1. We will be deciding Criminal Appeal No. 645-DBA of 2000 and Criminal Miscellaneous No. 185-MA of 2000 by this common judgment, as they arise out of the same judgment/order dated 22.9.1999 of the Sessions Judge, Patiala whereby he acquitted Navjot Singh Sidhu son of Bhagwant Singh Sidhu and Rupinder Singh Sandhu son of Bhagat Singh Sandhu.
2. The case of the prosecution is unfolded by the statement of Jaswinder Singh son of Pritam Singh given to SI Kaka Singh on 27.12.1988 at 2.40 p.m. at Police Station Kotwali, Patiala. Jaswinder Singh stated that he is a resident of Mandi Police Station Julkan and does agricultural work. He along with his relative Gurnam Singh had come to Patiala in regard to the marriage of his son. He and his uncle Gurnam Singh and his nephew Avtar Singh were going on Maruti car bearing No. CHI-8422 which was driven by Gurnam Singh to the State Bank of Patiala, Head Office to withdraw money. It was about 12.30 p.m. When they reached near the Crossing near Sheranwala Gate and were about to turn towards State Bank of Patiala, they saw a vehicle bearing No. PAD-6030 standing in front of them. When they started to cross this vehicle to go ahead, one Sardar i.e. Navjot Singh Sidhu, Cricket Player who was identified by him, started abusing them and used wrong words. Complainant tried to restrain him, but Navjot Singh Sidhu pulled Gurnam Singh out from his vehicle and started giving him blows. Jaswinder Singh came out to save Gurnam Singh but a clean-shaven man alighted from the vehicle standing in front of them and started giving him fist blows. Avtar Singh son of Nirbhai Singh also saw the occurrence. They took out the keys of their car and both then fled away. Jaswinder Singh and Avtar Singh put Gurnam Singh in a rickshaw and brought him to Rajindra Hospital, Patiala where the doctor after checking him declared him to be dead. Leaving Avtar Singh near the dead-body, Jaswinder Singh went to Police Station, Kotwali, where he recorded his statement. On the basis of this statement Ex.PQ, F.I.R. Ex.PQ/1 was recorded on 27.12.1988 at 1.45 p.m. and the special report was received by the Additional C.J.M., Patiala on the same day at 5.30 p.m. The prosecution to prove its case, brought into the witness-box Dr. Krishan Vij PW-1, Dr. Jatinder Kumar Sadana PW-2, Jaswinder Singh PW-3, Avtar Singh PW-4 and SI Kaka Singh PW-5.
3. Learned counsel for the complainant Shri R.S. Ghai, Senior Advocate and the learned State counsel Shri S.S. Randhawa, Senior D.A.G. Punjab, have argued that the judgment of the learned trial Court is perverse, unreasonable and is not based on the evidence on record. No finding has been given on the prompt registration of the F.I.R. Ex.PQ/1. The occurrence had taken place on 27.12.1988 at 12.30 p.m. It has come in evidence that injured Gurnam Singh was taken on a rickshaw to Rajindra Hospital, Patiala, which was 2 kms. away from the place of occurrence. He was declared dead by a doctor in Rajindra Hospital, Patiala. Jaswinder Singh PW-3 then went to Police Station Kotwali, Patiala, which was at a distance of 3 kms. away from Rajindra Hospital, Patiala and F.I.R. Ex.PQ/1 came into existence on 27.12.1988 at 1.45 p.m. The special report reached the Additional C.J.M. on the same day at 5.30 p.m. Before the special report reached the Additional C.J.M., the post-mortem on the dead of the deceased had been conducted at 4.30 p.m. and the inquest report Ex.PH had been prepared. The F.I.R. number and statements of both the eye-witnesses, Jaswinder Singh PW-3 and Avtar Singh PW-4 were recorded in the inquest report and they are the ones who identified the body at 1.45 p.m. There is no delay in lodging of the F.I.R. Ex.PQ/1. This itself goes a long way in proving the case of the prosecution.
4. The learned trial Court has overlooked this fact that no suggestion or allegation has been put to Jaswinder Singh PW-3 and Avtar Singh PW-4 of they having any enmity or illwill towards the accused. The learned trial Court has laid undue emphasis that no corroboration is coming as to Jaswinder Singh's visit to Patiala. It has been stated by the learned trial Court that the Investigating Officer did not try to get any information and did not investigate the matter as to the purpose of Gurnam Singh deceased, Jaswinder Singh PW-3 and Avtar Singh PW-4 coming to Patiala. The passbooks were not taken into possession. The learned trial Court has overlooked this fact that admittedly, the occurrence had taken place in front of the State Bank of Patiala in Patiala itself. The defence has not stated a word that the occurrence did not take place at the place mentioned by the prosecution i.e. near the Crossing of Sherawala Gate near the office of State Bank of Patiala. There was no need for the Investigating Officer to go into the matter as to the withdrawing of money from the Bank account of Gurnam Singh as the place of occurrence has not been disputed by the defence. Much emphasis has been laid by the learned trial Court on the number of the Jeep. In F.I.R. Ex.PQ/1, the number of the vehicle (Gaddi) is given as No. PAD-6030, but at a later stage when Jaswinder Singh PW-3 came into the witness-box he gave the number of the Maruti Gypsy driven by accused as PAD-6033. The learned Counsel has argued that giving a wrong number and then changing it at a later stage does not affect the case materially, as the prosecution witnesses have not stated anywhere that Gypsy Nos.PAD-6030 or PAD-6033 belong to the accused. No evidence has come on record as to whether vehicle bearing No. PAD-6030 or PAD-6033 was a Gypsy, or a truck. The only point to be determined was whether a dispute arose between the complainant party and the appellants or between a truck and a scooter allegedly being driven by Gurnam Singh deceased as made out by the defence. No evidence has been brought on record that vehicle No. PAD-6030 or PAD-6033 was issued to a scooter.
