Punjab-Haryana High Court
Lakhwinder Singh Alias Gola vs State Of Punjab on 31 July, 1997
Equivalent citations: 1998CRILJ468
Author: P.K. Jain
Bench: P.K. Jain
JUDGMENT P.K. Jain, J.
1. This appeal is directed against the judgment/order dated November 11, 1994, passed by the Sessions Judge, Ludhiana, whereby the appellant has been convicted under Section 302/326 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs. 4000/-, and in default of payment of fine to undergo further rigorous imprisonment for one year for the offence under Section 302, IPC, and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo further rigorous imprisonment for a period of 3 months for the offence under Section 326, I.P.C. Both the sentences of imprisonment have been ordered to run concurrently.
2. The prosecution case is that Sant Singh (deceased) used to reside along with his brothers Ajmer Singh and Chhaju Singh in a separate house in village Baghaur, whereas his brother Joginder Singh resided in a separate house in the same village and still his another brother Jaswant Singh is a resident of Delhi. Sant Singh was in Military service and used to bring two bottles of Rum per month on the basis of a permit issued to him. On 24-6-1991 at 9.00 p.m., the appellant came and asked Sant Singh for one bottle of Rum. Smt. Harnam Kaur, the mother of Sant Singh, was present in the house at that time. On a refusal by Sant Singh, the appellant inflicted a number of injuries on the person of Sant Singh with a small kirpan (Exhibit P. 1.). Smt. Harnam Kaur came forward to save his son but the appellant inflicted one kirpan blow on her back. On an alarm raised by Sant Singh and Smt. Harnam Kaur, Joginder Singh rushed to the spot and witnessed the occurrence. In the meantime, Ajmer Singh, who had gone to the fields to ease himself, came there. The villagers also gathered there. Sant Singh and Smt. Harnam Kaur were taken by Ajmer Singh and others to the Civil Hospital, Samrala. The Medical Officer on emergency duty referred the injured persons to Civil Hospital, Ludhiana, prepared a ruqa (Exhibit PG) at 11.30 p.m. and Sent the same to Police Station, Samrala, intimating that these persons had been brought to Civil Hospital, Samrala, in injured condition. Both the injured were taken and got admitted to Civil Hospital, Ludhiana, on that very night. Dr. Bimal Kanish (PW 4) examined Sant Singh on. 25-6-1991 at 2.45 a.m. and found 35 incised wounds on his person and prepared Exhibit PE/1 the medico legal report along with Exhibit PE/1 and Exhibit PE/2, the pictorial diagrams showing the location of the injuries. At 3.30 a.m., the same doctor examined Smt. Harnam Kaur and found one incised wound on her person and prepared Exhibit P.F., the medico-legal report along with Exhibit PF/1, the pictorial diagram showing the location of the injury. He sent information as well as the medico-legal reports to Police Station, Samrala, through Police Station, Division No. 2, Ludhiana. At the time of their medical examination, both, Sant Singh and Harnam Kaur were fully conscious.
3. On 25-6-1991, on the receipt of a ruga from Civil Hospital, Samrala, ASI Jasdev Singh (PW 6), along with a Constable and a S.P.O. reached Civil Hospital, Samrala, where he came to know that the injured had already been referred to Civil Hospital, Ludhiana. Accordingly, he along with his companions reached Civil Hospital, Ludhiana, and came to know that Sant Singh had already expired. On an application (Exhibit PH), Smt. Harnam Kaur was declared unfit to make statement, vide endorsement Exhibit PH/1, on 25-6-1991 at 1.20 p.m. Joginder Singh, brother of Sant Singh deceased, was found there. ASI Jasdev Singh recorded statement-Exhibit PJ made by Joginder Singh on 25-6-1991 at 2.30 p.m. in Civil Hospital, Ludhiana, made his endorsement Exhibit PJ/1 thereunder, and sent the same through Didar Singh, SPO of Police Station, Samrala, for registration of a case, on the basis of which formal first information report-Exhibit PJ/2 was recorded on 25-6-1991 at 3.40 p.m. vide DDR No. 14.
4. ASI Jasdev Singh prepared the inguest report and sent the dead body of Sant Singh for post-mortem with his application-Exhibit PB through his companion Constable Buta Singh. Thereafter, he went to the place of occurrence on 25-6-1991 itself, prepared visual site plan-Exhibit PC of the place of occurrence, and also lifted blood-stained earth from there and converted the same into a sealed parcel which was seized vide memo. Exhibit PM. Then he made search for the appellant who was found standing at the Bus Stand of village Otalan. Immediately after his arrest, the appellant produced a blood stained kirpan (Exhibit P.1) which was converted into a sealed parcel and taken into possession vide memo. Exhibit PN.
5. On 26-6-1991 at 11.30 a.m. Dr. Ashok Gupta (PW 1) had conducted post mortem over the dead body of Sant Singh and prepared his report, carbon copy of which is Exhibit PA. He had received the request Exhibit PB for post mortem examination on 26-6-1991 at 11.15a.m. Special report was delivered to the Ilaqa Magistrate at Samrala by Constable Angrej Singh (PW 8) on 25-6-1991 at 4.20 p.m. After completing the investigation a charge-sheet under Sections 302/326, Indian Penal Code, was filed in the Court.
