V.K. Bali, J.@mdashJoginder Singh, Resharn Singh and Surjit Singh are three sons of Mohan Singh. Whereas, Jaspal Singh, Harjit Singh, both sons of Joginder Singh, Santokh Singh son of Resham Singh along with one Gurbax Singh son of Gurcharan Singh are the Appellants, Surjit Singh suffered injuries, whereas, Gurnam Singh, as per prosecution version, scummbed to the injuries caused to him by the Appellants. The occurrence is stated to have been witnessed by Surjit Singh and his two other sons, namely, Kuldip Singh and Hardial Singh. Even though, Hardial Singh was not examined during the course of trial, Kuldip Singh and Surjit Singh, who were examined as PW-8 and PW-9, respectively, have supported the prosecution version.
2. The Appellants, named above, have since been held guilty for causing death of Gurnam Singh and injuring Surjit Singh. Whereas, all the Appellants have been held guilty for offence u/s 302 read with Section 34 of Indian Penal Code and sentenced to undergo rigorous imprisonment for life as also to pay fine of Rs. 1,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of three months, Santokh Singh has been held guilty for offence u/s 308 of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years, Jaspal Singh, Harjit Singh and Gurbax Singh have been held guilty u/s 308 with the aid of Section 34 of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years. Harjit Singh has also been held guilty u/s 323 of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of six months, whereas, Jaspal Singh, Santokh Singh and Gurbax Singh have been held u/s 323 of Indian Penal Code guilty u/s 323 of Indian Penal Code with the aid of Section 34 of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of six months. All the sentences have, however, been ordered to run concurrently.
3. The occurrence leading to death of Gurnam Singh is stated to have taken place at 3.35 PM on 8.12.1999 at Sabzi Mandi Chowk near Delux Doaba Tempo Union, 200 metres from Police Division No. 2, Jalandhar. The occurrence was reported to the police when Kuldip Singh, PW-8, brother of deceased, got his statement, Ex.PN, recorded on the next date at 4.30 PM at Kapurthala Chowk, which was scribed by ASI Paramjit Singh, PW-11. It was on the basis of statement of Kuldip Singh that formal FIR, Ex. PK, first came to be recorded under Sections 308 and 323 read with Section 34 of Indian Penal Code. Section 307 of Indian Penal Code was added on 15.12.1999, whereas, Section 302 of Indian Penal Code was added on 17.12.1999 as it was on that date that Gurnam Singh died in the hospital where he was admitted for his medical treatment. Special report with regard to the incident had, however, been sent to the concerned Magistrate through Constable Tarsem Singh, PW-11, on the day of occurrence at 4.45 PM. As mentioned above, the two eye witnesses to the occurrence are Kuldip Singh, brother of the deceased, and his father Surjit Singh, the later, as per prosecution case, also received injuries in the very occurrence, leading to the death of Gurnam Singh.
4. While unfolding the prosecution version, Kuldip Singh, while lodging FIR, stated that he was doing the business of ice. Their one four wheeler Tata 407 bearing No. PB-03-8482 and another four wheeler Tata 407 bearing No. PB-08-Y-8482 had been plying for the last about four years and one year, respectively and were registered with Delux Doaba Tempo Union near Sabzi Mandi crossing, Jalandhar. Jaspal Singh son of Joginder Singh was President of Delux Doaba Tempo Union, who was their cousin. Jaspal Singh was having a suspicion that both the aforesaid vehicles were begin plied independently besides the turn of Delux Doaba Tempo Union. For this reason, Jaspal Singh struck off numbers of both the vehicles from the register of Temp Union without any prior talk to them. At this, they made complaints to President Jaspal Singh on couple of occasions. Yesterday, i.e., on 8.12.1999 at about 3.30 PM, Gurbax Singh son of Gurcharan Singh made a telephonic call to his father Surjit Singh asking him to reach the Tempo Union to get the matter compromised. At this, his brother Gurnam Singh along with his father Surjit Singh on a scooter and he too on a different scooter moved towards Delux Tempo Union. When they reached near Delux Booking Agency, near old Sabzi Mandi Chowk, at about 3.35 PM, Gurbax Singh son of Gurcharan Singh, Jaspal Singh, Harjit Singh sons of Joginder Singh and Santokh Singh son of Resham Singh, duly armed with iron rods, were already present there. They stopped the scooter of his brother Gurnam Singh and Gurbax Singh gave a blow with rod which he was holding in his hand to his brother Gurnam Singh, which hit him on the head on right side. In the meanwhile, Gurbax Singh raised lalkara saying "catch hold of them. Do not spare them and kill them". Thereafter, Santokh Singh gave a rod blow on the head of his father Surjit Singh, which hit him in the middle of the head. Then Harjit Singh gave a blow of rod to his brother Gurnam Singh, which hit him on the back portion of the head. In the meantime, Jaspal Singh gave a rod blow to Gurnam Singh, which hit him on his forehead towards right side and his father and brother fell down on the ground from the scooter. Then Harjit Singh gave a rod blow to his father Surjit Singh, which hit him on his right leg. He raised an alarm saying "Mar Ditta Mar Ditta (Killed-Killed)". On his raising an alarm and seeing the people gathering there, the assailants together with their arms ran away from the spot. He saw the occurrence with his own eyes and in the meanwhile, his brother Hardial Singh also reached there per chance. After arranging the mode of conveyance, they removed their brother and father to the Civil Hospital for treatment. As the condition of their brother Gurnam Singh had become critical, they requested the Doctor and removed him to Pasricha Hospital (Private). After some time, they also found that condition of their father Surjit Singh was also not good and on making a request to the Doctor, they removed him to Kaira Hospital for scanning. After perusing the scanning, the Doctor advised them to take their father Surjit Singh to Pasricha Hospital. At the time he lodged FIR, his father and brother were admitted in Pasricha Hospital for treatment. Prior to it, he was running here and there for making arrangement of money for the treatment of his father and brother in order to save their lives. He also stated that he had come to know that last night Harjit Singh was also admitted in Civil Hospital, Jalandhar.
