Nirmal Singh v. State of Punjab (Supreme Court) (31.05.2023)

 

SUPREME COURT OF INDIA

Before:- Sudhanshu Dhulia and K.V. Viswanathan, JJ.

Criminal Appeal No. 218 of 2015. D/d. 31.05.2023.

 

Nirmal Singh & Anr. - Appellants

Versus

The State of Punjab – Respondents

 

For the Appellants :- Mr. R.K. Handa, Mr. Dharam Bir Bhargav, Ms. Gauri Handa, Mr. Kulwinder Bhargav, Mr. Ravi Panwar, Advocates.

For the Respondents :- Mr. Ajay Pal, Mr. Mayank Dahiya, Advocates.

 

Indian Penal Code, 1860 Sections 300, 302 and 304 Criminal Procedure Code, 1973 Section 319.

 

Case Referred :-

Sanjay v. State of Uttar Pradesh, (2016) 3 SCC 62.

 

ORDER

This Appeal has been filed challenging the judgment and order dated 23.09.2013 passed by the Punjab and Haryana High Court in Criminal Appeal No. D-831-DB of 2009 upholding the judgment and order of the trial Court dated 26.08.2009 convicting the accused Nirmal Singh alias Nimma for the offence punishable under Section 302 IPC and his brother co-accused Sukhpal Singh alias Sukha under Section 302 read with Section 34 IPC and sentencing them to undergo imprisonment for life with default stipulations.

2. Before the commencement of the arguments, Mr. R.K. Handa, learned counsel for the appellant(s) brought to our notice that, during the pendency of the Appeal before this Court, one of the appellant i.e. Nirmal Singh was granted pre-mature release from jail on 22.07.2016 after undergoing sentence of fourteen years. The said fact is also recorded in the orders of this Court dated 15.06.2022 and 16.06.2022, passed in the present Appeal.

3.1 The FIR was lodged by Thandu Singh (PW-1) on 15.11.2005 at 5.00 P.M. at Police Station Sadar, Mansa. It was stated therein that his sister - Amarjit Kaur was married to one Maghar Singh. Maghar Singh's uncle, Chand Singh, was married to Kartar Kaur. Chand Singh and Kartar Kaur were issueless. Therefore, Chand Singh wanted to adopt Maghar Singh and he had also executed a Will in favour of Maghar Singh. Kartar Kaur, however, was against this move of Chand Singh. She instead wanted to give the property to her nephews - Nirmal Singh and Sukhpal Singh (the appellants herein), residents of Village Alisher Kalan in the District Mansa, Punjab.

3.2 Civil litigation was pending between the parties with regard to the land of Chand Singh, who died 7-8 years back. There was litigation regarding the land of Chand Singh between Kartar Kaur and Maghar Singh, nephew of Chand Singh. Kartar Kaur's nephews, Nirmal Singh and Sukhpal Singh (the appellants herein) were pursuing the case on behalf of Kartar Kaur and were also cultivating the land of Kartar Kuar and Chand Singh.

3.3 On the fateful day i.e. on 13.11.2005, at about 3.00 P.M., when he [Thandu Singh (PW-1)] (who had reached the village of Maghar Singh a day before i.e. on 12.11.2005), was helping his brother-in-law Maghar Singh in loading the cotton sticks in his bullock cart, the appellants - Nirmal Singh and Sukhpal Singh approached them. Nirmal Singh had "Kasia" (local name for `shovel') in his hand. There was an exhortation by Sukhpal Singh, who wanted Maghar Singh to be taught a lesson as he was doing litigation against them in the Court. On this, the appellant - Nirmal Singh gave a blow from the blunt side of Kasia on the head of the deceased and a second blow as well, which fell on the left arm of the deceased. On receiving the blows, the deceased fell on the ground and the two appellants - Nirmal Singh and Sukhpal Singh fled the scene.

4. The Police, after investigation, arrested Nirmal Singh on 27.11.2005 and subsequently filed charge-sheet against him. Initially, the FIR was registered under Section 307/34 but subsequently it was converted to 302 IPC. The charge-sheet, as originally filed, was under Section 302 against Nirmal Singh alone. When Thandu Singh was examined during trial, he attributed a role to Sukhpal Singh as well. It was then that an application was made by the prosecution, under section 319 of Cr.P.C., 1973 to add Sukhpal Singh as an accused. Sukhpal Singh was thus added as an accused. While Nirmal Singh was charged under Section 302, Sukhpal Singh was charged under Section 302 read with Section 34. The witness Thandu Singh was examined afresh as PW-1.