6. A charge under Sections 302 and 326 of the Indian Penal Code was framed against the appellant to which he pleaded not guilty and claimed trial.
7. In support of its case, the prosecution examined eight witnesses. It may be stated that Joginder Singh, the author of the first information report and Smt. Harnam Kaur, an injured eye-witness, unfortunately died during the pendency of the trial and were not available to the prosecution for examination. Ajmer Singh (PW 5) is the brother and an eye-witness to the occurrence. Dr. Ashok Gupta (PW 1) had performed autopsy over the dead body of Sant Singh, Shri Harminder Singh (PW 2) is a Draftsman. On 3-12-1992 he had prepared the scaled site plan (Exhibit PD) in respect of the place of occurrence on the pointing out of Joginder Singh. Dr. Bimal Kanish (PW 4) had medico-legally examined Sant Singh and Smt. Harnam Kaur on 25-6-1991 at 2.45 a.m. and 3.30 a.m., respectively, in Civil Hospital, Ludhiana. ASI Jasdev Singh (PW 6) was the Investigating Officer. H. C. Kulmit Singh (PW7) has tendered his affidavit Exhibit PO, he being a formal witness. Constable Angrej Singh (PW 8) had delivered the special report of this case to the Ilaqa Magistrate, Samrala at 4.20 p.m. on 25-6-1991 and other officers at Ludhiana. Labh Singh, Surjit Singh and Jaswant Singh (PWs) were given up as having been won over by the accused. Other witnesses were given up as being unnecessary.
8. In his examination recorded under Section 313 of the Code of Criminal Procedure, the appellant denied the allegations of the prosecution and pleaded his innocence. According to him, he was arrested on 26-6-1991 and kirpan (Exhibit P. I) was foisted upon him, that all the documents including F.I.R. were prepared on 26-6-1991 at the Police Station and that he was produced before a Magistrate at Ludhiana because there was no Magistrate on duty at Samrala. He pleaded false implication in this case.
9. In his defence, the appellant examined Shri Ram Kishan, English Clerk, from the office of District & Sessions Judge, Ludhiana. On the basis of the official record, he produced and proved copies of the vacation and duty rosters (Exhibits D.1 to D.3). According to his testimony the duty work pertaining to the criminal Court of Samrala was to be performed at Ludhiana by the Duty Magistrate deputed at Ludhiana from 16-6-1991 to 30-6-1991.
10. On a appraisal of the evidence produced on the record, the trial Court accented the case of the prosecution to have been proved beyond doubt, convicted and sentenced the appellant, as stated above. Hence this appeal.
11. We have heard the learned counsel for the parties and have perused the record of the trial Court with their active help.
12. Shri T.P.S. Mann, Advocate, the learned counsel for the appellant, while assailing the order of conviction, has argued that this was a blind murder, that the first information report was recorded on 26-6-1991 after due deliberations and consultations, but ante-timed that eye-witnesses were introduced although they were not present at the time of occurrence and the appellant was falsely implicated. While criticising the testimony of various prosecution witnesses, the learned counsel has argued that Ajmer Singh (PW 5) was not an eye-witness at all as depicted in the first information report and surrounding circumstances. It has been further argued by the learned counsel that the testimony of A.S.I. Jasdev Singh and Constable Angrej Singh (PW 8) stands falsified by the documentary evidence produced on the record. The learned counsel has also pointed out to certain material features of this case, which according to him are highly improbable.
13. On the other hand, Shri S. S. Dhaliwal, learned Deputy Advocate General for the State of Punjab has argued that Ajmer Singh (PW 5) is an eye-witness and his presence at the time and place of occurrence is quite natural and probable. It has been further argued that since Sant Singh had already expired and Smt. Harnam Kaur was not fit to make the statement, ASI Jasdev Singh promptly recorded the statement of Joginder Singh on the basis of which first information report was recorded without any delay and the special report was also delivered to the Ilaqa Magistrate. It has been further argued that even if there was any delay, that would not hit the prosecution case inasmuch as all the necessary papers including the copy of the first information report were sent along with the request for the post mortem. The learned Deputy A. G. has clarified that some discrepancy regarding the timings of various steps in the investigation of this case would not affect the core of the prosecution case and that the complainant party had no ill-will or motive to implicate the appellant falsely in this case. Thus, it has been argued that the appellant has been rightly convicted, on the basis of credible and unimpeachable evidence produced by the prosecution.
14. We have given our careful thought to the respective arguments advanced at the Bar.
15. The first and the vital question to be considered is as to whether the first information report in this case was lodged promptly without any deliberations and consultations as alleged by the prosecution. For various reasons, our answer is in the negative.
