Harbans Singh Rai, J.@mdashSanta Singh (70) and his three sons Kashmir Singh (30), Jagir Singh (23) and Joginder Singh (19) were tried under section 302/34, Indian Penal Code, by the learned Additional Sessions Judge, Ferozpur, for the murder of Bhagwan Singh. By judgment and order dated September 5, 1988, Santa Singh and Jagir Singh were convicted under section 302/34, Indian Penal Code, and sentenced to life imprisonment and a fine of Rs. 3000/ each, in default of payment of which they were further sentenced to R1 for one year. Kashmir Singh and Joginder Singh were acquitted. The convicted accused have preferred Criminal Appeal No. 383DB of 1988 and the State of Punjab has filed Criminal Appeal No. 243DB of 1989 against the said acquittal. We propose to dispose of both these appeals by this judgment.
2. According to the prosecution, Bhagwan Singh deceased made about 2 Killas of land cultivable more than two decades back in the area of village Ghurka, 3 KMs from village Ladhuka, PS Sadar Fazilka, to which Bhagwan Singh belonged. The land belonged to the Central Government. About 3/4 years back, Santa Singh accused got changed the Khasra girdawari of the aforesaid two killas of land in his own name. Litigation between Bhagwan Singh on the one hand and Santa Singh on the other hand with regard to the said land had been going on. The case of the prosecution is that an order of allotment of the land on payment of instalments was made in favour of Bhagwan Singh. On September 6, 1987. Bhagwan Singh along with his sons Jagir Singh PW3 and Kaka Singh PW4 went to village Guddar Bhaini in order to meet the Patwari who was supposed to be coming to the house of Dhola Singh, Member, Panchayat. From their village to Guddar Bhaini the path lay near the land which had been allotted to Bhagwan Singh. When Bhagwan Singh and his sons passed near the land in question, Santa Singh and his son Joginder Singh, accused, were working in the field. Bhagwan Singh and his sons told Santa Singh that now that the land had been allotted to them permanently in future they would plough the same. There upon Santa Singh and his Son Joginder Singh retorted that they would see how they entered the land. The used some hot words. Bhagwan Singh and his sons said that they had deposited the money and would not give up their claim. After the above brief exchange of words Bhagwan Singh and his sons went to Guddar Bhaini. Santa Singh and his son went away towards their village Ladhuka speaking something loudly. The patwari failed to turn up at the house of Dhola Singh. After waiting for some time, Bhagwan Singh and his sons started returning to their village Ladhuka. At about 3 p.m. when they turned on the broad passage leading from Bhaini Guddar Singh, the four accused i.e. Santa Singh and his three sons emerged from the field called ''Jhanjan''. At the time Bhagwan Singh was ahead of his two sons. Santa Singh was armed with a Saila and he raised a lalkara saying that Bhagwan Singh had come and he should not escape exhorting the others to "deliver" possession of the land to them. Kashmir Singh gave a blow from the sharp side of his gandasa on the head of Bhagwan Singh, as a result of which he fell down. Jagir Singh gave a gandasa blow to him from the reverse side on his left hand. Joginder Singh gave a gandasa blow on the inner side of the right leg of Bhagwan Singh near the ankle. This was followed by Santa Singh giving two saila blows on the left thigh of Bhagwans Singh. Jagir Singh and Kaka Singh were standing at a small distance. They raised alarm. The four accused, however, caused some more injuries to Bhagwan Singh with their respective weapons and thereafter they ran away towards the fields. Kaka Singh brought tractortrolly of Lakshman from the village and both the sons removed their father to Civil Hospital, Fazilka. On the way Bhagwan Singh succumbed to his injuries. The doctor sent information to the police, on receipt of which ASI Natha Singh PW6 went to Civil Hospital, Fazilka. He recorded statement Exhibit PH at 7.10 p.m. of Jagir Singh and forwarded the same to the police station where First Information Report was entered at 7.20 p.m. Copy of the special report was received by the Judicial Magistrate at 9 P.m. ASI Natha Singh PW6 later arrested Santa Singh on September 7, 1987, and finding some injuries on his person got him medically examined. He also went to the spot and picked up bloodstained earth on September 10, 1987. He put Jagir Singh under arrest and in pursuance of a disclosure statement he recovered at his instance gandasa Exhibit D3. SI Nachhatar Singh PW5 partly investigated the case. On September 8, 1987, Joginder Singh and Kashmir Singh were produced before him. They were carrying gandasas Exhibit D1 and D2 respectively, which were taken into possession, and converted into sealed parcels.