5. A lot of emphasis has been laid by the learned trial Court that the rickshaw puller who had taken Gurnam Singh, Jaswinder Singh PW-3 and Avtar Singh PW-4 to the hospital, was not examined or cited as a witness, and nor had the Investigating Officer recovered the keys of the Maruti car from the accused. The Jutti and turban were also not taken into possession. This finding of the learned trial Court of the rickshaw puller not being examined is wrong and unreasonable. The rickshaw puller after leaving Jaswinder Singh PW-3, Avtar Singh PW-4 and Gurnam Singh in Rajendra Hospital, had left and there being so many rickshaw pullers, he could not have been identified. The Mechanic who had prepared the duplicate ignition keys of the car, was also not examined for the sole reason that his examination was immaterial. The ignition keys of the car of the deceased which were taken away by the accused could have been recovered, if the accused were in custody of the police. The accused surrendered before the Investigating Officer on 2.1.1989 i.e. after a gap of 5 days after obtaining anticipatory bail. Jutti and the turban could not have been taken into possession by the Investigating Officer, as there was heavy traffic at the place of occurrence and by that time, the Investigating Officer reached, the Jutti and the turban of the deceased were lost. In the site plan Ex.PT, the Investigating Officer has shown the car and Jeep at Point A and B.
6. The learned trial Court has wrongly dwelt on the point that both Tejinder Singh and Gurvinder Singh the other eye-witnesses to the occurrence were not examined. This again was not necessary as it would have only led to the multiplicity of witnesses. The Investigating Officer had examined them and finding them unnecessary, they were given up by the prosecution. The learned trial Court has erred in stating, that there were a number of shops near the place of occurrence and independent witnesses should have been examined from the locality. The Investigating Officer during the course of his investigation has not examined one or two persons from the locality, but 11 persons and it is thereafter that he came to the conclusion that the accused were the ones who had inflicted injuries to Gurnam Singh and Jaswinder Singh PW-3.
7. The learned trial Court has taken a perverse view of the medical evidence and the ocular account. The learned trial Court has dwelt much on this aspect that the prosecution witnesses Jaswinder Singh PW-3 and Avtar Singh PW-4, the eye-witnesses have not stated as to whether accused Navjot Singh Sidhu gave a fist blow on the head of the deceased. All that has been mentioned in the F.I.R. Ex.PQ/1 is that fist blows were given. Learned counsel has argued that there is no denying the fact that fist blows were given by accused Navjot Singh Sidhu to the deceased and by Rupinder Singh to Jaswinder Singh PW-3. One of the blows landed on the left head on the parietal region of the deceased which caused a subdural haemorrage resulting in the death of Gurnam Singh. It has not taken this fact into consideration that deceased Gurnam Singh did not die due to cardiac failure but due to injury on the temporal region. Lungs, heart, and part of the liver were sent for pathological examination and a Board of Doctors was constituted who went into the entire medical aspects of the case and gave their opinion Ex.PA and gave the cause of death to be the head injury and cardiac condition. Dr. Krishan Vij PW-1 has further stated that the head injury itself could be sufficient to cause death in the ordinary course of nature.
8. Learned counsel for the complainant has vehemently argued that all along accused/appellant Navjot Singh Sidhu was interfering in the investigation of the case and the police were trying to help him. While presenting the challan under Section 173 Cr.P.C., he was placed in column No. 2 and an application under Section 321 Cr.P.C. was moved on 8.12.1994 not to prosecute accused Navjot Singh Sidhu which was dismissed on 7.6.1995 by the learned Sessions Judge, Patiala. A Revision i.e. Criminal Revision No. 581 of 1995 was filed in the Hon'ble High Court against the order of the learned Sessions Judge which was dismissed by this Court on 14.6.1999.
9. Shri Uday U. Lalit, Senior Advocate has assailed the case of the prosecution on several grounds, i.e. the medical evidence, eye-witness account given by Jaswinder Singh PW-3 and Avtar Singh PW-4 and credibility of other witnesses that they not being truthful. He has argued that on the basis of reasoning of the learned trial Court, we can come to only one conclusion that the accused are not guilty of the offence. Shri T.S. Sangha has adopted the arguments of Shri Uday U.Lalit.
10. Learned counsel has argued that the learned trial Judge was conscious of all the possibilities of the case. Taking first the medical evidence, he has argued, that from the post-mortem report Ex.PF, it is clear that there were two injuries on the person of Gurnam Singh, the first being an abrasion over the left temporal region at the junction of upper part of pinna and the second being an abrasion on the left knee. After the post-mortem was performed by Dr. Jatinder Kumar PW-2 and after opening the skull, a sub-dural hemorrhage was found under injury No. 1. There was no damage to the brain and also no fracture of the bone. Dr. Jatinder Kumar PW-2 could not give his opinion as to the cause of death. The post-mortem was performed on 27.12.1988 at 4.30 p.m. He referred the matter to the Pathologist and the Pathologist vide his report Ex.PJ dated 9.1.1989, did not give the cause of death. As per his opinion, Gurnam Singh had a very weak heart and his main arteries were blocked. Thereafter a Board of Doctors was constituted and a Cardiologist and Pathologist were also made the members. In the opinion of Dr. Krishan Vij PW-1, the death was due to head injury and the heart, vide report Ex.PA. In fact, Gurnam Singh died because of the condition of his heart which was abnormal, diseased and suffered from defects, and not because of the blow on the head. Accused cannot be held liable because Gurnam Singh died not due to the head injury. Opinion of Dr. Gurpreet Singh, Cardiologist has not been brought on record deliberately and purposely by the prosecution for the sole reason that he has opined that Gurnam Singh had a weak heart. The abrasion on the the left side of head of Gurnam Singh is a very small abrasion which could not have been caused by a fist blow, but because of the condition of heart, Gurnam Singh fell on the ground and it is thereafter he received the small head injury. Inspector H.P. Singh vide his application Ex.PB dated 31.1.1989 asked the opinion of the doctor as to whether the death was caused due to heart attack, or the head injury. Dr. Krishan Vij PW-1 vide his opinion Ex.PB/1, reiterated his earlier opinion which he had expressed earlier. Dr. krishan Vij PW-1 vide his letter Ex.PC, sent to the S.H.O., Police Station Kotwali, Patiala stated that if any clarification is needed, he will submit it in Court. The Investigating Officer was not sure as to whether the death was due to the head injury, or due to heart attack. Dr. Krishan Vij PW-1 was also not willing to cooperate for the reason best known to him. The learned trial Court has rightly held that no definite opinion was given by either Dr. Krishan Vij PW-1, or Dr. Jatinder Kumar PW-2 regarding the cause of death.
