Punjab-Haryana High Court
State Of Punjab vs Hadayat Masih And Ors. on 9 July, 1996
Equivalent citations: 1997CRILJ2139
Author: B. Rai
Bench: B. Rai
JUDGMENT Harphul Singh Brar, J.
1. It is a State appeal against the judgment dated 4-4-1990 of the Additional Sessions Judge, Gurdaspur, vide which he had acquitted the accused now respondents Hadayat Masih, Malooka Masih and Bhoora Masih, by giving them the benefit of doubt. As leave to appeal was granted by a Division Bench of this Court, thus, the appeal has come up for final hearing before us today.
2. The prosecution version unfurled in the First Information Report by Jalal Masih (PW-4) is that he was a resident of village Dhindsa and used to do labour. On 15-2-1989, in the afternoon, he had gone to the fields to bring fodder. He parked his cycle in the fields and started collecting straw-fodder from the sugarcane crop. When he was about to return to his house, he found his cycle locked. He came to know that sons of Malooka had locked his cycle. He came back to his house carrying the straw-fodder. Then he went to the house of Malooka son of Hadayat and asked him that his sons had locked his cycle. His son told him that his brother was having the key and he would bring it. He returned to his house. At about 5.00 a.m., he was standing on the road outside his house. Hadayat son of Attu, Christian, resident of Dhindsa and his sons Malooka and Bhoora came there while raising lalkaras. Immediately, on their arrival. Hadayat exhorted them to catch hold of Jalal and do him to death, teach him a lesson for lodging protest. All the three pounced upon him and started giving him fist blows. He raised alarm, "Mar Ditta, Mar Ditta (killed killed). On hearing his alarm his wife Meedan, his son Yusuf and Bholi daughter of Boota Masih, resident of Dhindsa, also came at the spot. His wife Meedan stepped ahead in order to save him then Malooka and Bhoora dragged her away and started giving fist and kick blows to her. She became unconscious and fell on the ground. While she was lying down, Hadayat also gave her kick blows. On raising raula by his son at the spot, aforesaid Hadayat, Hadayat Masih, Malooka and Bhoora fled away towards their house while raising lalkaras. His son Yusuf caught hold of his mother Meedan by the arm and took them to their house. After sometime Meedan's condition became serious due to the injuries. Hence his son Yusuf went to village Ghuman Kalan to bring the doctor to the house. The doctor came and gave treatment to his wife and himself, but his wife Meedan succumbed to the injuries at about 2.00 a.m. They did not go to the police-station at night due to fear. Leaving his son Mauji to guard the dead body, where he was going to the police-station to lodge a report that ASI Bhagwan Dass (PW-7) met him at bus stand Noshera Majja Singh at about 8.00 a.m. on 16-2-1989. He complained against Hadayat Masih, Malooka Masih and Bhoora Masih to the A.S.I. who recorded his statement Ex. PD which was heard by him and was signed in token of its correctness. The statement was forwarded to the Police-Station where formal FIR Ex. PD/2 was recorded. Special report was received by the Ilaqa Magistrate at 2.30 p.m. on 16-2-1989. A.S.I. Bhagwan Dass then went to the place of occurrence and prepared inquest report Ex. PF. The dead body of Meedan deceased was despatched to the Civil Hospital, Gurdaspur for post mortem examiantion. A rough site plan Ex. PG was prepared by the Investigating Officer. After completing the investigation the accused were challenged
3. In order to substantiate the charge against the accused the prosecution examined Dr. Prem Parkash (PW-1) Darshan Kumar constable (PW-2). Tarsem Singh constable (PW-3), Jalal Masih (PW-4),Ysuf Masih(PW-5),Janak Singh Draftsman (PW-6) and ASI Bhagwan Dass (PW-7), Bholi, Kashmir Singh and Ramesh Chander were given up as having been won over by the accused. A.S.I. Amarjit Singh, S.I. Balkar Singh and Manga Masih were not examined and given up as unnecessary.
4. The circumstances, appearing in evidence were put to each accused separately. The accused denied prosecution allegations. Hadayat Masih and Malooka Masih accused pleaded innocence simpliciter. Bhoora Masih pleaded that he had an altercation with Jalal Masih and they had exchanged abuses and were separated by Deepo and Kashmir Singh. He further stated that no scuffle or fight took place and the case has been falsely planted.