5. In the trial, that was conducted against the Appellants, the prosecution examined Dr. Gurpal Singh as PW-1, who stated that on 8.12.1999 at 4-15 PM, he medico legally examined Surjit Singh, aged 60 years, and found the following two injuries on his person:
1. Lacerated wound 2.5 cm x 1.5 cm was present on the skull just above the hair line and at the mid line. Profused bleeding was present. Probing was not done. Underlying bone was depressed. X-ray skull and Surgical Specialist''s opinion was advised.
2. Patient was complaining of pain on the middle of right thigh in its anterior aspect.
6. Injury No. 1 was subject to X-ray and Surgical Specialist expert opinion. Duration of injuries was within six hours. The weapon used for the injuries was blunt. The injured was brought by Hardial Singh, his son. On the same day at 4.40 PM, he medico-legally examined Gurnam Singh son of Surjit Singh, aged 32 years, and found following three injuries on his person:
1. 10 cm x 1.7 cm was present on the right side of skull, 5 cm from the hair line and meeting the mid line. Profused bleeding was present. Probing was not done.
2. Lacerated wound 11 cms x 2 cms was present on the right side of skull, 3 cms from injury No. 1 and parallel to it towards back side. Profused bleeding was present. Probing was not done. Underlying bones were depressed for injuries No. 1 and 2.
3. Lacerated wound 3 cm x 1 cm was present on the right side of skull at its back, 6 cms from the protuberance and 7.5 cms from the upper border of pinna of right ear. Profused bleeding was present. Probing was not done. X-ray skull and Surgical Specialists expert opinion was advised for injuries No. 1, 2 and 3.
7. The injuries were kept under observation for X-ray and Surgical Specialists expert opinion. Duration of injuries was within six hours. The weapon used for the injuries was blunt. The injured was brought to the hospital by Hardial singh. On 8.12.1999, an application was filed by ASI Paramjit Singh for inquiring about the fitness of Gurnam Singh, injured, to make his statement. At 5.15 PM, he declared him unfit to make statement. He also declared Surjit Singh unfit to make statement on the same day. Dr. Palwinder Singh, Medical Officer, Pasricha Hospital, Jalandhar, who was examined as PW-2, stated that Gurnam Singh was lying admitted in that hospital and an application was filed by the police for inquiring about his fitness to make statement. He declared him unfit to make statement on 8.12.1999 and 9.12.1999, likewise, he declared Surjit Singh also to be unfit to make statement. It is on 15.12.1999 on an application filed by the police for inquiring about the fitness of Surjit Singh that he declared him to be fit to make statement vide his Endst. Ex.PH. Dr. Rajesh Pasricha, Neuro Surgeon, who at the relevant time was working in Pasricha Hospital, was examined as PW-12. He stated that on 8.12.1999, he had given medical treatment to Surjit Singh and Gurnam Singh, who were admitted in the hospital. Surjit Singh had head injury, which was caused by blunt weapon. CT Scan report had revealed large thin acute left fronto perito occipital sub dural haemmatoma with milted sub erachnoid haemmorhage. Small haemmorhagic contusions left high parietal area, fracture left temporoperetal bone and depressed fracture right frontal and high parietal bone. On the same day, he also examined Gurnam Singh. He had head injury with a blunt weapon. He operated upon him to remove the blood clot and for fractured bone. Dural tears were also seen. Patient continued to be serious even after the operation and expired on 17.12.1999 due to this injury. Injury on the person of Gurnam Singh was dangerous to life. The patient died of complications of this injury. On 17.12.1999, patient Gurnam Singh was gasping for breath and with clinching of fits. He was called by the Medical Officer attending on him at that time. All resuscitations were done by him but the patient suffered cardiac respiratory arrest and was declared dead at 11.50 PM. In this cross-examination, he stated that he had not stated in his injury report with regard to Surjit Singh that injuries were sufficient to cause death in ordinary course of nature. He also stated that he had not mentioned as to whether a particular injury was dangerous to life or effect of all the injuries was dangerous to life. He however, volunteered to say that he had mentioned that injuries were dangerous to life and that meant all the injuries were collectively dangerous to life. He stated that he had not mentioned word `collectively'' in his report. He also stated that only one injury, i.e., head injury was dangerous to life. In the case of Gurnam Singh also, there was only one injury. It was mentioned in the report that injury was dangerous to life but it was not mentioned specifically that the injury was sufficient to cause death. It was not mentioned in the report of Gurnam Singh that he died due to complication of head injury. Similarly, it was not mentioned in the report of Dr. Vishal, Ex.PW 12/F. It was mentioned in Ex.PW 12/E that some body hit the injured on 8.12.1999. Pulmonary embolism, he stated, means clotting of blood in the blood vessels of the lungs. Harjinder Singh Rana, Medical Officer, who was examined as PW-14, stated that on 18.12.1999, he conducted the post-mortem examination on the dead body of Gurnam Singh. He observed the following injuries on the dead body of Gurnam Singh:
1. Stitched surgical wound starting from the hair line, 4 cms from the midline to the right side of head and the incision would turn to the right side of the head at the level of fronto parietal suture and extending to the fronto right ear and ended at the level of the tragus of the right ear.
