RUPINDER SINGH SANDHU versus STATE OF PUNJAB & OTHERS on 15 May 2018

[2018] 6 S.C.R. 479

RUPINDER SINGH SANDHU

v.

STATE OF PUNJAB & OTHERS

(Criminal Appeal No.58 of 2007)

MAY 15, 2018

[J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]

Penal Code, 1860 – ss.299 and 304 Part-II r/w. s.34 –Conviction under – Propriety of – PW3 & PW4 were travelling in aMaruti Car driven by ‘GS’ – Dispute arose on the right of waybetween the accused persons (A-1 and A-2) and ‘GS’ – Allegedly,A-1 pulled ‘GS’ out of the vehicle and inflicted fist blows whereafter,he died while being taken to hospital – FIR registered u/ss.304/34against A1 and un-named second accused – Trial court acquittedboth the accused – High Court reversed the acquittal – Held: Medicalevidence is absolutely uncertain regarding the cause of death ofthe deceased – The only fact established on evidence is that A-1gave a single fist blow on the head of the deceased – No weaponwas used, nor was there any past enmity between the accused andthe deceased – There is no evidence of any concomitant brain injury– Post-mortem report is silent in this regard – Pathologist’s report isclear about the absence of any pathology in brain, however, henoticed a large number of abnormalities in the condition of theheart of the deceased – Such being the evidence on record,conclusion of High Court that death of deceased was caused bysubdural hemorrhage but not cardiac arrest is not based on anyevidence on record and is a pure conjecture – A-1 cannot be heldto be responsible for causing the death of the deceased – Further,as far as A2 is considered, the FIR mentioned the name of only A1and the second participant in the incident was said to be a “cleanshaven man” and it did not mention that the clean shaven man eitherattacked or inflicted any injury on the body of the deceased – Nomaterial on record to indicate the basis on which the prosecutioncame to the conclusion that A-2 was that clean shaven man –Nothing on record to prove that he attacked the deceased or that heshared a common intention with A-1 to commit the offence of culpablehomicide not amounting to murder– It is not safe to convict A-2 on

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Athe basis of the evidence of PWs 3 and 4, recorded some 7 yearsafter the incident – Judgment of High Court insofar as A2 isconcerned, is also set aside – Code of Criminal Procedure, 1973 –ss.173 and 319.

Evidence – Related witnesses – Appreciation of.BAllowing the appeals of the accused and dismissing that ofthe complainant, the Court HELD: 1.1 In the entire judgment of the High Court, thereare only two sentences which mention the name of the secondaccused. There is no discussion in the judgment of the High CourtCas to at what point of time during the course of investigation,A-2 was identified to be the other clean shaven person travellingwith A-1 on the fateful day and what was the evidence on thebasis of which the prosecution reached such conclusion exceptthe statements (made after 7 years after the event) of PW-3 andDPW-4 made at the time of the trial. It is unfortunate that the HighCourt thought it fit to reverse the acquittal recorded by theSessions Court and to convict A-2 for an offence under Section304 Part II read with Section 34 IPC on the basis of such frivolousanalysis. [Para 29] [494-D-E]

E1.2 The FIR mentioned the name of only A1 and the secondparticipant in the incident was said to be a “clean shaven man”.The FIR does not mention that the clean shaven man eitherattacked or inflicted any injury on the body of the deceased. Itonly mentioned that he inflicted fist blows on PW3. The materialon record is absolutely bereft of the information regarding theFfact as to at which point of time A-2 was identified to be that‘clean shaven man’ who participated in the incident along with A-1 by the investigating agency. Nor is there any material on recordto indicate the basis on which the prosecution came to theconclusion that A-2 was that clean shaven man. PW3 and PW4Gwere examined at the time of inquest over the dead body of thedeceased, which took place according to the prosecution at 3.30p.m. on the date of occurrence. Even those statements of PW3and PW4 do not mention the name or identifiable description ofA-2. Admittedly, at no point of time a test identification paradewas held to establish the identity of the clean shaven man to beHA-2. [Para 30] [495-B-D]

1.3 From the analysis of the above material, the followingAconclusions emerge:

(i) Neither PW3 nor PW4 knew the second accused priorto the date of the offence;

(ii) Even on the date of the offence they did not know hisname or other particulars which could lead to hisBidentification;

(iii) The prosecution did not bring on record any material toestablish as to how they came to the conclusion that theperson accompanying the first accused is (A-2); C

(iv) The only evidence to connect A-2 with the crime is thestatements of PWs 3 and 4 made at the time of the trial(some 7 years after the incident) that A-1 was the otherperson accompanying A-1 on the fateful day;

(v) There is nothing either in the deposition of PW3 orPW4 that A2 ever attacked the deceased; and D

(vi) There is no other evidence on record to show that A-2attacked the deceased.

In the impugned judgment of the High Court, there is nodiscussion regarding the identity of A-2 or the role played by himin the incident. Without any discussion whatsoever regarding theevidence either to prove the presence of A-2 along with A-1 atthe time of the occurrence or the role played by A-2 in the incidentinsofar as it pertained to the death of the deceased, the HighCourt chose to record a finding of guilt against A-2 under Section304 Part-II read with Section 34 IPC. [Para 31] [496-B-H;497-A-C]

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1.4 The High Court abruptly recorded a conclusion thatA-2 is guilty of an offence of Section 304 Part-II read with Section34 IPC. Such a conclusion is wholly unsustainable. The conclusionof the High Court that A-2 is also guilty of the offence underSection 323 IPC is equally unsustainable in view of the discussionabove, especially in view of the fact that there is no trustworthyevidence regarding his presence along with A-1 at the time ofthe offence. It is not safe to convict A-2 on the basis of the evidenceof PWs 3 and 4. Therefore, the Judgment of the High Courtinsofar as A2 is concerned is set aside. [Para 32] [497-E, G]

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A2.1 To hold A-1 guilty of causing the death of the deceased,it must be proved that (i) he inflicted fist blows on the deceasedas alleged by the prosecution; and (ii) the injuries resulting fromthe fist blows caused the death of the deceased. [Para 34][498-C]B2.2 In order to establish the fact that A-1 inflicted fist blows

B2.2 In order to establish the fact that A-1 inflicted fist blowson the deceased, prosecution relied upon the evidence of PWs 3and 4 who claimed that they were travelling along with thedeceased at the time of the occurrence in the car driven by thedeceased and, therefore, witnessed the occurrence. The SessionsCourt disbelieved the evidence of PWs 3 and 4 principally onCtwo grounds, firstly that the evidence of PW3 and PW4 was notconsistent and kept varying from time to time and secondly, themedical evidence does not corroborate the testimonies of PWs 3and 4. On the other hand, the High Court disagreed with theconclusion of the Sessions Court regarding the trustworthinessDof the evidence of PWs 3 and 4. [Para 35] [498-D-E]

2.3 The fact that PWs 3 and 4 are related to the deceasedthe deceased is not in dispute. The existence of such relationshipby itself does not render the evidence of PWs 3 and 4untrustworthy. Supreme Court has repeatedly held so and alsoEheld that the related witnesses are less likely to implicate innocentpersons exonerating the real culprits. [Para 38] [499-D]