5. The accused examined Deepo (DW-1) and Kashmir Singh (DW-2) in their defence.
6. After hearing the learned counsel for the parties and going through the evidence, the learned Additional Sessions Judge, Gurdaspur, as has been stated at the very, outset, acquitted all the accused by giving them the bennefit of doubt.
7. We have heard the learned counsel for the parties.
8. The learned Additional Sessions Judge has acquitted the accused mainly on the following grounds:-
(i) That the medical evidence contradicts the ocular account.
(ii) That there is an inordinate delay in lodging the First Information Report, which has not been explained by the prosecution to the satisfaction of the Court.
(iii) The prosecution witnesses Jalal Masih (PW-4) and Yusuf Masih (PW-5) have made material improvements at the trial.
9. After going through the evidence with the help of the learned counsel for the parties, we do not find any infirmity in the finding given by the learned Additional Sessions Judge, Gurdaspur. The learned Additional Sessions Judge has rightly held that the medical evidence does not support the ocular account of the eye-witnesses. Dr. Prem Parkash (PW-1) who conducted the autopsy on the dead-body of Meedan on 16-2-1989 at 4.30 p.m., found fracture of right 8th and 9th ribs and second rib on the left side and, there was hydopneumpthorax on the left side and right side. There were about 500 cc of blood on the right side and 200 cc of blood on the rupture of lower lobe of right lung and rupture of upper lobe of the left lung. Pericardium and heart were healthy. There was repture on the upper right side of the peritonium cavity and it contained 300 cc of blood stomach was full and healthy and contained semi-digested food. Liver was rupturned on the upper border. Bladder was full of urine. There was dislocation of right and left shoulder joint. All other organs were healthy.
10. In the opinion of the doctor, the cause of death was shock produced by excessive haemorrhage, hydropneumo thorax on left and right side and bleeding due to liver injury and dislocation of both shoulder joints and that was sufficient to cause death in ordinary course of nature.
11. The doctor found rigor mortis present fully on legs and partially on upper arm and there was no sign of injury visible on the body according to him. He further opined that the probable time that elapsed between injury and death was instantaneous and between death and post-mortem was 12 to 24 hours. He clarified in his cross-examination that instantaneous death meant a death roundabout 2/3 minutes of the last breath. He then stated that the deceased should have taken the last meal one/two hours before the last breath and it could be even half an hour.
12. According to prosecution story, Meedan sustained injuries at 5 p.m. on 15-2-1989. She was treated by a medical practitioner namely, Ramesh Chander but she died at about 2 a.m., i.e. on the night intervening 15/16-2-1989. According to the medical evidence, Meedan died within moments of receiving the injuries whereas according to the ocular version of the prosecution witnesses, there was gap of about 9 hours between the receipt of the injuries and death. The ocular account thus, is directly in conflict with the medical evidence. It has then come in the evidence of the alleged eyewitnesses that the accused dragged Meedan but there was no dragging mark found on the dead-body of Meedan. This fact also falsifies the ocular evidence of the PWs. We thus, find that the medical evidence does not corroborate the ocular account of the PWs.
13. The delay in lodging the FIR is also not fully explained. The occurrence took place at 5 p.m. on 15-2-1989. The report was lodged by Jalal Masih PW-4 after 8 p.m. on 16-2-1989. According to Jalal Masih himself, a medical practitioner from Village Ghuman was called for after the occurrence. His explanation that nobody left the village for reporting the matter to the police because of fear, or disturbed conditions,, is not plausible. The FIR purports to have been registered at 10.30 a.m. at Dhariwal and the special report was received by the Magistrate at Gurdaspur at 2.30 p.m. on 16-2-1989. Constable Darshan Kumar (PW-2) has deposed at the trial that the Police Station Dhariwal is located on Amritsar-Pathankot Road which is a busy vehicular road and buses were available after about 5 minutes and the distance between Dhariwal and Gurdaspur is 13 km.
14. The delay in sending the Special Report to the Illaqa Magistrate is also a pointer to arrive at a conclusion that the FIR was lodged after due deliberations and consultations. It has been admitted by PW-4 Jalal Masih in his cross-examination that there was a B.S.F. Post during those days in Village Ghuman. It has come in the evidence that the medical practitioner namely Ramesh Chander was brought from Village Ghuman to give medical treatement to the deceased but no report was made about the incident even before the B.S.F. personnel posted there.
