Mehtab S. Gill, J.
1. This is an appeal against the judgment/order dated January 6, 1999 passed by the Sessions Judge, Faridkot convicting and sentencing accused/appellants under Section 302 read with Sections 148 and 149 of the Indian Penal Code.
2. Chand Singh son of Baggar Singh, Jat Sikh, resident of village Kokri Heran went to Police Station Mehna and gave his statement to Sukhmandar Singh, Assistant Sub-Inspector on January 31, 1995 at 5.25 p.m., who endorsed it in Daily Diary Report registered at Rapat No. 17. Chand Singh stated that they are three brothers. One of the brothers, namely. Tara Singh resides in Gaushala in village Chugawan. The other brother is Harnek Singh. Chand Singh and Harnek Singh lived together in village Kokri Heran. Harnek Singh is insane and keeps moving around and resides some time with his relatives and some time with saints. He further stated that on January 29, 1995, he was present in his house along with his nephew Malkiat Singh son of Harnek Singh. Malkiat Singh told his mother Baldev Kaur and Chand Singh that at the time of putting green fodder to the buffalo, he had got hit and injured in his flank and that he is going to the village to get medicines. It was about 5-6 p.m. that Malkiat Singh did not return. They got worried and enquired from his Massi, namely, Jaspal Kaur wife of Nachhattar Singh, resident of village Heran and from other places, but could not locate Malkiat Singh. Malkiat Singh sometimes took wine. He further stated that on January 31, 1995 Bikkar Singh son of Bhan Singh, resident of village Kokri Heran along with Ajaib Singh, Sarpanch, told them that there is a dead body lying in the tubewell of Bikkar Singh. They went there, saw and identified it to be the dead body of Malkiat Singh. Bikkar Singh and Gurdeve Singh, Member Panchayat, were left near the tubewell and they, i.e., Chand Singh, Baldev Kaur alias Jeeto wife of Harnek Singh, the mother of deceased Malkiat Singh, and Ajaib Singh, Sarpanch came to lodge the report. It is further stated in the Daily Diary Report that the complainant attested it after admitting its correctness. Shamsher Singh, Assistant Sub-Inspector then got Daily Diary Report signed by Ajaib Singh, Sarpanch and Smt. Baldev Kaur.
3. After recording of Daily Diary Report, Shamsher Singh, Assistant Sub-Inspector along with Har Pal Singh, Head Constable, Jagjit Singh LC, Jagtar Singh LC and Chand Singh left for village Kokri Heran for conducting proceedings under Section 174 of the Code of Criminal Procedure. Vide document, Exhibit DB, which is Daily Diary Report No. 19 dated January 31, 1995, it is stated that Shamsher Singh, Assistant Sub-Inspector returned to the Police Station after conducting proceedings under Section 174 of the Code of Criminal Procedure relating to the dead body of Malkiat Singh son of Harnek Singh, Jat Sikh, resident of village Kokri Heran. He arranged for a tractor trolley and sent the dead body with the relevant papers, which were handed over to Jagjit Singh LC, who was accompanied by Jagtar Singh LC. The dead body was sent to Civil Hospital, Moga, for conducting post-mortem examination.
4. Police did not take any action on this Daily Diary Report nor on the inquest report. Nor was First Information Report registered by the police for the reasons best known to them. Baldev Kaur (PW-2), the mother of deceased Malkiat Singh, then filed a complaint in the Court of Judicial Magistrate I Class, Moga on March 13, 1995 after 41 days.