3. At the trial, the prosecution put forward Jagir Singh PW3 and Kaka Singh PW4, both sons of the deceased, as eyewitnesses. They supported the version given above.
4. Dr. I.M. Chalana PW2 deposed having found the following injuries on the dead body of Bhagwan Singh in the postmortem examination :
"1. A lacerated wound 4 cm x .75 cm x bone deep obliquely on left parietal bone extending upto the middle of midscalp line. Blood clots were entangled in the hair.
2. There was deformity of left upper arm in its middle. On dissection the humerus was found to be fractured into two pieces. Subcutaneous tissue was congested.
3. A reddish contusion 7 cm x 3 cm on the left side of chest slightly oblique over 4th, 5th, 6th and 7th ribs starting anteriorly and went upto mid axillary line.
4. A reddish contusion 10 cm x 5cm on left hip joint, vertical on the outer aspect.
5. Reddish contusion 4 cm x 2 cm over the left iliac crest region.
6. Lacerated wound 1 cm x .5 cm on the left thigh posteriorly and was .5 cm deep.
7. There was deformity of right leg just above the ankle joint. Overlying there was a lacerated wound 2 cm x 1 cm medially underneath the tibia and fibula were found to be fractured.
8. A reddish contusion 4 cm x 2 cm over left scapula 2 cm from the left shoulder joint and was vertical in direction.
In his opinion, the cause of death was hemorrhage and shock on account of injuries 1, 3 and 7 to the brain and left lung which was sufficient to cause death in the ordinary course of nature. All the injuries were antemortem in nature. In thoseexamination Dr. Chalana specifically confirmed that all the injuries on the deceased were by blunt weapon and all the injuries could be caused by a single weapon. He further confirmed after seeing the gandasas Exhibits D1&D2 that they had nails/screws protruding outside on the reverse side of the blade, and if the nail portion i.e. reverse portion of the gandasas hit the body the nails were likely to cause lacerated wound. With regard to injury No. 1, he stated that as there was injury to the brain matter most probably the injured would go into a coma on receipt of that injury on the head.
Dr. V.K. Bassi PW1 examined Santa Singh accused and noted the following injuries on his person :
1. Lacerated wound 3 cm x 1 cm vertical in direction on lower part of right leg. It was 4 cm above the ankle joint. Granulation tissue and pus was present in the wound. Xray was advised.
2. A healing wound 0.5 cm x 0.25 cm on lateral and lower part of left elbow joint. Granulation tissue and soft scab formation was present. Xray was advised.
3. Swelling on dorsum of right hand 6 cm x 4 cm, colour of swelling was greenish yellow. Xray was advised.
4. A greenish yellow swelling on the back of left thigh in its upper onethird part. It was 7 cm x 4 cm.
5. A greenish yellow contusion 16 cm x 5 cm on the front of right upper arm.
6. A greenish yellow contusion 5 cm x 3 cm on lateral part of right thigh, at its upper area.
On receipt of the Xray report, he declared injury No. 3 as grievous and the remaining injuries as simple.
5. The plea of Santa Singh accused in his statement under Section 313 of the Code of Criminal Procedure was that he has a land dispute with Bhagwan Singh. The possession of land was with him (Santa Singh) and Bhagwan Singh wanted to take the same. On the day of occurrence Santa Singh and Bhagwan Singh had an altercation. At the time Bhagwan Singh was armed with a gandasa and Santa Singh was armed with a sota. Bhagwan Singh gave gandasa blow to Santa Singh from the sharp side as well as blunt side and in his defence Santa Singh gave a sota blow on the head of Bhagwan Singh who fell down. Thereafter Santa Singh gave 3/4 more blows to Bhagwan Singh apprehending that he may not get up and kill him. Thereafter Santa Singh went to the police station to lodge a report and he was detianed there. He was got medically examined by the police on the next morning. The doctor, at that instance of the police,, did not note all the injuries on his person and, therefore, he moved an application and under the orders of the Court was reexamined by Dr. V.K. Bassi PW1. His further plea was that neither his sons nor the two eyewitnesses Jagir Singh and Kaka Singh were present at the time of the occurrence. The above plea was adopted by the other accused. No evidence was produced in defence.