2.4 PWs 3 and 4 in their evidence before the SessionsCourt stated that they travelled with the deceased on the fatefulday in a Maruti car driven by the deceased. Both of them statedthat there was an altercation between A-1 and the deceasedFregarding the right of way which resulted in the 1[st] accused givingfist blows to the deceased. They did not make any allegation intheir evidence that A-2 attacked the deceased. Their version isthat when they tried to intervene to rescue the deceased, the 2[nd]accused attacked PW-3 by giving fist blows. Though, it is theGevidence of PWs 3 and 4 that A-1 inflicted fist blows onthedeceased, the post-mortem report indicates only two externalinjuries– one on the temporal region and another on the left kneeof the deceased – both are abrasions. The 2[nd] injury, i.e. abrasionon the knee, according to PW-2 could be the result of the fall.HNotwithstanding the narration of PWs 3 and 4 that A-1 inflicted fist blows (multiple blows), it is most unlikely that a person wouldsimultaneously aim at the head and also the knees of the victimwhile giving fist blows. Of course, it is possible that A-1 deliveredmore than one fist blow but only one of them landed on the headof the deceased and the others missed the target. Thus, A-1inflicted a single injury on the head of the deceased and one cansafely conclude that the 2[nd] injury on the knee of the deceasedoccurred due to a fall at any road. It is not the suggestion of theprosecution that the deceased died of the injury on his knee.The injury on the head of the deceased is an abrasion admeasuring0.75 cm x 0.5 cm over the left temporal region at the junction ofupper part of pinna. There is a corresponding subduralhemorrhage present over the left temporal region of the deceased.[Paras 44, 45] [502-F-H; 503-A-C]

2.5 PW-2 (the Doctor) in the post-mortem report did notgive any opinion regarding the cause of the death of the deceased.It is significant to note that PW2 was of the opinion that the injurieswere ante-mortem in nature and caused by a blunt weapon. Thepathologist gave a report wherein noticed a large number ofabnormalities in the condition of the heart of the deceased. Insofaras the brain is concerned, the pathologist did not notice anypathology either on the gross or microscopic examination. Onreceipt of the pathology report, PW-2 opined that it is necessaryto obtain a further opinion of forensic expert. He, therefore,wrote to the Civil Surgeon, Patiala requesting that the case bereferred to forensic expert, Government Medical College, Patiala.The Principal, Government Medical College, Patiala constituteda Board consisting of 6 members of whom two were examined asPWs 1 and 2 in the trial of the case. PW-1 was designated as theConvener of the said Medical Board. PW-1 gave a very crypticopinion (Ex.PA). [Paras 46-48] [503-D, E-F; 504-A-D]

2.6 PW2, who conducted the post-mortem, did not identifythe cause of death of the deceased. He only forwarded the opinionof the Medical Board to the Police. On the face of the aboveevidence, the High Court came to the conclusion that it is thesubdural hemorrhage which caused the death of the deceasedand not cardiac arrest. As rightly pointed out by the accused,there is no basis in the evidence on record for such a conclusion.

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AWhen Exhibit PA says that death in the case is “attributed to theeffects of head injury and cardiac condition”, to conclude that thecause of death is only hemorrhage and not cardiac arrest iscontrary to the evidence on record. On the other hand it must beremembered the pathologist reported that he did not notice anypathology on the brain either on “gross or microscopicBexamination”. PW-2, who conducted the post-mortemexamination, did not give any description of the hemorrhageexcept to state that subdural hemorrhage existed in the parietalregion. He admitted in the cross examination that he did notmention the magnitude or size of the hemorrhage. [Paras 53, 54]C[506-B, D, E-F]

2.7 PW-1 is also the author of a textbook on ForensicMedicine and Toxicology. From the statement in the book, it canbe noticed from the above statement – (i) subdural hemorrhageby itself does not cause death but it is the compression of brainDcaused by a large subdural hemorrhage which causes the death;and (ii) about 100-150 ml of hemorrhage is usually the minimumassociated with fatalities. The statements made in (Ex PA) andthe evidence of PW1 that the head injury itself could be sufficientto cause the death in the ordinary course of nature are mere ipsedixit. Neither any specific details regarding the volume of theEsubdural hemorrhage are available on record, nor any medicalopinion that the subdural hemorrhage caused the compressionof the brain that caused the death of the deceased. There is noevidence of any concomitant brain injury. The post-mortem reportand the evidence of PW2 are silent in this regard. TheFpathologist’s report is clear about the absence of any pathologyin brain. Such being the evidence on record, the conclusion ofthe High Court that the deceased’s death is caused by subduralhemorrhage but not cardiac arrest is not based on any evidenceon record and is a pure conjecture. It difficult to sustain theconviction of the first accused and the same is set-aside. BecauseGto find a man guilty of culpable homicide, the basic fact requiredto be established is that the accused caused the death. But, asnoticed above, the medical evidence is absolutely uncertainregarding the cause of death of the deceased. [Paras 55, 56][507-A-G]

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2.8 The only fact established on evidence is that A-1 gavea single fist blow on the head of the deceased the deceased. Noweapon was used, nor was there any past enmity between theaccused and the deceased. It all started with a dispute regardingthe right of way resulting in a brawl between them, a very commonsight in this country. Apparently, some verbal exchange tookplace between the accused and the deceased. It is not clear fromthe record as to what exactly are the words spoken by them excepta vague indication that some intemperate language was employedby both of them, nor is it clear who initiated the exchange.[Paras 57, 58] [508-A-B]

2.9 The first accused cannot be held to be responsible forcausing the death of the deceased. Therefore, the judgment underappeal is required to be set aside and is accordingly set aside.The material on record leads to the only possible conclusion thatthe first accused voluntarily caused hurt to the deceasedpunishable under Section 323 IPC. [Para 63] [509-D-E]

2.10 Section 323 IPC stipulates a punishment ofimprisonment of either description for a term which may extendto one year or with fine which may extend to Rs.1000/- or withboth. In the circumstances of the case having regard to the factsthat (i) the incident is 30 years old; (ii) there is no past enmitybetween the accused and the deceased; (iii) no weapon was usedby the accused; and (iv) the background in which it happened, apunishment of imposition of fine of Rs.1000/- would meet theends of justice in this case. [Para 64] [509-F]

Mohan Singh and Another v. State of PunjabAIR 1963 SC 174 : [1962] Suppl. SCR 848 ; Rizan v.State of Chhattisgarh (2003) 2 SCC 661 : [2003] 1 SCR457 ; Dalip Singh v. State of Punjab AIR 1953 SC364 : [1954] SCR 145 – referred to.

Textbook of Forensic Medicine & Toxicology -Principles & Practice, 6[th] Edition, Krishan Vij,Elsevier; Smith J.C. & Hogan Brian, The Elements ofa Crime in Criminal Law 5[th] Edition, ELBS 1983 –referred to.

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BCRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 58 of 2007.

From the Judgment and Orders dated 01.12.2006 and 06.12.2006of the High Court of Punjab & Haryana at Chandigarh in Criminal AppealNo. 645-DBA of 2000 and Crl. Misc. No. 185-MA of 2000

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Criminal Appeal Nos. 60 and 59 of 2007.

R. Basant, R. S. Cheema, Rajnit Kumar, Siddharth Luthra, NidheshGupta, Sr. Advs., Ms. Tarannum Cheema, A. Karthik, Sudarshan SinghDRawat, Ms. Hiral Gupta, Ms. Smrithi Suresh, Ms. Pooja Tiwari, SudarshanSingh Rawat, Sudhir Walia Ms. Niharika Alhuwalia, Nitin Saluja, AbhishekAtrey, Kumar Vaibhav, Ms. Ananttika Singh, Sudhir Walia, Sangram S.Saron, Benant Noor Singh, Ms. Jaspreet Gogia, Vriti Gujral, PuneetVarshney, Ms. Roopam Rai, Shubham Bhalla, Ms. Jyoti Mendiratta, Advs.for the appearing parties.E

The Judgment of the Court was delivered by CHELAMESWAR, J. 1. Around 1.45 pm on 27.12.1988, FirstInformation Report No.244 came to be registered by Sub-Inspector KakaSingh (PW5) of Police Station “Kotwali” of Patiala District of the StateFof Punjab on the basis of information given by one Shri Jaswinder Singh(PW3). From the narration in the FIR, it appears that the incident whicheventually culminated in the death of Gurnam Singh could have simplypassed off as yet another incident of road rage but for the death ofGurnam Singh. According to the FIR, around 12.30 p.m., an incidentoccurred at the traffic light of Battian Wala Chowk in front of the StateGBank of Patiala, Patiala City. Jaswinder Singh (PW3), Avtar Singh (PW4)and the deceased Gurnam Singh were travelling in Maruti Car No.CH I8422 driven by the deceased. Both the accused herein were travellingby vehicle No.PAD 6030. A dispute arose on the right of way betweenthe accused and the deceased. In the process the first accused who is H

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a cricketer of some fame got out of his vehicle, pulled the deceased outof his vehicle and inflicted fist blows. When PW3 tried to intervene, thesecond[1] accused herein got out of the vehicle and gave fist blows toPW3. Thereafter, they removed the keys of the car of the deceasedand fled away from the scene of occurrence. PW3 and PW4 tookGurnam Singh who was “in a state of unconsciousness” by a rickshawto a hospital, known as Rajendra Hospital where the doctors announcedthat Gurnam Singh was dead.

