JUDGMENT
S.K. Jain, J.
1. Hawa Singh, Jadgish and Baljit Singh, appellants, were found guilty of the murder of Jagbir Singh by Additional Sessions Judge, Hisar and each one of them was sentenced to life imprisonment and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for six months under Section 302 read with Section 34, I.P.C. Feeling aggrieved against their conviction and sentence, they have come up in appeal.
2. Brief facts of the prosecution case are that Mukhram and Partap Singh were the sons of Nar Singh, Jagbir Singh-deceased was the son of Mukhram. He studied up to 14th Class and was a bachelor. He developed illicit relations with Smt. Murti Devi wife of Sadhu Ram son of Bijay Ram. He was charged and tried under Sections 366/376, IPC for having committed rape on her but was acquitted on 25-1-1988. All the three accused namely, Hawa Singh, Jagdish and Baljit Singh are the sons of the sister of Sadhu Ram and, therefore, said Smt. Murti Devi was their Mami (maternal aunt). They felt insulted on the above above said episode and were in search of an opportunity to liquidate Jagbir Singh.
3. On 15-9-8 at about 4.00 p.m., Jagbir was sitting with his uncle, Partan Singh, at his house. The three accused came and took Jagbir Singh with them. Partap Singh thought that the accused might be getting a compromise entered into through the good offices of the panchayat. On 16-9-88 at 11.00 a.m. PW Ishwar Singh and Janak Raj came to the house of Partap Singh and told him that on the previous evening at about 8.00/9.00 p.m. when they were going to ease themselves, they were attracted by an alarm “Bachao-Bachao”. They reached the play-ground near the water tank and in the electrict light which was being emitted from a bulb fixed on the water tank, they saw that the three accused were causing injuries to Jagbir Sirigh with their weapons and that on seeing them they had run away with their respective weapons; that before running away they had obstructed their path leading to the village; and that out of fear they had run towards the fields and could not lodge a report. They informed him that the dead body of Jagbir Singh was lying in the play ground near the water tank.
4. Partap Singh accompanied by Dhan Singh, his brother Lalji Ram and Chowkidar Maisukh, reached the spot and identified the dead body of Jagbir Singh. Leaving Maisukh Chowkidar and Dhan Singh on the spot to guard the dead body he along with his brother Lalji Ram went to the Police Station and lodged the F.I.R. Ex. PL which was completed at 3.15 p.m. on 16-9-88 by Tara Chand. Inspector, S.H.O. Police Station Sadar, Hisar. The special report was conveyed to the learned Illaqa Magistrate through Constable Tarsem Lal at 4.55 p.m. on the same day. Thereafter Inspector reached the spot and on examination of the dead body of Jagbir Singh he found few hair sticking to its fingers, he seized them. He lifted blood stained earth from the spot vide recovery memo Ex. PK. He drafted inquest reprot Ex. PC, subscribed application EX. PB and sent the body of Jagbir Singh for post-mortem examination under the guard of Constables Dalip Singh and Om Parkash. He prepared rough site plan Ex. P1 of the place of occurrence.
5. Post-mortem examination on the dead body of Jagbir Singh was performed by a board of doctors comprised of Dr. N. K. Kulshreshth, PW 3, Dr. T. R. Mittal and Dr. M. L. Kochher at 9.45 a.m. on 17-9-88 vide post-mortem report Ex. PA and pictorial diagrams, showing the seats of the injuries on the dead body Ex. PA/1. The doctors found as under:–
Eyes and mouth were open, tongue protruted and swollen. Hair easily pluckable and absent in occipital region, features were bloated and distorted. Post-mortem staining was present on the left half efface and back. Body emitted a foul smell. Maggots were present on whole of upper half of body and were in the large number over the wounds and in the orifices. Abdomen was distended. Greenish discolouration of skin over the abdomen and thighs skin peeled off easily in the upper and lower limbs. Penis was erected and swollen, scrotum were swollen. Skin was white glistening under the peeled off skin. Blood vessels were prominent and congested-faecal matter was coming out of anus. Rigor merits was absent in all the four limbs.