2. Blackened area round the right eye.
3. Bleeding from the right ear was present.
4. Bruises 3x3 cms on the left shoulder, 5 cms medial to the shoulder joint in the region of clevicle.
8. Cause of death, in the opinion of the Doctor, was due to head injury, leading to pulmonary embolism, which was sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem in nature. Probable time that elapsed between the injuries and death was about 10 days and between death and post-mortem about 11 hours. In his cross-examination, he stated that only the person, who conducted medico-legal examination, can tell the number of injuries. According to his post-mortem report, there was one injury on the head. He admitted that if one blow is given on the head with blunt weapon, fracture can extend to other bones of the skull. He admitted as correct that head is like a vessel and every blow has a scar if the injury is caused on the head. He did not find any healed scar on the scalp of the deceased. Bleeding of nose and blackening of eyes, he admitted, could also be the cause of head injury. There was clotting of blood in the lung, which can be due to injury or due to continuous lying on the bed for a prolonged time.
9. Kuldip Singh, the first informant, who was examined as PW-8, and the injured witness Surjit Singh, who was examined as PW-9, supported the prosecution version. Kuldip Singh, however, in his cross-examination, admitted that a day before the present occurrence, murder of Manna Singh, an Akali leader, had taken place. He would not know if on the day of occurrence, his dead body was cremated in the cremation ground of Harnamdaspura. He would not remember if he attended that cremation. He would also not know that the cremation had taken place at 4.00 PM but he had heard that the same had taken place at about 2.00 PM. He would not know if City Cable Jalandhar had prepared a video film about that cremation ceremony. He would also not know if Press Photographer had taken photographs at that time. He, however, admitted that he appeared in photograph, Ex. DA. He volunteered to state that this photograph was taken at the house of said leader and not in the cremation ground. He denied the suggestion that the photograph was taken in the cremation ground itself. He could not tell if the person encircled in photograph mark `A'' was he himself. Under the stress of cross-examination, he, however, then stated that he could not deny the fact that he was present in the cremation ground and was shown in the video film at that place. He, however, denied the suggestion that cremation had taken place in his presence at 4.00 PM and that he was intentionally denying the fact in order to conceal that he was in the cremation ground and not at the spot at the time of alleged occurrence. He further stated that he would not know if Gurbax Singh Appellant also attended the cremation of Manna Singh. He then stated that he had not got his name recorded in Civil Hospital at the time of admission of the injured there. He had not sent Hardial Singh or any of his relative to the police for lodging the report. There was a walking distance of 5/7 minutes from the place of occurrence to the Police Station. Before lodging FIR, he had not talked about the occurrence with any one. He denied the suggestion that he had not lodged the report before the police before 8.00 PM as he had no knowledge as to who were the assailants.
10. He admitted that before the present occurrence, his brothers Gurnam Singh and Hardial Singh were living with their father Surjit Singh, while he was living in a separate house. He, however, volunteered to state that his house is situated opposite to their house. He admitted that he was holding a separate ration card and was recorded as voter at separate address and was doing business in ice separate from his father but the tempos were being plied by them jointly. He admitted that at the time of occurrence, he was not co- owner of the said two tempos nor his name was recorded with the Union. He denied the suggestion that he was not a partner with his father in plying the tempos. Surjit Singh, the injured witness, stated in his cross-examination that he had stated in his statement made by him before the police that Harjit Singh caused injuries to Gurnam Singh with the iron rod. His attention was drawn towards his statement, Ex. DD, recorded u/s 161 of Code of Criminal Procedure wherein, it was not so recorded. He admitted that he had stated before the police that when he had fallen on the ground, Harjit Singh gave blow with iron rod on his right leg. His attention was drawn to his statement, Ex. DD, wherein, it was not so recorded. He admitted that cremation of Harjit Singh Manna was attended by his son Kuldip Singh but it was incorrect that the same had taken place at 4.00 PM.
11. SI Ravinder Singh, who was examined as PW-10, deposed with regard to the steps that he had taken while investigating the matter. In his cross- examination, he stated that place of occurrence was surrounded by thickly populated area. There was many shops around the place of occurrence. He had examined number of shopkeepers, whose shops were situated around the place of occurrence. After refreshing his memory, he stated that he had examined 23 persons, whose shops were situated nearby but he would not remember their names nor he would like to refresh his memory to give their names. He denied the suggestion that he was intentionally withholding their names. Paramjit Singh, who was examined as PW-11, deposed with regard to the steps that he had taken while investigating the case. In his examination-in-chief, he stated that on 8.12.1999, he was posted in PS Division No. 2, Jalandhar. On that day he was present in the Police Station when a message was received on telephone that a fight was going on near Delux Tempo Union. On receipt of information, he and Charanjit Singh went to that place. Number of persons had collected there but the injured did not meet him at that place. He then went to Civil Hospital, Jalandhar. In his cross-examination, he stated that he had come to know that Kuldip Singh, complainant, was the eye-witness only on the day he recorded his statement and he had not come to know from medical record as to by whom the injured witness was removed to the hospital. He denied the suggestion that Kuldip Singh was available on the very first day and that since he had not witnessed the occurrence, his statement was not recorded. He denied the suggestion that his statement was recorded on 9.12.1999 at 8.00 PM after due deliberations. He admitted that Sabzi Mandi Chowk was a big chowk, on the one side of which, there is Police Complex and on the other side, there is a Tempo Union. The Police Station is situated in the same complex but on the other side.
12. There is no need to make a mention of the depositions made by other witnesses as nothing based upon their evidence has been urged before us either by the defence counsel or for that matter, the counsel for the State.
