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PETITIONER: G.S.WALIA

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT:       19/03/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI,J.      G.S. Walia,  a close relative of deceased Balwant Singh has filed  this appeal  after obtaining leave of this Court. It is directed against acquittal of the respondent nos. 2 to 6 (hereinafter  referred to as ‘accused’) by the High Court. The trial  court had  convicted them  under section  148 and section 302 read with section 149 IPC.      The trial  court accepted  the  prosecution  case  that Gurbachan Singh,  Harbans Singh,  Harjeet  Singh,  Balwinder Singh, and  Avtar  Singh  had  assaulted  Balwant  Singh  on 29.5.1986 at  7.30 p.m.  with iron rods, a tyre lever and an axe and that Balwant Singh subsequently died on 16.6.1986 as a result  of those  injuries. The  conviction by  the  trial court was  based mainly upon the evidence of Kesar Singh, PW 4 and  the statement  of Balwant Singh himself to the police on the  basis of which an offence was registered against the accused.      The High  Court disbelieved the evidence of Kesar Singh on the  Grounds that  he was  a chance  witness, that he was closely connected  with the deceased, that his statement was recorded after  6-7 days and that his subsequent conduct was so unnatural  as to create a doubt regarding his presence at the time  of the  incident. He  was  regarded  as  a  chance witness because he had failed to explain his presence at the place of  offence which  was 10  kms. away from the place of his residence.  He was not considered an independent witness because he  was friendly  and on  visiting  terms  with  the deceased. He  was also  a co-accused  with the deceased in a case which  was filed  against them  3 to 4 years before the date of  the incident.  His conduct was considered unnatural because after taking the deceased to the hospital he had not remained there  to help  him nor  he had  gone to the nearby police station  to lodge a complaint nor he had talked about the  incident  to  anyone  till  his  police  statement  was recorded. The  High Court  discarded the  dying  declaration (Ex.PN) on the ground that not being a statement relating to cause of death it was not admissible under section 32 of the Indian Evidence  Act. The  High Court held that the injuries inflicted were  not the cause of death as Balwant Singh died

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because of  Pulmonary  Embolism  which  was  the  result  of prolonged bed  rest and the complications arising therefrom. It also  held that  statement was  untrue because  it  stood contradicted by  the medical  evidence which  ruled out  the possibility of any blow having been given by ‘Kulhari’.      The learned  counsel for  the appellant  contended that the High Court has committed a grave error of law in holding the statement of Balwant Singh inadmissible under section 32 of the  Indian Evidence  Act and  that it  has   committed a further error  in holding  that it  was  not  true.  Learned counsel also  submitted that the High Court has rejected the evidence of  witness Kesar  Singh, PW-4 on grounds which are not tenable.  It was submitted that the erroneous view taken by the High Court has led to failure of justice.      Before  dealing   with   these   contentions,   certain undisputed facts  emerging from  the evidence may be stated. Respondents  Gurbachan  Singh  and  Harbans  Singh  are  the brothers of  the deceased.  Respondent Harjit  Singh is  the nephew of  the  deceased.  The  remaining  two  respondents, namely, Balwinder Singh and Avtar Singh were closely related to him.  Though the  deceased was serving as a driver he was also having  his own car. On the date of the incident he had returned to Khanna after completing his work and when he was about to  sit in  his car which was parked near hotel of one Hari Singh  situated at  Samrala Chowk, he was assaulted. He was thereafter taken to the Civil Hospital at Khanna. He was conscious till he was admitted in the hospital. The hospital authorities informed  the police  but by  the time they came his condition  became worse,  and, therefore,  his statement could not be recorded either on that day or on the next day. The doctors  attending the deceased had told the police that the deceased was not in a fit condition to make a statement. The deceased  was then  removed from  the Civil  Hospital at Khanna to  the Civil  Hospital at  Ludhiana. He was reported fit to  give a statement on 31.5.1986 and thus his statement came to  be recorded  by the  police on that day. The police officer not  finding any grievous injury or an injury caused by sharp-edged  weapon did  not  register  any  offence  and preferred to  wait till further report was received from the doctor as   regards  the nature  of injuries received by the deceased. On  6.6.1986  he  received  the  report  that  the deceased had  three fractures;  and, therefore, registered a case against  the accused  under section 326 IPC and started the investigation.  On 7.6.1986  he went  to  the  place  of incident, prepared  the site  plan and recorded statement of Kesar Singh,  PW-4. Balwant  Singh died  on 16.6.1986. After obtaining and  opinion regarding the cause of death from Dr. H.S.Aneja,  (PW-2)   the  Investigating   Officer  made  the necessary change  with respect  to  the  nature  of  offence disclosed to have been committed by the accused. The accused were then  charge-sheeted and tried for committing murder of Balwant Singh.      In order  to prove  that death of Balwant Singh was due to the  injuries inflicted  upon him  by  the  accused,  the prosecution had produced the bed-head ticket, the postmortem report and  the opinion  of Dr.  Aneja. The  prosecution had also examined  Dr. B.S. Chhabra, PW-1, who had first treated Balwant Singh  while  he was taken to Civil Hospital, Khanna and Dr.  H.S. Aneja,  PW-2, who  had subsequently  given and opinion regarding  cause of  death  of  Balwant  Singh.  The medical evidence discloses that the deceased had received in all 13 injuries and three of them had resulted in fractures. The three  grievous injuries  were on  head and  the legs of Balwant Singh. In the postmortem notes the cause of death of Balwant Singh is stated in the following terms :