5. The prosecution case hinges on the evidence of Thandu Singh (PW-1) and on the recovery of the kasia on the disclosure statement of Nirmal Singh (Ex.PE) and the recovery memo (Ex.PG)

6. Four doctors were examined in this case. We will deal with their evidences a little later as their evidence becomes crucial while determining the nature of the offence committed by the appellants, in the present case.

7. Thandu Singh (PW-1) is an eye-witness to the incident. He has clearly deposed that he had gone to his sister Amarjit Kaur's house on 12.11.2005; that on 13.11.2005, he along with his brother-in-law deceased Maghar Singh were lifting dry cotton sticks in a bullock cart from Jawahar Ke Wala field; that Maghar Singh was passing on the sticks while he was loading the same in the bullock cart; that at about 3.00 p.m. the appellant Nirmal Singh armed with kasia and Sukhpal Singh, who was unarmed came there; that Sukhpal Singh exorted that Maghar Singh be taught a lesson for litigating in Courts; that Nirmal Singh then gave a `kasia' blow with full force on the head of the deceased Maghar Singh as a result of which he fell down; that the blow was given with the reverse side of kasia; that Nirmal Singh gave another kasia blow from reverse side hitting on the left arm of Maghar Singh and when he shouted `na maro, na maro', both the accused Nirmal Singh and Sukhpal Singh fled away. Thereafter, Maghar Singh was taken to Civil Hospital, Mansa from where he was referred to DMC & Hospital, Ludhiana. The treatment given to Maghar Singh is elaborated a little later in detail. The Police recorded the statement of Maghar Singh on 15.11.2005 and that was the First Information Report in the case.

8. The evidence of PW-1 - Thandu Singh gains corroboration from the injuries as noticed by PW-4 Dr. Nishan Singh, who first examined the deceased Maghar Singh at the Civil Hospital, Mansa. The injuries have been set out hereinbelow in the later part of this order. Additionally, the recovery of the kasia, pursuant to the disclosure statement of accused appellant Nirmal Singh lends further weight to the prosecution story. Recovery is witnessed by PW-2 Balbir Singh, who has also attested the recovery memo (Ex.PG). The evidence on the aspect of as to how the incident happened has been clearly brought out by the prosecution and there is nothing in the cross-examination which dis-credits the prosecution story.

9. Considering the evidence of Thandu Singh (PW-1) and the recovery of the kasia under Ex.PG, as spoken to in the evidence of PW-2 Balbir Singh, the trial Court and the High Court have concurrently found the incident to be true.

10. The Courts below have also believed PW-1 Thandu Singh with regard to the presence of appellant Accused No.2 Sukhpal Singh at the place of the occurrence and the exhortation made by him.

11. From the original records, we have perused the evidence of Thandu Singh (PW-1), Balbir Singh (PW-2) and Ex.PG Recovery Memo.

12. Considering the weight of evidence placed by the prosecution, we are not inclined to take a different view on the occurrence of the incident, from what the courts below have taken.

13. However, having examined the deposition of the witnesses and, more particularly, the evidence of the four doctors - Dr. Nishan Singh (PW-4), Dr. Ashwani Kumar Chaudhari (PW-14), Dr. Seema Sharma (PW-5) and Dr. Preminder Jit Singh (PW-3), we are convinced that the offence of murder has not been made out and this is a case of culpable homicide not amounting to murder. We say so for the reasons given hereinbelow.

14. The incident, as we have already stated, is of 13.11.2005. Thereafter, the injured Maghar Singh (since deceased) was immediately taken first to the Civil Hospital, Mansa. Dr. Nishan Singh (PW-4) was the Medical Officer on duty at the relevant time in the Civil Hospital, Mansa. The doctor had noticed the following injuries:-

a) Lacerated wound 6x1cm on left side of frontal region of head, 9cm from left pinna fresh bleeding was present.

b) Lacerated wound 2x1cm on the outer aspect of left arm, 4cm above the left elbow. Diffused swelling was present.

15. As per the deposition of the doctor, both injuries were result of a blunt weapon and the injuries were caused within twelve hours. Maghar Singh was referred to the Dayanand Medical College (DMC) & Hospital, Ludhiana at 05:00 p.m. on 13.11.2005. The doctor admits that, initially, while referring Maghar Singh to the hospital at Ludhiana, he had not declared injury No.1 to be dangerous to life. However subsequently, after seeing the CT scan, he was of the view that injury was dangerous to life.

