It is stated that Darshan Singh was removed from this alleged scene of occurrence to his house and then taken to Lohian and Jalandhar and brought back to his house the two eye-witnesses who say that the occurrence took place in his fields are unreliable is evident in the circumstances pointed out by me above. The contention of the defence is that Darshan Singh was injured in the night intervening 25-10- 1991 and 26-10-1991, and that PWs. 2 and 3 did not even know the assailants, but, have foisted the case against them. We have already pointed out several factors which militate against the case of the prosecution. Apart from this we have one other factor. Dr. P. K. Mangla (PW. 1) stated in his evidence that Lcukoplast strips were sticking on the right forearm of deceased Darshan Singh. He also stated that foly’s catheter was present in the urethrra. The appellants have examined Dr. P. S. Khera (DW-3) the medical officer of the Rural Dispensary, Lohian, who stated that on 26-10-1991 at 4 P.M. Darshan Singh was brought there in a severely injured condition and that he referred him to Civil Hospital, Makodar. Dr. C. S. Mann (DW-2) of Civil Hospital, Jalandhar, staled in his evidence that Darshan Singh son of Kishan Singh resident of Gatta Mandi, was admitted in the emergency ward of civil hospital, Jalandhar, that he was referred from Primary Health Centre, Nakodar, that he remained at the hospital up to 5-15 P.M. on 26-10-1991, that he left the hospital alive, and that Ex. DB is the chit issued by the medical officer civil hospital, Jalandhar, regarding his admission. All these aspects show that Darshan Singh was admitted in the civil hospital, Jalandhar, and that the investigating agency has suppressed this fact for some reason. Learned counsel appearing for the State contended that the name given by Dr. G. S. Mann (DW-2) is Darshan Lal and not Darshan Singh and that even the name of his village is not correct and, therefore, his evidence does not indicate that it was Darshan Singh, deceased in this case, who had taken treatment in the civil Hospital. Jalandhar. This argument of the learned counsel for the State overlooks the fact that Ex. DB mentions the name of injured as Darshan Singh son of Kishan Singh and also that he was referred by Primary Health Centre, Nakodar. Dr. Paramjit Singh Khera (DW-3) of Rural Dispensary, Lohian, stated that He referred him to civil hospital, Nakodar. Parkash Kaur(PW-2) stated in her evidence that her father Darshan Singh was taken to the hospital, at Lohian and that Doctor told that Darshan Singh should be taken to Jalandhar. Both PWs. 2 and 3 stated that they took Darshan Singh towards Jalandhar and Darshan Singh died on the way. But, if we take into consideration the evidence of DWs. 2 and 3, Ex. DB the fact that there was no suggestion by the prosecution to Dr. Gurdev Singh (DW-2) that it was not Darshan Singh deceased in this case who was admitted into that hospital at Jalandhar, the presence of the Leukoplast on the forearm and foly’s catheter in the urethrra of the deceased at the time of post-mortem, it will be clear that it was Darshan Singh (deceased in this case) who was admitted in Hospital and had taken treatment, and that the prosecution has suppressed the same for the reasons best known to it. It is clear that the investigating agency is not free from blame. If really the police from Lohian police station had gone to the village and seen the body on 26-10- 1991, there was no reason for them for not recording the FIR immediately and forwarding the same to the concerned Police Station, if they felt that the scene of occurrence was beyond their jurisdiction. All these aspects go to show that the case of the prosecution that PW-2 and PW-3 were eye-witnesses to the occurrence in question cannot be accepted, and, that the case of the prosecution is completely over-cast by the shadows of doubt, the benefit of which shall go to the appellants-accused. The result is that the appeal has to be allowed.
16. The appeal is accordingly allowed setting aside the conviction of and the sentence passed against the accused/appellants. The fine, if any, paid by them will be refunded to them.