6. The learned trial Court inconsistency in the ocular version as originally given to the police regarding the nature of weapons used in the assault by Kashmir Singh and Joginder Singh and the medical evidence produced in the case and held that the prosecution had failed to bring home the charge against the said accused. It further held that the evidence of the eyewitnesses in so far as the remaining two accused were concerned, was reliable and accordingly convicted two of the accused, acquitting the remaining two, as already stated. Hence these appeals.
7. Mr. R.S. Cheema, learned counsel for the appellants, contended that there was a clear contradiction between ocular testimony and medical evidence with regard to the nature of the weapon used in the assault. He contended that this was a fundamental defect in the prosecution case and in the absence of an acceptable explanation it was sufficient to render the prosecution case open to serious doubt. He further contended that the prosecution had failed to explain the injuries on the person of Santa Singh accused and this fact also indicated that the prosecution was suppressing a material part of the occurrence. The aforesaid contention, according to the learned counsel, had to be considered against background of admitted litigation pending between the parties with regard to the piece of land at village Ghurka which was concededly in possession of Santa Singh appellant. It was further pointed out that a half hearted attempt was made during the trial to explain the injuries on the person of Santa Singh. While Jagir Singh PW3 stated that Bhagwan Singh was carrying a Kasia which he used for defending himself, he stopped short of saying that Bhagwan Singh had caused certain injuries to Santa Singh with the Kasia.
8. With regard to the appeal against acquittal, learned counsel stated that the trial Court found the contradiction between ocular account and medical evidence and further found that even if the gandasa Exhibits D1 and D2 recovered from Joginder Singh and Kishmir Singh respectively had been used from the blunt side, the resulting injuries was likely to have been lacerated wound because there were nails or screws protruding from the handle where the two ends of the gandasa were fixed to the wooden part. According to the learned counsel, the view taken by the trial Court in acquitting Joginder Singh and Kashmir Singh was a reasonable one and this Court could not interfere in the same, being appeal against acquittal.
9. Learned counsel for the State, on the other hand, contended that First Information Report had been lodged with the police without unnecessary delay. The details of the occurrence had been given by Jagir Singh. They were corroborated by Kaka Singh and were substantially corroborated by medical evidence. It was further argued that the testimony of the eyewitnesses could not be rejected merely on the ground that they failed to physically intervene to save their father from further assault. Learned counsel, therefore, urged that the appeal filed by Santa Singh and Jagir Singh should be dismissed and the one filed by the State should be allowed.
10. We have given our anxious consideration to the respective submissions of the learned counsel.
11. In the FIR Jagir Singh PW3 specifically attributed injury from the sharp side of the gandasa to Kashmir Singh and while the injury caused by Jagir Singh accused was stated to have been caused from the reverse side, their was no mention as to from which side the gandasa was used by Joginder Singh and Saila was used by Santa Singh in causing the injury. In the absence of a statement to the contrary, a weapon is normally taken to have been used from the sharp side. Reference in this connection may be made to Hallu and others v. State of Madhya Pradesh, 1974 Crl. LJ 1385 : AIR 1974 SC 1936. It would, therefore, follow that according to the FIR, the injuries stated to have been caused by Kashmir Singh, Joginder Singh and Santa Singh should have been all incised injuries. In the case of Jagir Singh also the weapon recovered at his instance has nails protruding on the reverse side. This was admitted in crossexamination by Dr. I.M. Chalana PW2. If that weapon were used, it was likely to have caused lacerated wound. In the postmortem examination by Dr. Chalana found no incised injury. In order to reconcile the two, Jagir Singh as well as Kaka Singh made an attempt in their testimony in Court to say that the weapons had been used from the reverse side. They were duly confronted with their earlier statements made before the police. They could offer no acceptable explanation.
12. It was laid down in Ram Narain, Jaggar Singh and others v. The State of Punjab, 1975 CAR 264 (SC) that inconsistency between ocular testimony and medical evidence was a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. This was reiterated and followed in Amar Singh and others v. State of Punjab, 1987 CAR 109 (SC) (vide paragraph 10).
13. Another infirmity in the prosecution case is that the prosecution did not explain the injuries on the person of the accused Santa Singh, which made the plea of right of private defence plausible. Santa Singh suffered amongst others a grievous injury and, therefore, Santa Singh could not be taken to have exceeded his right of private defence of person.
14. For these reasons, we allow the appeal filed by Santa Singh and Jagir Singh and set aside their conviction and sentence. We dismiss the appeal filed by the State against Joginder Singh and Kashmir Singh.
