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PETITIONER: SAIL SINGH STATE OF PUNJAB

       Vs.

RESPONDENT: MOHINDER PAL

DATE OF JUDGMENT:       17/10/1997

BENCH: G.T. NANAVATI, M. JAGANNADHA RAO.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M. JAGANNADHA RAO. J      Criminal appeal  No. 738  of 1983  is preferred  by the informant Sail Singh questing the judgment of the High Court in so  far as  the High  Court set aside the judgment of the learned sessions Judge and acquitted Mohinder Pal.  Criminal Appeal No.  731 of  1983 is  by the  State of Punjab for the same reason.      In fact,  before the  Session Court,  there were  three accused, all  brothers. -  Mohinder Pal.  Devinder  Pal  and Surinder Pal  an were  charged under  section 302 I.P.C. for the murder  of one  Dilbagh Singh  (brother of  Sail  Singh, PW9).  The learned Sessions Judge acquitted Surinder Pal are convected mohinder  Pal respondent  herein) and  his Brother Devinder  all   and  sentence   be  to   of  them   to  life imprisonment.   The High  Court confirmed  the conviction of Devinder Pal about acquitted Mohinder Pal.      The following  relations of  the parties  is  relevant. The deceased  Dilbagh Singh  was a Veterinary Surgeon posted in the  village Rihana  Jattan, at  the material  time.  His first wife  was Pritam  Kaur and  a son,  Narinder Singh was born to  them.  For some reasons, Pritam Kaur was not living with Dilbagh  Singh our  was living  with her  brothers.  Of course, Narinder  Singh was living with his father.  Dilbagn Singh married  Manjit Kaur (PW10) as his second wife and she gave birth  to two  sons.   Sukhjinder Singh  and  Balwinder Singh. (It  is in  evidence that Manjit Kaur’s first husband Shish Singh  died and  her son  Amarjit Singh,  by her first husband,  lives  abroad),  PW9,  Sail  Singh,  appellant  in Criminal Appeal  No. 738  of 1982 is the brother of deceased Dilbagh Singh.      The prosecution case is as follows:      Narinder Singh,  son of Dilbagh Singh by his first wife Pritam Kaur  was in  love with  Satwant Kaur,  sister of the three accused,  Much to  the dislike  of the  said brothers, these two  were exchanging  love letters, Narinder Singh had studied only  upto 4th  or 5th  class while Satwant Kaur was graduate.   It is  said that  Sail Singh,  PW9  (brother  of Dilbagh Singh)  and was posted as Assistant Sub-Inspector at fullhour, had come down to village Rihma Jattan on 11.6.1981

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on a  four day  leave.   On 12.6.1982. PW9, deceased Dilbagh Singh, his  wife Manjit  Kaur (PW10)  and Narinder Singh the first wife’s  son of  Dilagh Singh) went out for a stroll in the evening  and were coming pack home around 8.00 P.M. when they were  intercepted by  the accused near the house of one Atma Singh.  At that  time, Mohnder  Pal was  armed  with  a Kirpan, Devinder  Pal was  armed with  a knife  while  their brother Surinder  Pal was  empty handed.  It  is  said  that Surinder Pal  shouted a lalkara that Dilbagh Singh should be taught a lesson because he was not stopping his son Narinder Singh from  teasing his sister Satwant Kaur, At once, kirpan blow was  administered on the right shoulder near the armpit of Dilbagh  Singh, by Mohinder Pal and he gave a second blow again with  the Kirpan to Dilbagh Singh on the chest and the latter fall down.  Therefore, Devinder Pal hit Dilbagh Singh with the  knife. On  the alarm,  raised by the witnesses PW9 and PW10,  Surjit  Singh  and  Jit  Singh  and  others  were attracted to  the soot  curing the  course of the assault on the deceased  and the  three accused  ran  away  with  their weapons.      Dilbagh Singh was carried to Phagwara in a tempo by his son Narinder Singh and by PW9 put was found cead by the time they could  reach the  hospital at  9.15 P.M. The Doctor PW1 sent intimation  to the  local police  when Veer Singh (ASI) (PW1) went  to the Hospital and recorded statement of PW9 on the basis  of which  the FIR was registered.  Inquest report Ex.PD/1-8 was  prepared and  post mortem  was  conducted  on 13.6.1981  by  Dr.  Ramesh  Chaudhary  (PW2)  in  the  Civil Hospital at  Phagwara.   We shall  refer to  his report,  in detail later.      In the Sessions Court, the prosecution examined various witnesses. PW9  and PW10 were examined as ever-witnesses. On the basis of their evidence, the learned Sessions Judge came to the  conclusion that  the prosecution  had proved  beyond reasonable doubt,  the guilt  of Mohinder  Pal and  Devinder Pal.   Of course,  so far as Surinder Pal was concerned, the learned Sessions  judge gave  him benefit  of doubt.  It was argued for  the defence  before the  Session Court  that the medical evidence,  in particular,  the  post  mortem  report prepared by  PW2 together  with  the  evidence  of  PW2  was contrary to the evidence of the eye-witnesses, PWs 9 and 10. This contention  of the  defence counsel was rejected by the learned Sessions  Judge and  Mohinder  Pal  was  also  found guilty along  with his  brother Devendra  Pal.  On the other hand, the  High Court  analysed the  opinion of  the doctor, PW2, as  given in  his deposition  before the Sessions Court and came  to the  conclusion that  tit did  not support  the evidence of  PWs9 and  10 and therefore their evidence could not not  form the  basis for  convicting Mohinder  Pal.  The entire  issue  before  us,  therefore,  revolves  round  the evidence of  the Doctor PW2 and the post mortem report given by him  and the  question is  whether the  view taken by the High Court  can be  said to  be so  unreasonable  as  to  be interfered with by this Court.      As  already  set  out  the  prosecution  case  is  that Mohinder Pal  the deceased  with a  Kirpan  twice  and  that Devinder pal  made one hit with a knife on the deceased.  We shall now refer to the medical evidence.      The post-mortem report prepared by PW2 read as follows:      "1. Incised  wound 3 cm x 1/2 cm on      the front  of right  shoulder 4  cm      above the  arm bit  fold. Wound was      transverse  in  Direction.    Outer      angle  was   share  and  inner  was      round,  Fresh bleeding was present.