There were following injuries on the dead body:–
1. Lacerated wound 4 inch x 11/2 inch on the right side of neck extending from below the mendible going upwards backward and laterally and ended 1 inch below the lobule of right ear. On probing the wound was 2 inches deep. On dissection there was infiltration of blood in the surrounding tissue. Underlying muscles, blood vessels and soft tissues were cut.
2. Lacerated wound 21/2 inch x 11/2 inch in the left supra orbital region just above the left eye brow transversely placed bone deep.
3. Lacerated would 11/2 inch x 1 inch bone deep on the right side of fore-head 2 cm. above the medical and of right eye brow transversely placed.
4. Lacerated wound 1 inch x 3/4 inch on the forehead just above the medial end of right eye brow obliquely placed bone deep.
On dissection of injures Nos. 2, 3 & 4 there was infiltration of blood in the surrounding tissues.
5. Lacerated wound 2 inch 1/12 inch just medial to the angle of right scapula 11/2 inch deep. The wound was going upwards, forwards and medially. On dissection there was infiltration of blood in the surrounding tissues, Underlying muscles were cut. Underlying rib facrtured. The pleural cavity contained blood on right side. Right lung was collapsed. The middle and lower lob of right lung was lacerated on the posterior aspect. Clotted blood was present in the laceration.
6. The scalp and skull were healthy. The membranes of the brain were pale and brain matter was liquified the stomach contained small amount of semi-digested food material, othewise it was hale and healthy. All the other organs were healthy and hale except the liver which was flabby with greenish decoloration on the posterio superior aspect, the spleen was flabby and both the kidneys were also flabby. The bladder was empty.
The doctor opined :–
(i) that the time between injuries and death was variable.
(ii) that the time between death and postmortem was within 24 to 72 hours.
(iii) that the cause of death was shock and haemorrhage as a result of injuries Nos. 1 and 5 associated with injuries Nos. 2, 3 and 4 which were ante-mortem in nature and sufficient to cause death in ordinary course of life.
7. After examining gandasi (wrongly mentioned kulhari) the doctor opined that the injuries on the person of Jagbir Singh, deceased, could not be possible with the said weapon. However, these injuries could be caused if the said weapon is used from the reverse side. He also examined lathi Ex. P2 and opined that injury No. 1 on the person of the deceased could be possible with the said lathi. The autopsy surgeon removed kachha Ex. P6, shirt Ex. P7 and pajama Ex. P8 from the dead body at the time of post-mortem examination and delivered the same to the police.
8. On 29-9-88, Inspector Tara Chand arrested accused Hawa Singh and Jagdish, who had been produced before him by Darya Singh and Satbir Singh. Hawa Singh produced gandasi Ex. P1, which he had seized, the said accused was found wearing blood stained kurta Ex. P4 and dhoti Ex. P5 which were got removed from his person and seized.
After the completion of the investigation and other formalities, the Inspector challaned the accused.
9. The accused when examined by the trial Court under Section 313 Cr.P.C., came forth with the plea of denial simpliciter and false implication. The acccused Hawa Singh contended that all three of them had been called in the Police Station by the Police several days earlier to 29-9-88 and were given beating. Somebody who was interested in them had moved an application in respect of their illegal custody. Dalip Singh son of Sadi was also kept in illegal detention in this case but he was released on the condition that he will become witness in this case and his name has been cited as a witness but during trial he was given up as unnecessary. They had been falsely implicated due to party faction in the village. Jagdish-acccused also adopted the said version. Baljit Singh — accused took the stand that he had been falsely named in the FIR. He was called in the Police Station and was made to sit for several days but when the SHO was satisfied that he was innocent then he was released after six or seven days.
10. The accused-appellants, however, did not lead any evidence in defence despite being called upon to do so by the trial Court.
11. The trial Court believing the ocular evidence of Ishwar Singh and Janak Raj, eye witnesses, coupled with the medical evidence convicted and sentenced the appellants as referred to above.