2. Thereafter, PW3 went to the police station (leaving PW4 in thehospital) and lodged the FIR.

3. Case was registered under Sections 304/34 of the Indian PenalCode, 1860 (hereafter referred to as “IPC”) against the first accusedand un-named second accused.

4. Around 3’O Clock, PW5 reached Rajendra Hospital along withPW3. PW5 prepared the inquest report, which was attested by PW3and PW4. The dead body of Gurnam Singh was sent for post-mortemexamination. At about 3.30 p.m., PW3 to PW5 went to the scene ofoccurrence where PW5 prepared rough site plan. At 4.30 p.m., post-mortem examination over the dead body was conducted by PW2. Acopy of the FIR was received by the concerned Magistrate admittedlyaround 5.30 p.m.

5. PW2 Dr. Jatinder Kumar Sadana, who conducted the post-mortem examination, recorded two external and one internal injuries:

1) 0.75 cm x 0.5 cm abrasion present over left temporal region atthe injunction of upper part of pinna.

2) 0.5 cm x 0.5 cm abrasion over the front of left knee, and Subdural hemorrhage present over the left temporal region.

PW2 recorded that the injuries are ante-mortem in nature andcaused by ‘blunt weapon’. He opined that the cause of death of GurnamSingh could be given only after receiving the report of the pathologist.The pathologist’s report dated 09.01.1989 was received in due courseby PW2. Inspite of the pathologist’s report, PW2 was not able to giveany definite opinion regarding the cause of death of Gurnam Singh. He, 1It must be mentioned here that though the FIR clearly mentioned the name of firstaccused, the name of second accused was not mentioned. He was only described as aclean shaven man.

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Atherefore, addressed a letter dated 11.1.1989 to the Civil Surgeon, Patialarequesting him to refer the case to the Forensic Expert of GovernmentMedical College, Patiala. In response to the said request, a MedicalBoard comprising six members, which included PW1 Dr. Krishan Vijand PW2, came to be constituted by an office order dated 13.01.1989 ofPrincipal, Government Medical College, Patiala. PW1 was describedBtherein to be Convener of the Board.

6. Thereafter, some correspondence took place between SHOPolice Station “Kotwali” and PW2. The SHO made an attempt to securea more precise medical opinion regarding the cause of death of GurnamSingh. PW2 declined to give any further opinion maintaining thatC“regarding the opinion whether the injury could be because of fist blow,any such clarification would be given in the Court.”

7. In the background of the abovementioned facts, a final report(charge-sheet) under Section 173 of the Code of Criminal Procedure,1973 (hereafter referred to as “CrPC”) dated 06.03.1989 came to beDfiled on 14.07.1989, (i.e. 4 months after its preparation) under Section304 IPC, only against the second accused exonerating the first accused.On 13 October 1989, the case was committed to Sessions Court, Patialaby Additional Chief Judicial Magistrate, Patiala resulting in the registrationof Sessions Case No.79/89. A charge against A2 under Section 304EPart-I IPC was framed on 25.09.1990 in Sessions Case No.79. Duringthe course of the trial, the Sessions Court after recording the evidenceof PW3 thought it fit by its order dated 30.08.1993 to summon the firstaccused also to stand trial exercising its power under Section 319 CrPC.

8. In the meanwhile, on 22.07.1989, PW3 filed a private complaintFagainst both the accused for commission of offences under Section302/324/323 read with Section 34 IPC. A1 was summoned in the saidcase by an order dated 03.09.1993. After repeated adjournments, [thereasons for which are not necessary at present], both the cases wereconsolidated by an order dated 20.08.1994.

G9. On 20.08.1994, charges were framed against both the accused.Charges under Section 304 Part-I IPC were framed against both theaccused in case arising out of the FIR No.244. Charges under Section302 IPC against first accused and charges under Section 302/34 IPCagainst second accused were framed respectively in complaint case forcausing the death of Gurnam Singh. Charges under Section 323/34 IPC

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were framed against both the accused for causing hurt to PW3. Boththe cases were consolidated vide order dated 20.08.1994.

10. In order to establish the guilt of the accused, the prosecutionexamined five witnesses and exhibited various documents.[2] PW3 andPW4 are said to be eye-witnesses to the offence. PW1 and PW2 aredoctors connected with the post-mortem examination of the dead bodyof Gurnam Singh. PW5 is the Sub-Inspector who registered FIR.

11. The accused examined one witness in their defence i.e. DW1Raghbir Singh.

12. The Trial Court recorded[3]:

That, death of Gurnam Singh was not caused by subdural hemor-rhage but it was a case of sudden cardiac death; That, Gurnam Singh suffered sudden cardiac attack because ofwhich he fell to the ground and received injury on left temporalregion which caused subdural hemorrhage; That, it is not certain at what point Gurnam Singh died, but hisdeath was not due to violence; Neither Jaswinder Singh (PW3) nor Avtar Singh (PW4) are truthfulwitnesses because there appears to be no corroboration of theirpresence with Gurnam Singh.

and, therefore, concluded that the prosecution has failed to establishthe case beyond reasonable doubt and acquitted both the accused herein.

2 Inquest Report as Ex.PH, Site Plan as Ex.PT; recovery memo of certain articles asEx.PU; application to collect the result of Pathologist as Ex.PV; FIR Ex.PQ; Statementof PW3 Jaswinder Singh as Ex.DC; Statements of PW4 Avtar Singh as Ex.DG, Ex.DD,Ex.DE; report under Section 173 CrPC as Ex.DH.

3 See Judgment of Sessions Judge, Patiala in C.S. No.79/18.8.94/20.8.94 dated 22.9.1999para 41

“Therefore the medical evidence provides no corroboration whatsoever, to the eye-witness account. Furthermore, the death of Gurnam Singh was not caused by thesubdural hemorrhage, but it was a case of sudden cardiac death as confirmed by theCardiologist. When Gurnam Singh suffered sudden cardiac attack he fell to the groundand received abrasions on left temporal region and left knee the former injury gave riseto subdural hemorrhage. It is not certain at what point Gurnam Singh died, but hisdeath was not due to violence. Neither Jaswinder Singh nor Avtar Singh are truthfulwitnesses because there appears to be no corroboration of their presence with GurnamSingh.”

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13. The matter was carried in two appeals to the High Court bythe State and also by the complainant. The High Court reversed theacquittal and found both the accused guilty under Section 304 Part-IIand 304 Part-II read with Section 34 IPC respectively for causing thedeath of Gurnam Singh. Apart from the above, A-2 was also foundguilty for an offence under Section 323 IPC for causing injuries to PW3.

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14. Hence, these three appeals – Criminal Appeal No.58 of 2007filed by Rupinder Singh Sandhu (A-2); Criminal Appeal No.59 of 2007filed by Navjot Singh Sidhu (A-1); and Criminal Appeal No.60 of 2007filed by Shri Jaswinder Singh (PW3).