11. Learned counsel has further argued that the eye-witnesses Jaswinder Singh PW-3 and Avtar Singh PW-4 cannot be believed and their credibility is doubtful. The injuries on the person of Jaswinder Singh PW-3 are superficial injuries. He got himself examined on 27.12.1988 at 8.30 p.m., clearly showing that these injuries were self-inflicted or were given by friendly hand. These witnesses have stated that they came in a Maruti car and had a verbal dual (quarrel) with the accused. But when they came into the Court, they changed the number of the Maruti car from PAD-6030 to PAD-6033. There was no need for the accused to take away the keys of the car, but it is only a story built up to make out an accident and skirmish. In fact, the prosecution witnesses and the deceased did not come in a car, but were on a scooter, which hit a truck and after quarreling with the truck driver Gurnam Singh having a diseased heart collapsed. Appellants at that point of time were not near the place of occurrence. It is after hearing the commotion , that Navjot Singh Sidhu came out and saw that Gurnam Singh and the truck driver were having a heated exchange of words and it is thereafter that Gurnam Singh fell on the ground. The doctor who declared Gurnam Singh dead, was not identified, nor has his presence been marked on any of the medical cards. The Mechanic who made the duplicate key of the car of the deceased, was not examined. The turban and Jutti of the deceased were not taken into possession from the place of occurrence. The theory of car hitting the Gypsy of the accused is all shrouded in suspicion. If there is no car, then three of them could not have come on a scooter. In the spot inspection (spot Panchnama), which should have been conducted by the Investigating Officer, there is no mention of the car. In F.I.R. Ex.PQ/1, number of the car is given as PAD-6030 and it is after a long lapse of time in statement Ex.DB and in statement before the learned trial Court i.e. the Sessions Judge, that the number was changed from PAD-6030 to PAD-6033. Avtar Singh PW-4 has stated in his testimony that they were searching for the vehicle, but they could not find it.
12. The learned Counsel has lastly argued assailed the case of the prosecution on the ground that the occurrence had taken place at 12.30 p.m. at a busy place in Patiala. There were a number of lottery hawkers and other persons present. Though their statements were recorded under Section 161 Cr.P.C. by the Investigating Officer, but none was brought into the witness-box. Tejender Singh and Gurmit Singh who were mentioned in the complaint Ex.PR and examined by the Investigating Officer but were not brought into the witness-box for the reasons best known to the prosecution. The only inference we can draw is that Tejender Singh and Gurmit Singh were not ready to support the case of the prosecution.
13. The only possible and plausible view especially taking the medical evidence into consideration, is that the deceased did not die due to violence, but due to a weak heart and he has suffered a heart attack when he started quarreling with the truck drive.
14. We have heard the learned Counsel for the parties and perused the record with their assistance.
15. We are conscious of the fact that the Hon'ble Supreme Court in a number of judgments has held that if there are two views possible, the one favourable to the accused is to be taken in an appeal against acquittal. In Bhim Singh v. State of Haryana 2003 Criminal Law Journal 875, the Hon'ble Supreme Court has held that the Appellate Court should only interfere in an appeal against acquittal where the judgment of the learned trial Court is perverse, unreasonable or not based on evidence. In Kallu alias Masih and Ors. v. State of Madhya Pradesh 2006(1) Apex Criminal 135, the Hon'ble Supreme Court has held in para-8 of the judgment as under:
While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial Court is based on evidence and the view taken is reasonable and plausible. it will not reverse the decision of the trial Court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial Court.
16. After taking these authorities into consideration, we find that judgment of the learned trial Court is unreasonable and not based on the evidence on record.
17. The power of the Court to interfere in an appeal against acquittal has been given in Narendra Nath Khaware v. Parasnath Khaware and Ors. , wherein the Hon'ble Supreme Court has held in paras 8 and 9 of the judgment that the High Court was the first court of appeal. In para-9, it has held that so long as the statute provides a right to appeal, in our view, the Court will be failing in its duty, if the appeal is disposed of in a casual manner.