5. Postmortem examination was conducted by Dr. Mohinder Pal (PW-1) and the injuries found on the dead body of deceased Malkiat Singh are reproduced as under :-
'On 1-2-1995 at 11.00 a.m. I conducted the postmortem examination on the dead body of Malkiat Singh son of Harnek Singh resident of village Kokri Heran, aged 22-23 years old male. The dead body was brought by LC Jagjit Singh and LC Jagtar Singh, Police Station Mehna. The dead body was identified by Chand Singh son of Bagga Singh and Charanjit Singh son of Pala Singh resident of village Kokri Kalan and I observed as under :-
The length of the body was 5 feet 6 1/2 inches. It was body of an adult male moderately built and nourished wearing a shirt, a sweater, a kachha and pent. Mouth was open, eyes were closed. Rigor mortis was present. Postmortem staining was present. The body bore the following injuries :-
1. An abraded contusion of size of 3 cms x 2 cms on the chin, Contusion was red in colour.
2. An abrasion of size of 2 cms x 1/2 cm on the upper lip. It was red in colour.
3. An abraded contusion of size of 5 cms x 4 cms on the right iliac crest. It was red in colour.
4. A red contusion of size of 2 cms x 1 cm on the left cheek.
5. An abraded contusion of size of 5 cm x 3 cms on left knee joint. It was red in colour.
6. An abraded on the size of 5 cms x 3 cms on the front of right leg, 10 cms above ankle. It was red in colour.
7. An abraded contusion of size of 10 cms x 4.5 cms on the back of chest in the right scalpular region. It was red in colour.
8. On palpation there was fracture of 4 and 5 ribs on the right side and there was fracture of 6 and 7 ribs on left side of the chest, but there was no external injuries mark. On dissection of these areas the underlying muscle were lacerated and ribs were fractured. On further dissection both right and left pleurae and lungs were lacerated. There was abnormal collection of blood inside the thoracic cavity.
Walls, ribs and cartilages, pleurea right and left lung, walls of abdomen, were as per description in the injuries. All other structures were normal.
Heart was empty. Stomach was empty. Small intestines contained gases, large intestines contained faecal matter and bladder was full of urine.
In my opinion, the cause of death in this case was haemorrhage and shock as a result of injury No. 8 which was antemortem and sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was immediate and probable time between death and postmortem was within 48 hours ......'
6. We have heard Shri R. S. Ghai, Senior Advocate assisted by Shri Vinod Ghai, Advocate for the appellants and Shri Randhir Singh, Deputy Advocate General for the State of Punjab.
7. Shri R. S. Ghai, Senior Advocate, at the very outset has attacked the prosecution case that there is unexplained delay of 41 days in filing of the complaint before the Committing Magistrate. This, according to him, is fatal to the prosecution case. Daily Diary Report No. 17, Exhibit DA, was lodged on January 31, 1995. Chand Singh-complainant was accompanied by PW-2 Baldev Kaur, the mother of deceased Malkiat Singh and DW-1 Ajaib Singh, Sarpanch of the village Kokri Heran. Police did not take any action on this Daily Diary Report, though proceedings under Section 174 of the Code of Criminal Procedure were conducted and dead body was sent for postmortem examination to Civil Hospital, Moga. PW-2 Baldev Kaur, in her statement given before the Court, has stated that the occurrence took place on January 30, 1995. She has further stated that she continued to go to the Police Station for about 1 1/2 months so that action may be taken. She has further stated that after 15 days of the occurrence, she had given an application to the Deputy Superintendent of Police, Moga that action be taken against the culprits, who have murdered her son. She has further stated that she got the postmortem report of her son after about 15-20 days, which she gave to her counsel. It is strange that though she had kept going to the Police Station for 1 1/2 months, as stated by her, apart from the statement, that she had gone to Deputy Superintendent of Police, Moga after 15 days of the occurrence, there is no documentary evidence or any complaint coming forward to show that she was trying her level best to make the machinery of the police move. She did not meet the higher authorities, i.e., Senior Superintendent of Police, Deputy Inspector General, nor did she send any application through registered post to the higher authorities including the police and judicial Courts that action may be taken against the culprits. She has stated that she got the postmortem report after 15 to 20 days, which she gave to her counsel. This does not seem to be correct. There is nothing on record to show that when did she get the postmortem report Further when did she give it to her counsel This has been stated only to cover up the unexplained delay in a crude manner. Going through the Daily Report, Exhibit DA, none of the accused is named. It is only after 41 days that she named the four appellants. The date of the occurrence is also wavering. In the Daily Diary Report, Exhibit DA, where the complainant-Chand Singh had stated that the occurrence had taken place on January 31, 1995, while PW-2 Baldev Kaur, the mother of the deceased, in her testimony given before the Court, has stated that the occurrence had taken place on January 30, 1995. Taking that PW-2 Baldev Kaur, being an illiterate rural woman and that she did not know as to what to do, but going through her statement, it is clear, that she met her advocate after 15 to 20 days of the occurrence and that the least she could have done was to get her counsel into the witness box, to state that it was not her fault, for the delay in filing of the complaint, but it was the counsel's fault. Thus, we have come to the conclusion that the delay of 41 days goes unexplained, which is fatal to the prosecution case.
