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CASE NO.: Appeal (crl.)  916 of 2003

PETITIONER: Harjinder Singh @ Bhola

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 27/07/2004

BENCH: P.VENKATARAMA REDDI & B.P. SINGH.

JUDGMENT: J U D G M E N T  

P.VENKATARAMA REDDI, J.

       Three persons including the appellant herein, were charged  for the murder of Gurpreet Singh on the night of 30th January,  1994, at village Ranguwal.  The appellant together with one  Manjit Singh was charged under Section 302 IPC, read with  Section 34 IPC.  It appears that the second accused Manjit Singh  has been absconding and the trial proceeded only against the  appellant.  The other accused, namely Sohan Singh, who was  charged under Section 302 read with Section 109 IPC, died  during the course of trial. The Sessions Court convicted  the  appellant under Section 302 read with Section 34 I.P.C and  sentenced him to life imprisonment.  The High Court upheld the  conviction and dismissed the appeal.     The prosecution case, as revealed by the FIR lodged by  Mohinder Singh, the father of the deceased and his deposition in  Court is as under:         On the crucial date, when the informant (P.W.3)   returned  to his house at about 7 p.m., his wife told him that their son  Gurpreet Singh left the house at about 5 p.m in the company of  the two accused as the accused wanted his presence at Jorahan  Village for settling the dispute between Jarnail Singh and Ranjit  Singh (P.W.4).  As his son did not return till 7.30 p.m., Mohinder  Singh (P.W.3) decided to search for him and he first went to  village Jorahan.  Ranjit Singh (P.W.4) also joined him in the  search at Jorahan which according to the evidence of the  Investigating Officer (P.W.11) is at a distance of about 1.5 kms.  from Ranguwal.  Not finding him there, P.W.3 and P.W.4 were  coming back to Village Ranguwal.  It was about 10 p.m (9 or 9.15  p.m as per the deposition) when they reached the Primary School  at Ranguwal.  They witnessed the attack on the deceased by the  two accused in front of the Primary School building.  The  appellant placed a ’Pharna’ (scarf) around the neck of the  deceased after pushing him down to the ground and he continued  to press the neck with Pharna.  The other accused namely, Manjit  Singh took out knife from his pocket and inflicted injuries on the  face of the deceased.  At that stage P.Ws. 3 and 4 raised hue and  cry.  They were warned and threatened to leave the place.  Soon  after the accused left the place, P.Ws. 3 and 4 were able to go to  the spot and noticed that Gurpreet Singh succumbed to the  injuries.  P.W.3 claimed to have witnessed the occurrence in  moonlight and also with the aid of a torch.  Some persons  including Chowkidar Nahar Singh and his servant Pritam Singh  came to the spot immediately after the occurrence.  Leaving  them with the dead body, P.Ws. 3 and 4 set out to the police  station on motorcycle (moped) for reporting the matter.         The motive is said to be that the deceased was helping