16. Accordingly to Ajmer Singh (PW 5), who is the star-witness of the prosecution and who happens to be the brother of the deceased as well as an alleged eye-witness to the occurrence, he along with others took his injured brother Sant Singh and injured mother Harnam Kaur to Civil Hospital, Samrala, at 10.45 p.m., wherefrom the injured were referred to the Civil Hospital, Ludhiana, where they reached at about 1.30 a.m. in the hospital- van. The distance between Samrala and Ludhiana is admittedly 30 KMs. Both the injured were examined in Civil Hospital, Ludhiana, by Dr. Bimal Kanish (PW 4) on that very night at 2.45 a.m. and 3.30 a.m., respectively. The Medical Officer in Emergency Ward of Civil Hospital, Samrala, prepared and sent the ruqa-Exhibit PG on 24-6-1991 at 11.30 p.m. The distance between Civil Hospital, Samrala, and Police Station, Samrala, has been admitted to be 100 yards by ASI Jasdev Singh (PW 6), the Investigating Officer. In the normal course, this ruqa must have reached Police Station, Samrala, by 12.00 in the night even if a person had gone on foot to deliver the same. Exhibit CX is the original Daily Diary Register maintained at Police Station, Samrala. There is an entry at Sr. No. 26 recorded on 25-6-1991 at 6.15 a.m. at the instance of the S.H.O., Samrala, regarding the receipt of ruqa (Exhibit PG) and the departure of ASI Jasdev Singh along with Constable Boota Singh No. 2444 and SPO Didar Singh for obtaining the statements of the injured persons. According to the testimony of ASI Jasdev Singh (PW 6), he received the ruga (Exhibit PG) on 25-6-1991 at about 11.45 a.m. and reached Civil Hospital, Samrala, for where he came to know that Sant Singh and Harnam Kaur had already been referred to Civil Hospital, Ludhiana, after giving first aid. He has further explained that he reached Civil Hospital, Ludhiana, in a car at about 1.00 p.m. and came to know about the death of Sant Singh at 1.15 p.m. According to him, Harnam Kaur was declared unfit for making statement vide endorsement Exhibit PH/1 made by the doctor, he recorded the statement of Joginder Singh, another eye-witness at 2.30 p.m. and sent the same through SPO Didar Singh to Police Station, Samrala, for registration of a case, on the basis of which the first information report (Exhibit PJ/2) was recorded and completed at 25-6-1991 at 4.15 p.m. He prepared the inquest report running into 24 pages and sent the dead body of Sant Singh along with his written request (Exhibit PB) and the inquest report papers (Exhibit PC) through Constable Boota Singh to the concerned doctor for conducting post mortem. According to Dr. Ashok Gupta (PW 1), who performed autopsy on the dead body of Sant Singh, along with the request of the police and the inquest papers were received on 26-6-1991 at 11.15 p.m. It may also be noted here that according to the testimony of ASI Jasdev Singh, he had reached the hospital at about 1.00 p.m. in a car and had stayed in the said hospital for about 2 or 3 hours. Having a look on the Daily Diary Register (Exhibit CX), maintained in Police Station, Samrala, there are two entries at Sr. Nos. 14 and 15 made on 26-6-1991 regarding the registration of the first information report of this case commencing at 3.40 p.m. and completing at 4.15 p.m. On page 58 of this Register, the entries commenced at 8.00 a.m. and continued upto 8.00 a.m. on 26-6-1991 on page 61. On the reverse of page 59 of this Register, which contains entry No. 15 relevant to the case in hand regarding the completing of recording first information report the date appears to have been over-written. But still it can be read as 26-6-1991. On page 60, the date 26-6-1991 has been changed to 25-6-1991. Similar is the case regarding entry No. 24 relating to the return of ASI Jasdev Singh after the investigation of this case. On the reverse side of page 59 also, the date 26-6-1991 has been over written and made to 25-6-1991.