12. We have heard learned Counsel for the parties besides perusing the record.
Mr. Sharma assails the findings of trial Court contending that Inspector Tara Chand after examining the dead body had set up an imaginative version regarding the injuries given by the accused ‘inter alia’ for the reasons: (i) that the occurrence is alleged to have taken place in between 8.00/ 9.00 p.m. on 15-9-1988 but the D.D.R. No. 18 was recorded by Tara Chand Inspector at 3.15 p.m. on 16-9-1988 containing the statement Ex. PL of Partap Singh in Police Station Sadar Hissar which was only at a distance of 11 kilometers from village Ladwa where the occurrence is alleged to have taken place;
(ii) that even after the registration of the FIR 3.15 p.m., the special report was conveyed to the learned Ilaqa Magistrate, Hissar at 4.55 p.m. even though the Police Station Sadar Hissar and court of JMIC are located at short distance and the explanation given by Constable Tarsem Lal who carried the special report to the learned Illaqa Magistrate is not believable;
(iii) that the alleged eye-witnesses namely Ishwar Singh and Janak Raj are close relatives of the deceased and in any case, their conduct is abnormal;
(iv) that although it is alleged that Darya Singh and Satbir had produced the accused Hawa Singh and Jagdish before Inspector Tara Chand who had arrested them and had seized gandasi Ex. P1 from Hawa Singh yet none of those two witnesses has been examined at the trial;
(v) that the place of occurrence has also not been fixed in the playground near the tank in the abadi of village Ladwa as proposed by the prosecution;
(vi) that it is also doubtful that the fatal blow on the person of Jagbir Singh had been caused by gandasi in view of the medical opinion to the effect that it could not have been caused by a sharp edged weapon;
(vii) that it is also doubtful that the murder had been committed on 15-9-1988; and
(viii) that the medical evidence belies the ocular account given by the PWs Janak Raj and Ishwar Singh.
13, We find force in the above said argument. First point first. The occurrence had taken place at 8.00/9,00 p.m. on 15-9-1988 in the play ground of the School near a water tank in the abadi of village Ladwa Police Station Sadar Hissar is at a distance of 11 kilometer only from the place of occurrence and is connected by metalled road. The two eye witnesses Ishwar Singh and Janak Raj had allegedly seen the occurrence and after the commission of the crime they had also seen the accused running away from the spot. If that were so, it. is not believable that, the two eye witnesses were so afraid of the accused that they did not go to the abadi nearby and had hidden themselves and stayed back in the fields throughout the night. The matter can be examined from another angle. It was the month of September and the village people generally go to ease themselves in early hours of the morning and that being so, it was not expected of the two eye witnesses to stay back in the fields uptill 10.00/11.00 a.m. Ishwar Singh PW 6 has admitted in his cross-examination that the sun arose on that day at about 7 a.m. but strangely enough they statyed back in the field for about three to four hours even after rising of the sun. This conduct of the two PWs renders their evidence doubtful. Not only this, even after having been informed by the two PWs at about 10.00/11.00 a.m. Partap Singh PW 8 instead of going to the Police Station first of all went to the spot and identified the dead body. Moreover, he was accompanied by his brother Lalji Ram and the Chowkidar. It is hard to believe that at least his brother Lalji Ram was not sent to the Police Station to lodge a report. Even after having identified the dead body, FIR could be lodged in Police Station Sadar Hissar, which is only at a distance of 11 kilometers, connected by a metalled road but the same was not registered till 3.15 p.m. This inordinate delay of about 18 hours from the time of the commission of the offence and of about five hours from the time the two eye witnesses had informed Partap Singh remains unexplained and renders the whole of the prosecution version doubtful.
