Singh @ Bhola Vs. State of Punjab  Insc
409 (27 July 2004)
Reddi & B.P. Singh. P.Venkatarama Reddi, J.
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.
prosecution case, as revealed by the FIR lodged by Mohinder Singh, the father
of the deceased and his deposition in Court is as under:
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.
them with the dead body, P.Ws. 3 and 4 set out to the police station on
motorcycle (moped) for reporting the matter.
motive is said to be that the deceased was helping Ranjit Singh (P.W.4) and the
appellant was helping his cousin Jarnail Singh in a dispute relating to a plot
in Village Joharan.
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.
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.
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
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.
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.
on the way, they saw the incident near the Primary School.
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 personGurpreet Singh. P.W.4 also
states that P.W.3 met him before sunset. As it was the peak winter 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
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.
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:
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".
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.
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.
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.
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 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.
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
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 SCC 192], a "cautious and close scrutiny"
of the evidence of chance witnesses should inform the approach of the Court.
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
appeal is, therefore, allowed. The conviction and sentence against the
appellant is set aside. The appellant is directed to be released forthwith.