17. If the testimony of ASI Jasdev Singh (PW 6) regarding the time theory as propounded by him, is closely scrutinised, the same stands falsified by the documentary and circumstantial evidence available on the record. As per look on the various entries made in the Daily Diary Register (Exhibit CX), maintained at Police Station, Samrala, particularly recorded on 25-6-1991 and 26-6-1991 relating to the case in hand, makes it suspicious as to whether Exhibit PJ-statement of Joginder Singh was received at the Police Station on 25-6-1991 or 26-6-1991. A great doubt definitely arises regarding the time when the basic information contained in the ruqa (Exhibit PG) sent by the doctor of Civil Hospital, Samrala, on 24-6-1991 at 11.30 p.m., has been shown to have been received on 25-6-1991 at 6.15 a.m. when the distance between Civil Hospital, Samrala, and the Police Station, Samrala, is admittedly 100 yards. No explanation has been given by the prosecution for this delay. Why we are laying stress on this fact is that when both the injured were examined in the Civil Hospital, Ludhiana, by Dr. Bimal Kanish (PW 4) on 25-6-1991 at 2.45 a.m. and 3.30 a.m., respectively, they were fully conscious and it was very easy for the police or ASI Jasdev Singh to obtain the first hand version from the mouth of the two injured themselves. A.S.I. Jasdev Singh stands falsified by entry No. 226 recorded on 25-6-1991 at 6.15 a.m. in Daily Diary Register (Exhibit CX) when he has stated that he received the ruqa at 11.45 a.m. on 25-6-1991 and went to Civil Hospital, Samrala. According to the police record itself, taken on its face value, A.S.I. Jasdev Singh along with his two companions left the Police Station for Civil Hospital, Samrala, at 6.15 a.m. on 25-6-1991. Further, A.S.I. Jasdev Singh has stated that he reached Civil Hospital, Ludhiana, in a car at about 1.00 p.m. and stayed there for about 2 or 3 hours. This part of his statement further stands falsified by entry No. 15, recorded at 4.15 p.m. regarding the completion of first information report and then sending the original statement along with a copy of the F.I.R. through Constable Didar Singh to ASI Jasdev Singh. If SPO Didar Singh took the original statement and copy of the F.I.R. and started his return journey at 4.15 p.m. itself, he could not have reached Civil Hospital before 5 or 5.15 p.m. even if he had travelled by a bus or any other vehicle. The request (Exhibit PB) and the inquest papers (Collectively Exhibit PC) along with the dead body of Sant Singh sent through Constable Boota Singh for post mortem purposes contained the number of the F.I.R. and the date of its recording. The number of the F.I.R. and the date of its recording could not have been given in these papers untill the arrival of SPO Didar Singh from Police Station, Samrala.
18. Still further, if SPO Didar Singh returns back to the Civil Hospital, Ludhiana, along with original statement (Exhibit PJ) and copy of the F.I.R. (Exhibit PJ/2), an entry is made in the inquest papers and immediately thereafter the dead body of Sant Singh is sent through Constable Boota Singh for post mortem purposes, the same must have been received in the mortuary by the doctor concerned on the night of 25-6-1991, i.e. within half an hour or so. But strange enough the dead body and the inquest papers reached there on 26-6-1991 at 11.15 a.m. as deposed to by Dr. Ashok Gupta (PW 1) who had performed autopsy over the dead body of Sant Singh. There is absolutely no explanation given by the prosecution either producing any witness or record as to where the dead body of Sant Singh and the inquest papers remained during this long period if it had been true that the first information report was recorded on the purported date and time and not on 26-6-1991 as suggested by the defence.
19. ASI Jasdev Singh (PW 6) has deposed that after sending the dead body through Constable Boota Singh for post mortem purposes, he left for the spot of occurrence on 25-6-1991 itself and prepared the site plan of the place of occurrence and took into possession the blood-stained earth after converting the same into sealed parcel by preparing seizure memo. He has further stated that he arrested the appellant on 25-6-1991 itself while he was found standing at the Bus Stand of village Otalan. The appellant produced a blood-stained kirpan (Exhibit P.1), which was converted into a sealed parcel and was taken into possession by a seizure memo. Exhibit PN. He has also stated that he recorded the statement of the witnesses and returned to the Police Station where he deposited the case property in the Malkhana. This entire version given by ASI Jasdev Singh does not hold good in view of the fact that entry No. 24 has been recorded on 25-6-1991 ('26' has been converted into '25' by over-writing) at 10.45 p.m. regarding the return of ASI Jasdev Singh along with his companions after investigation of the case and the arrest of the appellant. Constable Boota Singh could not have come along with ASI Jasdev Singh as he had been sent along with the dead body for post mortem purposes. Further, it was humanly impossible for ASI Jasdev Singh, after completing the proceedings in Civil Hospital, Ludhiana, to reach the spot of occurrence, to prepare the site plan, to lift the blood-stained earth and the conversion thereof in a sealed parcel, to prepare a seizure memo, to record the statements of the witnesses, to arrest the appellant, to take the blood-stained kirpan into possession, after converting the same into a sealed parcel and then to record the statements of the witnesses in respect thereof. It may be clarified here that the prosecution has not examined the doctor who had declared Smt. Harnam Kaur to be unfit to make statement on 25-6-1991 at 1.20 p.m. Thus, the testimony of ASI Jasdev Singh (PW 6), the Investigating Officer, stands totally discredited and no reliance can be placed thereupon at least in respect of the time theory regarding the recording of the first information report, sending the dead body for post mortem, collecting the blood-stained earth from the place of occurrence and the arrest of the appellant, as alleged by him.
