SUPREME COURT OF INDIA

Before:- R.C. Lahoti and Brijesh Kumar, JJ.

Criminal Appeal No. 464 of 2001. D/d. 20.8.2002.

Billu and Anr. - Appellants

Versus

State of Punjab - Respondent

Indian Penal Code, 1860, Sections 302, 304, 326 and 34 - Evidence Act, 1872, Section 3 - Murder - Deceased assaulted with sharp edged weapons and thrown from roof top to courtyard - All injuries except one on the back of abdomen are sustained on lower part of body which may not in ordinary course of nature sufficient to cause death - Accused not liable for culpable homicide - However, convicted under Section 326/34 of Indian Penal Code for causing grievous injuries.

[Paras 6 and 7]

ORDER

The two accused-appellants have been held guilty of an offence punishable under Section 302/34 Indian Penal Code and each sentenced to imprisonment for life. Pargat Singh accused-appellant is the nephew (brother's son) of co-appellant Billu. There were two other women accused, namely Chhindo and Bachno. All the four were convicted by the trial court under Section 302/34 Indian Penal Code. However, in the appeal preferred by the four accused persons, Chhindo and Bachno, the two ladies have been found not guilty and exonerated by the High Court though Chhindo had died during the pendency of appeal. So far as Billu and Pargat Singh, the two accused/appellants before us are concernd, their appeal was dismissed and conviction and the sentences passed thereon were upheld by the High Court.

2. The prosecution case briefly stated is that Tara Singh PW-2 and the accused-appellants are neighbours. Their houses are divided by a boundary wall. The deceased Raj Rani was Billu's bhabhi, that is, brother's wife. The brothers had separated and were living separately in either two houses or two parts of the same house which is not clear. On 11.9.93 Tara Singh PW-2 was sleeping in the courtyard of his house. Shortly after midnight he was awakened by the screams of Raj Rani who was shouting 'mar ditta mar ditta'. Tara Singh got up and saw in the light of an electric bulb which was on the courtyard of Pargat Singh that accused Pargat Singh armed with a sabbal and accused Billu armed with a gandasi were assaulting Raj Rani whereas the two women accused Bachno and Chhindo were holding the victim by arms and legs. Tara Singh intervened and inquired the reason for the assault whereupon the accused appellant Billu told Tara Singh to mind his own business and not to interfere. Tara Singh who had gone closer to the house of Pargat Singh returned, back to his courtyard. Therefrom he saw the accused persons throwing down Raj Rani from the roof top of kitchen into the courtyard of the witness. The accused persons then ran away.

3. Tara Singh summoned one Gurdip Singh PW-5 and narrated the incident to him. One Dr. Sukha, a private practitioner, was called. He gave first aid treatment to Raj Rani and also administered an injection to her. However, Raj Rani succumbed to the injuries and died. F.I.R. of the incident was lodged by Tara Singh at 9.25 a.m. on 12.9.1993. Post mortem on the dead body of Raj Rani was performed by Dr. G.S. Dhaliwal PW-1. The deceased was found to have sustained the following ante mortem injuries :

"1. A lacerated wound measuring 4.5 x 2.5 cms on interior aspect of left leg in lower one third and upper ⅔rd junction of leg. Clotted blood was present in and around the wound.

2. Multiple abrasions were present measuring 1.5 x 1 cm, 1 x 1 cm, 3.5.x 1 cm over the upper ⅔rd area of interior aspect of the leg and an abrasion measuring 2 x 10 cms. over lower one third of interior aspect of left leg.

3. Two lacerated punctured wounds over the upper half of the right leg present measuring 5 x.5 cm and 2.5 cms deep on the middle of the leg, interiorly 5 x .5 cms and 2 as deep present 3 cms above the middle of the leg surrounded by an area of abrasion measuring 2.5 x 1.5 cms.

4. A lacerated punctured wound .5 x .5 cm over the lower one third of right leg, 6 cms above the medical malleclas, 2.5 cms deep.

5. Right ankle and feet were swollen. An abrasion 4 x 2 cms on the antero lateral aspect of the right leg, just above the ankle joint was present.