13. When examined u/s 313 of Code of Criminal Procedure, Jaspal Singh, while denying the incriminating material put to him, further stated that he had been falsely implicated being President of the Union. He was not present at the time of occurrence. Two four wheelers of Surjit Singh PW and not of Kuldip Singh were being plied in the Union but the names of four wheelers of Surjit Singh were struck off from the Union list because they were utilising their four wheelers beyond the Union and they were not allowed to ply over their tempos by the Union. He came to know later on that on the day of occurrence, Surjit Singh and his son Gurnam Singh came to their Union along with their tempos in a fighting mood. They asked Mohinder Pal, Adda Incharge to issue chit to them for the tempos to carry goods but he replied that their tempos had been struck off and no turn chit could be issued to them. Other drivers present at the Adda protested that Gurnam Singh etc. could not ply tempos and there was scuffle between Surjit Singh, Gurnam Singh and their drivers on one side and the drivers of the Union on the other side. Surjit Singh and Gurnam Singh received injuries in that scuffle. Gurnam Singh had received only one injury on his head. During the investigation of the present case, Gurbax Singh was found innocent and was placed in column No. 2. Harjit Singh Appellant while denying the incriminating material put to him further stated that he had been falsely implicated being younger brother of Jaspal Singh, President of the Union. Santokh Singh Appellant, while denying the incriminating material put to him, stated that he was falsely implicated being son of Resham Singh, who was Chairman of Tempo Union for the last about 20 years. Appellant Gurbax Singh stated that a day earlier to the present occurrence, death of Manna, an Akali leader, had taken place and cremation had taken place in HarnamDass Pura in cremation ground. On the day of occurrence, cremation had taken place at 4.00 PM and he joined the funeral procession. Manna deceased was closely related to him and he attended the funeral procession at 3.00 PM and the dead body reached the cremation ground at about 3.15 PM. He remained in cremation ground and after 4.00 PM after performing the necessary ceremonies; he went to Ramgaria Gurudwara, where there was Path. He remained present there at 4.30 PM. EXDA was the photograph of cremation ground where Kuldip Singh was also shown to be present. Kuldip Singh also attended the cremation ceremony of Manna on the cremation ground and remained there upto the last ceremony. In the investigation of the case, he was shown to be innocent and was placed in Column No. 2. The Appellants led evidence in defence. They examined Bhim Sain Sharma as DW-1, who stated that he had brought the register containing entries about the death and about the dead bodies cremated in the cremation ground HarnamDass Pura. On 8.12.1999, cremation of Harmit Singh Manna had taken place. An entry to this effect in the register was made, which was at Sr. No. 1661, at 4.00 PM on that day. After seeing photographs, Ex.DA and Mark `A'', he stated that the same depicts the cremation ground. In his cross-examination, he stated that entry is made after the departure of all the attending persons and only one person comes to make the statement. Whatever information he gives, the same is entered in the register. He could not tell when actually this cremation took place. Cremation ground is 1 km. from old Sabzi Mandi. Mohinderpal Singh, who was examined as DW-2, stated that he was working as Adda Incharge in Delux Doaba Tempo Union from the last six years. On 8.12.1999, he was posted as Adda Incharge in the said Union. He knew the accused present in the Court. He also knew Surjit Singh and his sons Gurnam Singh and Kuldip Singh. Gurnam Singh and Surjit Singh were also members of the said Union and their Tempos/vehicles were also joined in the said Union. On 8.12.1999, drivers of Surjit Singh came in the Tempo Union. He was present there, Drivers of Surjit Singh demanded the turn of their vehicles for playing and he asked them that their turn had been deleted because they had so many turns out of way and out of record against the Union instructions. They again came along with Surjit Singh and Gurnam Singh with their tempos/vehicles.
They were again told that their turn had already been deleted. But Surjit Singh insisted that he will have their turn. The other drivers of the Union had collected at that time. Drivers of the Tempo Union on the one side and Surjit Singh, Gurnam Singh and their drivers on the other side had a quarrel about this conflict and due to this quarrel, Surjit Singh and Gurnam Singh received one injury each. Union''s drivers had also received injuries. Kuldip Singh was not present at that time. None of the accused was present at that time. Drivers of Surjit Singh and Gurnam Singh had removed them to the hospital. Arunpal Singh, SP, Headquarters, Ludhiana, who was examined as DW-3, stated that he was ASP City Jalandhar from September, 1999 to January, 2001. He had verified the investigation of this case. He had recorded case diary about his verification of investigation, in which he had visited the spot and recorded the statements of witnesses. As per his findings, Gurbax Singh was not found to be present at the scene of occurrence. He had agreed with the investigation of the SHO and recommended the discharge of Appellant Gurbax Singh. Balbir Singh, who was examined as DW-4, stated that he knew Manna, an Akali leader, who died on 7.12.1999. His cremation had taken place on 8.12.1999. He had attended the cremation on 8.12.1999. He had gone to the house of deceased at 3.00 PM on that day and he saw Appellant Gurbax Singh among others. Members of the condolence party had gone to cremation ground, known as Harnamdass Pura Cremation Ground. Appellant Gurbax Singh also accompanied by following the dead body. They remained in the cremation ground upto 4.00 PM. Appellant Gurbax Singh also remained there upto 4.00 PM and after that, all the persons had gone to Gurdwara Ramgarhia and were free from there at 4.45. PM. From 3.00 PM to 4.45 PM, Gurbax Singh remained with him. Pawan Uppal, who was examined as DW-5, stated that he was posted as SP City Jalandhar in 1999 and 2000. He had verified the investigation of this case and had recorded the statements of the witnesses. As per his finding in the investigation, Appellant Gurbax Singh was not found present at the time of occurrence. He was found present at the time of occurrence in the cremation groundrelating to cremation of Harmit Singh alias Manna. He recommended that he should be discharged in this case. In his cross-examination, he stated that he had verified the investigation and not inquired into the matter and that he had not joined injured Surjit Singh and Kuldip Singh during his verification of the investigation nor he recorded their statements u/s 161 of Code of Criminal Procedure.