20. Still further, the case of the prosecution is that the special report of this case was delivered to the Ilaqa Magistrate through Constable Angrej Singh (PW8) on 25-6-1991 at 4.20p.m. Constable Angrej Singh (PW 8) was given up in the first instance by the Public Prosecutor vide his statement dated 1 -10-1993, but was examined on a second thought on 28-9-1994 when the statement of ASI Jasdev Singh (PW 6), the Investigating Officer, had been recorded and the glaring discrepancy in the time theory had surfaced. According to Constable Angrej Singh (PW 8), he had received the special report at 4.15 p.m. and delivered the same to the Ilaqa Magistrate in his Court at 4.20 p.m. which is situated at a distance of about 300 yards from Police Station, Samrala. In other words, according to Constable Angrej Singh, he had delivered the special report on that very day within 5 minutes of the receipt thereof to the Ilaqa Magistrate at Samrala. That copy of the first information report which is alleged to have been delivered to the Ilaqa Magistrate on 25-6-1991 at 4.20 p.m. has not been got produced by the prosecution for the reasons best known to it and instead a copy of the F.I.R. available on the police file was produced and exhibited during trial of the case. The reason to withhold the copy of the F.I.R. actually delivered to the Judicial Magistrate, if any, stands exposed by the testimony of Sh. Ram Kishan (DW 1), an English Clerk, posted in the office of the District & Sessions Judge, Ludhiana, at that time. He brought and proved Exhibits D.1, D. 2 and D. 3, the vacation and duty rosters, and deposed that during the period 16-6-1991 to 30-6-1991 the criminal duty work of Samrala including Ludhiana and Khanna was being done by Sh. K. S. Bhullar, Judicial Magistrate I Class, Jagraon, at Ludhiana. He was not cross-examined by the prosecution at all. In other words, it stands established that there was no Ilaqa Magistrate or Duty Magistrate in Samrala Court on 25-6-1991 at all, what to speak at 4.15 p.m. or 4.20 p.m. It is not the case of the prosecution that the Judicial Magistrate posted at Samrala, although on vacation, was available at his residence in Samrala and the special report was delivered to him at his residence. This evidence produced by the defence strikes at the root of the prosecution version that the first information report was recorded on the purported date and time and the special report was ever delivered to the Ilaqa Magistrate at Samrala, as deposed to by Constable Angrej Singh (PW 8). In spite of the above circumstances, the question as to when the F.I.R. was recorded and the special report was delivered is postponed for the time being, and the same would be concluded hereinafter.
21. Joginder Singh, author of the first information report, and Smt. Harnam Kaur, the injured eye-witness to the occurrence died and were not available for examination at the trial. The entire case of the prosecution hinges upon the ocular version of Ajmer Singh (PW 5), who is also alleged to be an eye-witness. To appreciate the oral testimony of this witness, it is necessary and material to recapitulate the version given by Joginder Singh in the F.I.R., which is the foundation of the prosecution case. Joginder Singh, a real brother of the deceased, has been residing in a separate house although in the same village. According to him, on 25-6-1991 at about 9.00 p.m. when he was present in his house, he heard an alarm being raised by his brother Sant Singh (now deceased) and mother Harnam Kaur (now died) to the effect "mar ditta mar ditta". Having heard this alarm, he rushed from his house to the house where the occurrence took place, and found the appellant while giving gatra (small sword) blows to Sant Singh who received injuries on his abdomen, chest, head, mouth and other parts of the body. Harnam Kaur went ahead in order to rescue Sant Singh, when the appellant inflicted a kirpan blow on her back. At this stage, Joginder Singh also raised an alarm. The appellant along with his sword managed to escape. Smt. Harnam Kaur then disclosed to Joginder Singh that Lakhvinder Singh had come to Sant Singh to take a bottle of Rum and on latter's refusal the appellant became enraged and he inflicted injuries with his gatra kirpan. In the meantime, his brother Ajmer Singh (PW 5) came to the house from outside, Ajmer Singh accompanied with other persons removed Sant Singh and Harnam Kaur to Civil Hospital, Samrala, for treatment, where the injured were given first-aid and referred to Civil Hospital, Ludhiana, where Sant Singh succumbed to his injuries. It is further disclosed that Joginder Singh was going to the Police Station for giving information when A.S.I. Jasdev Singh met him in the hospital and recorded his statement (Exhibit PJ) at 2.30 p.m.
22. A bare perusal of this first information report leaves no doubt that Ajmer Singh (PW 5) was not present in the house and had not seen the occurrence. Ajmer Singh (PW 5) had reached the place of occurrence only after the appellant had managed to escape. The alleged motive to inflict injuries by the appellant was disclosed by Harnam Kaur to Joginder Singh before the arrival of Ajmer Singh. The only part ascribed to Ajmer Singh and other co-villagers is that they had removed the injured to the Samrala hospital and after the doctor had given first aid, they had removed and got admitted the injured persons to the Civil Hospital, Ludhiana.