C15. Shri R.S. Cheema and Shri R. Basant, learned senior counselappeared for A-1 and A-2 respectively. Shri Siddhartha Luthra and ShriRanjit Kumar, learned senior counsel, appeared for the de factocomplainant (PW3 Jaswinder Singh). Shri Nidhesh Gupta, learned seniorcounsel, appeared for A-1 in the appeal filed by PW3 Jaswinder Singh.Shri Sangram S. Saron, Advocate appeared for the State.D

16. Enormous submissions are made before us by each of thelearned senior counsel mentioned above.

17. Some of the submissions made by the three learned seniorcounsel for the accused are common. Briefly stated they are:- E

i.the conclusion of acquittal recorded by the Trial Court is not tobe interfered with by the appellate Court unless there arecompelling reasons warranting interference;

ii. there are no such circumstances in the case on hand whichwarranted interference by the High Court with the conclusionFof acquittal recorded by the Trial Court;

iii. merely because a second view is possible to be taken on thematerial on record, the Appellate Court is not justified in reversingthe conclusion of acquittal and in this case that is exactly whathappened; and G

iv. the conclusion of the Trial Court that PW3 and PW4 are nottruthful witnesses is based on cogent reasoning. The High Courthas not recorded any tenable reasons to demonstrate that theconclusion of the Trial Court is manifestly illegal;

18. Apart from the abovementioned submissions made in commonon behalf of both the accused it was submitted on behalf of A-1:- A

i) the medical evidence on record does not corroborate theevidence of PW3 and PW4, a factor which has been stronglyrelied upon by the Trial Court to disbelieve PW3 and PW4.The High Court did not record any cogent reasons for reversingBthe Trial Court’s opinion; and ii) the medical opinion on record does not clearly establish theexact cause of death of Gurnam Singh. In the absence ofclear medical opinion regarding the cause of death, one of theessential elements of the offence of culpable homicide underSection 299 IPC, it cannot be said that the bodily injury allegedto have been caused by A-1 resulted in the death of GurnamSingh.

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19. On behalf of the second accused, it is additionally argued thatthe prosecution is required to prove by credible evidence (i) that A-2was present along with A-1 and participated in the incident, and (ii) theexact nature of his participation, and (iii) he shared a common intentionwith A-1 to commit an offence under Section 299 IPC.

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There is absolutely no credible evidence on record to establishthe above. The High Court neither examined any one of the abovementioned questions nor gave any reason whatsoever to reverse theconclusion of the Trial Court insofar as it relates to A-2.

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20. “Before a man can be convicted of a crime, it is usuallynecessary for the prosecution to prove that a certain event or acertain state of affairs which is forbidden by the criminal law hasbeen caused by his conduct and that this conduct was accompaniedby a prescribed state of mind. The event or state of affairs isusually called the actus reus and the state of mind, the mens reaof the crime. Both these elements must be proved beyondreasonable doubt by the prosecution.”[4]

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21. Both the accused are convicted for the offence prescribedunder Section 299 IPC while A-1 was found guilty of the offence 4 Smith J.C. & Hogan Brian, The Elements of a Crime in CRIMINAL LAW (5th ed.ELBS 1983) p.29

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Asimpliciter, A-2 was found vicariously guilty[5] of that offence with the aidof Section 34 IPC. The accusation being that they caused the death ofGurnam Singh by their conduct accompanied by the requisite mens reaand such conduct constitutes the offence prescribed under Section 299IPC.

B22. The question is whether the High Court is right in holding thatall the requisite elements to find the accused guilty of the offences forwhich they were tried are proved beyond reasonable doubt? To holdeither of the accused guilty for an offence under Section 299 IPC eithersimpliciter or vicariously with the aid of Section 34 IPC, it is required tobe proved that each of the two accused was present and participated inCthe incident and caused injuries which resulted in the death of Gurnam Singh.

23. The undisputed fact is that Gurnam Singh was declared tohave been brought dead to the Rajendra Hospital around 12.45 pm onthe fateful day. According to the prosecution (FIR), Gurnam SinghDreceived fist blows from A-1 around 12.30 pm and became unconscious.The FIR is conspicuously silent about any physical attack by A-2 onGurnam Singh.

To find either of the two accused guilty of the offence underSection 299 IPC, it must be proved that Gurnam Singh died as aEconsequence of the physical attack and the resulting injuries therefrom.We shall defer the examination of the medical evidence regarding thecause of death of Gurnam Singh for the time being and proceed on thebasis that the death was homicidal as a consequence of the injuriesreceived by him. The question is - who caused the injuries?

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24. Prosecution sought to prove the presence, identity andparticipation of both the accused in the crime by the evidence of PWs 3and 4 - cited as eye-witnesses to the offence. They asserted in theirevidence that they were travelling on the fateful day along with thedeceased and witnessed the occurrence. However, the Trial Courtrecorded a conclusion that neither of them is a “truthful witness” becauseG“there appears to be no corroboration of their presence with GurnamSingh”. The conclusion of the Trial Court is based on the following factors:

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5 See AIR 1963 SC 174 para 13 - Mohan Singh and Another Vs. State of Punjab, i. both the witnesses (PW3 and PW4) are related to each otherand the deceased;

ii. though the incident took place at a very busy location in thecity of Patiala in broad day light, no independent witness wasexamined by the prosecution to corroborate the evidence ofPW3 and PW4; iii police did not either seize the vehicle in which the deceasedand PWs 3 & 4 were said to be travelling at the time of theincident nor the site plan of the scene of occurrence preparedby the police indicate the presence of the car;

iv. there were inconsistencies in the evidence of both PWs 3 &4 regarding the number of the vehicle in which the accusedwere travelling at the time of the occurrence and alsoregarding the fact as to which one of the accused was drivingthe said vehicle. The number and the driver’s name given bythem in evidence is not the same as the number and the nameof the driver given in the FIR;

v. the version of the prosecution that PW3 was the injuredwitness is not believable. It is only an attempt to createevidence that PW3 too had been present and attacked by theaccused; and

vi. though the witnesses deposed that they accompanied thedeceased Gurnam Singh on the fateful day and wereproceeding to the bank to withdraw some cash, nocorroborating material, such as, cheque book etc. has beenplaced on record to substantiate the version of the witnesses.

25. On the other hand, the High Court held - (i) both PW3 andPW4 deposed consistently regarding the incident, (ii) that they had nopast enmity with the accused to falsely implicate the accused, not evena suggestion of the existence of any such motive was made to PWs 3and 4 in the cross-examination; and, (iii) the inconsistencies with regardto the number of vehicle by which the accused were travelling and whichone of the accused was driving the vehicle are immaterial. Therefore,the High Court opined that they are trustworthy witnesses.

26. It is argued before us on behalf of the accused that; accordingto the prosecution case, Gurnam Singh was carried from the scene of A

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Aoccurrence to the hospital in Rickshaw by PW3 and PW4. Neither theRickshaw puller was examined nor any record of the hospital is provedto establish that PW3 and PW4 accompanied Gurnam Singh to RajendraHospital. The said facts coupled with various other discrepancies noticedby the Trial Court in assessing truthfulness of the evidence of PW3 andPW4, make it highly unsafe to convict the accused on the basis of suchBevidence.

27. Having regard to the material on record and the submissionsmade, we are of the opinion that the case of each of the two accusedare to be considered separately.

C28. We shall first deal with the case of the second accused RupinderSingh Sandhu because, in our opinion, his case can be decided withoutexamining any one of the common submissions made on behalf of theaccused.