14. Mr. R.S. Cheema, learned senior counsel representing the Appellants, contends that there is an unexplained delay in lodging FIR in the present case. A time of 25 hours in lodging FIR was utilised in planning details of the case and attributing different roles to all the accused of causing injuries either to the deceased or the injured. In the facts and circumstances of the case, delay in lodging the FIR should be held to be fatal to the prosecution case. He further contends that the place of occurrence is located at a crowded place and number of witnesses had seen the occurrence and were available and yet not a single independent witness was cited or examined. The prosecution rather chose to substantiate its case on the basis of the depositions made by interested witnesses, who were closely related to the deceased and, thus, highly interested in the prosecution case. It is further his contention that Kuldip Singh, the first informant, was not present at the scene of occurrence and was, in fact, at the relevant time present in the cremation ground. He is a got up witness, introduced with a view to prop up the prosecution case. It is further urged that presence of Gurbax Singh at the scene of occurrence, who too was present at the relevant time in the cremation ground itself, is highly doubtful and further it is a case of trying to involve as many persons in the occurrence, who too was present at the relevant time in the cremation ground itself, is highly doubtful and farther it is a case of trying to involve as many persons in the occurrence as may be possible. He also contends that applicability of Section 34 of Indian Penal Code is completely ruled out in the facts and circumstances of the case and that in any case, offence committed by the accused would not go beyond grievous hurt covered u/s 325 of Indian Penal Code.
15. We have given our anxious thoughts to the contentions of learned Counsel, as noted above. We are of the view that the same deserve to be accepted but only half way though to the contentions of learned Counsel, as noted above. We are of the view that the same deserve to be accepted but only half way through. Whereas, we find substance in the contention raised by learned Counsel that Kuldip Singh, the first informant, was not present at the scene of occurrence and that Gurbax Singh and Harjit Singh have been involved in the case and further that offence committed in view of medical evidence would be covered u/s 304 Part-I of Indian Penal Code, we do not find any substance in the contention raised by him that the entire prosecution case needs to be thrown out in view of the delayed FIR or for the reason that other persons, who might have seen the occurrence, were not either cited or examined or that applicability of Section 34 of Indian Penal Code is to be ruled out.
16. The occurrence in the present case, as per prosecution version, had taken place at 3.35 PM on 8.12.1999 at Sabzi Mandi Chowk near Delux Doaba Tempo Union, which is only 200 metres from Police Station, Division No. 2. Jalandhar. Kuldip Singh, PW-8, claims to be present, having witnessed the entire occurrence. He is brother of deceased. He stated that he along with his brother Hardial Singh had arranged the mode of conveyance and removed his brother and father to Civil Hospital for treatment. He further stated that before lodging the FIR, he was running here and there for making arrangement of money for the treatment of his father and brother in order to save their lives. He lodged FIR, Ex.PN, on the next date at 4.30 PM. There is, indeed a delay in lodging the FIR and the explanation furnished by Kuldip Singh does not appear to be plausible in the facts and circumstances of the present case. Not only that, Police Station, Division No. 2, Jalandhar, is only 200 metres from the place of occurrence and is at a walking distance of 5/7 minutes from the place of occurrence, Paramjit Singh, PW-11, stated that on the one side of Sabzi Mandi Chowk, there is a Police Complex and on the other side, there is a Tempo Union. He further admitted that Police Station is situated in the same complex but on the other side. Even though, Kuldip Singh stated that he along with his brother Hardial Singh had taken his brother and father to the Hospital, the record shows that, in fact, it is only his brother Hardial Singh, who had taken the injured to the Hospital as it is only his presence, which has been recorded. There is no record in either of the hospitals where the injured and deceased were taken which might show that Kuldip Singh had taken them there. Hardial Singh, brother of Kuldip Singh, who too is stated to have gone to the hospital for admission of the injured, was not examined by the prosecution. There is no corroboration forthcoming from any material placed on record that may show that Kuldip Singh had taken the injured to the hospital. That apart, the occurrence in the present case had taken place for the reason that the complainant party had two tempos, which were being plied without a registration with the Union and out of turn. Kuldip Singh, appears from the evidence, was doing ice business and was separate from his father and further he had no connection with the tempos that were being plied. It may be recalled that when cross-examined, Kuldip Singh stated that his brothers Gurnam Singh and Hardial Singh were living with their father Surjit Singh, whereas, he was living in a separate house, even though, he volunteered to state that his house is situated opposite to their house. Under stress of cross-examination, he, however, admitted that he was holding a separate ration card and was recorded as voter at separate address and was doing business in ice separately from his father. Even though, he further stated that insofar as tempos are concerned, the same were being plied by them jointly, he once again had to admit that at the time of occurrence, he was not a co-owner of the two tempos nor his name was recorded with the Union. What, thus, transpires from the evidence is that Kuldip Singh was not residing with his father and further that his house was not located in any case close to the house of his father. He had a separate business of ice and was not co-owner of the tempos as well. In the circumstances aforesaid, if a telephonic message had been received by the father of Kuldip Singh to settle the dispute with regard to the tempos normally Kuldip Singh would not be accompanying his father and brother.
17. Explanation furnished by Kuldip Singh that he did not lodge the FIR earlier because he was arranging for money also does not appear to be correct. It is not a case where only Kuldip Singh had seen the occurrence or was present at the time his father and brother were injured. Hardial Singh, his brother, too was available. It is proved on the record of the case that Hardial Singh, indeed, had accompanied the injured to the Hospital. Once, the injured were being admitted in the hospital and were being treated as well, the explanation furnished by Kuldip Singh that he was yet arranging for money does not appear to be plausible. Hardial Singh is real brother of Kuldip Singh and if Kuldip Singh had seen the occurrence and Hardial Singh might have come later, in normal course of events, it is Hardial Singh, who would have arranged for money, if at all require and not Kuldip Singh, whose first anxiety ought to have been to report the matter to the police. How much money was required for the treatment of the injured and what arrangements Kuldip Singh had made for the same, have not been mentioned by him, either in the FIR lodged by him or in the Court when he appeared to make his statement.