23. According to the ocular version given by Ajmer Singh (PW 5) on 24-6-1991 at about 9.00 p.m. he had gone outside in the fields to ease himself, when he was returning home, he heard a noise of certain persons on which he rushed to his house and found the appellant armed with a kirpan and while inflicting injuries on the person of Sant Singh. He has further stated that the appellant had given 24/25 injuries to Sant Singh in his abdomen, arm and mouth, and that when Harnam Kaur came to rescue Sant Singh, the appellant gave injuries with his kirpan on her back and thereafter the appellant ran away from the spot along with the kirpan. In his cross-examination, he has stated that 40 to 50 persons were present in his house when he had returned. He has admitted that his ration card was not joint with Sant Singh But denied the suggestion that Sant Singh was residing alone. He has also admitted that none of them tried to apprehend the appellant physically or to come to the rescue of Sant Singh since the appellant was armed with a kirpan and that neither the appellant was chased nor any one of them threw any brick-bats upon him. According to him Sant Singh was about 65 years of age having good health. Surjit Singh, Sarpanch of the village, came to the spot. According to this witness Sant Singh (now deceased) had narrated the entire occurrence to Sarpanch Surjit Singh. He has also stated that the appellant had given the first blow of kirpan in the abdomen of Sant Singh. He has admitted that Sant Singh remained conscious throughout and he had been talking to them. Before analysing the testimony of Ajmer Singh (PW 5), it is also just and proper to notice the medical evidence which is the back-bone of this case. Dr. Bimal Kanish (PW 4) was posted as Emergency Medical Officer in Civil Hospital, Ludhiana, on 25-6-1991. At 2.45 a.m. he examined Sant Singh son of Kartar Singh, aged 50 years, brought to the hospital by Ajmer Singh (PW 5), and found the following injuries on the person of Sant Singh :-
(1) Incised wound 3/4" x 1/4" x depth? on the right hypochondriac region of abdomen 4" from mid-line. Fresh bleeding was present. The injury was referred to surgical Specialist for his opinion. (2) Incised wound 3/4" x 1/4" x depth? on the left side of abdomen 2" above and to the left umbilicus. Fresh bleeding was present. Injury was referred to Surgical Specialist for his opinion. (3) Incised wound 1" x 1/4" x depth? on the left front of chest 2" below left nipple. Fresh bleeding was present and x-ray was advised. (4) Incised wound 1" x 1/4" x depth? on the left side of the chest 2" lateral to injury No. 3. X-ray was advised. (5) Incised wound 1/2" x 1/4" x skin deep on the 1998 left side of chest 21/2" above nipple. Fresh bleeding was present. (6) Incised wound 1/2" x 1/4" x skin deep in the right side of chest 2" above and inner to right nipple. (7) Incised wound 1" x 1/4" x depth ? on the right front of chest upper part 2" below clavicle. X-ray was advised. (8) Incised wound 1" x 1/4" x depth ? on the right side of chest 3" lateral to right nipple. X-ray was advised. (9) Superficial incised wound 1" x 1/4" on the right supra clavicular region of neck. Fresh bleeding was present. (10) Superficial incised wound 3/4" x 1/4" on the inner aspect of right shoulder. Fresh bleeding was present. (11) Superficial incised wound 1" x1/4" on the top of right shoulder. Fresh bleeding was present. (12) Incised wound 3/4" x 1/4" x muscle deep on the inner aspect and lower 3rd of right upper arm (13) Incised wound 11/4" x 1/4" x muscle deep on the middle and outer aspect of right upper arm. (14) Incised wound 3/4" x 1/4" x muscle deep on the lower 3rd and outer aspect of right upper arm. (15) Incised wound 1/2" x 1/4" muscle deep on the upper 3rd and outer aspect of right upper arm. (16) Incised wound 1/2" x 1/4" x muscle deep on the outer aspect and lower 3rd of left upper arm. (17) Incised wound 1/2" x 1/4" x muscle deep on the front and upper part of left upper arm. (18) Incised wound 1" x 1/4" x muscle deep on the top of left shoulder.
(19) Incised wound 1/2" x 1/4" x muscle deep in front of left ear.
(20) Incised wound 1/2" through and through the middle of lower lip.
(21) Incised wound through and through the right side of upper lip.
(22) Superficial incised wound 1" x 1/4" on the right side of face just lateral to nose. (23) Incised wound 2" x 1/4" x skin deep in front of right ear.
(24) Incised wound 3/4" x 1/4" x muscle deep 1" in front of injury No. 23.
(25) Incised wound 1/2" x 1/4" bone deep on the inner end of right eye brow. X-ray was advised. (26) Incised wound 21/2" x 1/4" x bone deep on the right parietal region of scalp. X-ray was advised. (27) Incised wound 11/2" x 1/4" x scalp deep on the right parietal region of scalp 2" below injury No. 26. (28) Incised wound 1/2" x 1/4" x muscle deep on the back of left shoulder.
(29) Incised wound 3/4" x 1/4" x muscle deep in the upper part of left scapular region. (30) Incised wound 3/4" x 1/4" x bone deep in the middle of left scapular region. (31) Incised wound 1/2" x 1/4" x depth ? in the left inter-scapular region. X-ray was advised. (32) Incised wound 1/2" x 1/4" x depth ? in the right inter-scapular region. X-ray was advised. (33) Incised wound 3/4" x 1/4" x depth? in the right lower part of back of chest. X-ray was advised. (34) Incised wound 1/2" x 1/4" x bone deep in the left scapular region.
(35) Incised wound 1/2" x 1/4" x muscle deep on the back of left shoulder.
24. All the injuries were fresh and kind of weapon used was a sharp one. Exhibit PE is the carbon copy of medico-legal report and Exhibit PE/1 and Exhibit PE/2 are pictorial diagrams showing location of the injuries.