18. The first and foremost lacuna in the judgment of the learned trial Court is that it has not taken into consideration the promptness in lodging of the F.I.R. Ex.PQ/1, which in itself in this case, goes a long way in proving the case of the prosecution and the guilt of the accused. The occurrence had taken place on 27.12.1988 at 12.30 p.m. at Sherawala Light Crossing Gate of Patiala. F.I.R. Ex.PQ/1 came into existence on the same day at 1.45 p.m. at Police Station Kotwali, Patiala and the special report reached the Additional C.J.M., Patiala on the same day at 5.30 p.m. In this intervening period from 12.30 p.m. to 5.30 p.m., the post-mortem report was prepared and the inquest report Ex.PH had also been prepared by the Investigating Officer. Dr.Jatinder Kumar Sadana PW-2 has stated that on 27.12.1988 at 4.30 p.m. he conducted the post-mortem examination on the dead-body of Gurnam Singh son of Ajmer Singh. The F.I.R. Ex.PQ/1, Inquest report Ex.PH and the statement of Jaswinder Singh PW-3 and Avtar Singh PW-4 were with Dr.Jatinder Kumar Sadana PW-2 at 4.30 p.m. He has stated that as per police information, deceased allegedly died due to fist blows. In the inquest proceedings Ex.PH in column No. 3 regarding date and hour of discovery of body, it has been mentioned as 27.12.1988 at 1.45 p.m. Meaning thereby that immediately after recording of the F.I.R., the Investigating Officer came to Rajindra Hospital, Patiala and started the inquest proceedings. The body of Gurnam Singh was lying in the Dead House of the Hospital. Statements of both the eye-witnesses Jaswinder Singh PW-3 and Avtar Singh PW-4 were recorded and in column No. 4 of the inquest proceedings Ex.PH, it is shown that Jaswinder Singh PW-3 and Avtar Singh PW-4 are the ones who identified the dead-body of deceased Gurnam Singh. It is clear from the inquest proceedings Ex.PH that the Investigating Officer joined them in the investigation when he was preparing the inquest report. Jaswinder Singh PW-3 in his statement before the Court has stated that after the doctor told him that Gurnam Singh was dead, he went to Police Station Kotwali, Patiala which was 2 kms. away and gave his statement Ex.PQ to SI Kaka Singh PW-5, on the basis of which F.I.R. Ex.PQ/1 was recorded. By 4.30 p.m. on the same day, the post-mortem proceedings had also started. The F.I.R. Ex.PQ/1, inquest report Ex.PH and other documents regarding death of Gurnam Singh were at that moment of time in the hands of Dr.Jatinder Kumar Sadana PW- 2. By 5.30 p.m. on 27.12.1988, the special report reached the Additional C.J.M., Patiala. The promptness with which the F.I.R. Ex.PQ/1 was recorded, the postmortem conducted and inquest report Ex.PH prepared and the special report reaching the Illaqa Magistrate by 5.30 p.m. on the same day proves that both Jaswinder Singh PW-3 and Avtar Singh PW-4 were present from the time of the occurrence had taken place till the post-mortem was conducted. The promptness with which the F.I.R. has been recorded and other proceedings completed goes a long way in proving the case of the prosecution. Now coming to the medical evidence which the learned trial Court has discussed in detail. Learned counsel for the respondents/accused has argued that the medical evidence does not corroborate the ocular account. He drew our attention to paras 29 to 36 of the judgment of the learned trial Court where the medical evidence has been discussed. With the assistance of the learned Counsel we went through these paras. We are not in agreement with the finding of the learned trial Court, on the findings given by it on the medical evidence. Dr. Jatinder Kumar PW-2 performed the post-mortem examination on the dead-body of Gurnam Singh on 27.12.1988 at 4.30 p.m. He has stated in his testimony before the Court that as per police information, the deceased allegedly died due to fist blows. On the opening of the skull of the deceased, subdural haemorrage was present over the left temporal region and the brain was sent for histopathological examination. He found the following injuries on the person of the deceased which are reproduced as under:
(1) An abrasion 0.75 cm x 0.5 cm over the left temporal region at the junction of upper part of pinna.
(2) 0.5 cm x 0.5 cm an abrasion over the front of left knee.
19. The lungs, heart and part of the liver, spleen and kidneys were sent for pathological examination to Medical College, Patiala. The cause of death was deferred and was to be given after receipt of the report of the Pathologist. On receipt of the report of the Pathologist Ex.PJ, the case was forwarded to Professor and Head of Department of Forensic Medicines, Medical College, Patiala for expert opinion. The Principal, Medical College, Patiala, constituted a Board to determine the cause of death. This information was forwarded to the S.H.O., Police Station Kotwali, Patiala on 17.1.1989. On the same day, he medico-legally examined Jaswinder Singh PW-4 and found the following injuries on his person:
1. The patient complained of pain over the left side of the forehead and slight giddiness. Tenderness was present.
(2) Patient complained of pain over the right and left flanks. He was advised to be kept under observation and was referred to Rajindra Hospital, Patiala.
20. The medico-legal report of Jaswinder Singh PW-3 was prepared which is Ex.PM. This witness has stated in his cross-examination that he received the inquest report Ex.PH at the time of the post-mortem examination. He has further stated that possibility cannot be ruled out that injury No. 1 could be received by a fall on the ground. There was no fracture under injury No. 1. There was no external injury on the brain part except subdrual haemorrage. There was no bruise or contusion surrounding injury No. 1. He further opined that if fist blow is given, it may cause contusion or a bruises. If a fist blow is given in an area underlying a bone, it can cause an abrasion. The cause of death was deferred in this case on the first instance as he could not formulate an opinion. Nowhere has this witness stated that cause of death was due to weak heart.
21. Dr. Krishan Vij PW-1, Professor and Head of the Depart of Forensic Medicines, Government Medical College, Chandigarh came into the witness-box and stated that on 11.11.1989 a reference was received by him from Civil Surgeon, Patiala, to give his opinion in respect of deceased Gurnam Singh. A Board was constituted with himself, Dr. Amarjit Singh, Professor of Surgery, Dr. Ashok Gupta, Associate Professor of Pathology, Dr. Gurpreet Singh Head of Cardiology, Dr. Harsh Tuli Assistant Professor of Forensic Medicines and Dr. Jatinder Sadana, Medical Officer, Civil Dispensary, Arya Samaj, Patiala, being the members. Dr. Krishan Vij PW-1 gave his opinion Ex.PA regarding the cause of death which is reproduced as under:
Death in this case is attributed to the effects of head injury and cardiac condition. However, the head injury itself could be sufficient to cause death in the ordinary course of nature.
22. To a question put to Dr. Krishan Vij PW-1 by the Court, as to whether it is correct that the impact of a fist blow on the part hit under injury No. 1 could not be so forcible if the victim was wearing a turban, his answer was that it was not necessary, as it depends upon the manner in which the turban was worn at that time. He has further stated that the condition of heart of the deceased was abnormal at the time of the post-mortem examination. Heart of the deceased suffered from defects mentioned in the report of the Pathologist. Dr. Gurpeet Singh Head of Cardiology was of the view, that the cardiac condition as reported by the Pathologist could also result in sudden cardiac death under stress. Sr. Krishan Vij PW-1 has further stated that a fist blow could cause a contusion, it could also cause an abrasion. He has categorically stated that an abrasion could be caused by a fist blow. From the statement of this witness, it is clear that the Board of Doctors did not point towards cardiac failure (Heart attack). Dr. Gurpreet Singh gave his opinion to the Board that as reported by the Pathologist, the Cardiac condition of the deceased could also result in sudden cardiac death under stress. Dr. Gurpreet Singh or the Board of Doctors have not given a categorical opinion that Gurnam Singh died of Cardiac failure (Heart attack). In fact, the medical evidence shows that after the fist blow was given on the left parietal region of the deceased, still he did not suffer a Cardiac arrest (Heart attack).