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Ranjit Singh (P.W.4) and the appellant was helping his cousin  Jarnail Singh in a dispute relating to a plot in Village Joharan.  It comes out in evidence that P.W.11 Sub Inspector of Police  was found at the Nakabandi at a distance of about 2.5 kms.      from  the Village Ranguwal and he  recorded the statement of P.W.3 at  11.20 p.m and sent the same to the Police Station through the  Constable  and the FIR was drawn up at 11.45 p.m by the Head  Constable.  The inquest was held on the dead body on the same  night at about 2 a.m.   In the course of inquest it was found that  there was a bluish mark on the neck apart from the injuries on  the eyebrows and cheeks.  The Pharna wrapped around the neck  was also noticed, but it was not produced before the Court. The  post mortem was conducted on 31.1.1994 at 10.30 a.m. by the  Medical Officer (P.W.10) attached to S.S.C. Khatran.  He  noticed  five lacerated wounds and two incised wounds on the dead body.   The Medical Officer (P.W.10), who was examined, stated that  there was a bruise-reddish brown in colour on either side of the  neck in the front.  The neck was found tilted towards the left side,  faecal  matter was present in the Pyjama, hyoid bone was found  fractured and the cartilage was broken.  He stated that the  deceased could have received injuries at about 5 p.m. the  previous day.  He gave the opinion that the death was on account  of strangulation.  However, he did not notice any ligature mark or  any sort of injury on the back of the neck. It is contended by the learned counsel for the appellant that  the death by strangulation has not been established by the  medical evidence brought on record.  The absence of ligature  marks and the symptoms associated with the asphyxia has been  highlighted to substantiate his argument.  On this aspect, the  High Court was of the view that the absence of ligature marks  was not conclusive and the fact that the bruise-reddish brown in  colour, was found on the two sides of the neck together with the  evidence of fracture of hyoid bone established the death by  strangulation.  The High Court also commented that the medical  witness was not cross examined challenging his opinion.  We  need not probe into the correctness of the medical opinion as  regards the cause of death i.e. whether the death could be by  strangulation as we are of the view that the eye witnesses’  account is not reliable and it is not safe to act on their testimony. P.Ws. 3 and 4, apart from being close relatives of the  deceased, happen to be the chance  witnesses.  It looks  as  though the assailants were all the while waiting for P.Ws. 3 and 4  to reach the spot and witness the incident.  Of course, for the  mere reason that they are chance witnesses, their evidence  cannot be discarded if we find assurance from the prosecution  evidence pointing to the guilt of the accused.  We, however, feel  that their evidence should have been more carefully  analysed  and evaluated, which the High Court failed to do.  Right from the origin of the prosecution story, we find a  number of irreconcilable versions and contradictions on certain  material aspects which throw any amount of doubt on the  veracity of the evidence tendered by P.Ws. 3 and 4.  According to  the version of the mother of the deceased (P.W.6), the accused  persons took the deceased with them at about 5 p.m.  This fact  was brought to the notice of her husband when he returned home  at about 7 p.m.  This is what P.W.3 also says.   P.W.3 stated that  he left for Jorahan Village at about 7.30 p.m. to find his son.  He  met P.W.4 (Ranjit Singh) there and both of them searched,  but  could not find his son.  They  returned to Ranguwal after 9 p.m.   While on the way, they saw the incident near the Primary School.   But we have the evidence of P.W.5 (Granthi of the Gurudwara of  Village Jorahan) according to whom, he  at the instance of P.W.3  made the announcement over the loud-speaker before sunset  about the missing person\027Gurpreet Singh.  P.W.4 also states  that P.W.3 met him before sunset.  As it was the peak winter

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month of January, the sunset should have been at about 5.30  p.m. This version of P.Ws. 5 and 4 does not, therefore, fit into the  version of P.Ws. 3 and 6 that they became apprehensive of the  safety of the deceased at about 7 p.m. and thereafter P.W.3 left  the house at 7.30 p.m. in search of his missing son.              Why P.W. 3 should weave a story that he came to know   that his son was missing only after he went home at 7.00 p.m. is  an unanswered question.   Apparently P.W. 3 did not come  forward with a truthful version.  Keeping this background in view,  let us turn to   the evidence of P.W.4  who is the other eye  witness.  P.W. 4 stated in the cross-examination that the sun was  setting when P.W. 3 met him.  According to P.W. 4, the incident  took place  at 7.00 p.m. when they reached Ranguwal village.  Thus, P.W.3’s evidence and his version in F.I.R. goes directly  contrary to the evidence of P.Ws. 4 and 5 in regard to the time of  occurrence and the knowledge about missing of his son. It  remains unexplained as to why the prosecution came forward  with an inconsistent and distorted version of the time at which  P.W. 3 came to know about his missing son and the actual timing  of the occurrence.  The High Court brushed aside the argument  regarding the variation  in regard to the time,   observing as  follows:  "The witnesses belong to a small village and are not  educated.  The mere fact that there is some variation in  point of time when the occurrence took place would not be  fatal to the case of the prosecution".