29. In the entire judgment of the High Court, there are only twosentences which mention the name of the second accused. There is noDdiscussion in the judgment of the High Court as to at what point of timeduring the course of investigation, A-2 was identified to be the otherclean shaven person travelling with A-1 on the fateful day and what isthe evidence on the basis of which the prosecution reached such conclusionexcept the statements (made after 7 years after the event) of PW-3 andEPW-4 made at the time of the trial. It is unfortunate that the High Courtthought it fit to reverse the acquittal recorded by the Sessions Court andto convict A-2 for an offence under Section 304 Part II read with Section34 IPC on the basis of such frivolous analysis.[6]

6 (a) In the meantime, Navjot Singh Sidhu accused came out from the Gypsy. JaswinderFSingh PW-3 knew him as he was a famous player of Cricket. Navjot Singh Sidhustarted reprimanding them and used objectionable language. Jaswinder Singh PW-3 andothers asked him not to use objectionable language and thereafter Navjot Singh Sidhucaught hold of Gurnam Singh from the collar and took him out of the Maruti car.Thereafter he gave fist blow on the person of Gurnam Singh. One blow landed on thetemporal region above the left ear. Rupinder Singh Sandhu also came out of theGypsy and gave injuries to Jaswinder Singh PW-3.G (b) We cannot overlook this fact that Navjot Singh Sidhu has conceded that he came tothe place of occurrence after hearing a commotion. Rupinder Singh Sandhu hasdenied his presence and has stated that he has been falsely implicated. The bestdefence witness would have been the co-employee of Navjot Singh Sidhu, but strangelynone has come forward to state that at that moment of time when the occurrence hadtaken place, Navjot Singh Sidhu was in the Bank premises and after hearing a commotion,he went out.H

30. For the purpose of deciding the case of A2, we presume thatPWs 3 and 4 were accompanying Gurnam Singh on the fateful day andwitnessed the incident. The interesting feature of the case is that theFIR mentioned the name of only A1 and the second participant in theincident is said to be a “clean shaven man”. The FIR does not mentionthat the clean shaven man either attacked or inflicted any injury on thebody of Gurnam Singh. It only mentions that he inflicted fist blows onPW3. The material on record is absolutely bereft of the informationregarding the fact as to at which point of time A-2 was identified to bethat ‘clean shaven man’ who participated in the incident along with A-1by the investigating agency. Nor is there any material on record toindicate the basis on which the prosecution came to the conclusion thatA-2 is that clean shaven man.

PW3 and PW4 were examined at the time of inquest over thedead body of Gurnam Singh, which took place according to theprosecution at 3.30 p.m. on the date of occurrence. Even those statementsof PW3 and PW4 do not mention the name or identifiable description ofA-2.

Admittedly, at no point of time a test identification parade washeld to establish the identity of the clean shaven man to be A-2. Theonly material on record to connect A-2 with the offences is the evidenceof PW3 and PW4 at the trial where they deposed that A-2 is that cleanshaven person who was present along with A-1 on the date of the incident.

The evidence of PW-3 was recorded on two occasions, initiallyon 9.7.1993 in the Sessions case arising out of the police report at whichpoint of time only A-2 was put to trial for various offences in connectionwith the incident which resulted in the death of Gurnam Singh.

PW-3 deposed at that point of time as follows:- “The accused present in Court Rupinder Singh was not known tome prior to the occurrence.”

Again, he was examined on 16.8.1995 at the joint trial of both thesessions cases against both the accused herein. In the chief examination,he stated; “I observed that one clean shaven person whose name wasRupinder Singh Sandhu was found sitting on the driver seat. The ABCD

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Awitness has pointed out towards Rupinder Singh Sandhu accusednow present in the Court.

And further as follows:-

“Thereafter Rupinder Singh (Sandhu) accused came out fromthe Gypsy and he started causing me injuries with fist blows.BRupinder Singh (Sandhu) gave fist blows on the left inside of mychest and on the left side of my forehead.”

The relevant portion of the cross examination reads as follows:- “I stated in Ex. PQ that thereafter Rupinder Singh (Sandhu) cameCout from the Gypsy. Attention of the witness has been drawn toEx. PQ where name of Rupinder Singh (Sandhu) has not beenmentioned. The narration of that the clean shaven man came outof the vehicle. I stated in Ex. PQ that Rupinder Singh (Sandhu)gave fist blows on the left side of my chest and on the leftside of my forehead. Attention of the witness has been drawnDto Ex. PQ where the portion ‘attacked’ by Rupinder Singh(Sandhu) have not been mentioned. Narration is that RupinderSingh (Sandhu) gave fist blows to him.

31. From our analysis of the above material, the followingconclusions emerge:

E

(i) Neither PW3 nor PW4 knew the second accused prior to thedate of the offence;

(ii) Even on the date of the offence they did not know his nameor other particulars which could lead to his identification; F(iii) The prosecution did not bring on record any material to establishas to how they came to the conclusion that the personaccompanying the first accused is Rupinder Singh Sandhu (A-2);

(iv) The only evidence to connect A-2 with the crime is theGstatements of PWs 3 and 4 made at the time of the trial (some7 years after the incident) that A-1 was the other personaccompanying A-1 on the fateful day;

(v) There is nothing either in the deposition of PW3 or PW4 thatA2 ever attacked the deceased; and H

(vi) There is no other evidence on record to show that A-2attacked the deceased.

These aspects are not considered by the Trial Court obviouslybecause the Trial Court opined that PW3 and PW4 are not truthfulwitnesses. Nor did the High Court examine these aspects while reversingthe acquittal order of the Trial Court. In the impugned judgment of theHigh Court, there is no discussion regarding the identity of A-2 or therole played by him in the incident. Without any discussion whatsoeverregarding the evidence either to prove the presence of A-2 along withA-1 at the time of the occurrence or the role played by A-2 in the incidentinsofar as it pertained to the death of Gurnam Singh, the High Courtchose to record a finding of guilt against A-2 under Section 304 Part-IIread with Section 34 IPC. It must be remembered that the evidence ofPW3 and PW4 was recorded some 7 years after the incident. The firsttime PW3 ever identified the other clean shaven man accompanyingA-1 on the fateful day to be A-2 was on 9.7.1993 at the trial of theSessions Case in Crime No.244. Even by then some 5 years had elapsedfrom the date of offence.

32. The High Court abruptly recorded a conclusion that A-2 isguilty of an offence of Section 304 Part-II read with Section 34 IPC.Such a conclusion in our view is wholly unsustainable. Even if we believefor the sake of argument (we emphasise only for the sake of argument)that A-2 was present with A-1 at the time of the incident, there is nothingon record to prove that he attacked Gurnam Singh or that he shared acommon intention with A-1 to commit the offence of culpable homicidenot amounting to murder.

The conclusion of the High Court that A-2 is also guilty of theoffence under Section 323 IPC is equally unsustainable in view of ourdiscussion above, especially in view of the fact that there is no trustworthyevidence regarding his presence along with A-1 at the time of the offence.It is not safe to convict A-2 on the basis of the evidence of PWs 3 and 4.

We therefore, set aside the Judgment of the High Court insofaras A2 is concerned.

33. We shall now deal with the case of first accused. Once againit is necessary to examine whether the death of Gurnam Singh is causedby A-1 as alleged by the prosecution. For recording any conclusion ABC

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Aagainst A-1 in this regard, first, it is necessary to know exactly what isthe cause of death of Gurnam Singh, and second, that the conduct ofA-1 in inflicting the fist blows on Gurnam Singh resulted in the death ofGurnam Singh. Even if both the above-mentioned factors are establishedbeyond reasonable doubt, it must further be proved that A-1 had therequisite mens rea to commit the crime defined under either Section 299Bor Section 300, IPC.

34. We now examine each one of the above questions.

To hold A-1 guilty of causing the death of Gurnam Singh, it mustbe proved that (i) he inflicted fist blows on Gurnam Singh as alleged byCthe prosecution; and (ii) the injuries resulting from the fist blows causedthe death of Gurnam Singh.

35. In order to establish the fact that A-1 inflicted fist blows onGurnam Singh, prosecution relied upon the evidence of PWs 3 and 4who claimed that they were travelling along with Gurnam Singh at theDtime of the occurrence in the car driven by Gurnam Singh and, therefore,witnessed the occurrence.