23. It is clear form the statements of both Dr. Krishan Vij PW-1 and Dr. Jatinder Kumar Sadana PW-2 that at the initial stages the doctors were not in a position to give the cause of death. After a Board was constituted, Dr. Krishan Vij PW-1 was authorised to give an opinion on behalf of the Board and he has categorically stated that an abrasion could be caused by giving a fist blow and the cause of death of the deceased was attributed to the head injury and cardiac condition. Cardiac condition would only mean a weak heart, but definitely not a heart attack. Neither Dr. Jatinder Kumar Sadana PW-2, nor Dr. Krishan Vij PW-1 has opined that Gurnam Singh died of Cardiac failure.
24. Taking the medical evidence into consideration and the evidence of both the eye-witnesses Jaswinder Singh PW-3 and Avtar Singh PW-4, it is clear that first a fist blow was given to deceased Gurnam Singh on the left side of his head and it is thereafter that Gurnam Singh being an old man of 65 years, collapsed. None of the doctors i.e. Dr. Krishan Vij PW-1 and Dr. Jatinder Kumar Sadana PW-2 have stated in their testimony that the mode of death of Gurnam Singh was cardiac failure. All they have stated is that by going through the report of the Pathologist, the cardiac condition of heart of Gurnam Singh was very weak. We cannot be oblivious of the fact that on the opening of the skull, subdural haemorrage was present over the left parietal region and brain as spelt out by Dr. Jatinder Kumar Sadana PW-2. It is in fact this haemorrage which caused the death of Gurnam Singh, and not a cardiac arrest.
25. Learned counsel for the accused has vehemently argued that it was the cardiac condition which caused the death of Gurnam Singh as the condition of his heart was weak and it is thereafter when he fell on the ground that he suffered an injury on the left temporal region. For repetition sake, stating again that neither Dr. Jatinder Kumar Sadana PW-2 or the Pathologist, or the Board constituted on whose behalf Dr. Krishan Vij PW-1 has stated, that the mode of death of Gurnam Singh was cardiac arrest. The only conclusion we can come to, is that Gurnam Singh died due to a fist blow given by accused Navjot Singh Sidhu on the left temporal region of his head. Gurnam Singh was an old man of 65 years and he could not take the impact of the blow given by a young, physically fit man.
26. The ocular account as spelt out by both the eye-witnesses i.e. Jaswinder Singh PW-3 and Avtar Singh PW-4 get corroboration from the medical evidence. Both the witnesses corroborate each other inter se also. In his testimony before the Court Jaswinder Singh PW-3 has stated that Gurnam Singh deceased was his uncle by brotherhood. On 27.12.1988, he along with Gurnam Singh and Avtar Singh PW-4 had come to Patiala from Ghalori in a Maruti Car bearing No. CHI-8422. They reached Patiala at 12.30 p.m. Gurnam Singh was driving the car. They were proceeding towards State Bank of Patiala, Head Office situated on the Mall Road and when they turned towards Sherawala Gate near the Traffic signal, they saw one Gypsy bearing No. PAD-6033 parked. Gurnam Singh wanted to overtake this Gypsy. He saw that one clean-shaven person whose name was Rupinder Singh Sandhu sitting on the Driver seat. Gurnam Singh asked Rupinder Singh Sandhu to move the vehicle ahead to give them way, so that they could overtake the Gypsy. In the meantime, Navjot Singh Sidhu accused came out from the Gypsy. Jaswinder Singh PW-3 knew him as he was a famous player of Cricket. Navjot Singh Sidhu started reprimanding them and used objectionable language. Jaswinder Singh PW-3 and others asked him not to use objectionable language and thereafter Navjot Singh Sidhu caught hold of Gurnam Singh from the collar and took him out of the Maruti car. Thereafter he gave fist blows on the person of Gurnam Singh. One blow landed on the temporal region above the left ear. Rupinder Singh Sandhu also came out of the Gypsy and gave injuries to Jaswinder Singh PW-3. Thereafter Navjot Singh Sidhu took out the ignition keys of the Maruti car and fled away from the place of occurrence. Gurnam Singh became unconscious due to the beating. He along with Avtar Singh PW-4 put him in a rickshaw and took him to Rajindra Hospital, Patiala. The doctor present at Rajindra Hospital, Patiala on examining Gurnam Singh, declared him dead. Thereafter he went to Police Station Kotwali, Patiala and gave his statement to SI Kaka Singh PW-5 and F.I.R.Ex.PQ/1 was recorded on the basis of his statement. Inquest report Ex.PH was prepared in his presence. He was also medico-legally examined for his injuries. The police sided with the accused and thereafter he filed a Criminal Complaint under Sections 302/324/323/34 I.P.C. on 22.7.1989 which is Ex.PR. This witness was put to a lengthy cross-examination, but his testimony could not be shattered. Similarly, Avtar Singh PW-4 has stated on the same lines and his testimony could also not be shaken in cross-examination.
27. Going through the evidence of both these witnesses, no suggestion or allegation has been put to them that they were inimical towards the accused or they had some past enmity. Learned counsel for the respondents has laid much stress that in the F.I.R. Ex.PQ/1, the number of the vehicle (Gaddi) is given as PAD-6030 and it has been stated that a Gaddi was standing in front. In their statements before the Court, both Jaswinder Singh PW-3 and Avtar Singh PW-4 have stated that number of the Maruti Gypsy was PAD-6033. This argument of the learned Counsel does not make any dent in the prosecution case. It is not the case of the prosecution that the number of the vehicle of the accused was PAD- 6033 or PAD-6030, but all that they have stated is that accused were in a Maruti Gypsy, whereas in the F.I.R. Ex.PQ/1, it is a Gaddi. Whether the number was PAD-6030 or PAD-6033 does not matter, as the place of occurrence has been admitted by Navjot Singh Sidhu in his statement under Section 313 Cr.P.C. Thus, which vehicle was it, just pales into insignificance.