14. Even after registration of the FIR at 3.15 p.m. the prosecution took one hour forty minutes in conveying the special report to the Ilaqa Magistrate locally. Constable Tarsem Lal PW 4 has been examined in affidavit Ex. PG. In the said affidavit, the time of receipt of the special report by this constable has not been mentioned. He has also not explained as to why he took so much time in delivery of the special report locally to the learned Ilaqa Magistrate. This unexplained delay of one hour forty minutes in delivery of the special report casts a serious doubt around the prosecution version.
15. With regard to the relationship between the two eye witnesses and the deceased, we find that PW 6 Ishwar Singh towards the end of his cross-examination has admitted that Gugan was great grand father of PW Janak, Darya, Satbir and Partap. Mukh Ram father of Jagbir Singh deceased was the real brother of Partap Singh PW. Thus, it is established on record through believable evidence that Ishwar Singh. Janak Raj and Partap Singh PWs were the close relatives of the deceased.
16. The conduct of the two eye witnesses is also not above board Their evidence is not free from doubt. The evidence of PW 6 Ishwar Singh is discrepant inasmuch as admitedly, he had stated that the accused had dealt blows on the face of Jagbir Singh which had damaged his speech faculty but he had not stated so in his statement of February 21,1989 which was recorded prior to the summoning of accused Baljit Singh in column No. 2 of the FIR by the police. Again, he had stated that the police had seized hair sticking to both the hands of the deceased but in his previous statement (as mentioned earlier) he had stated that hair from only one hand of the dead body had been recovered. At the trial, he had stated that he and Janak Raj were followed by Lalji Ram. But in his statement dated 21-2-1989 he had stated that Lalji Ram had accompanied him to the School ground. It is difficult to believe that knowing about the enmity, Partap would allow the accused to take Jagbir Singh with them. These discrepancies go to the very root of the case and make his presence at the spot doubtful.
17. It has further come in the cross-examination of Ishwar Singh PW that when they had come out of the fields. One or two labourers were coming to the sight of construction and other persons had also started going to their fields but they did not talk to them. They did not even visit the spot where Jagbir Singh was assaulted by the accused. Satbir son of Laljit Ram and Darya son Ram Saran had met them on the way and went to the house of Partap Singh. They were their brothers in relationship but admittedly they had not narrated the occurrence to them. There is another aspect of this case. Admittedly, the occurrence had taken place in the School ground near the water tank. In his cross-examination Ishwar Singh had stated that one or two new water tanks were being constructed near the old water tank and quite many people used to come up to the water tank for carrying water to their houses.
This part of his testimony goes a long way to show that persons from the village in order to carry water from the tank and the labourers employed on the construction site must have crossed the alleged place of occurrence. Had it been so, the Police Station Sadar, Hissar, being at a distance 11 kilometer connected with a metalled road, it was natural that somebody had run across to the Police Station around about 9.00 a.m. and lodged the report but uptil 3.15 p.m. the news was not relayed to the police. Satbir and Darya who were close relatives of the deceased and who were informed of the occurrence by Ishwar Singh and Janak Raj on their way to the house of Partap Singh at about 7.00/8.00 a.m. did not take any step to bring the police machinery in motion. Admittedly neither any Sarpanch or Panch or Lamberdar of the village was informed by anyone including Partap Singh. Although, the two eye witnesses are stated to have gone out of their houses for easing themselves when they ventured to see the alleged occurrence yet it has been admitted by Ishwar Singh PW that they did not ease themselves uptil next day. PW 10 Tara Chand has admitted that he did not see any bottle, tumbler, lota or any other utensil at the place of occurrence. Inspector Tara Chand has also stated that he did not see any well or pond near the occurrence. Under such circumstances, the version of the two eye witnesses that they had gone to ease themselves at the relevant time is also not believable. The above conduct of the PWs raises a serious suspicion with regard to their presence at the spot at the relevant time.
18. Coming to the question of fixing the place of occurrence, we find that the blood stained earth lifted from the spot by Tara Chand Inspector vide recovery memo Ex. PK was also not found stained with human blood. Vide report of the Forensic Science Laboratory, Madhuban Ex. PR/1 material thereon was found disintegrated. When cross-examined Inspector Tara Chand has stated that there was no much of blood at the spot which spoke volumes that the same was the place of occurrence but in next breath he admitted that in the case diary he had not mentioned this fact. Under these circumstances, the conclusion is that the prosecution has also not been able to fix the place of occurrence.