8. Learned counsel for the appellants has drawn our attention to the injuries on the person of deceased-Malkiat Singh. Injuries No. 1, 2, 3, 4, 5, 6 and 7 are abrasions or contusions; all red in colour. Colour of the injuries shows that they are within a span of 18 to 24 hours. Colour of the injuries changes from red to bluish, then bluish to brown and finally to black. The postmortem on the body of deceased-Malkiat Singh was conducted on February 1, 1995 at 11.00 a.m. If we take the occurrence to be that of January 29, 1995, as given in Exhibit DA, the Daily Diary Report, then duration comes to 65 hours, but if we take the occurrence to be on January 30, 1995, as stated by PW-2 Baldev Kaur, then the duration of the injuries is 41 hours. As per Modi's Medical Jurisprudence & Toxicology, data to ascertain the age of injury reads as under :-
'The age of a bruise may be ascertained from the colour changes which its ecchymosis undergoes. These changes commence from 18 to 24 hours after its infliction, and pass through various stages .....'
9. Going through the portion, as quoted above, it shows that the colour of the injuries could not have been red and by the time the postmortem was done, the colour should have been black. This shows that the deceased received injuries much after the time of occurrence as stated by PW-2 Baldev Kaur. Further going through the medical evidence, there are no injuries with sharp edged weapons though the three accused, i.e., Gurdial Singh, Nek Singh and Ginder Singh were armed with Takuas and Gandasas.
10. In Daily Diary Report No. 17 dated January 31, 1995, Exhibit DA, Shamsher Singh, Assistant Sub-Inspector, has stated that he along with the police party was going to the spot to start proceedings under Section 174 of the Code of Criminal Procedure. In Daily Diary Report No. 19, Exhibit DB, Shamsher Singh, Assistant Sub-Inspector, has stated that the proceedings under Section 174 of the Code of Criminal Procedure were concluded and body was sent to the Civil Hospital, Moga for post-mortem examination. Hari Singh, Head Constable, was produced in defence as DW-2, who, in his testimony before the Court, has stated that he has brought the Daily Diary Report Nos. 17 and 19 dated January 31, 1995, which bear the thumb impressions of Baldev Kaur wife of Harnek Singh and Chand Singh. It also bears the signature of Ajaib Singh Sarpanch (DW-1). He has further stated that as per Daily Diary Report entries, proceedings under Section 174 of the Code of Criminal Procedure were gone through, but he has not brought these proceedings as they were not available in the Police Station. He has further stated that Shamsher Singh, Assistant Sub-Inspector, had taken the proceedings and no copy was deposited in the police station. Shamsher Singh, Assistant Sub-Inspector, has died. The Daily Diary Report No. 19 bears the signature of Shamsher Singh, Assistant Sub-Inspector, which he identifies. Saroj Manchanda, Ahlmad, SDM Court, Moga appeared as DW-6, who has stated that the proceedings under Section 174 of the Code of Criminal Procedure are received through the Naib Court, but were given back to him. The defence has tried its level best to produce the inquest report, though it was the duty of the prosecution to produce the inquest report before the trial Court. But it seems that the prosecution is trying to hide some thing from the Court so that the case of the prosecution does not get damaged. Since the inquest proceedings are not before us, it is very difficult to comment as to what is in that report and what proceedings Shamsher Singh, Assistant Sub-Inspector took on that date. Shri R. S. Ghai, Senior Advocate, stated in his argument that the only reason which the prosecution tried to keep all those documents away from the Court, is that the names of the accused are not mentioned in it, but