Sabina, J.
Vide this judgment, the above mentioned Criminal Appeal No. 854-DB of 2005 and Criminal Revision No. 21 of 2006 shall be disposed of as these have arisen out of the same judgment/incident.
Prosecution case was set in motion on the basis of the statement of the complainant Kuldip Singh. The complainant stated in his statement before Assistant Sub Inspector Vinod Kumar dated 30.4.2002 that at about 1.00 A.M. on the said date, he had reached his fields along with his brother Jagsir Singh and maternal uncle Shamsher Singh for taking turn of water. When he tried to divert the flow of water along with his brother Jagsir Singh, then Balwant Singh armed with .12 bore gun and his sons Jagtar Singh armed with saila and Iqbal Singh armed with dang came there raising lalkaras and tried to stop Jagsir Singh from taking turn of water. The moment Jagsir Singh tried to divert the water, Balwant Singh fired a shot at him from his 12 bore gun which hit him on the left side of his chest. Jagsir Singh fell into the water channel. When he came forward to help his brother, then Jagtar Singh gave a saila blow which hit him below his left ear. Iqbal Singh gave a soti (stick) blow on his left arm. Shamsher Singh raised alarm and thereafter, all the three assailants fled away from the spot with their respective weapons. Sukhmandar Singh also came to the spot from his fields on hearing their alarm. When they came near Jagsir Singh, they saw that he had died. During the night they remained with the dead body of Jagsir Singh out of fear. The motive behind the occurrence was that there was a dispute qua 15 minutes of flow of water in the irrigation channel. Balwant Singh wanted that they (complainant party) should be allowed to divert the water after 15 minutes.
On the basis of the statement of the complainant, formal FIR No. 66 dated 30.4.2002 was registered at Police Station Sadar Abohar under Section 302, 323, 34 of the Indian Penal Code ('IPC' for short) and 25, 27 of the Arms Act, 1959.
Thereafter, Assistant Sub Inspector Vinod Kumar visited the spot and prepared inquest report qua the dead body of Jagsir Singh. The dead body was sent for post mortem examination. He lifted plain earth and blood stained earth from the spot. He also took in possession one empty cartridge of .12 bore gun from the spot.
On 30.4.2002, Inspector Devinder Singh took over the investigation of the case and inspected the spot. On 7.5.2002, he arrested accused Jagtar Singh and Iqbal Singh and took in possession saila and dang carried by them, respectively. Balwant Singh accused was arrested on 8.5.2002 and he got recovered .12 bore gun from the disclosed place on the basis of disclosure statement suffered by him during interrogation.
After completion of investigation and necessary formalities challan was presented against the accused.
In order to prove its case, prosecution examined 14 witnesses during trial.
After the close of prosecution evidence, appellants when examined under Section 313 of the Code of Criminal Procedure, 1973 pleaded that they were innocent and had been falsely implicated in this case.
The appellants did not examine any witness in their defence.
Accused Jagtar Singh had died during the pendency of the trial.
The trial court vide judgment/order dated 19.11.2005 convicted and sentenced the appellants qua commission of offence under Section 302, 324, 323/34 IPC. Hence, the present appeal by appellants Iqbal Singh and Balwant Singh.
The complainant has also preferred a Criminal Revision Petition No. 21 of 2006 seeking enhancement of sentence of the appellants.
It has been brought to our notice during the course of arguments that appellant Balwant Singh has died on 24.5.2006, while in custody, during the pendency of the present appeal. Certified copy of the death certificate of appellant Balwant Singh has been placed on record.
Mr. Vinod Ghai, Advocate on behalf of appellant Iqbal Singh has submitted that the said appellant had been falsely involved in this case. There was inordinate delay in lodging of the FIR. The presence of the eye witnesses at the spot was doubtful as the deceased had been bitten by a dog after his death. Had the eye witnesses been present at the spot, the said fact would not have occurred.
Learned state counsel, on the other hand, has submitted that the presence of Kuldip Singh at the spot could not be doubted as he had himself suffered injuries in the occurrence. There was no unexplained delay in lodging of the FIR.