18. The first informant, as per FIR lodged by him, ascribed the first injury to Gurbax Singh to his brother Gurnam Singh on the right side of the head. Santokh Singh was then stated to have caused injury to his father in the middle of the head. Harjit Singh then, as per his version, gave a rod blow to his brother Gurnam Singh on the back portion of his head. Jaspal Singh then gave rod blow to his brother Gurnam Singh, which hit on his forehead towards right side. Harjit Singh then gave a rod blow to his brother, which hit him on his right leg. By the time, he lodged FIR, both Gurnam Singh and Surjit Singh had already been medico legally examined. Surjit Singh had one head injury just above hair line whereas, he complained of pain on the middle of right thigh in its anterior aspect. Gurnam Singh was found to have suffered three injuries, i.e., one on the right side of skull, the other head injury on the right side of the skull and the third again on the right side of skull but it was at its back. It may not be impossible but it appears quite improbable that the first informant would not only give exact number of injuries sustained by the two injured but also the seat of the said injuries. It does appear to us that he made the statement exactly fitting with the medical evidence, which was known to him at the time when he lodged the FIR. Since Kuldip Singh is the brother and son of the injured, his normal conduct was to make an endeavour to save them. In the process, he was also likely to suffer some injuries. He does not even state either in the FIR or while appearing as a witness before the Court that he made any effort to save his father and brother from the Appellants. His conduct appears to be unnatural. Same may, however, not be conclusive of the fact that he was not present at the scene of occurrence but coupled with other aspects of the case, our opinion is strengthen that he was, indeed, not present at the time when Gurnam Singh and Surjit Singh were caused injuries by the Appellants.
19. Presence of Kuldip Singh further becomes doubtful for the reason that on the date of occurrence, admittedly, cremation of Manna Singh, an Akali leader, had taken place. When cross-examined, Kuldip Singh stated that he would not know if on the day of occurrence, dead body of Manna Singh was cremated in the cremation ground of HarnamDass Pura. He would also not remember if he had attended that cremation. He would also not know that the cremation had taken place at 4.00 PM, even though, he stated that he had heard that the same had taken place at about 2.00 PM. He would not know if City Cable Jalandhar had prepared a video film about that cremation ceremony. He would also not know if Press Photographer had taken photographs at that time. When he was confronted with the photograph, admittedly showing cremation of Manna Singh, wherein, he also figured, he had to admit that he was in the photograph but he further stated that the photograph was taken at the house of Akali leader and not in the cremation ground. On further cross-examination, he stated that he could not deny the fact that he was present in the cremation ground and was shown in the video film at that place. It is relevant to mention that Surjit Singh, father of Kuldip Singh, admitted that Kuldip Singh had attended cremation of Harjit Singh Manna, even though, he too stated that it had not taken place at 4.00 PM. It is quite apparent from the reading of the evidence of Kuldip Singh that he has not come up with truth at all. He first denied his presence in the cremation ground and feigned knowledge of cremation of Manna Singh on the day of occurrence but later, under the stress of cross-examination, he had to admit his presence, even though, he stated that cremation had taken place at about 2.00 PM and not 4.00 PM. It is quite apparent that he made an attempt, even though in vain, to deny his presence at the cremation ground simply with a view to show his presence at the scene of occurrence, as it was at 3.35 PM that the occurrence had taken place. It appears to this Court that the police, which first reached at the place of occurrence after learning that a fight had taken place at Sabzi Mandi Chowk and then to the hospital, found that there was no one available to give narration of the events leading to the injuries to Surjit Singh and Gurnam Singh. The injured were unable to make statements and remained so for a long time. Hardial Singh, as per prosecution version, had come at the scene of occurrence at the end and was not in a position to give details of the occurrence. In its anxiety that there may not be any further delay in lodging the FIR, it appears that Kuldip Singh was made an eye-witness. It further appears to this Court that Kuldip Singh and not Hardial Singh was chosen for this purpose as, he may have been found to be more fit out of the two to withstand the cross-examination that he had ultimately to face in the Court. This we are observing for the reason that Hardial Singh, who had come at the scene of occurrence, may be at the fag end, and had taken the injured to the hospital, was not examined by the prosecution despite the fact that his evidence to some extent could have corroborated the prosecution version. Gurbax Singh and Harjit Singh, in totality of the facts and circumstances of this case, it appears to this Court, were ascribed definite roles with a view to involve as many persons from the side of the accused as it may be possible.
20. Insofar as Gurbax Singh is concerned, he is, admittedly, not related either to the accused or to the injured and Kuldip Singh. He had no dispute with the complainant party whatsoever. He is not even stated to be office bearer of the Union and, thus, having grouse against the complainant party for non-registration of the tempos with the Union. In the normal course of events, he would not stick his neck in a dispute, wholly unconnected with him. That apart, Gurbax Singh too, it appears to this Court, was attending the Kirya of Manna Singh at the time when occurrence is stated to have taken place. It may be recalled at this stage that Arunpal Singh, ASP, and Pawan Uppal, SP, who were examined as DW-3 and DW-5, respectively, and had verified the investigation of the case, had found Gurbax Singh to be innocent and, therefore, his name in the challan was mentioned in Column No. 2. It may be true that verification of investigation cannot take precedence over the substantive evidence with regard to involvement or innocence of an accused but, the cross examination of the witnesses and the defence evidence showing presence of Gurbax Singh at the cremation ground at the relevant time does lend credence to the verification of investigation done by the two highly ranking police officers, finding him to be innocent and, thus, having sent him in Column No. 2.
