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PETITIONER: BHOLA SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       26/11/1998

BENCH: M.K. MUKHERJEE, S.RAJENDRA BABU.

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T Rajendra Babu, J. This appeal, by special leave, is  directed  against the  order  made  by  the  High Court affirming the order of Sessions Court in convicting the appellant under Section 302 I.P.C.  read with Section 34 I.P.C.  and sentencing  him  to suffer  imprisonment  for  life  and  to  pay  a fine of Rs. 2000/-. The  prosecution case as unfolded before Trial Court is follows : On 12.7.1992 at about 5 p.m.  Saun  Singh  attempted to  cut  kikar  trees  and the same was objected to by Puran Singh asking him to wait till the actual demarcation of  the trees  and  refrained  him from cutting the trees till then. Saun Singh returned along with his son and son-in-law to his house.  On the next morning that is on 13.7.1992 at about  6 a.m.    Saun   Singh  accompanied  his  son  and  son-in-law proceeded towards his  field  when  Balwinder  Singh,  Bhola Singh  (appellant)  and  Lakhbir Singh who were armed with a Gandasa and Jagsir Singh who was armed with a Ghop  attacked him.   Bhola exhorted that Saun Singh be not permitted to go and he be taught a lesson for attempting to cut kikar trees. Appellant Bhola assaulted Saun Singh from the blunt side  of the Gandasa  on  his  right arm.  He also inflicted a second blow causing injury on the head of Saun Singh again  by  the blunt side  of  the  Gandasa.  Saun Singh fell on the ground when acquitted accused Jagsir  Singh  assaulted  Saun  Singh with Ghop dang wise which hit Saun Singh on the right arm at the  same  place  where  earlier  the  appellant  Bhola  had inflicted the injury.  This was followed by assault made  by appellant  Balwinder  Singh  who used Gandasa from the blunt side and gave blows on the  left  and  right  leg  near  the ankle.   Kartar  Singh  and  Didar  Singh  raised  alarm and shouted for help.  The accused persons then  turned  towards them  to  assault  them  but they ran away from the place of occurrence to save their lives.    It  appears  that  Kartar Singh  made  arrangements  for  taking  Saun  Singh  to  the hospital who was found to have died  at  8  a.m.    A  First Information  Report  (F.I.R)  was  registered  at 10.30 a.m. regarding the  incident  that  had  taken  place.      After

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conducting  inquest  proceedings the dead body of Saun Singh was sent for post mortem examination.   Dr.    Ramesh  Kumar conducted  the  post  mortem  examination  and  he found the following ante-mortem injuries on the body of  the  deceased Saun Singh:-         1.   A  lacerated  wound  5  cms  x 1/2 cm         transversely placed on left side of  head,         8  cms  from  posterior  hair  line and it         starts from 1 cm above  left  pinna.    On         dissection  wound  was  going deep through         scalp, under line bone was  fractured,  on         further  dissection  membranes  and  brain         matter were lacerated and  cordial  cavity         was full of blood.         2.Lacerated wound 5 cms x 1/2 cm  x         1  cm  longitudinally  placed  on front of         left  leg,  6  cms  on  ankle  joint.   On         dissection  wound  was  going deep to skin         muscle and clotted blood was present.         3.Lacerated wound 5 cms  x  1/2  cm         longitudinally  placed  on  front of right         leg. 11 cms from knee joint. On dissection         wound was 1 cm muscle deep. Clotted  blood         was present.         4.Lacerated  wound  2 cms x 1/2 cms         on  front  of  light  leg   longitudinally         placed   8   cms   from  ankle  joint.  On         dissection wound was 1 cm deep in  muscle.         Clotted blood was present.         5.Contusion  6 cms x 1 cm obliquely         placed on posterior side of left  fore-arm         on  its  middle.  On dissection underlying         bones were fractured and clotted blood was         present.         6.Contusion  5 cms x 1 cm obliquely         placed on lateral side of  right  fore-arm         on  its  middle  On  dissection underlying         bones were fractured.  Clotted  blood  was         present.         7.Abrasion 1 cm x 1 cm on middle of         left clavical.    On dissection underlying         bone was fractured and clotted  blood  was         present. The opinion was furnished that Saun Singh died on account of injuries causing  shock  and  haemorrhage.  The accused were charge-sheeted on   the   aforesaid   allegations.       The prosecution principally relied upon two eye witnesses of the occurrence  Kartar Singh (PW-1), son-in-law of the deceased, and Didar Singh  (PW-d)  son  of  the  deceased,  and  other witnesses  such  as the doctors who attended on the deceased on the first occasion  and  the  doctor  who  conducted  the autopsy as well as the Investigating Officer. The accused persons were examined under Section  313 of   Code   of   Criminal  Procedure  and  they  denied  the prosecution case and claimed to  be  innocent  stating  that they had  been falsely implicated.  They also contended that the deceased Saun Singh had been involved in  some  criminal cases for theft and violation of the Arms Act. The learned trial Judge relied upon the  version  of two  eye  witnesses  Kartar Singh and Didar Singh and he did not attach any importance to the contention raised on behalf of the accused that there is no mention in the F.I.R.  about the use of the sharp edged weapons from  their  blunt  side. However,  he  upheld  the  argument  that  Jagsir  Singh and Lakhbir Singh had been falsely implicated and gave them  the

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benefit of doubt and convicted the appellant Bhola Singh and another accused as stated earlier.  On appeal the High Court concluded  that the evidence of the two eye witnesses of the occurrence  found  ample  corroboration  from  the   medical evidence  and other attending circumstances of the case and, therefore, there is no  merit  in  the  submissions  of  the learned counsel for the appellant. As   was  done  before  the  courts  below,  it  was contended before us that injuries suffered by  the  deceased Saun  Singh  were from blunt weapon as indicated by the post mortem report and the same could  not  have  been  inflicted with  Gandasa  and,  as such there is no good reason to hold that Didar Singh and Kartar Singh witnessed the  occurrence. We  have carefully gone through the evidence of Kartar Singh (PW-1) and Didar Singh (PW-2), the two eye  witnesses.    If they had really witnessed the occurrence as had taken place, they  would  have  certainly  described  the weapons used in causing injuries to the deceased, Saun Singh, leading to his death.  It is highly improbable and unlikely that  when  the accused  armed  with sharp weapons like Gandasa and Ghop had used only the blunt edged side and not the sharp edged  side of the  said  weapons.   We are convinced that these two eye witnesses had set out this version only to fit in  what  had been found  in  the  post  mortem report.  The normal way in which a Gandasa and Ghop could be used  was  only  from  the sharp  edged  side  and  not  from  the  blunt  edged  side. Therefore, it is highly unlikely that the two eye  witnesses PW-1  and  PW-2  could  have  seen the incident as had taken place.  It gives rise to serious doubt as to their  presence at the time of incident.  The trial court and the High Court did  not  duly  appreciate  this  aspect  of the matter and, therefore, wed are of the view that there  is  an  error  in this regard.    Hence,  we  accept  the case as set forth on behalf of the appellant.  We allow this  appeal,  set  aside the conviction passed by the trial court as confirmed by the High Court and set him at liberty.