6. An abrasion 3.5 cms. x 1 cm on the inner aspect of right thigh, 4 cros above the knee joint.

7. An abrasion over the left side of back of abdomen 8 cms away from the spine measuring 3.5 x 1.5 cms."

4. On internal examination it was found that the bones of both the legs were fractured at multiple places. Major blood vessels were lacerated on the right side of the leg. In the opinion of Dr. Dhaliwal the death of Raj Rani was caused by shock and haemorrhage due to the above said injuries. All the injuries were ante-mortem in nature, and in the opinion of Dr. Dhaliwal, were sufficient in the ordinary course of nature to cause the death of the injured.

5. The learned amicus appearing for the accused appellants submitted that reliance cannot be placed on the sole testimony of Tara Singh PW-2 inasmuch as Gurdip Singh PW-5 who was called by Tara Singh and to whom Tara Singh narrated the incident seen by him has not supported Tara Singh. It was also submitted by the learned counsel that Tara Singh is village chowkidar and as per his own admission often visits the police station, and therefore appears to be an under thumb witness of the police. We cannot agree with the learned counsel. Gurdip Singh has turned hostile and therefore not supported the prosecution. The admission made by Tara Singh PW-2 is that in the nature of his duties of chowkidar he is often required to go to police station. However, he has very categorically stated that so far as his memorygoes during last 20 years he has never on any other occasion appeared as a witness in any case. We do not think he can be termed as thumb witness of the police. The fact that Tara Singh-is next door neighbour of Pargat Singh has not been disputed or challenged during the course of his statement. Being the next door neighbour he is a witness who could have naturally seen the incident being in close proximity with the place of occurrence, The F.I.R. and the medical evidence lend corroboration to his testimony. The witness, has been believed by the trial court as well as the High Court. We too, on our own independent evaluation of his testimony, do not find any reason to disbelieve him. In our opinion, the trial court and the High Court have rightly held, by placing reliance on the testimony of Tara Singh, that the two accused- appellants have been guilty of causing the several injuries on the person of Raj Rani.

6. The question which really survives for consideration is the nature of the offence committed by the accused-appellants. Dr. Dhaliwal has during the course of cross-examination admitted the defence suggestion that the injuries suffered by Raj Rani could have been caused by a fall. The opinion that the injuries could have been sufficient in the ordinary course of nature to cause death was expressed by Dr. Dhaliwal only when he was examined in the court. Such an opinion was not stated by him in the post-mortem report. When he was asked as to why did he not state in the post-mortem report that the injuries on the person of Raj Rani could have been sufficient to cause death in the ordinary course of nature then Dr. Dhaliwal stated that because there was also suspicion of poisoning as such he had withheld the opinion regarding the cause of death. From a perusal of the details of the injuries sustained by Raj Rani we find that excepting one abrasion on the back of abdomen all other injuries sustained by her are on the legs, i.e., on the lower part of the body. Injuries on the legs may not in the ordinary course of nature be sufficient to result in death.

7. It is the prosecution case that after having been injured Raj Rani was thrown from the roof top of the kitchen into the compound of witness Tara Singh PW-2. The defence is that Raj Rani had sustained the injuries not by assault but by fall. Chhindo and Bachno, the two women accused against whom the prosecution allegation was that they had caught hold of the injured by her legs and arms and thrown her down have been acquitted by the High Court expressing an opinion that it did not appear to be reasonable and probable that the two women accused who were running in their sixties would have picked up the deceased physically and then thrown her down on the ground. One thing is certain that the injured did fall down from the roof top of the kitchen into the compound of the witness Tara Singh, either on being thrown down or accidentally. This part of the prosecution case in the light of the medical evidence leads us into forming an opinion that some harm to the injured was certainly caused by falling down of the injured. The exact extent of the harm caused by such fall cannot be assessed and found. Taking all these relevant circumstances into consideration, in our opinion, the two accused-appellants cannot be held liable for culpable homicide. They can be held liable for causing grievous hurt by gandasi and sabbal, which are sharp edged and deadly weapons, in furtherance of their common intention. Punctured wounds suffered by the deceased show the sharp edge of sabbal, a deadly weapon, having been used in the assault. They are held liable to conviction under section 326/34 Indian Penal Code. Their conviction under Section 302/34 Indian Penal Code and the sentence passed thereon are set aside. Instead they are convicted under section 326/34 Indian Penal Code and sentenced to 7 years' R1 each with a fine of Rs. 2,000/- each. In default of payment of fine each of them shall undergo RI for a further period of six months.

8. The appeal stands disposed of in the terms above said.

9. We place on record our appreciation of the valuable assistance rendered by Ms. Meenakshi Vij, the learned amicus.

Orders accordingly.