21. Involvement of Harjit Singh in the commission of crime also appears to be doubtful to us. Kuldip Singh, as already mentioned above, was not present at the scene of occurrence. He appears to have involved innocent persons as well. Naming Harjit Singh as one of the assailants further appears to us to be because of anxiety of Kuldip Singh to involve as many persons as may be possible. Injured witness Surjit Singh, whose presence, of course, cannot be doubted, it may be recalled, named Harjit Singh as assailant for the first time when he appeared in the witness box. He did state in his cross- examination that he had stated in his statement made before the Police that Harjit Singh caused injuries to Gurnam Singh with the iron rod but when confronted with the statement made by him u/s 161 of Code of Criminal Procedure, Ex. DD, it was not found recorded. He also stated that he made statement before the police that when he had fallen on the ground. Harjit Singh gave blow with iron rod on his right leg. Once again his attention was drawn to his said statement, wherein, it was not so recorded. What, thus, transpires from the evidence, as noted above, is that Surjit Singh, who is a stamp witness, did not name Harjit Singh as one of the assailants., who might have caused injuries to either of the injured. By the time he, however, came to depose in the Court, the dyehad already been cast. Name of Harjit Singh had been mentioned by the son of Surjit Singh in the FIR lodged by him. He had, thus, no choice but for to toe the same line. In the context of the facts, as mentioned above, a question, however, arises as to why when he made statement u/s 161 of Code of Criminal Procedure, he did not name Harjit Singh as by that time as well, the FIR had already come into being but all that we can observe on that count is that this is how perhaps the inherent lacuna in the prosecution case comes to surface or that the Almighty comes to the rescue of the innocent. Participation of Harjit Singh in the commission of crime, in our view, is highly doubtful.
22. Even though we have already held that Kuldip Singh had not witnessed the occurrence and it is a case of false implication on his part insofar as, Gurbax Singh and Harjit Singh are concerned, yet, in our considered view, it is not a case where the whole prosecution case may be rejected. Surjit Singh was seriously injured in the occurrence. His presence, as mentioned above, cannot be doubted. Even though, it is difference matter that since the FIR had come into being before his statement could be recorded, he was, perhaps, left with no choice but for to depose as stated by Kuldip Singh, the first informant. The facts of this case are such that statement of Surjit Singh to the extent same is not exaggerated by involving innocent persons has, however, to be accepted. He was himself seriously injured and his son died. It would be his first anxiety to see that the real culprits do not escape. He may have not been left with any choice but for to name some innocent person, either because of the fact that FIR naming such persons had since been recorded or he may himself want more persons from the side of the accused to be involved but, as mentioned above, he would not fail to name the real assailants. His statement with regard to participation of the accused, other than, whose participation is doubtful, has, thus, to be accepted, Jaspal Singh and Santokh Singh are, thus, proved to have caused injuries to Gurnam Singh and Surjit Singh on the eventful day.
23. Insofar as contention of learned Counsel that the occurrence had taken place at a busy place, where number of persons were available, is concerned, all that we would like to observe on that count is that in the present scenario and the circumstances prevalent in the society these days, no on coffers himself to become a witness in a ghastly crime, lest it may invite wrath of the party against who one has to depose.
24. In the circumstances aforesaid, if no one chose to become a witness, it cannot be said that the occurrence had not taken place or that the statement made by the injured witness needs to be totally discarded. It is different matter however, that statement of the injured witness has to be examined with great deal of care and caution.
25. Contention of learned Counsel that the provisions of Section 34 of Indian Penal Code are not attracted has to be rejected as, the accused were waiting for the injured armed with iron rods. No sooner did Gurbax Singh and Surjit Singh reach the place of occurrence, an attack was opened by them. The assailants, however, on alarm having been raised, left the place of occurrence together. In these circumstances, they did share common intention with each other, thus, attracting the provisions of Section 34 of Indian Penal Code.
26. We have thoroughly examined the medical evidence and in particular, the one pertaining to Gurnam Singh deceased. In our considered view, the offence committed by Appellants Jaspal Singh and Santokh Singh would be covered u/s 304 Part-I of Indian Penal Code. Dr. Gurpal Singh, PW-1, who medico legally examined Gurnam Singh on 8.12.1999, found three injuries on his person. The same have since already been reproduced in the earlier part of the judgment. The Doctor gave duration of the injuries, weapon used for the injuries but did not state either in his report or in the Court that the injuries suffered by Gurnam Singh, individually or collectively, were sufficient to cause death in ordinary course of nature. He, in fact, gave no opinion with regard to the damage the injuries had caused to Gurnam Singh. Dr. Palwinder Singh, Medical Officer, Pasricha Hospital, Jalandhar, PW-2, had only declared Gurnam Singh unfit to make statement on 8.12.1999 and Surjit Singh fit to make statement on 15.12.1999. Dr. Rajesh Pasricha, PW-12, who had operated upon Gurnam Singh on 8.12.1999 for the head injury to remove blood clot and for fractured bone and had seen dural tears also, stated that the injury on the person of Gurnam Singh was dangerous to life and he died due to complications of this injury. In his cross-examination, he stated that he had mentioned in his injury report that the injury was dangerous to life but not mentioned specifically that the injury was sufficient to cause death. He had also not mentioned in his report that Gurnam Singh had died due to complication of head injury. Pulmonary embolism, he stated, means clotting of blood in the blood vessels of lungs. It could be due to the patient lying on the bed after serious injuries and it could be due to various other reasons also. If there is skull base fracture, there will be bleeding from the ear. He was re-examined by the Public Prosecutor but no question with regard to definite cause of death was put to him. Harjinder Singh Rana, Medical Officer, PW-14, who conducted the post-mortem examination on the dead body of Gurnam Singh, stated in his examination-in-chief that cause of death, in his opinion, was head injury, leading to pulmonary embolism, which was sufficient to cause death in ordinary course of life. In his cross-examination, he, however, stated that only the person, who conducted the medico legal examination, could tell the number of injuries and the homicidal injury. He admitted that there was clotting of blood in the lung, which can be due to injury or due to continuous lying on the bed for a prolonged time.