The Sessions Court disbelieved the evidence of PWs 3 and 4principally on two grounds, firstly that the evidence of PW3 and PW4was not consistent and kept varying from time to time and secondly, themedical evidence does not corroborate the testimonies of PWs 3 and 4.EOn the other hand, as already noticed by us (at para 25), the High Courtdisagreed with the conclusion of the Sessions Court regarding thetrustworthiness of the evidence of PWs 3 and 4.

36. The submission of the A-1 is that PWs 3 and 4 are plantedwitnesses and the circumstances appearing from the record create anyFamount of doubt regarding the fact that:

PWs 3 and 4 were in fact travelling with Gurnam Singh andwitnessed the offence, According to A-1, the circumstances are:G

(i) PWs 3 and 4 were related to the deceased and therefore theyare interested witnesses.

(ii) The failure of the prosecution to examine any independentwitness (i.e. witness unconnected with the deceased) thougha good number of people must have witnessed the occurrenceHas it occurred in broad day light in the city of Patiala.

(iii) Non-production of the records of the hospital[7] to indicate thatGurnam Singh was taken to the hospital by PWs 3 and 4.

(iv) The fact that the FIR which is said to have been registered byPW5 at 1.45 pm at the instance of PW3 reached the concernedMagistrate only at 5.30 pm that evening (i.e. approximatelyafter a lapse of 4 hours) though the distance between thepolice station and the Magistrate is only two kilometers leadsto a doubt that the timing of the registration of the FIR ismanipulated to give the impression that the incident waspromptly reported. The purpose being to plant PWs 3 and 4as eye-witnesses to the occurrence.

(v) That the prosecution did not seize the vehicle by which deceased,PW3 and PW4 were said to have been traveling.

37. We shall now examine the tenability of the above submissions.

38. The fact that PWs 3 and 4 are related to the deceased GurnamSingh is not in dispute. The existence of such relationship by itself doesnot render the evidence of PWs 3 and 4 untrustworthy. This Court hasrepeatedly held so and also held that the related witnesses are less likelyto implicate innocent persons exonerating the real culprits.[8]

7 It is submitted that as a matter of general practice, whenever a patient is taken to ahospital, the hospital records the details of the persons who brought the patients to thehospital more particularly in cases having medico-legal implication.

8 See Rizan v. State of Chhattisgarh, (2003) 2 SCC 661, para 66. We shall first deal with the contention regarding interestedness of the witnessesfor furthering the prosecution version. Relationship is not a factor to affectcredibility of a witness. It is more often than not that a relation would not concealthe actual culprit and make allegations against an innocent person. Foundation hasto be laid if plea of false implication is made. In such cases, the court has to adopta careful approach and analyse evidence to find out whether it is cogent andcredible.

Also see, Dalip Singh v. State of Punjab, AIR 1953 SC 364, para 2626. A witness is normally to be considered independent unless he or she springsfrom sources which are likely to be tainted and that usually means unless thewitness has cause, such as enmity against the accused, to wish to implicate himfalsely. Ordinarily, a close relative would be the last to screen the real culprit andfalsely implicate an innocent person. It is true, when feelings run high and there ispersonal cause for enmity, that there is a tendency to drag in an innocent personagainst whom a witness has a grudge along with the guilty, but foundation must belaid for such a criticism and the mere fact of relationship far from being a foundationis often a sure guarantee of truth.

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A

39. Admittedly, the incident took place in broad daylight in a busyarea of Patiala city. Obviously, the incident would have been witnessedby many others. It is, therefore, the submission of the accused that thenon-examination of any person other than PWs 3 and 4 renders theevidence of PWs 3 and 4 untrustworthy.

BWe find it difficult to accept the submission. The mere fact thatsome more witnesses, who would have witnessed the occurrence, werenot examined does not render the evidence of PWs 3 and 4 untrustworthy.In fact, in a matter like this, examining any other witness who wassupposed to have witnessed the offence would increase the burden ofthe prosecution to establish that such a witness is not a chance witness.C

40. Coming to the submission that the relevant records of RajendraHospital to which Gurnam Singh was taken immediately after the incidentwere not proved to establish that PWs 3 and 4 were the persons whocarried Gurnam Singh to the hospital need not necessarily lead to theconclusions that PWs 3 and 4 were not trustworthy witnesses. No doubt,Dthe production of such record would have gone to corroborate the factthat PWs 3 and 4 were accompanying Gurnam Singh at the time of theincident and immediately thereafter. Corroboration is not required forevery fact sought to be proved by the prosecution. If a fact is proved bysome credible evidence, to insist upon further corroborating materialEwould only make the enforcement of criminal law an absurdity.

41. Another submission of the defence is that PWs 3 and 4 areplanted witnesses by the prosecution, though they did not actually witnessthe occurrence of the crime. The accused seek to raise a doubt regardingthe fact that FIR is registered at 1.45 p.m. because the FIR reached theFMagistrate around 5.30 p.m. The concerned court, admittedly, is only ata distance of 2 to 3 kilometers from the police station. It is, therefore,argued that the prosecution manipulated the time of the registration ofthe FIR though it was recorded at a much later point of time afterprocuring the presence of PWs 3 and 4 to figure as eye-witnesses.

GIn our opinion, the logic adopted by the accused suggesting thepossibility of the PWs 3 and 4 being planted witnesses is untenable.

Admittedly, the post-mortem was conducted by PW2 on the deadbody of Gurnam Singh at 4.30 p.m. on the date of the occurrence. PW2in his deposition stated that body was identified by PWs 3 and 4. Thepost-mortem report also mentions the fact that body was identified byH

PWs 3 and 4. It, therefore, follows that PWs 3 and 4 were present by4.30 p.m. i.e., at the time of the post mortem. No submission is madethat PW2 is not a trustworthy witness or that the post-mortem report isnot a reliable document.

The post-mortem was preceded by an inquest conducted by PW5(sub-Inspector Kaka Singh). He deposed that on receipt of the report ofPW3 around 1.45 p.m. after completing the formalities of registration ofthe FIR, he proceeded to Rajendra Hospital at 3.00 p.m. Thereafter, heprepared the inquest report (Ex. PH) in the presence of PWs 3 and 4who attested the inquest report. After completion of the inquest, PW5entrusted the dead body to two police constables namely Bahadur Singhand Gurpal Singh with a requisition for post mortem (Ex. PG).

Obviously, it takes some time to conduct inquest. If PW5 reachedthe Rajendra Hospital at 3.00 p.m., the time gap of one and half hoursbetween the commencement of the inquest and the commencement ofthe post-mortem cannot be said to be an unreasonable period forconducting the inquest and making appropriate arrangement for the post-mortem examination.[9] Both from the inquest report and the post mortemreport, it can be noticed that PWs 3 and 4 presence was mentioned.Under Section 174 CrPC, an officer in charge of police station receivinginformation of the death of a person under the circumstances specifiedin the said section is required to proceed to the place where the deadbody is, draw up a report of the apparent cause of death and then forwardthe dead body for (post mortem) examination to the nearest Civil Surgeon.Therefore, neither the inquest could have taken place without theregistration of the crime nor the post mortem examination could beundertaken without a requisition from the investigating officer. There isnothing in the examination of PW5 (SI) to suggest that he did not followthe procedure prescribed under Section 174, CrPC.

From the above, it follows at least by 3 p.m. PWs 3 and 4 werepresent and actively associated with the above-mentioned events. Ifthey were to be planted as eye-witnesses, it must have happened between12.30 and 3.00 p.m. That means in a gap of two and a half hours between12.30 p.m. to 3.00 p.m., the investigating officer must have identifiedPWs 3 and 4 to be witnesses who would act to the dictation of theinvestigating agency and support the version of the prosecution and plant 9 PW2 stated in the cross-examination – “The post-mortem was started 4.30 p.m. on27.12.1988. I must have received the police papers few minutes earlier to 4.30 p.m.”