28. Learned counsel has laid much stress that the rickshaw puller who had taken the deceased to the hospital, was not examined by the Investigating Officer. The rickshaw-puller after dropping Gurnam Singh, Jaswinder Singh PW-3 and Avtar Singh PW-4 went away. Similarly, the Mechanic who made the duplicate keys, was not examined by the Investigating Officer, as it was immaterial for the reason that the place of occurrence has been admitted by the defence. In site plan Ex.PT, at points A and B prepared by the Investigating Officer SI Kaka Singh PW-5, it is shown where the two vehicles were standing i.e. Maruti car of deceased Gurnam Singh as point A and Gypsy in which the accused were as point B.
29. The learned Counsel for the accused has laid much stress that the two eye-witnesses Tejinder Singh and Gurmit Singh whose names find mention in the complaint Ex.PR, were not examined. There were a large number of shops in the area and no independent witness was examined. The Jutti and turban of the deceased which had fallen on the ground, was not taken into possession. Examining Tajinder Singh and Gurmit Singh would have only added to multiplicity of eye-witnesses. SI Kaka Singh PW-5 has stated in his testimony that during the course of his investigation, he recorded the statement of Tajinder Singh and Gurmit Singh under Section 161 Cr.P.C. The police file showed that statements of Subhash Chand Lottery Stall Holder, Devinderpal Singh Clerk of State Bank of Patiala, Bal Kishan Shopkeeper and Mohinder Singh Shopkeeper, Dinesh Kumar shopkeeper, Raghubir Singh, a passer-by, Manjit Singh passer-by, Jasbir Singh passer-by, Sarup Singh Sarpanch passer-by, Harinderjit Singh passerby and Depinder Singh Clerk in the office of P.S.E.B. were recorded on Ist, 2nd and 3rd of March, 1989. It is clear from the statement of the Investigating Officer SI Kaka Singh PW-5 that he had examined the persons who had there shops around the place of occurrence and also the persons who were present at the place of occurrence. In the initial stages of investigation, the Investigating Officer was truthfully investigating the case, but at a later stage, that he started helping the accused. Navjot Singh Sidhu was put in column No. 2, when challan under Section 173 Cr.P.C. was presented. An application under Section 321 for discharge of Navjot Singh Sidhu was moved before the learned Sessions Judge, Patiala on 8.12.1994 which was dismissed on 7.6.1995. Criminal Revision No. 581 of 1995 was filed in the Hon'ble High Court of Punjab & Haryana against the order of the learned Sessions Judge which was dismissed on 14.6.1999 by the Hon'ble High Court.
30. In his statement under Section 313 Cr.P.C., respondent Navjot Singh Sidhu in answer to Question No. 34, has stated as under:
I am innocent. I have been falsely involved in this case by the complainant party. On 27.12.1988 at about 11 a.m. I was present in my office, Head Office State Bank of Patiala, The Mall Road Branch, Patiala. There was commotion outside the bank on the Mall Road. On hearing the Raula, I came out from my office and saw that a scooterist and the driver of the truck were quarreling and shouting with each other. When I reached the spot, the scooterist who was a Sikh gentleman of 60 years of age was lying on the ground after suffering a heart attack. I tried to pacify the people and being a cricketer of international fame, became the centre of attraction of the people. On false suspicion, I was involved in the present case.
31. It is conceded by Navjot Singh Sidhu in his statement under Section 313 Cr.P.C. that at the time when the occurrence took place, he reached the spot, but a few minutes later, as by the time he reached, he saw that a Sikh gentleman of 60 years of age was lying on the ground after suffering a heart attack. He tried to pacify the crowd, but because he was a famous Cricketer of international fame, he became the centre of attraction and was falsely implicated under suspicion. It is difficult for us to digest that a person who is known to everyone and is of international fame, would be falsely implicated especially when a crime is committed on a busy road in full public view. In fact, the shopkeepers who witnessed the occurrence and the passerbys and his colleagues working in the State Bank of Patiala, would not have allowed him to be falsely implicated. A hue and cry would have been raised by the people especially who had witnessed the occurrence. The Investigating Officer SI Kaka Singh PW-5 stated that during the course of investigation, he recorded the statements of a number of persons of the locality.
32. We cannot overlook this fact that Navjot Singh Sidhu has conceded that he came to the place of occurrence after hearing a commotion. Rupinder Singh Sandhu has denied his presence and has stated that he has been falsely implicated. The best defence witness would have been the co-employee of Navjot Singh Sidhu, but strangely none has come forward to state that at that moment of time when the occurrence had taken place, Navjot Singh Sidhu was in the Bank premises and after hearing a commotion, he went out. Shingara Singh v. State of Haryana , the Hon'ble Apex Court has held that only in cases where the High Court finds that the findings recorded by the trial Court are unreasonable or perverse or that the Court has committed a serious error of law or where the trial Court or by taking into consideration evidence which is not admissible the High Court may be justified in reversing the order of acquittal. In the case in hand, the only defence witness produced is one Raghbir Singh DW-1. Raghbir Singh DW-1 is a building contractor. We cannot overlook this fact that the father of Rupinder Singh Sandhu was the Chief Engineer in the Irrigation Department. A suggestion has been put to this witness to this effect that he is giving the statement under pressure from accused Rupinder Singh Sandhu's father, as he is a contractor with the Irrigation Department. We are conscious of this fact that the evidence of a defence witness is to be taken at par with that of the prosecution witness. Raghbir Singh DW-1 has stated that he came to know on the next day through newspapers that Navjot Singh Sidhu has been falsely implicated for the murder of Gurnam Singh. He went to Police Station Kotwali, Patiala and narrated the occurrence to the Inspector and told the Inspector that Navjot Singh Sidhu had no role to play. This witness being such a key witness, apart from talking to the Inspector, did not make any effort to meet the higher authorities, or to send a communication to the higher authorities regarding what allegedly he had seen. He has also stated that he took Gurnam Singh to the hospital on the asking of the public, but he did not get any chit prepared at the hospital. All that he has stated, is that he took Gurnam Singh to the hospital and left him in the hospital after the doctor had examined him and observed that he had suffered a heart attack. This witness though claims to have taken Gurnam Singh to the hospital, but if he had done so, he would have definitely informed the near and dear ones of Gurnam Singh and would not have left the dead-body of Gurnam Singh in the hospital and walked away. The testimony of Raghbir Singh DW-1 is not truthful. It does not inspire confidence and is not corroborated by any ocular or documentary evidence.