16. At DMC & Hospital, Maghar Singh was examined by Professor (Dr.) Ashwani Kumar Chaudhari, (PW-14), Professor of Neuro Surgery. According to him, he had diagnosed it as a case of head injury with depressed fracture and the deceased was operated by him and was discharged from the hospital thereafter on 23.11.2005 in "satisfactory condition".

PW-14 further deposes that Maghar Singh, who was re-admitted on 11.12.2005 with complaints of altered sensorium and fever. He diagnosed it as a case of Meningitis and collection of fluid (Hydrocephalus). The witness deposed that Maghar Singh was operated three times on 11.12.2005, 27.12.2005 and 02.01.2006 respectively. He remained in semi-unconscious condition throughout the stay during his re-admission and was discharged and was referred to Sector 32, Medical College, Chandigarh on 08.1.2006. On cross-examination, Dr. Ashwani Kumar Chaudhari (PW-14) stated that the head injury was curable on the person of Maghar Singh, but there may be so many complications in head injury patients. He further deposed that Maghar Singh was fully conscious and in a satisfactory condition at the time of his discharge from DMC & Hospital, Ludhiana on 23.11.2005 except there was no bone at the site of operation on the skull and re-operation for the artificial bone was advised after three months. He further deposed that at the time of discharge the wound was fully healed and it would be difficult to say that if the patient will get complications after the head injury in spite of proper treatment.

17. Two other doctors were examined by the prosecution, one of them was Dr. Seema Sharma (PW-5), Assistant Professor, Department of Surgery, Govt. Medical College & Hospital, Sector-32, Chandigarh. According to her evidence, Maghar Singh was referred from DMC & Hospital, Ludhiana on 09.01.2006 to the Govt. Medical College & Hospital, Sector-32, Chandigarh. She deposed that the patient was an old case of head injury due to assault on 30.11.2005 and that he had undergone three surgeries at DMC & Hospital, Ludhiana for depressed fracture frontal bone of skull. According to PW-5, Dr. Seema Sharma, at the time of admission, GCS was E-4, VI M2 (E for eye opening, V for verbal response, M for motor response). She further deposed that the patient was suspected case of post operative meningitis with communicating Hydrocephalus. According to Dr. Seema Sharma, PW-5, the pupils were non-reacting and had bilateral plantar extensor response, as per records. According to her, Maghar Singh expired on 01.02.2006 at 8.50 P.M. due to cardio respiratory arrest.

18. The other doctor was, PW-3 Dr. Preminder Jit Singh, Rural Medical Officer, SHC, Saidowal Kalan, Gurdaspur who conducted the post mortem. The post mortem was done on 02.02.2006 and according to him, rigor mortis was present all over the body of Maghar Singh. He observed the following injuries:-

"1. A sutured wound, vertically placed over front of the abdomen, 5cm in length and having 4 stitches. Lower end of the wound lies 9 cm above the umbilicus.

2. Scar present over the top of the head, transversally placed, 17cm in length. Healed suture marks are present at places. Three stitches were present over its right end, four stitches are present in the middle. Wound is lying parallel to the eyebrows superiorly at a distance of 10cm. On removing the stitches, the ends of the wound show healing and were not separated by traction.

3. Subdural Haematoma was seen over the occipital and left temporal lobes of the brain. Ventricles are dilated and filled with greenish thick pus on both sides. Left frontal lobe was showing 0.5x0.5cm area of necrosis and sloughing which was indirectly connected with ventricular system. Ventriculoperitoneal shunt is extending from the ventricular system. Brain parenchyma is soft, both cerebellar lobes were soft and adherent to the base of the skull. Pus is extending from the ventricular system to the spinal cord.

4. Defect measuring 3x2cm was present over the frontal bone."

19. According to Dr. Preminder Jit Singh, (PW-3), the probable time that elapsed between the injury and death was around two months and nineteen days; that the cause of death, in his opinion, was septicemia consequent upon pyogenic meningitis in an operated case of head injury and that all injuries were ante mortem in nature. He also deposed that injury No.3 was an internal injury and in his opinion Injury No.3 was also individually sufficient to cause death. In cross-examination, he deposed that injury No.1 was not sufficient alone to cause death in ordinary course of nature.

20. Once again, this Court is vexed with this question to decide on facts whether the offence committed, in the present case, is murder or is it culpable homicide not amounting to murder. While mere efflux of time between the incident and the death alone would not be determinative, the Court is obliged to carefully examine the evidence and the supervening circumstances emerging therefrom to arrive at its final conclusion. After marshalling the evidence and the supervening circumstances if the gravitational pull of the judicial mind is away from the offence of murder, the benefit must be given to the accused. What are those factors, in this case, that nudges us to proceed in the direction of culpable homicide not amounting to murder?