25. On the same day at 3.30 a.m. the said doctor medico-legally examined Smt. Harnam Kaur, aged about 70 years and found the following injury on her person :-
(1) Incised wound 3/4" x 1/4" x depth? on the back and middle of chest. Fresh bleeding was present.
The injury was fresh and kind of weapon used was opined to be a sharp one. Exhibit PF is the carbon copy of the medico-legal report and Exhibit PF/1 is the pictorial diagram showing the location of the injuries. On receipt of the X-ray report, this injury was declared grievous in nature. In his cross-examination, Dr. Bimal Kanish has categorically stated that he has obtained the consent of Sant Singh and Harnam Kaur before medico-legally examining them and both the injured were fully conscious at that time.
26. If the testimony of Ajmer Singh (PW 5) is analysed in the light of the version contained in the first information report, it cannot be said that Ajmer Singh was an eye-witness to the occurrence. He appears to be telling a lie when he has deposed that the appellant had given the first blow with his gatra on the abdomen of Sant Singh. The obvious reason is that according to his own testimony, he had reached the house only after he had heard an alarm of several persons when he was at a distance of 150 yards from his house. According to his testimony, Surjit Singh, Sarpanch came to the spot of occurrence and Sant Singh had narrated the entire incident to him. It if had been true, the narration of the incident by Sant Singh would have amounted to a dying declaration and Surjit Singh would not have been given up by the prosecution even on the ground that he had been won over by the appellant. No such version has been given by Joginder Singh in the first information report which was admittedly recorded even according to the prosecution much later than the incident when Joginder Singh had sufficient time to calmpose himself and to cool down. It is correct that the first information report is not an encyclopaedia of all the details of the occurrence, yet it is expected from the author of the F.I.R. to give such details which are material, and particularly when he had sufficient time at his disposal to cool down and make a proper statement. Still further, the testimony of Ajmer Singh is inconsistent with the medical evidence. According to the testimony of Ajmer Singh, the appellant had inflicted 24/25 injuries on the abdomen, arm and mouth of Sant Singh, whereas according to Dr. Bimal Kanish (PW 4), he had found 35 injuries on different parts of the body right from abdomen up to head and then on the back portion of the shoulders and even on scapular region. We do not dispute the general proposition that the witness cannot be discredited or disbelieved merely on the ground that he is unable to give the number of injuries inflicted and the location of the injuries on the person of the injured but at least an eye-witness is expected to disclose as to whether the injuries were inflicted on the front or as well as the back of the injured. Neither there is anything in the first information report nor in the testimony of Ajmer Singh (PW 5) that any injury was caused to Sant Singh on the back of his shoulders and his scapular region.
27. The inherent improbability in the testimony of Ajmer Singh as well as in the version given in the first information report is that a boy of 26 years is alleged to have inflicted as many as 35 injuries with a gatra (small kirpan) on the front as well as back of Sant Singh who was an Ex-Armynian with stout health in the alleged presence of his two real brothers Joginder Singh, aged 42 years, and Ajmer Singh (PW 5), aged about 50 years, even if we exclude the presence of the co-villagers at that time. We are aware that every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric, and start wailing. Some start shouting for help Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the; rescue of the victim, even going to the extent of counter attacking the assailants, (emphasis laid);! It is correct that every one reacts in his own special way. There is no set rule of natural human reaction. The present case falls within the category where Joginder Singh (now died), and Ajmer Singh (PW 5) who are young and real brothers of deceased Sant Singh would have rushed to rescue Sant Singh even going to the extent of counter attacking the appellant. When their mother Harnam Kaur, aged about 70 years can rush to rescue her son, why these two young, stout and healthy real brothers of Sant Singh did not come forwards either to apprehend the appellant or to rescue Sant Singh from further injuries. Had they been present at the spot of occurrence, the natural reaction on their part must have been to counter-attack the appellant and to rescue Sant Singh. It does not stand to logic that an Ex-Armyman, having stouts health, would not have defended himself from the alleged attack by the appellant, particularly when his two said brothers had been allegedly present there. This circumstances strikes at the core of the testimony of Ajmer Singh (PW 5) as well as the version given by Joginder Singh in the F.I.R. (Exhibit PJ). It may be mentioned here that Joginder Singh, the author of the F.I.R. did not reside in the house in question. He was residing in a separate house. But strange enough, the' Investigating Officer Jasdev Singh (PW 6) has not shown the location of the house of Joginder Singh either in the visual site plan (Exhibit PL), prepared by him in the presence of Joginder Singh himself, nor the same has been" depicted in the scaled site plan (Exhibit PD) prepared by; Harminder Singh (PW 2) at the pointing out of Joginder Singh himself. Thus, it remains a mystry as to where the house of Joginder Singh is located and as to whether it was probable for him to hear the alarm alleged to have been raised by Sant Singh and Harnam Kaur and then to reach the spot of occurrence during the course of the occurrence itself. From the site plans (Exhibits PL and PD), it is evident that adjacent to the house in question is the house of another person and then there are vacant sites. It was the bounden duty of the prosecution to produce the evidence to show that Joginder Singh was in a position to hear the alarm alleged to have been raised by Sant Singh and Harnam Kaur, that he was in a position to reach the spot of occurrence and to witness the same. In the absence of such evidence, it cannot be believed that Joginder Singh was present either at the commencement of the occurrence or during the occurrence. It has already been stated above that similarly Ajmer Singh (PW 5) could not be an eye-witness to this occurrence nor he was in a position to reach the spot during occurrence. It has been further found as a fact that their testimony, even if not totally inconsistent with, but stands discredited by the medical evidence. An attempt Was made by the Investigating Officer to introduce Jaswant Singh, another brother of the deceased, to be an eye-witness of the occurrence, but to the wisdom of the Public Prosecutor that he was given up. The obvious reason is that Jaswant Singh is a resident to Delhi and there is nothing on the record of show that he had come to village Uaghaur on that day.