19. The medical evidence comprised of the statement of Dr. N. K. Kulshreshth has punched the last nail in the coffin of the prosecution story. The evidence of Dr. Kulshreshth and the description of the injuries given by him in the post-mortem report tend to show that the injuries on the person of the deceased Jagbir Singh could not be possible with gandasi Ex. P1. On the basis of depth and direction of injuries Nos. 1 and 5 he stated that blows had been given by a knife and not by a gandasi. He admitted that there was a lacerated would on the right side of neck extending from below the mendible going upwards backward and laterally and ended 1 inch below the lobule of right ear. On dissection there was infiltration of blood in the surrounding tissues. Underlying muscles, blood vessels and soft tissues were cut. he has further stated in unambigous terms that injury No. 5 on the chest of the deceased might have been caused with a knife, looking to its depth. Post-mortem examination on the dead body of Jagbir Singh was performed by a board of three doctors, namely, Dr. N. K. Kulshreshth PW 3, Dr. T. R. Mittal and Dr. M. L. Kochar, out of whom Dr. N. K. Kulshreshth has been examined. The evidence of the said doctor and the discreption of the condition of the body and injuries given by him in the post mortem report shows that eye and mouth were opened tongue protruted and swollen. Hair easily pluckable and absent in occipital region. Features were bloated and distorted. Post-mortem staining was present on the left half of face and back. Body emitted a foul smell. Maggots were present on whole of upper half of body and were in large numbers over the wounds and in the orifices. Abdomen was distended. There was greenish discoloration of skin over the abdomen and thighs. Skin peeled of easily in the upper and lower limbs. Penis was erected and swollen, scrotum were swollen Skin white glistening under the peeled off skin. Blood vessels were prominent and congested. Faecal matter was coming out of anus. Rigor mortis was absent in all the four limbs. When his attention was drawn towards column Nos. 8, 10 and 12 of the inquest report Ex. PC he stated that it is mentioned that the blows on the person of the deceased appeared to have been given by knife and there appears to have been some watery matter on the face of the deceased which indicated that it appeared because of burning.
20. Modi in his work “Medical Jurisprudence 21st Edition” has dealt with the aspect of “Putrefaction of Decomposition and Autolysis” at page 174 onwards as under:–
This is a certain sign of death, it is slow process and consists of softening and liquefaction brought about by the digestive action of enzymes released after death from tissue cells, this autolysis can occur even in sterile conditions, such as seen in a macerated dead foetus. Also ferments are produced by living saprophytic micro-organisms, which resolve the complex organized tissues of the body into simpler, inorganic compounds. These micro-organisms are both aerobic and gas-forming anaerobic predominantly being cl. Welchii, B Proteus, B. Coli, streptococci and staphylococci and during life are found in large numbers in the alimentary canal but, within a short time after death, are found scattered in the blood and in all the tissues and organs. Post-mortem haemolysis is caused by the enzyme lecithinase, which also helps in the hydrolysis and hydrogenation of body fat. As a result of their action the dead body invariably putrefies unless special means are taken to prevent their access or the tissues are rendered unfit for their use. The skeletal remains and the teeth resist putrefaction the most.
External Phenomena. — It is said that putrefaction follows the disappearance of rigor mortis, but this is not always the case; since, in Northern India, especially during the hot months from April to October, it com-menses before rigor mortis has completely passed off from the lower extremities. This fact was observed by Modi in a large number of dead bodies in Agra and Lucknow. India being a vast country, the climatic conditions vary so much in different parts that fit is impossible to give the exact time when the putrefactive processes develop in a dead body. The blood acts as a good medium for their growth and spread.