there may be the names of some other persons. We cannot comment on this, but as the inquest report was not produced before the Court, it casts a doubt and suspicion that the prosecution is definitely trying to hide something from the Court. The witnesses produced by the prosecution, i.e., PW-3 Chamkaur Singh and PW-4 Mohan Singh belong to two different villages. Chamkaur Singh belongs to village Chuhar Chak and Mohan Singh belongs to Budhni Kalan. The distance between village Budhni Kalan and village Chuhar Chak is 10 kms and village Kokri Heran, the place of occurrence, is 10 kms and village Kokri Heran, the place of occurrence, is 10 kms from both these villages. It is strange that the two persons belonging to two different villages, who are inimical to accused/appellant, Malkiat Singh son of Pal Singh, were present at that time in village Kokri Heran, when according to them, deceased Malkiat Singh was picked up in the van and taken away. The two very important witnesses, i.e., Chand Singh author of Daily Diary Report No. 17 and Bikkar Singh from whose tubewell, the body was found, have been kept away and not produced in the Court. As stated by them in their testimony while appearing as PW-3 and PW-4 respectively, they were going along with deceased Malkiat Singh when the four accused-appellants armed with gandasas, takuas and gun appeared and after giving butt injuries on the face, chest, and legs of deceased-Malkiat Singh threw him in the van and took him away. As stated by them, they then went to the house of PW-2 Baldev Kaur and informed her. It is strange that after informing her, they immediately went away to their villages. It is further in the statement of PW-3 Chamkaur Singh that he along with PW-4 Mohan Singh, accompanied PW-2 Baldev Kaur to the Court to file a complaint. It is strange that for filing of the complaint, they showed a lot of interest, but did not report the matter to the police or higher authorities when Malkiat Singh was taken away from them, as alleged by the accused-party.
11. There does not seem to be any motive for the accused/appellants to do away with Malkiat Singh. As stated by PW-4 Mohan Singh in his testimony given before the Court that Malkiat Singh-accused was having a dispute regarding the possession of his land with one Ram Singh and he had given an application to this effect to the police also. In this application, he had mentioned that PW-4 Mohan Singh was helping this very Ram Singh. But this assertion does not take us anywhere. The only conclusion which we can draw is that the accused-party was having a dispute with one Ram Singh, but there was no dispute with deceased Malkiat Singh. PW-2 Baldev Kaur in her testimony has given the motive that accused wanted to pass their tractor over the land and her son deceased Malkiat Singh was not allowing it. All this, which she had stated in her statement is that accused Gurdial Singh and Nek Singh are the husbands of her sisters-in-law and they are having a dispute regarding some land. The other accused are helping them. No document or independent oral testimony has come forward to support this assertion of PW-2 Baldev Kaur. The documents which have been produced, i.e., Exhibit DD and Exhibit DE, regarding some land the possession of which has been taken by appellant Nos. 1 and 2's mother. Ajaib Singh, Sarpanch of village Kokri Heran, was produced as DW-1 by the defence, who has stated in his testimony that he did not know whether Malkiat Singh-deceased was killed by the accused. He has further stated that Chand Singh-complainant did not name the assailants before the police.
12. With the above observations, appeal filed by the appellants is allowed. Conviction and sentence awarded by the trial Court is set aside. The accused/appellants are acquitted of the charges levelled against them.
13. Appeal allowed.