PW-1 Dr. Baldev Raj deposed that on 30.4.2002, he had conducted post mortem examination on the dead body of Jagsir Singh and had observed following injuries on his person:-
1. An oval penetrating wound 3 cm x 2 cm on the left side of the chest 2 cm above and media-1 to left nipple. Margins were inverted and blackened. Adjecent skin was abraded and dark red in colour Dark red blood was coming out.
2. An oval penetrating wound 4.5 cm x 3.5 cm on the back on left side 2 cm lateral to mid line opposite T- 4, Margins everted edges irregular. Dark red blood was coming out.
3. A lacerated wound on the face involving nose, upper lip and lower lip. Tip of the nose, upper lip and lower lip were missing. Margins were lacerated and pale. No blood on margins, clotted or non-clotted. No oedima of margins.
He further deposed that in his opinion the cause of death was due to shock as a result of hemorrhage due to injuries No. 1 and 2 and respiratory failure as a result of injuries No. 1 and 2 which were sufficient to cause death in the ordinary course of nature. Injuries No. 1 and 2 were ante mortem in nature whereas injury No.3 was post mortem in nature. Injury No. 3 could be the result of removal of the body portion i.e. tip of nose and both lips by any wild animal.
PW-4 Dr. R.K.Arora deposed that on 30.5.2002, he had medico legally examined Kuldip Singh at 8.35 A.M. and had found following injuries on his person:-
1. An incised wound 2.5 cm x 0.5 cm into bone deep present on the left mastoid process behind the left ear labule. Wound was bleeding on examination. X-ray was advised.
2. A Reddish blue contusion 6 cm x 3.5 cm on the left elbow outer aspect on the lateral surface. Tenderness was present. X-ray was advised.
He further deposed that in his opinion injury No.1 had been caused with sharp edged weapon whereas injury No.2 had been caused with a blunt weapon.
Complainant, while appearing in the witness box as PW-3, has deposed as per the contents of the FIR. PW-5 Shamsher Singh has corroborated the statement of the complainant.
There is no force in the argument raised by the learned counsel for the appellant that the eye witnesses were not present at the spot and had not witnessed the occurrence. The presence of PW-3 Kuldip Singh at the spot cannot be doubted as he had himself suffered injuries in the occurrence. Learned counsel for the appellant has argued that the injuries on the person of the complainant could be self suffered. However, the said argument is liable to be rejected in view of the medical opinion on record. PW-4 in his cross examination has deposed that injury No.1 was unlikely to have been self suffered on account of its position being on the lateral side of the head and the said portion being less muscular. In these circumstances, the presence of the complainant at the spot cannot be doubted.
Injury No.3 on the person of the deceased has been opined to be post mortem injury by PW-1. Further, PW-1 in his cross examination has deposed that the said injury could be a result of act of a wild animal. The said fact has not been explained by the complainant in the FIR but that in itself cannot be said to be a ground for disbelieving the presence of the eye witnesses at the spot. However, the possibility that appellant Iqbal Singh might have been falsely involved in this case cannot be ruled out. As per the eye witnesses, appellant Iqbal Singh had inflicted a dang blow on the left elbow of the complainant. As per PW-4, the possibility that the said injury had been caused on account of a fall could not be ruled out. In these circumstances, it is possible that complainant Kuldip Singh might have suffered the injury No.2, observed on his person by PW-4, on account of a fall at the time of occurrence. The occurrence had taken place at 1.00 A.M. whereas the matter was reported to the police at 5.30 A.M. The complainant party had come to the spot on a tractor and had no reason to wait at the spot for more than five hours before lodging the FIR as the assailants had left the spot after causing the injuries. There was no occasion for the eye witnesses to have remained at the spot out of fear after the assailants had left the spot. It appears that the delay in lodging of the FIR might have been utilized to falsely involving appellant Iqbal Singh in this case being a relative of the other co-accused. Hence, we are of the considered opinion that appellant Iqbal Singh is liable to be acquitted by giving him benefit of doubt.
Accordingly, the Criminal Appeal No. 854-DB of 2005 qua appellant Balwant Singh is disposed of as having abated on account of his death. The appeal qua appellant Iqbal Singh is allowed and he is acquitted of the charges framed against him by giving him benefit of doubt. Consequently, the Criminal Revision No. 21 of 2006 is dismissed.