The two characteristic features of putrefaction are the colour changes and the development of foul-smelling gases. Colour Changes — The first external evidence of putrefaction in a body exposed to the air is the formation of greenish discoloration of the abdominal skin over the iliac fossae and internally seen on the under surface of the liver, the contents of the bowel in this position are fluid and contain numerous organisms. The discoloration is due to the conversion of haemoglobin of the blood pigment into sulp-haemoglobin by the action of sulphuretted hydrogen diffusing from the intestine into the tissues, and occurs from one to three days after death in winter, and six to twelve hours in summer.
From twelve to eighteen hours after death in summer the green coloration spreads over the entire abdomen and the external genitals. Green patches also make their appearance successively on the chest, neck, face, arms and legs. These patches gradually deepen in colour, and later become purple and dark blue. They are at first separate and distinct, but later on coalesce together, and the whole skin of the body appears discoloured.
Soon after the discoloration of the skin has commenced the superficial veins look very prominent like purplish red, brown and green streaks giving a marble like appearance owing Jo the decomposed blood setting free the colouring matter of the red blood corpuscles, which stains the walls of the blood vessels and infiltrates into the tissues, which also appear coloured. The clotted blood becomes fluid; hence the position of post-mortem staining is altered, and the fluid blood collects in the serous cavities especially in the pleurae and pericardium.
Side by side with the appearance of the greenish patch on the abdomen the body begins to emit a nauseating and unpleasant smell owing to gradual development of the gases of decomposition, some of which are sulphuretted hydrogenm, marsh gas, car-bondioxide, ammonia and phosphoretted hydrogen.
From twelve to eighteen hours after death in summer these gases collect in the intestine, consequently abdomen swells up. The sphincters relax, and the urine and faeces may escape.
From eighteen to thirty-six or forty eight hours after death the gases collect in the tissues cavities and hollow viscera under considerable pressure with the result that the features become bloated and distorted, the eyes are forced out of their sockets, the tongue is protruded between the teeth, and the lips become swollen and everted. A frothy, reddish fluid or mucus is forced from the mouth and nostrils. Ultimately the features become obliterated and unrecognizable. The abdomen becomes greatly distended; hence on opening the cavity the gas escapes with a loud explosive noise. Owing to the pressure of the gases the stomach contents are forced into the mouth and larynx and are seen running out of the mouth and nostrils. The breast of female bodies are greatly distended. The penis and scrotum become enormously swollen. The cellular tissues are inflated throughout, so that the whole body appears stouter and older than it actually is.
These gases form blisters under the skin containing a reddish coloured fluid on the various parts of the body. When these burst, the cuticle being softened peels of easily. These are characterised by absence of vital reaction. Bruises and abrasions may become unrecognizable when the cuticle is denuded. Wounds, whether caused before or after death, begin to bleed once more owing to the pressure of gas within the heart and blood vessels. Wounds also become so altered in appearance that it may be difficult to form an opinion as to whether they were caused before or after death, unless the presence of the clotted blood can be distinctly made out. At this stage there is considerable difficulty of indentification also.
Flies, such as common house-flies and blowflies, are attracted to the body, and lay their eggs, especially in the open wounds and natural orfices. The eggs hatch into maggots or larvae within eight to twenty-four hours during hot weather. The maggots crawl into the interior of the body and help in destroying the soft tissues. Sometimes, maggots appear even before the death, if a person has ulcers on him. The maggots become pupae in four or five days, developing through about four stages called instars. The pupae develop into adult flies in the course of three to five days.
21. In view of the condition of the dead body as discussed in the early part of this judgment and the above opinion of Modi it is proved beyong doubt that the murder had taken place much prior to the time as put forward by the prosecution.
22. There being no other corroborative evidence to establish the complicity of the accused in his murder, there is no option but to hold that the prosecution has miserably failed to prove the charge of murder of Jagbir Singh against the accused beyond reasonable doubt. Consequently, the order of conviction and sentence of the trial Court being not sustainable is hereby set aside by accepting the appeal and acquitting the appellants of the above referred charge. They be set at liberty forthwith, if not required in any other case.