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Athem. Such a theory in our opinion would be a fantastic piece of fictionand it pre-supposes that PW-5 for some unknown reasons bore an enmityto A1 to plan such a deep plot to implicate A-1 in the crime. In theprocess, we must not forget that A-1, even by the date of the occurrence,was some kind of a celebrity. We would find it difficult to believe sucha version. The general tendency – if we do not take leave of commonBsense – is to turn a blind eye to the violations of law committed bycelebrities.

42. Another aspect of the matter which was vehemently arguedby the learned counsel for the accused is that the non-seizure of thevehicle by which the deceased and the PWs 3 and 4 were said to haveCbeen travelling at the time of the occurrence throws doubt about thepresence of PWs 3 and 4 along with the deceased at the time of theoccurrence. We fail to understand the submission. Even if the vehiclewere to be seized, we do not understand how it would go to prove thefact that PWs 3 and 4 were also travelling by that vehicle.D43. Therefore, we are of the opinion that the Sessions Court waswrong and the High Court was right (though the reasons are not wellarticulated) in believing the presence of PWs 3 and 4 at the time of thecommission of the offence along with deceased Gurnam Singh. Wemust hasten to add that from the above finding it does not follow thattheir entire evidence is unimpeachable.E

44. Then it becomes necessary to examine as to what extent theevidence of PWs 3 and 4 is credible. Both the witnesses in their evidencebefore the Sessions Court stated that they travelled with the deceasedon the fateful day in a Maruti car driven by Gurnam Singh. Both ofthem stated that there was an altercation between A-1 and the deceasedFregarding the right of way which resulted in the 1[st] accused giving fistblows to Gurnam Singh. They did not make any allegation in their evidencethat A-2 attacked Gurnam Singh. Their version is that when they triedto intervene to rescue Gurnam Singh, the 2[nd] accused attacked PW-3 bygiving fist blows.GThough, it is the evidence of PWs 3 and 4 that A-1 inflicted fist GThough, it is the evidence of PWs 3 and 4 that A-1 inflicted fistblows on Gurnam Singh, the post-mortem report indicates only twoexternal injuries – one on the temporal region and another on the leftknee of the deceased – both are abrasions. The 2[nd] injury, i.e. abrasionon the knee, according to PW-2 could be the result of the fall.Notwithstanding the narration of PWs 3 and 4 that A-1 inflicted fistHblows (multiple blows), it is most unlikely that a person would simultaneously aim at the head and also the knees of the victim whilegiving fist blows. Of course, it is possible that A-1 delivered more thanone fist blow but only one of them landed on the head of Gurnam Singhand the others missed the target. That leaves us with the position thatA-1 inflicted a single injury on the head of the deceased and we cansafely conclude that the 2[nd] injury on the knee of the deceased occurreddue to a fall at any road. It is not the suggestion of the prosecution thatGurnam Singh died of the injury on his knee.

45. The injury on the head of Gurnam Singh, as already noticed, isan abrasion admeasuring 0.75 cm x 0.5 cm over the left temporal regionat the junction of upper part of pinna. There is a corresponding subduralhemorrhage present over the left temporal region of Gurnam Singh. Butthe question is whether that single injury caused the death of GurnamSingh.

46. PW-2 in the post-mortem report did not give any opinionregarding the cause of the death of Gurnam Singh. On the other hand,he recorded as follows:

“The cause of death in this case will be given after receiving thereport from the Pathologist, Government Medical College, Patiala.Both the injuries are ante-mortem in nature and caused by bluntweapon.”

It is significant to note that PW2 was of the opinion that the injurieswere ante-mortem in nature and caused by a blunt weapon.

47. The pathologist gave a report dated 9.1.89 (Ex.PJ). He noticeda large number of abnormalities in the condition of the heart of GurnamSingh.

“Heart weighed 430 gm and measured 12x8x6 cm. Epicardial fatwas increased, especially over right ventricle. Both the branchesof left coronary artery i.e. anterior descending branch andcircumflex branch and right coronary artery showedatherosclerosis with calcification and narrowing of the lumen.Maximum thickness of left ventricular wall was increased to 1.8cm. Myocardium showed stromal fat infiltration, especially ofright ventricle and multiple focus areas of fibrosis in the wall ofleft ventricle. Cusps and chambers of the ears showed noPathology. No evidence of myocardial infarction was seen.Root of aorta showed atherosclerosis with focal areas ofcalcification.”

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AInsofar as the brain is concerned, the pathology report reads asfollows:

“Four pieces of brain, covered with Pia Meter, together weighed550 gms and measured 11x11x5 cm. No pathology was seen ongross or Microscopic examination.”

BIt is relevant to note that the pathologist did not notice anypathology either on the gross or microscopic examination. On receipt ofthe pathology report, PW-2 opined that it is necessary to obtain a furtheropinion of forensic expert. He, therefore, wrote to the Civil Surgeon,Patiala on 11.1.89 requesting that the case be referred to forensic expert,Government Medical College, Patiala.C

48. On 13.1.89, the Principal, Government Medical College, Patiala,acting on the abovementioned letter dated 11.1.89, constituted a Boardconsisting of 6 members of whom two were examined as PWs 1 and 2in the trial of the case. PW-1 was designated as the Convener of thesaid Medical Board. PW-1 gave a very cryptic opinion (Ex.PA) onD17.1.89, as follows:

“Death in this case is attributed to the effects of head injury andcardiac condition. However, the head injury in itself could besufficient to cause death in the ordinary course of nature”.

49. In view of the lack of clarity in the opinion, the prosecutionEtime and again sought for a clarification of the opinion. On two occasions,i.e. on 31.1.89 and 3.2.89, PW-1 declined to give any further clarificationand communicated as follows:

“In this context, it is for your kind information that the opinionexpressed earlier stands as such.”F “This is for your kind information that the facts regarding the “This is for your kind information that the facts regarding thecase have already been stated and need not be asked over andagain. If any clarification is needed, that will be submitted in theCourt.”

50. The Sessions Court analysed the evidence of PWs 1 and 2and the above mentioned correspondence between the investigatingGofficer and the doctors from paras 33 to 36 and recorded:- “… That there was a very minor abrasion over the left temporalregion, there was no fracture of the skull, the sub-dural hemorrhageseen by Dr. Jatinder Kumar Sadana (PW-2) had not been measuredas its magnitude and size was not indicated in the post mortem H

report. The witness in cross-examination admitted that a sub-duralhemorrhage is not fatal in all the cases.

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Dr. Gurpreet Singh[10], Head of the Cardiology Department was ofthe view that the cardiac condition as reported by the Pathologistcould also result in sudden cardiac death under stress. This meansthat Gurnam Singh could well have suddenly died without anyexternal injury on account of a Neurogenic or vasovagal shockand the post mortem examination would not have revealed thisfact. It was only after the pathologist examined xx the heart ofthe patient and reported various medical defects therein that theCardiologist formed the opinion that it was a case of sudden cardiacdeath.

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In any case, the Board has not stated that death was the result ofthe head injury or death was the result of cardiac condition ordeath was the result of head injury coupled with the cardiaccondition or death was the result of head injury which led to thecardiac condition.”

and finally held:

“Conclusion on the basis of the medical evidence is that thedeceased died on account of sudden cardiac death under stress,fell and received the two abrasions including the subduralhemorrhage in question. This conclusion is quite consistent withthe medical opinion expressed by the Pathologist and by Dr.Krishan Vij and Dr. Jatinder Kumar Sadana.”

51. On the other hand, the High Court recorded a conclusion, asfollows:

“……….None of the doctors i.e. Dr. Krishan Vij PW-1 and Dr.Jatinder Kumar Sadana PW-2 have stated in their testimony thatthe mode of death of Gurnam Singh was cardiac failure. All theyhave 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 hemorrhage was present over the left parietal region 10 He was one of the Members of the Medical Board A

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Aand brain as spelt out by Dr Jatinder Kumar Sadana PW-2. It isin fact this hemorrhage which caused the death of Gurnam Singh,and not a cardiac arrest.”