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    2. Incised  would 2 1/2 cm x 1/2 cm      on the  right side  of  the  chest,      transverse  in  direction.    Outer      angle share,  inner  angle  rounded      with out  of  abrasion  around  the      medical third  of wound  7 cm below      and medical  to the  right  nipple,      over the  fifth  costal  cartilage.      Evidence of bleeding was present.      3. Incised  wound 1  cm x 1/2 cm on      the  right   side  of   the   chest      vertical in  direction, upper angle      sharp, lower  rounded circular puff      of abrasion  present.  It was 10 cm      below  the  nipple.    Evidence  of      bleeding was present.      4. Abrasion  2 1/2  cm x  2 on  the      front of left knee.      5. Abrasion  4 cm  x 1/4 cm, on the      right supra spinal region.      5. Vertical abrasion 2 1/2 cm x 1/4      cm on the inter scapular region.      7. Lacerated  wound 1  cm x  1/2 on      the  inferior  angle  of  the  left      scapular.  It is subcutaneous deep.      Evidence of bleeding was present".      In the opinion of the doctor death was due to shock and heamorrhage on  account of  injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature.      The doctor,  when examined  as PW2  said  initially  in chief examination, as follows:      "Injuries Nos. 1 and 2 individually      were sufficient  to cause  death in      the ordinary course of nature.      He then stated:      "Injury No.1  can be  caused  by  a      sword,   but   not   injury   No.3.      similarly injury No.2 can be caused      by a sword.....      Injury No.3  can be caused with the      knife Ext.P22 just now shown to me.      Injuries  No.   4  to  7  could  be      possibly by fall."      Even injury  No.3 could  result in  death". When he was cross-examined by the defence counsel he went on to say:      "Injury No.1  would not  have  been      caused from  the front  side, there      is more  probability of injury No.1      being caused  when the  victim  was      lying, though  the  possibility  of      rte same  having been caused, while      the victim  was standing  cannot be      ruled out.   The  width  of  injury      No.2 is 1/12 cm. Its death is about      4 to  5 cm. But it may be even more      in  case  of  fatty  person.    The      injury No.2.  appears to  be a said      injury.   The fact  that the  inner      angle was  found to be rounded with      puff of  abrasion, in  the case  of      injury No.2.  shows that the weapon      used was  blunt from  the side.   I      have seen the Kirpan Ex. P1.  It is      share  from  both  sides  from  its      front  position   upto  more   than