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    "In my  opinion, death in this case      was   on   account   of   Pulmonary      Embolism which  means  blocking  of      the main  artery to  the  lungs  by      piece of  clot  detached  from  any      other part  of the  body.  This  is      remote  complication  of  prolonged      bed rest which was in this case due      to  the   multiple  injuries.   The      injuries   themselves    were   not      sufficient to  cause death  in  the      ordinary course  of nature and were      only  indirectly   responsible   to      cause  death   due  to   a   remote      complication which in this case was      unavoidable. The injuries were ante      mortem  in   nature  and   were  on      account of blunt weapon."      After considering all the relevant material, Dr. Aneja, PW-2 had  opined that  the death  of Balwant  Singh  was  on account of Pulmonary Embolism and that the said complication had arisen  due to prolonged bed rest which was necessitated by multiple  injuries received  by him. The medical evidence thus clearly  shows that  though the injuries themselves did not cause the death, they had necessitated bed rest and that led to  Pulmonary Embolism. The evidence of Dr. Aneja leaves no doubt that the injuries had necessitated bed rest and the complication which  had arisen  was unavoidable  and was the direct result  of  bed  rest.  The  death  was  the  natural consequence of the injuries caused and it was not because of any negligence  or external  factor. Therefore,  there is no substance in  the contention  raised by  Mr. U.R. Lalit that the injuries  were only  indirectly responsible  for causing death of  Balwant Singh  and as  his death cannot be said to have been  caused due  to the injuries caused, the statement made by  him would  not fall within Section 32 of the Indian Evidence Act.  In view  of our  finding on  this point,  the decisions in  Imperatrix vs. Rudra (ILR 25 Bombay 45), Abdul Gani Bandukchi & Ors. Vs. Emperor  (AIR  1943 Calcutta 465), in Re.  Mallappa Shivlingappa  Chanagi (AIR  1962 Mysore 82) and Moti Singh and Anr. Vs. State of U.P. (AIR 1964 SC 900), relied upon by Mr. Lalit are of no help to him. In all these cases, the Court had held that there was no evidence or that the evidence led was insufficient to prove that the deceased had died  as a  result of  injuries caused  to him.  As  the statement of Balwant Singh related to the cause of his death it was  admissible in evidence under Section 32 and the High Court was in error in holding otherwise.      It was  next cont ended by Mr. Lalit that the statement (Ex. PN)  made by  Balwant Singh  is not  a  true  statement because he  has stated  therein that two blows were given on his leg  by right  side of  the axe. It was submitted by him that right  side would mean the sharp side. Yet not a single incised injury  was found  on  his  legs.  Though  factually correct, this  contention does  not deserve  to be accepted. Apart from  other injuries  found on  his legs two abrasions were also  notices by  the doctor. Moreover, a blow given by an axe  with its  sharp side pointing towards the victim may not always  result in causing an incised wound. What type of injury it  will cause would depend upon various factors like the position of the assailant and the victim, angle at which it hits  the body, the  part of the body where it lands, the force with  which it  hits  the  body  etc.  To  reject  the evidence as  untrue in such circumstances, considering it as inconsistent with  medical evidence, without considering the