52. It is submitted by the accused that the above conclusion of theHigh Court is not based on any evidence and is a pure conjecture.B53. We have already noticed that PW2, who conducted the post-mortem, did not identify the cause of death of Gurnam Singh. He onlyforwarded the opinion of the Medical Board to the Police.[11] PW-1, whoheaded the Board, simply repeated the statement made in Exhibit PA.

“Deposition of PW 1: After perusal of the record and theCdiscussions held, opinion was given which is Ex. PA. Accordingto Ex. PA the death in this case was attributed to the effects ofthe head injury and cardiac arrest. However, the head injury initself could be sufficient to cause death in the ordinary course ofnature.”

On the face of the above evidence, the High Court came to theDconclusion that it is the subdural hemorrhage which caused the death ofGurnam Singh and not cardiac arrest.

54. As rightly pointed out by the accused, we find no basis in theevidence on record for such a conclusion. When Exhibit PA says thatdeath in the case is “attributed to the effects of head injury and cardiacEcondition”, to conclude that the cause of death is only hemorrhage andnot cardiac arrest is contrary to the evidence on record. On the otherhand it must be remembered the pathologist reported that he did notnotice any pathology on the brain either on “gross or microscopicexamination”. PW-2, who conducted the post-mortem examination, didnot give any description of the hemorrhage except to state that subduralFhemorrhage existed in the parietal region. He admitted in the crossexamination that he did not mention the magnitude or size of thehemorrhage.[12]

11 Deposition of PW 2: After the receipt of the report of the Pathologist Ex. PJ the caseGwas forwarded to the Professor and Head of the Department of Forensic Medicines,Medical College, Patiala for expert opinion through Civil Surgeon, Patiala. After thisboard was constituted by the Principal, Medical College, Patiala and cause of death wasgiven. This was forwarded in original to the SHO, P.S. Kotwali, on 17.1.1989. It is Ex.PK which is signed by me.

12 Deposition of PW 2: Though I mentioned in the post-mortem report that there wassubdural hemorrhage on the left temporal region, but I have not mentioned its magnitudeHor size, whether it was 1 cm or it was 10 cms.

55. PW-1 is also the author of a textbook on Forensic Medicineand Toxicology. In the Sixth Edition of his book he stated as follows:

“On most occasions, bleeding is slight but fatal compression ofthe brain by a large subdural haemorrhage can occur within afew hours. It has been suggested that about 100-150 ml is usuallythe minimum associated with fatalities. Fatality is frequentlyassociated with some concomitant brain injury. If there is noprimary brain damage, the mortality from the subdural haemorrhageis usually related to the victim’s age, neurological status and delayfrom the time of trauma to the surgical evacuation of thehaematoma.”[13]

It can be noticed from the above statement – (i) subduralhemorrhage by itself does not cause death but it is the compression ofbrain caused by a large subdural hemorrhage which causes the death;and (ii) about 100-150 ml of hemorrhage is usually the minimum associatedwith fatalities.

56. We shall assess the evidence on record in the instant case inlight of the above analysis. The statements made in (Ex PA) and theevidence of PW1 that the head injury itself could be sufficient to causethe death in the ordinary course of nature are mere ipse dixit. Neitherany specific details regarding the volume of the subdural hemorrhageare available on record, nor any medical opinion that the subduralhemorrhage caused the compression of the brain that caused the deathof Gurnam Singh. There is no evidence of any concomitant brain injury.The post-mortem report and the evidence of PW2 are silent in this regard.The pathologist’s report is clear about the absence of any pathology inbrain. Such being the evidence on record, the conclusion of the HighCourt that Gurnam Singh’s death is caused by subdural hemorrhage butnot cardiac arrest, in our opinion, is not based on any evidence on recordand is a pure conjecture. We, therefore, find it difficult to sustain theconviction of the first accused and set-aside the same. Because to finda man guilty of culpable homicide, the basic fact required to be establishedis that the accused caused the death. But, as noticed above, the medicalevidence is absolutely uncertain regarding the cause of death of GurnamSingh.

13 Textbook of Forensic Medicine & Toxicology Principles & Practice, 6th Ed, KrishanVij, Elsevier, pp 267-268

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A57. The only fact established on evidence is that A-1 gave a singlefist blow on the head of the deceased Gurnam Singh. No weapon wasused, nor was there any past enmity between the accused and thedeceased. It all started with a dispute regarding the right of way resultingin a brawl between them, a very common sight in this country.

58. Apparently, some verbal exchange took place between theaccused and the deceased. It is not clear from the record as to whatexactly are the words spoken by them except a vague indication thatsome intemperate language was employed by both of them, nor is itclear who initiated the exchange.

B

C59. In view of our above conclusion, we do not see any reason todiscuss the various submissions made in Criminal Appeal No.60 of 2007filed by the de facto complainant. Their entire case is sought to be builtup on the lapses in the investigation process and the conduct of theaccused in securing the anticipatory bail within few days of the incidentand the decision of the State initially not to prosecute A-1. Various otherDfactors sought to be relied upon by the de facto complainant pertain tocertain deficiencies in the process of the investigation (such as the non-seizure of the vehicle by which deceased and PWs 3 and 4 were travellingand the disinclination of the State to array the first accused herein as theaccused in the Sessions Case No.79/18.8.94/20.8.94 either by design orEotherwise) make no difference to the conclusion that the first accusedcannot be held to be responsible for the death of Gurnam Singh in viewof the medical evidence. The de facto complainant also calls upon thisCourt to believe that in view of the celebrity status of the first accused,the State went out of its way to shield his crime. Therefore, the firstaccused must be held to have caused the death of Gurnam Singh.F

60. No doubt that there are lapses in the investigation. We cannothazard a guess whether such lapses occurred because of the generalinefficiency of the system or as a consequence of a concerted effortmade to protect the accused. The law of this country is not that peopleare convicted of offences on the basis of doubts.

G

61. We must also mention here that the de facto complainantmoved an I.A. No. 50523 of 2018 praying that the content of a CD bereceived as additional evidence, along with the CD allegedly containingsome interview given by the first accused to some TV channel. Thesaid CD is said to contain certain statements which would go in theHopinion of the de facto complainant to prove the guilt of the accused.

62. For receiving such material on record at this stage, in ouropinion, requires the examination of too many questions of law includingquestions of the interpretation of some of the provisions of theConstitution. Assuming for the sake of argument that this Court inexercise of its extra-ordinary jurisdiction can receive such evidence,necessarily such an exercise requires the giving of an opportunity to thefirst accused before such evidence is taken on record.

In our opinion, all that is avoidable for the reason: even if it isassumed that the first accused admitted to his participation in theoccurrence, (a fact which we have already concluded independent ofhis own confession alleged in the TV show) in the light of the medicalevidence on record, he cannot be held guilty of causing the death ofGurnam Singh. We, therefore, see no reason to entertain the application.Such admissions, if any do not help improve the case of the de factocomplainant.

63. The net result of all the above discussion is that the first accusedcannot be held to be responsible for causing the death of Gurnam Singh.Therefore, the judgment under appeal is required to be set aside and isaccordingly set aside. The material on record leads us to the only possibleconclusion that we can reach that the first accused voluntarily causedhurt to Gurnam Singh punishable under Section 323 IPC.

64. The next question is what would be the appropriate punishmentfor such an offence. Section 323 IPC stipulates a punishment ofimprisonment of either description for a term which may extend to oneyear or with fine which may extend to Rs.1000/- or with both. In thecircumstances of the case having regard to the facts that (i) the incidentis 30 years old; (ii) there is no past enmity between the accused and thedeceased; (iii) no weapon was used by the accused; and (iv) thebackground in which it happened, we are of the opinion, a punishment ofimposition of fine of Rs.1000/- would meet the ends of justice in thiscase.

65. In view of the foregoing, we allow the appeals of the accusedas indicated above and dismiss the appeal of the complainant.

Divya Pandey

Appeals disposed of.

A

B

C

D

E

F

G

H