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    inches."      Finally the doctor stayed, and this is what appealed to the High Court most.      "All the  thee injuries  i.e. to  3      could  be   caused  by   a  similar      weapon, with its one side blunt.      It is  next necessary  to refer  to the Judgment of the High Court  which was  based more  on the opinion of PW2. as set out  in the  underlined portion  set out above.  This is what the  High Court  stated, no  doubt, after  prima  facie accepting the evidences of the eye-witnesses, PW9 and PW10.      "Had the  matter  rested  here,  we      would have  found do  difficulty in      rejecting the appeal in toto, but a      reference to  the statement made by      Dr.  Ramesh   Chaudhary   PW2   who      conducted      the      post-mortem      examination on the dead body of the      deceased indicates that injury No.1      said  to   have  been  caused  with      Kirpan by  Mohinder  Pal  appellant      could  possibly  have  been  caused      with a  knife also   The  was sharp      and the  inner angle  was  rounded.      That  being   so,  we   feel   that      Mohinder Pal  appellant  should  be      given the  benefit of  doubt  as  a      measure of  abundant.   That  being      so,  we   feel  that  Mohinder  Pal      appellant  should   be  given   the      benefit of  doubt as  a measure  of      abundant   caution.      We   order      accordingly.   The appeal  cua  him      succeeds and he stands acquitted of      the charges.   The medical evidence      is  consistent   with  the   ocular      version cua   the  part  played  by      Devinder Pal appellant.  The appeal      cua him is dismissed.      In other words, the High Court was of the view that the last part of the evidence of the doctor.  PW2 (extracted and underlined above)  was not  consistent with  the evidence of eye-witnesses that  injuries  No.  1  &  2  were  caused  by Mohinder Pal  by a  Kirpan while the evidence of PWs9 and 10 was consistent  with the evidence of PW2 so far as the guilt of accused Devinder Pal was concerned.      Before us,  it was contended by the learned counsel for the appellant in both the appeals that the view taken by the High Court so far as Mohinder Pal was concerned is liable to be set aside as being unreasonable and inconsistent with the direct evidence  of PWs9  and 10.  The opinion  given by the doctor. PW2  towards the  and  of  his  deposition  was,  as pointed by  the Sessions  Court, more  due to confusion or a misconception as  to the  proper inference to the drawn from the juries recorded by him in the post-mortem report.      On  the   other  hand,  the  learned  counsel  for  the respondent (accused  Mohindar  Pal).    contended  that  the opinion of  the doctor, PW2, cannot be said to be the result of any  misconception or confusion, and was an opinion which could be  one of  the reasonable  inferences that  could  be drawn from  the nature  of injury  No.1 and  when  the  High Court, on  an assessment  of the evidence of PWs 7 and 10 or the one  hand and  the evidence of PW2 on the other, came to one particular  conclusion.   It is  neither  incumbent  nor necessary or  this Court  to interfere unless of course some

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serious infirmities  could be  shown in  the said conclusion drawn by the High Court.      We have been taken through the evidence of PWs 9 and 10 as well  as the  post-mortem report and the oral evidence of the doctor,  PW2.  We have considered the various submission of the  counsel.   After giving out anxious consideration to the material, and the inference drawn by the High Court from the said  material, we are unable to say that the view taken by  the   High  Court   is  so   unreasonable  as  requiring interference.   It is  true that  PWs 9  and 10  have  given evidence that  two blows  by a Kirpan were given by Mohinder Pal to the deceased and the blow by a knife by Devinder Pal. At the  same time if the high Court felt on the basis of the opinion expressed  by PW2  in his evidence - namely that (1) all the  three injuries  i.e. 1  to 3  could be  caused by a similar weapon,  with its  one side  blunt and  (2) that the Kirpan Ex.p1  was sharo  from  both  sides  from  its  front portion upto  more than  6  inches  -  that  there  was  the possibility of  all three injuries having been infected by a and none  by Kirpan, we cannot say that the view of the High Court  was  so  unreasonable  as  to  warrant  interference. Obviously, though the High Court felt it safe to rely on the evidence of  PWs 9 and 10 as corroborated by the evidence of the doctor,  PW2 so  far the Devinder Pal was concerned, the High Court  at the  same time  felt that  the  same  medical evidence created a reasonable doubt as to whether any Kirpan was used  and hence  it would  not be safe to go by the oral evidence of  Pws 9 and 10 in so far as the guilt of Mohinder Pal was  concerned.   We are  of the  opinion that the above view of  the High Court cannot be said to be unreasonable or vitiated by  non-consideration  of  any  material  piece  of evidence or  the taking  into account  of  any  inadmissible evidence.   Nor can  we say  that the view taken by the High Court was  otherwise perverse.  Therefore we do not think it is a  fit case  for interference.  The appeals are dismissed and the  acquittal granted by the High Court to Mohinder Pal is confirmed.