       It may be that some allowance has to be given for the  variation in time but the variation in this case is so vast (7.00  p.m. to 10.00 p.m.) that it cannot be attributed merely to the  inability of the witnesses hailing from the village to give correct  time.  We find that P.W.3 appended his signatures to the  deposition in Hindi and he is described as ’Lamberdar’  by P.W. 5  and P.W. 4 signed in English. So, they are not  illiterate persons,  though living in a village.  It is difficult to assume that they will  not have the idea of time.          The time of incident assumes some importance in the instant  case for the reason that the report was given to the police at  about 11.20 p.m.  If the occurrence had been witnessed at 7.00  p.m. as per P.W.4’s  version, there would then be a gap of 3 =  hrs. to 4 hrs.  Probably to cover up this delay, P.W. 3 has come  forward with the story that the incident happened between 9.00  and 10.00 p.m.          Another important factor  is that  Chowkidar Nahar Singh  and P.W.3’s servant Pritam Singh who gathered on the spot  allegedly after the incident and were put on guard of the dead  body were not examined. Though  one of them was cited as  witness, he was given up by the public prosecutor as being  unnecessary.  The evidence of the persons who gathered  immediately after the occurrence  on hearing the alleged cries of   P.Ws.3 & 4 would have been valuable piece of evidence to serve  as corroboration of the account given by the direct witnesses,  especially when the presence of the alleged eye witnesses at the  spot was too much of a coincidence.  No reason is forthcoming for  not examining them. This is another serious lapse which casts a  doubt on the prosecution case.         When we come to the actual account of P.Ws. 3 & 4  regarding the incident which they are supposed to have observed  with the aid of moonlight, we have serious doubt whether  P.Ws.  3 & 4  could have observed the details of attack in the manner in  which they narrated.  In view of the alleged threats, they dared  not to go close to the actual spot of assault.  In fact if they were  in a position to go  close to the spot, they would have made some  endeavor  to resist the attack. That is the natural course of  human conduct.  Therefore, standing at a respectable distance for

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fear of being assaulted, it is doubtful whether they were in a  position to observe each and every detail of the alleged  occurrence, that too in the moonlight.   As far as P.W. 3 is  concerned, there is any amount of doubt  as regards  his eye  sight. While being examined in the Court, he admitted that he  had weak eye sight and could not tell whether any person was  sitting near the wall or on his right side.  P.W. 4 stated that P.W.  3 got his eye operation done after the incident.  In all probability,  eye sight problem would have been there even at the time of the  incident which was 3 years earlier.  Be that as it may, considering  the situation and other circumstances it is doubtful whether P.Ws.  3 & 4 would be in a position to give graphic details of the alleged  incident. Their version in this regard  cannot be considered to be  credible.  True,  even in the absence of giving such details, if  P.Ws. 3 & 4 had seen the accused attacking the victim and  immediately thereafter found him dead, it would have been  sufficient to establish the prosecution case.  We have only  adverted to the fact that P.Ws. 3 & 4 would not have been in a  position to observe the details to demonstrate that they were  prepared to sacrifice the truth to support the prosecution.          The evidence of P.W. 6 is evidently meant to build up the  "last seen" evidence.  Her version that at the instance of the two  accused the victim left the house is open to serious doubt.  If her  version is truthful, one would expect P.W. 3 contacting the two  accused or their leader.   It was nobody’s case that P.W 3 went to  the  houses  of  those  persons  and tried to make inquiries.   It is seen from the deposition of P.W. 6 that her statement was  recorded on 6.4.1994 i.e. about three months later, for  which no explanation is forthcoming.           The foregoing discussion leads us to conclude that the  Trial Court and the High Court did not consider certain  material aspects apparent from the evidence and there was  almost a mechanical acceptance of the evidence of the two  chance witnesses whose evidence should have been  evaluated with greater care and caution. As pointed out by  this Court in Satbir Vs. Surat Singh & Anr. [1997 (4)  SCC 192], a "cautious and close scrutiny" of the evidence of  chance witnesses should inform the approach of the Court.   In these circumstances, this Court need not feel bound to  accept the findings. The overall picture we get on a critical  examination of the prosecution evidence is that PWs 3 & 4  were introduced as eye-witnesses only after the dead body  was found.         The appeal is, therefore, allowed. The conviction and  sentence against the appellant is set aside.  The appellant is  directed to be released forthwith.