Firstly, the incident happened on 13.11.2005 and the death occurred on 01.02.2006, after a gap of nearly seventy-nine days.

Secondly, the injuries inflicted were from the blunt side of the kasia and, as noticed by PW-4. The injury on the head was only one, the other injury being on the left arm above the left elbow.

Thirdly, PW-14 Dr. Ashawani Kumar Chaudhari clearly deposed that, after the deceased was referred to DMC & Hospital, Ludhiana on13.11.2005, he was operated and thereafter was discharged on 23.11.2005 in satisfactory condition.

Fourthly, the re-admission was on 11.12.2005, after a gap of nearly eighteen days and the deceased was thereafter operated thrice, once each on 11.12.2005, 27.12.2005 and 02.01.2006.

Fifthly, PW-14, further deposes that the injury was curable but there may be so many complications in head injury patients and that the patient was fully conscious and in satisfactory condition at the time of discharge on 23.11.2005. He, no doubt, says that there was no bone at the site of operation on the skull and re-operation for artificial bone was advised after three months.

Sixthly, PW-14 further states that, at the time of discharge, the wound was fully healed and that it would be difficult to say if the patient will get complications after the head injury in spite of proper treatment.

Seventhly, Dr. Seema Sharma (PW-5), who treated the patient from 09.01.2006 deposed that the patient was a suspected case of post operative meningitis with communicating Hydrocephalus and that, as per the record, the patient expired on 01.02.2006 at 8.50 P.M. due to cardio respiratory arrest. It has not been elicited from Dr. Seema Sharma by the prosecution that the cardio respiratory arrest was due to the injury caused to the deceased by appellant No.1.

Eighthly, the prosecution has not elicited from the doctor that the injury sustained was sufficient in the ordinary course of nature to cause death.

Ninthly, Dr. Perminder Jit Singh, (PW-3) attributes cause of death to septicemia consequent upon pyogenic meningitis in an operated case of head injury. He, no doubt, says that injury No.3 in his report i.e., the internal injury was individually sufficient to cause death but does not co-relate that injury to the injury inflicted by Nirmal Singh. It should not be forgotten that three surgeries had intervened between 30.11.2005 and 02.01.2006 and the death was on 01.02.2006.

21. The medical evidence does not establish beyond reasonable doubt that the ultimate cause of death was the injury inflicted on the deceased by Appellant No.1.

22. We find considerable support from the judgment of this Court in the case of Sanjay v. State of Uttar Pradesh, (2016) 3 SCC 62 wherein this Court recorded the following findings:-

"14. However, in the instant case, it is apparent that the death occurred sixty-two days after the occurrence due to septicaemia and it was indirectly due to the injuries sustained by the deceased. The proximate cause of death on 13.10.1998 was septicaemia which of course was due to the injuries caused in the incident on 11.08.1998. As noted earlier, as per the evidence of Dr. Laxman Das (PW-9), Roop Singh was discharged from the hospital in good condition and he survived for sixty-two days. In such facts and circumstances, the prosecution should have elicited from Dr. Laxman Das (PW-9) that the head injury sustained by the deceased was sufficient in the ordinary course of nature to cause death. No such opinion was elicited either from Dr. Laxman Das (PW-9) or from Dr. Gulecha (PW-3). Having regard to the fact that Roop Singh survived for sixty-two days and that his condition was stable when he was discharged from the hospital, the Court cannot draw an inference that the intended injury caused was sufficient in the ordinary course of nature to cause death so as to attract clause Thirdly of Section 300 IPC."

23. From the cumulative circumstances culled out above we are unable to conclude that the overt act and the consequential injuries were sufficient in the ordinary course of nature to cause death. We are convinced that, on the facts of this case, the appellants are liable for conviction under Section 304 Part I of the IPC. Accordingly, we allow the Appeal in part and set aside the conviction under Section 302 for both the appellants and modify the conviction from Section 302 IPC to the one under Section 304 Part -I of the IPC. The sentence of life imprisonment is set aside and is converted to that of the period already undergone. As noticed earlier, the appellant No.1 has already been released on 22.07.2016 and that is recorded in the orders passed by this Court dated 15.06.2022 and 16.06.2022. Appellant No.2 - Sukhpal Singh has already undergone actual sentence of about six years and four months and with remission the sentence undergone is more than thirteen years. He is directed to be released forthwith and be set at liberty, if not required in any other case.

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