27. From the medical evidence, gist whereof has been given above, it would appear that even though, the injuries suffered by Gurnam Singh were serious in nature, ultimate cause of death was due to pulmonary embolism. For injuries 1 and 2, as described by Dr. Gurpal Singh, PW-1, underlying bones were depressed. Dr. Palwinder Singh, Medical Officer, Pasricha Hospital, Jalandhar, PW-2, who operated upon Gurnam Singh to remove blood clot, did state that there was fractured bone also. He also found dural tears and stated that the patient continued to be serious even after operation. No Doctor, out of the three, insofar as their reports are concerned, mentioned the injuries suffered by Gurnam Singh to be sufficient to cause death in ordinary course of nature. One Doctor, of course, described in his injury report head injury on the person of Gurnam Singh to be dangerous to life. During the course of trial, once again, no Doctor stated the injuries sufficient to cause death in ordinary course of nature but for Doctor Rajesh Pasricha, PW-12, who had operated upon Gurnam Singh, who stated that patient continued to be serious even after operation and expired on 17.12.1999 due to this injury. He also stated that patient died because of complications of this injury. Dr. Harjinder Singh Rana, PW-14, even though stated that cause of death in his opinion was head injury but he further clarified by saying that head injury had caused pulmonary embolism, which was sufficient to cause death in ordinary course of nature. He too admitted in his cross-examination that there was a clotting of blood in the lung, which could be due to injury or due to continuous lying on the bed for a prolonged time. The prosecution to prove that the Appellants were guilty of offence u/s 302 of Indian Penal Code could, perhaps, best rely upon the statement of Harjinder Singh Rana, Medical Officer, but from the statement made by him in the cross-examination, it cannot be said in the present case with certainty that the injuries suffered by Gumam Singh alone resulted into his death. The cause of the death could well be because of clotting of blood in the lung by continuously lying on the bed for a prolonged time. It may be recalled that whereas, the occurrence had taken place on 8.9.1999, Gurnam Singh died on 17.12.1999.
28. Embolism, as per Medical Dictionary by P.H. Collin, is blocking of an artery by a mass of material (usually a blood clot), preventing the flow of blood. The word `embolus'' which is a noun for the word `embolism'' is mass of material (such as a blood clot or air bubble or fat globule) which blocks a blood vessel. Pulmonary embolism, as per Taylor''s Principles and Practice of Medical Jurisprudence, thirteenth edition, edited by A. Keith Mant, is a condition in which thrombi are formed on the walls of the pelvic and leg veins and such trhombi break away and embolise to the lungs. The veins themselves are usually normal and the condition is referred to as phlebothrombosis in contradistinction to thrombophlebitis where thrombosis occurs in a vein which is already inflamed. In this latter case, embolism is much less likely to occur as the inflammation anchors the thrombus to the vessel wall. Although the thrombosis is the primary event the embolus itself usually consists of a tube of thrombus with a central core of clotted blood. When it reaches the lung, its effects depend on its size. Small ones are carried to the periphery of the lung where they cause pulmonary infarcts but large ones straddle the bifurcation of the pulmonary artery completely blocking the blood circulation. Spasm of the pulmonary arteries around the thrombus only helps to make matters worse. The cause of the thrombosis is thought to be damage to the vessel wall by slowing of the blood flow and pulmonary embolism frequently causes death in people who are confined to bed, particularly in the post-operative period. It has even been observed in people confined to an aeroplane seat on long journeys such as the flight to America.
29. From the description of the injuries and the statements made by the Doctors, as fully detailed above, what, thus, appears to this Court is that even though, the ultimate cause of death was pulmonary embolism, Gurnam Singh had suffered three injuries on his head, a vital part of the body, with iron rods, which is lethal weapon. There was depression as also fractured bone. In the facts, as fully detailed above, the question that arises is as to what would be the offence committed by the Appellants. Learned Counsel for his contention that the case would be covered only u/s 325 of Indian Penal Code relies upon two judgments of Hon''ble Supreme Court in
30. In totality of the facts and circumstances of this case, while setting aside order of conviction of Appellants Jaspal Singh and Santokh Singh u/s 302 of Indian Penal Code, we hold them guilty u/s 304 Part-I of Indian Penal Code and sentence them to undergo rigorous imprisonment for a period of ten years. They shall also pay fine of Rs. 10,000/- each, which, if realised, would be given to the widow and children of Gurnam Singh and if, however, he was not married, then to his father Surjit Singh. In default of payment of fine, they would further undergo rigorous imprisonment for a period of one year. Santokh Singh is also held guilty u/s 308 of Indian Penal Code, whereas, Jaspal Singh is held guilty u/s 308 with the aid of Section 34 of Indian Penal Code. The sentence imposed upon them by the trial Judge is maintained. Sentence on both the counts against them shall run concurrently. Appeal preferred by Appellants Harjit Singh and Gurbax Singh is allowed by giving them benefit of doubt. Order of conviction and sentence dated 8.7.2004 recorded against them by learned Sessions Judge, Jalandhar, is set aside. They be set at liberty, if not on bail and not required in any other case.
Order accordingly.
