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2010 DIGILAW 764 (PNJ)

Swinder Singh v. State of Punjab

2010-02-02

KANWALJIT SINGH AHLUWALIA

body2010
JUDGMENT Kanwaljit Singh Ahluwalia, J. (Oral).:- Swinder Singh son of Sulakhan Singh has filed the present appeal. He has challenged the judgment recorded by the Sessions Judge, Gurdaspur, whereby the appellant was acquitted for offence under Section 302 IPC but was convicted for offence under Section 304 Part-II IPC and was sentenced to undergo rigorous imprisonment for five years and pay fine of Rs.5,000/-. In default of payment of fine, to undergo rigorous imprisonment for six months. 2. The appellant was tried in case FIR No. 76 dated 15.6.2006 registered at Police Station Ghanie-Ke-Banger under Section 302/34 IPC. 3. Mr. Mehardeep Singh, Deputy Advocate General, Punjab, has submitted that the State has not preferred any appeal against the acquittal of appellant for offence under Section 302 IPC. 4. Before the FIR, evidence of witnesses, findings of the trial Court and the arguments raised before me are noticed, it is pertinent to mention here the peculiar feature of the present case. In the present case, there was no external mark of injury on the body of Gulam Masih son of Rahmat Masih. The organs of his body i.e. scalp, vertebra, meninges, brain, spinal cord, walls of thorax, plural cavities and lungs were healthy. Therefore, the doctor deferred the opinion regarding the cause of death till the receipt of report of Chemical Examiner. The report of Chemical Examiner reveal that no poison was detected in the viscera, rather Ethyl Alcohol was found and concentration of alcohol in blood was estimated as 103.5 mg. per 100 ml. The heart of deceased was sent to Histopathologist. According to the report of Histopathologist Ex.PG, there was no remarkable pathology of heart of the deceased. The Board of Doctors, constituted, opined as under:- “After going through the reports, there was evidence of consumption of alcohol by the deceased. However, exact cause of death was not ascertained under prevailing circumstances”. 5. In cross-examination, PW.2 Dr. Gurmukh Singh stated that possibility of death of Gulam Masih being a natural death cannot be ruled out. There being no cause of death, it is matter of distress that the appellant has been yet convicted for an offence under Section 304 Part- II IPC and sentenced to five years rigorous imprisonment. Taking notice of the medical evidence and this glaring feature of the prosecution case, this Court proceed to notice the contents of FIR Ex.PA/2. 6. There being no cause of death, it is matter of distress that the appellant has been yet convicted for an offence under Section 304 Part- II IPC and sentenced to five years rigorous imprisonment. Taking notice of the medical evidence and this glaring feature of the prosecution case, this Court proceed to notice the contents of FIR Ex.PA/2. 6. Robin Masih appeared before Satwant Singh, Station House Officer, Police Station Ghanie-Ke-Banger on 15.6.2006 at 8.50 A.M. And made his statement which has been exhibited as Ex.PA. Robin Masih stated that he is doing labour work and has four brothers and three sisters. All are married. All the brothers are residing separately along with their families and are having common courtyard. On 14.6.2006 at 9.00 P.M., he was sleeping in the roof of his house when he heard notice in the house of his brother Gulam Masih alias Kashmir Masih. He saw the appellant Swinder Singh present in the house of his brother Gulam Masih. The accused was demanding that he should be served meat. Gulam Masih expressed his helplessness. The appellant, at that time, was under the influence of liquor. He told Gulam Masih that he intended to sleep with his wife. This caused annoyance to Gulam Masih. They exchanged fist blows. Swinder Singh left the house of Gulam Masih. On the next day, Gulam Masih and Dhani Masih were standing near the sheep of George Masih. At about 8.00 A.M. appellant/accused came on his motorcycle. After alighting from the motorcycle, he grappled with Gulam Masih and gave fist blows to him. Gulam Masih fell on the ground. The accused intended to leave the spot when Tarsem Masih told him that nobody would cause him any injury, therefore, he should stay at the spot. Then accused gave some more fist blows to Gulam Masih who was lying on the ground. Gulam Masih raised the noise of “Maar Ditta” “Maar Ditta” which attracted the complainant and his uncle Dhani Masih and they rescued Gulam Masih. Swinder Singh and Tarsem Masih ran away from the spot. The complainant and his uncle attended Gulam Mashi. He breathed his last. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted. 7. The appellant was charged by the Court of Sessions Judge, Gurdaspur, on 20.2.2007. Swinder Singh and Tarsem Masih ran away from the spot. The complainant and his uncle attended Gulam Mashi. He breathed his last. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted. 7. The appellant was charged by the Court of Sessions Judge, Gurdaspur, on 20.2.2007. The charge stated that on 15.6.2006 at about 8.00 A.M., in the area of village Ghanie-Ke-Banger, the present appellant did commit the murder by intentionally causing the death of Gulam Masih and thereby committed an offence punishable under Section 302 IPC. The appellant pleaded not guilty and claimed trial. 