33. Learned counsel for the respondents has relied upon a number of judgments of the Hon'ble Supreme Court. In State of U.P. v. Madan Mohan and Ors. , the witnesses were chance witnesses, their residences being a furlong or two away. Both PW-1 and PW-2 were not the residents of the locality. Their testimony was not believed. In the present case, there is ample documentary evidence as discussed above that both Jaswinder Singh PW-3 and Avtar Singh PW-4 were present when the occurrence had taken place. Getting witnesses of the locality would have only added to the multiplicity of witnesses. Strangers and passerbys are very reluctant to come into the witness-box also.
34. In Sethu Madhavan Nair and Ors. v. The State of Kerala the Hon'ble Supreme Court has held that if two conclusions can be based upon the evidence on record, the High Court should not disturb the findings of acquittal recorded by the trial Court. In para-14 of the judgment the Apex Court has also stated as under:
In an appeal under Section 417 of the Code of Criminal Procedure against an order of acquittal, the High Court has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon the power unless it be found expressly stated in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and consideration to such matters as (1) the view of the trial Judge as to the credibility of the witnesses ; (2) the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquitted at his trial ; (3) the right of the accused to the benefit of any real and reasonable doubt ; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. The High Court should also take into account the reasons given by the court below in support of its order of acquittal and must express its reasons in the judgment which lead it to hold that the acquittal is not justified.
35. As discussed above in our judgment these principles have been taken into consideration and it is thereafter the acquittal has been set aside. In State (Delhi Administration) v. Gulzari Lal Tandon 1979 S.C.C. (Criminal) 526, the Apex Court held that as the deceased had died of attack of epilepsy, evidence on both sides was more or less equally balanced. Benefit of doubt was given to the accused. In the present case as already discussed, there is only one view possible of the fist blow given on the temporal region which caused the death of Gurnam Singh. The medical evidence or the ocular account does not point towards Gurnam Singh having died of cardiac arrest (Heart attack).
36. Taking into consideration all the circumstances of the case in totality and all the possibilities and probabilities, we are of the considered opinion that the case of both the accused/respondents fall within the parametres of Section 300 Exception 4 I.P.C. Navjot Singh Sidhu is convicted under Section 304 Part-II I.P.C. for committing culpable homicide not amounting to murder of Gurnam Singh deceased. Rupinder Singh Sandhu is convicted under Section 304 Part-II I.P.C. read with Section 34 I.P.C. Rupinder Singh Sandhu is also convicted under Section 323 I.P.C. for causing injuries to Jaswinder Singh PW-3. filed by the State and Criminal Miscellaneous No. 185-MA of 2000 are allowed.
ORDER Mehtab S. Gill, J.
37. Shri Uday U. Lalit, counsel for accused Navjot Singh Sidhu and Shri T.S. Sangha, counsel for accused Rupinder Singh Sandhu have argued that the mitigating circumstances as spelt out by this Court's judgment convicting the accused be taken into consideration. The incident occurred without premeditation, without intention and all that happened as per this Court's order, was at the spur of the moment. Both Navjot Singh Sidhu and Rupinder Singh Sandhu have faced trial for the last 18 years and the sword of conviction has been hanging on their head. There was no previous animosity and the quarrel erupted suddenly. Both the accused were young at the time of occurrence and their age was about 25 years at that time. The character of both the accused is unblemished and nothing has come on record apart from the present occurrence. They have not committed any offence till date.
38. As per Section 304 Part-II I.P.C., the sentence which can be awarded to the accused is imprisonment for either description for a term which may extend to 10 years, or with fine or with both. Similarly, under Section 323 and Section 324 I.P.C., the accused can be set off by imposing only a fine. It is under Sections 325/326/307/302 I.P.C. that sentence and also fine can be imposed. It is clear from Section 304 Part-II I.P.C. that accused can be let off by imposing a fine only, which the Court feels adequate.
39. Learned counsels have relied upon a number of judgments of the Hon'ble Supreme Court. In Bhojappa Hanamanthappa Choudannavar and Ors. v. State of Karnataka (2004) 10 S.C.C.177, wherein the conviction was under Section 304 Part-II I.P.C., the appellant was let off by imposing a fine of Rs. 25,000/-.
40. Similarly, in Khanjanpal v. State of U.P. (1990) 4 S.C.C. 53, the appellant was convicted under Section 304 Part-II I.P.C. and let off after a fine of Rs. 50,000/- was imposed upon him.
42. Learned counsels have further argued that it is not only that this Court has the power to set the accused free by imposition of fine only, but can also invoke Section 4 of the Probation of Offenders Act, 1958.
43. They have relied upon judgments of the Hon'ble Supreme Court in State of Karnataka v. Mudappa and Mohammad alias Biliya v. State of Rajasthan .