15. A.S.I. Bhagwan Dass (PW-7) deposed at the trial that after recording the statement of Jalal Masih Ex. PD, he went to the spot and prepared the Inquest Report Ex. PF wherein he incorporated the statement of supporting witnesses. Jalal Masih (PW-4) was examined during the inquest proceedings. He admitted in his statement recorded during the proceedings that he made no reference to his previous statement Ex. PD. In his statement during the inquest proceedings,, Jalal Masih stated no material facts and that the accused were not named as culprits therein. It cannot be ruled out that at the time of the spot-visit by the I.O., the prosecution story was yet to be given the final shape and the statement of Jalal Masih Ex. PD was manipulated after due deliberations and consultations.
16. In these circumstances, we do not intend to differ with the finding of the trial Court wherein it is held that the delay in lodging the FIR remained unexplained and it was lodged after due deliberations and consultations.
17. PW-4 Jalal Masih husband of the deceased has made material improvements at the trial. In his statement Ex. PD, he had named Phira as person who told him that his cycle had been locked by sons of Malooka when he had gone to the fields to collect fodder. Attention of the witness was drawn to his statement Ex. PD wherein the name of Phira was not mentioned, in any context and it was also not recorded that the witness had gone to his field for collecting fodder.
18. In his statement before the police, he had stated that the elder son of Malooka had told him that the key of the cycle was with his younger brother and he would bring it. Attention of the witness was drawn to his statement Ex. PD wherein it was not so recorded. In his statement before the police, he had stated that Meedan placed herself upon him. Attention of the witness was drawn to his statement wherein it was not so recorded. In his statement before the police, he had stated that after she fell down, Meedan was given further injuries by the three accused. Then attention of the witness was drawn to his statement Ex. PD wherein it was recorded that after Meedan fell down, the accused gave further injuries to her, but it was not recorded that all the three accused gave further injuries to her.
19. Dr. Prem Parkash (PW-1) has deposed at the trial that he conducted the medico-legal examination of Jalal Masih on 16-2-1989 at 4 p.m. and found the following injuries on his person:-
1. An echymosis 3x2 cm. below the right eye lid, bluish in colour.
2. An abrasion 5x5 cm on the inner of the first injury red colour.
3. A contusion 4 x 3 cm on the top of left shoulder reddish colour.
4. An abrasion 1 x .5 cm behind the left ear reddish colour.
20. The injuries were simple in nature and were the result of blunt weapon caused within probable duration of 24 hours.
21. According to PW-4 Jalal Masih, the accused had come with the intention to attack him but they had no weapon with them. He had deposed at the trial that the accused started giving him kick blows and fist blows and then Meedan intervened and placed herself upon him; as noted above, this is an improvement in his original statement. It looks unnatural that if Jalal Masih was the main target of the accused, then he would be left with a few simple injuries on his person by the accused. Dr. Prem Parkash (PW-1) stated that injuries No. 2 to 4 on the person of Jalal Masin coul have been caused by scratching of nails. Injury No. 3 could also be caused by friendly hand. Moreover, Jalal Masih in his statement recorded during the inquest proceedings, made no reference to his injuries. Dr. Prem Parkash deposed at the trial that the duration of injuries on the person of Jalal Masih could be between 12 to 24 hours. According to prosecution case, Meedan and Jalal Masih received injuries at one and the same time but the medical evidence shows that Meedan succumbed to injuries after a few minutes and she died according to the prosecution at about 2 a.m. In these circumstances, receipt of injuries by Jalal Masih at 5 p.m. on 15-2-1989 is not possible. Injuries on the person of Jalal Masih seem to have been manipulated only to make him a stamped witness.
22. PW-5 Yusuf Masih, son of the deceased also made some improvements in his original version before the police like his father (PW-4). According to the prosecution story, Meedan received injuries on her body at 5 p.m. and she was taken inside her house by her son (PW-5) and was given treatment by one Ramesh Chander, registered medical practitioner of Ghuman. But Ramesh Chander has not been examined by the prosecution. Ramesh Chander was a material witness. His version about examining Meedan and giving her treatment could throw light as to whether what type of injuries he found on Meedan and as to whether those injuries were cuased by some unfriendly hand or due to some other reason. Non-production of this witness is certainly an inference which is to be drawn against the prosecution.
23. In view of our discussion made above, we do not find any infertility with the judgment of the learned Additonal Sessions Judge, Gurdaspur and thus, dismiss the appeal filed by the State and affirm the judgment dated 4-4-1990 rendered by the learned Additional Sessions Judge, Gurdaspur.