8. Prosecution examined PW.2 Dr. Gurmukh Singh who was member of the Board of Doctors. As mentioned earlier, there was no external mark of injury. All organs of the body were healthy. There was no ligature mark. The Chemical Examiner found no poison and Histopathologist determined heart of the deceased to be healthy. Except that, deceased had consumed alcohol. No evidence has come on the record from which cause of death could be determined. PW.2 Dr. Gurmukh Singh has specifically stated in cross-examination that possibility of death of Gulam Masih being natural death cannot be ruled out. 9. Robin Masih, complainant, appeared as PW.1. He reiterated what was stated in the FIR. 10. PW.3 Salamat Masih stated that he was present in the Church. On hearing noise, he came out of the Church and saw that accused and deceased were fighting with each other. In crossexamination, this witness stated that neither the accused nor the deceased were having any arms. The accused had not inflicted any injury on the person of deceased in his presence. 11. PW.4 Dhani Masih stated that accused and deceased were grappling. They were separated. The accused gave fist blows to the deceased Gulam Masih who fell on the ground and died. 12. Mango wife of Gulam Masih appeared as PW.5. He stated that accused inflicted injuries by way of fist blows on the person of Gulam Masih, as a result of which he fell down and died. In crossexamination, she stated that she had not seen the accused giving beating to her husband. 13. PW.6 Balwinder Singh, Head Constable, tendered his affidavit Ex.PJ. His evidence was of formal nature. He was not subjected to any cross-examination. 14. Amar Singh, Head Constable, appeared as PW.7. He stated that the dead body was handed over to him. In crossexamination, she stated that she had not seen the accused giving beating to her husband. 13. PW.6 Balwinder Singh, Head Constable, tendered his affidavit Ex.PJ. His evidence was of formal nature. He was not subjected to any cross-examination. 14. Amar Singh, Head Constable, appeared as PW.7. He stated that the dead body was handed over to him. He got the autopsy conducted and had deposited the articles given by the doctor with the Moharrir Head Constable and subsequently taken one parcel to Amritsar to Histopathologist and two to Patiala for depositing the same with the Chemical Examiner. 15. PW.8 Satish Chander, Draftsman, had prepared scaled site plan Ex.PL. 16. PW.9 Lakhwinder Singh, Moharrir Head Constable, has tendered his affidavit Ex.PM. His evidence was of formal nature and no cross-examination was conducted. 17. PW.10 Satwant Singh was the Investigating Officer. He proved various aspects of the investigation. Thereafter, the prosecution closed its evidence. 18. Statement of accused under Section 313 Cr.P.C. was recorded. All the incriminating circumstances were put to him. He denied the same and pleaded false implication. 19. No witness was examined in his defence. 20. From the testimony of eye witnesses PW.1 Robin Masih, complainant and PW.4 Dhani Masih, it has surfaced that the accused was empty handed. The accused and deceased had grappled with each other. The accused had given fist blows and the deceased had died. According to the witnesses, occurrence in the present case had taken place on 15.6.2006 at 8.00 A.M. PW.3 Salamat Masih and PW.5 Mango, wife of the deceased, had not seen the accused causing any injury to the deceased. The question which remain to be determined in the case is whether the fist blows are the cause of death. Admittedly, there is no external mark of injury. All vital organs of the body were found healthy. The Chemical Examiner has not found any poison. There was no ligature mark. Histopathologist found the heart to be healthy. The doctor, taking into consideration report of the Chemical Examiner Ex.PF and the report of Histopathologist Ex.PG, had given no opinion regarding the cause of death. In the report of Chemical Examiner, alcohol was found in the blood of deceased. The concentration of alcohol in the blood was estimated to be 103.5 mg per 100 ml. Even this has not been given as a cause of death. In the report of Chemical Examiner, alcohol was found in the blood of deceased. The concentration of alcohol in the blood was estimated to be 103.5 mg per 100 ml. Even this has not been given as a cause of death. Therefore, very fairly PW.2 Dr.Gurmukh Singh stated in the cross-examination that possibility of death of Gulam Masih being a natural death cannot be ruled out. Therefore, once the prosecution has failed to prove that the death of Gulam Masih was a homicide, appellant in no way can be convicted for culpable homicide not amounting to murder. Thus, the conviction of appellant for offence under Section 304 Part-II IPC cannot be sustained. Therefore, he is acquitted of offence under Section 304 Part-II IPC. However, prosecution witnesses have stated that the appellant had caused fist blows. From this allegation, offence under Section 323 IPC is made out. For offence under Section 323 IPC, appellant is sentenced to one year rigorous imprisonment. With these observations, present appeal is disposed of. ----------