44. Finally, the learned Counsels have argued that if the plea of imposition of fine and the plea that the accused be set free under the Probation of Offenders Act, 1958 is not accepted, and if the accused are sentenced for less than 3 years, then their sentences be suspended under Section 389(3) of the Criminal Procedure Code, enabling them to file an appeal under Article 134 of the Constitution of India in the Hon'ble Supreme Court of India. Learned counsel for the complainant Shri R.S. Ghai, Senior Advocate and the learned Counsel for the State Shri S.S. Randhawa, Senior D.A.G. Punjab have argued that there is no mitigating circumstance in this case. Deceased Gurnam Singh was pulled out of his car and a fist blow was given on his left temporal region by accused Navjot Singh Sidhu, who at that time was a young and physically fit man of 25 years of age. Deceased Gurnam Singh was an old man of 65 years. Though this Court has held that there was no intention, but both the accused had the knowledge that hitting an old man of 65 years on the head can result in his death. If the keys of the car of Gurnam Singh had not been taken away, probably the life of Gurnam Singh could have been saved.
45. Learned counsels have relied upon the judgments of the Hon'ble Supreme Court in Mayuram Subramanian Srinivasan v. C.B.I. (2006) 3 S.C.C. (Cri.) 83, State of U.P. v. Kishan 2005 Criminal Law Journal 333, State of Punjab v. Joginder Singh and Anr. 2004(1) R.C.R. (Criminal) 42 and State of Karnataka v. Puttaraja 2004 A.I.R. (S.C.) 433.
46. We have heard the learned Counsel for the parties and perused all the judgments cited.
47. The authorities cited by the learned Counsel for the accused on setting them free by imposing a fine or under the Probation of Offenders Act, 1958 do not apply to the case in hand.
48. In Khanjan Pal v. State of U.P. (supra), the appellant had undergone one year of sentence and the Hon'ble Supreme Court converted the sentence to already undergone and further, directed the appellant to pay a fine of Rs. 50,000/- to be paid to the father of deceased. In the case in hand, both the accused i.e. Navjot Singh Sidhu and Rupinder Singh Sandhu have not undergone even a single day of sentence as before the learned trial Court, they obtained anticipatory bail and after that, they were acquitted by the learned trial Court. In Bhojappa Hanamanthappa Choudannavar and Ors. v. State of Karnataka (supra), the girl who lost her life was an intervener who rushed to the scene to rescue her father. In the case in hand, it is not that the accused were the interveners, but as per the conviction order, they pulled out deceased Gurnam Singh from his car and then accused Navjot Singh Sidhu gave a blow on the left temporal region of the deceased.
49. In Yogendra Morarji v. State of Gujarat (supra), accused were convicted under Section 304 Part-II I.P.C. Appellants were released on paying a fine of Rs. 10,000/-. This citation also would not apply to the case in hand, as the plea of right of private defence of body was taken which was upheld by the Hon'ble Supreme Court. Learned counsels have relied upon a judgment of the Hon'ble Supreme Court in Mohammad alias Biliya State of Rajasthan (2000) 10 S.C.C. 486, where probation was granted to the appellant after he had been convicted under Section 304 Part-II I.P.C. In this case, probation had been granted because the appellant was less than 21 years of age at the time of occurrence.
50. Similarly, in State of Karnataka v. Mudappa (supra), appellant was convicted under Section 304 Part-II I.P.C., but was released on probation where the Hon'ble Supreme Court had observed that in the impugned judgment, the High Court had considered the relevant material and then granted probation under Section 4 of the Probation of Offenders Act, 1958. In the case cited i.e. State of Karnataka v. Mudappa (supra), facts of the case have not been given, so it is difficult for us to apply this judgment to the case in hand. Now coming to the judgments cited by the learned Public Prosecutor and Shri R.S. Ghai, learned Counsel for the complainant.
51. In Deo Narain Mandal v. State of U.P. , the Hon'ble Supreme Court in para-6 of the judgment held as under:
This brings us to the next question in regard to the reduction of sentence made by the High Court. In criminal cases awarding of sentence is not a mere formality. Where the statute has given the Court a choice of sentence with maximum and minimum limit presented then an element of discretion is vested with the Court. This discretion can not be exercised arbitrarily or whimsically. It will have to be exercised taking into consideration the gravity of offence, the manner in which it is committed, the age, the sex of the accused, in other words the sentence to be awarded will have to be considered in the background of the facts of each case and the Court while doing so should bear in mind the principle of proportionality. The sentence awarded should be neither excessively harsh nor ridiculously low.
52. Similarly, in State of Karnataka v. Puttaraja (supra), the Hon'ble Supreme Court held in paras 6 and 8 of the judgment as under:
6. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu .
8. Probation between crime and punishment is a goal respected in principle, and inspite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times on account of misplaced sympathies to the perpetrator of crime leaving the victim or his family into oblivion. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greater severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the gravity of the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
53. In State of U.P. V. Kishan (supra), the Hon'ble Supreme Court in para-6 of the judgment has held as under:
6. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCG Dautha v. State of Callifornia 402 US 183 : 28 ld. 2D 711 that no formula of a foolproof nature is possible that would provide a reasonable criterian in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germance to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
54. After taking all the relevant factors and the judgments cited into consideration, we are of the considered opinion that both the accused Navjot Singh Sidhu and Rupinder Singh Sandhu be sentenced to undergo RI for 3 years. Accused Navjot Singh Sidhu is directed to pay a fine of Rs. 1 lac to be paid to the widow of the deceased. Accused Rupinder Singh Sandhu is also directed to pay a fine of Rs. 1 lac out of which Rs. 90,000/- shall go to the widow of the deceased and Rs. 10,000/- shall be paid to injured Jaswinder Singh. In default of payment of fine, both the accused shall further undergo RI for 6 months. Accused Rupinder Singh Sandhu is also sentenced to undergo RI for 3 months under Section 323 I.P.C. Both the sentences of Rupinder Singh Sandhu shall run concurrently.
55. Learned counsel for both the accused have stated that they intend to file an appeal in the Hon'ble Supreme Court of India. Taking the language and spirit of Section 389(3) of the Cr.P.C. into consideration, we suspend the sentence of both Navjot Singh Sidhu and Rupinder Singh Sandhu till 31.1.2007. They are directed to furnish bail bonds of Rs. 10,000/- each with a surety of the like amount to the satisfaction of C.J.M., Chandigarh on or before 8.12.2006, who after accepting the bonds would transmit them to this Court.