28. Still further, the manner in which the arrest of the appellant and recovery of the gatra (small kirpan) (Exhibit P.1) has been depicted by the prosecution, does not inspire any confidence. The obvious reason is that according to the prosecution the occurrence took place on 24-6-1991 at 9.00 p.m. in village Baghaur and the appellant is stated (to have been arrested at the Bus Stand of village Otalan on 25-6-1991 and that the appellant had produced a blood-stained kirpan (Exhibit P.1). This arrest and recovery, according to ASI Jasdev Singh (PW 6) were effected on 25-6-1991 before 10.45 p.m. when he had reached the Police Station wide D.D.R. No. 24. In the first instance it is highly improbable that the appellant would have kept his blood-stained gatra after escaping from the spot of occurrence and would produce the same after 24 hours to the police. Further, it is highly improbable that the appellant would be found standing at the Bus Stand of village Otalan between 9.00 and 10.00 p.m. on 25-6-1991, which is a place at a distance of about 1 or 2 KMs. from village Baghaur, particularly at a time when he knew that the investigation was going on and the police must be running hither and thither in search of him. It has already been found as fact that the version given by ASI Jasdev Singh that after doing investigation and arresting the appellant, he had returned to the Police Station at 10.30 p.m. is impossible in its nature, what to speak of being improbable.
29. From the above discussion, particularly in the face of medical evidence, it is apparent that the attack on Sant Singh had been made by more than one person. Even if only one person had made the attack and caused injuries to Sant Singh, there was none else but Harnam Kaur present at the time of occurrence. Harnam Kaur was not available to give the correct narration of the occurrence, nor it has come on the record as to when she was examined by the Investigating Officer. The only inference which can be drawn under the circumstances is that after the occurrence was over, on an alarm raised by Harnam Kaur...co-villagers gathered there. Joginder Singh and Ajmer Singh, on getting information, reached the house and then they removed the injured to the Civil Hospital, Samrala, from where the injured were referred to Civil Hospital, Ludhiana. Information regarding these two injured persons being taken to Civil Hospital, Samrala, was received at Police Station, Samrala, at about 12.00 in the night on 24-6-1991 itself although it was recorded in the Daily Diary Register on 25-6-1991 at 6.15 a.m. Since the assailant/assailants was/were not known, the recording of the first information was delayed till 26-6-1991 when it came into existence and was ante dated and thereafter the dead body of Sant Singh was sent along with the inquest papers for post mortem which was received by Dr. Ashok Gupta (PW 1) on 26-6-1991 at 11.15 a.m. This is the reasonable and probable conclusion which can be derived from, the evidence, oral and documentary, produced by the prosecution during the trial.
30. We may repeat the well established principle of criminal jurisprudence that the onus of proving the facts essential to the establishment of the charge against an accused lies upon the prosecution and the evidence must be such as to exclude every reasonable doubt about the guilt of the accused. The accused cannot be convicted of an offence on the basis of conjectures or surmises. If a reasonable doubt arises in the mind of the Court, after taking into consideration, the entire material before it regarding the complicity of the accused, the benefit of such doubt should be given to the accused, although the reasonable doubt must be a real and substantial one and a well founded actual doubt arising out of the evidence existing after consideration of all the evidence. It was clarified by the Apex Court in Hari Krishan Singh v. State of Bihar AIR 1988 SC 863 : 1988 Cri LJ 925, that the burden of proving the guilt of the accused is undoubtedly on the prosecution, and the accused is not bound to say anything in his defence. It is not always for the accused to explain as to why he has been falsely implicated in a murder case by the police. The prosecution is to stand upon its own legs. In the present case if the testimony of Ajmer Singh (PW 5) and ASI Jasdev Singh (PW 6) is discarded, as discussed above, there is nothing on the record to connect the appellant with the commission of the offence in question. Mere conjectures and surmises or picking up some sentences from here or there would not be enough to hold the appellant guilty.
31. As a result of the above discussion, this appeal succeeds. The conviction and sentence of the appellant are set aside and he is acquitted of the charge under Sections 302/326, I.P.C. He shall be released forthwith, if not wanted in any other case. The amount of fine, if deposited, shall be refunded to him.