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relevant factors  would mean mechanical appreciation of such evidence. The  High Court  considered the statement (Ex. PN) as untrue  only on  the ground that it stood contradicted by the  medical  evidence.  In  our  opinion,  such  mechanical rejection of  t he  dying declaration  was not  proper.  The accused were  five in  number. All  had mounted  the  attack simultaneously. The  evidence discloses  that Balwant  Singh had tried  to avoid  and ward off some blows. If under these circumstances the  two blows given with an axe did not cause incised injuries  it cannot  be said  that in  fact no blows were given with an axe.      It was  next contended  by Mr.  Lalit  that  the  dying declaration  does   not  deserve   to  be  accepted  without independent corroboration  as it was recorded two days after the incident and Balwant Singh had enough time to think over the incident and involve the accused. As pointed out earlier Balwant Singh’s  statement could  not  be  recorded  earlier because he  was not  in a fit condition to make a statement. Moreover, this was not a case where the victim was trying to involve persons  with whom  he was on inimical terms. Two of the deceased  were his  brothers, one was his nephew and two others were  closely related to him. Therefore, there was no reason for Balwant Singh to involve any of them falsely. The accused did  not like  the deceased going-away to Canada but the  deceased   had  no  grievance  whatsoever  against  the accused. It  was not  even stated  by the  accused in  their statements under  Section 313 of the Criminal Procedure Code that the  deceased had  any reason  to falsely involve them. Under these  circumstances, t  he  delay  in  recording  his complaint  which   was  later   on  treated   as  his  dying declaration in of no consequence.      After going  through the  evidence of Kesar Singh, PW 4 we are  of the  opinion that the High Court was not right in discarding it.  Though he  was a chance witness in the sense that he  being of a different village had no apparent reason to be  near the  place of  incident, his  evidence  did  not deserve to  be discarded  on that  ground.  The  High  Court failed to  appreciate that his presence received independent corroboration from  the statement  of the  deceased himself. The evidence  discloses that Kesar Singh had not met Balwant Singh between  29.5.86 to  31.5.86 and  yet we  find in  the statement of  Balwant Singh  reference to Kesar Singh as one of the  persons who  had taken  him  to  the  hospital.  The evidence further  discloses that Balwant Singh was conscious till he  was taken  to the  hospital. Therefore, he knew who had taken  him to  the hospital. It seems that thereafter he was not  in a  fit state  to make  any statement  because of sedative and  other medicines  given to him. This aspect has not been  considered by  the High  Court. Kesar Singh had no enmity with  the brothers of Balwant Singh or with the other accused. He  would not  have  come  forward  to  give  false evidence  against  them  if  he  had  not  really  seen  the incident. Though  it is true that after taking Balwant Singh to the  hospital he  did not wait any more and did not go to the police station to lodge a complaint against the accused, what  the  High  Court  failed  to  consider  was  that  the assailants  of  Balwant  Singh  were  none  other  than  the brothers and  close relatives of the deceased. Balwant Singh was conscious  till he was taken to the hospital. Therefore, it was  quite likely  that Kesar  Singh had though it fit to remain silent  and return  to  his  village.  Under    these circumstances  his   conduct  cannot  be    regarded  as  so unnatural as  to create  to create  a  doubt  regarding  his having  seen  the  incident.  His  statement  was  no  doubt recorded after  seven days  but it cannot be said that there

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was any  delay in  recording his  statement. What  the  High court failed  to consider was that no offence was registered till 6.6.86  as till  then it  was believed  to  be  a  non- congnizable case.  An offence  was registered only after the police received  a further  report that  the three  injuries caused to Balwant Singh had resulted into fractures. It was, therefore,  not  correct  to  say  that  his  statement  was recorded after  a great  delay and  that the prosecution had not offered any explanation for it. The reasons given by the High Court  in not  accepting  his  evidence  are  thus  not sustainable. Not  other reasons  could be  suggested by  the learned counsel  for the  respondents for  not believing the presence of  Kesar Singh  at the  place  when  the  incident happened.      We are  of t  he view that the trial court was right in relying upon  the evidence  of Kesar  Singh  and  the  dying declaration and  holding  the  accused  guilty  for  causing injuries to Balwant Singh. But the trial court was not right in convicting  the  accused  under  Section  302  read  with Section 149 IPC. The medical evidence does not show that the injuries caused  to Balwant  Singh were  sufficient to cause his death  in the  ordinary course  of nature. They were not even stated to be likely to cause his death. The accused had no reason  to kill  Balwant Singh.  In view of the facts and circumstances of  the  case  the  only  inference  that  can reasonably be  drawn in  that their  object was only to beat him. No  attempt was made by them to cause serious injury on any vital  part of  his body.  Therefore, the accused should have been  convicted only  for the  offence punishable under Section 325  read with Section 149 IPC. We, therefore, allow this appeal,  set aside the judgment and order passed by the High Court  and hold  the accused  guilty under Sections 148 and  325   read  with  Section  149  IPC.  For  the  offence punishable under  Section 325  read with  Section 149 IPC we sentence them  to suffer imprisonment for the period already undergone and  to pay  a fine of Rs. 10,000/-. In default of payment of fine, they are ordered to suffer further rigorous imprisonment for a period of six months. If the fine if paid then the  said amount  shall be  paid to  the widow  of  the deceased by  way of  compensation. The respondents are given two months’ time to pay the fine.