Holding

The High Court erred in disbelieving the eyewitnesses and in treating the FIR delay as fatal; Joginder Singh is guilty of culpable homicide not amounting to murder under Section 304 Part‑II IPC, while no common intention can be attributed to Nachhattar Singh.

Summary

The State of Punjab appealed the High Court's acquittal of Joginder Singh and Nachhattar Singh for the death of Makhan Singh. The incident occurred on 20 April 1992 when Joginder Singh demanded Rs.100 from Makhan, who could not pay, and subsequently pressed his neck, causing death, as confirmed by a post‑mortem showing a fractured hyoid bone. The trial court had convicted both under Section 302 read with Section 34 IPC, but the High Court reversed the conviction, doubting the eyewitnesses, the delay in filing the FIR, and the time of the victim's last meal. The Supreme Court held that the eyewitness testimony was reliable, the few‑hour FIR delay was not fatal, and there was no evidence of common intention by Nachhattar Singh. Consequently, Joginder Singh was convicted of culpable homicide not amounting to murder under Section 304 Part‑II IPC and sentenced to six years rigorous imprisonment, while Nachhattar Singh was acquitted.

Issues considered

Whether the eyewitness testimony of PW‑2 and PW‑3 can be disbelieved on the basis of alleged improbability.
Whether a delay of a few hours in lodging the FIR defeats the prosecution case.
Whether the time of the victim's last meal can be inferred to negate the prosecution's version of events.
Whether the accused acted with common intention under Section 34 IPC.
Whether the appropriate charge is murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304 Part‑II IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 302, s. 304(Part-II), s. 34

Subjects

murderculpable homicideSection 304 IPCSection 34 IPCcommon intentiondelay in FIReyewitness testimonypost‑mortemhyoid bone fracturecriminal appeal

Judgment

A STATE OF PUNJAB \
v.
JOGINDER SINGH AND ANR.

OCTOBER 29, 2003
B
[K.G. BALAKRISHNAN AND B.N. AGRA WAL, JJ.]

Penal Code, I 860 :

c Accused
S. 304(Part-II)-Quarrel between accused and victim over money-
pressing neck ofvictim, who was a frail person-Death ofvictim-·
'
Trial court convicting accused and his companion uls 302 rlw s.34-
Acquittal by High Court disbelieving prosecution case-Held, High Court
seriously flawed in disbelieving evidence of eye witness-As regards delay
in sending FIR, keeping in view the disturbed conditions prevailing in the
D
locality, few hours delay is of no. consequence-Acquittal of accused was
not correct as prosecution has satisfactorily proved that accused strangulated
the deceased-Companion of the accused did not cause any injury to
deceased-Both the accused and his companion came to house ofdeceased
just to demand the money borrowed by the latter-It is not possible to
E assume that the companion of accused had common intention with him for
commission ofany offence-As regards the accused, he was not armed with
any weapon-When deceased was not in a position to pay the money,
accused got flared up and pressed his neck which caused his death-Post-
mortem report shows that deceased was frail and slight pressure on his
F neck must have resulted in death-It cannot be said that by using such force
accused had any intention to cause death, though he could be attributed
with knowledge that his act would cause death of the victim-Accordingly
accused is guilty of offence punishable u!s 304 Part-I/ and is sentenced
to six years RI-Delay in filing FIR-Common intention.
G
(
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1783 of 1996.

From the Judgment and Order dated 6.9.95 of the Punjab and Haryana
H High Court in Crl. A. No. 258-DB of 1993.
~
1164
ST ATE v. JOGINDER SINGH 1165

Bimal Roy Jad, Ms. Sunita Pandit for the Appellant. A
Vivhu Bakhru, Vivek Sibal and A.P. Medh for the Respon\J..c:nts.

The Order of the Court was delivered :
B
This •s an appeal preferred by the State of Punjab against the acquittal
of two a.ccused persons namely Joginder Singh and Nachhattar Singh.
These two accused persons were tried by the Sessions Judge, Ferozepur,
for having caused death or Makhan Singh. The Sessions Judge found both
of them guilty of the offence punishable under Section 302/34 IPC and C
sentenced them to undergo imprisonment for life. Aggrieved by the same
they filed appeal before the High Court and the High Court was pleased
to find them not guilty and acquitted them of the charges framed against
them under Section 302 IPC read with Section 34 IPC. The acquittal of
these accused is challenged before us.
D
The incident happened at about l 0 p.m. on 20.4.1992. The deceased
Makhan Singh was the son of PW-2 Gurdial Singh. On the date of incident
Makhan Singh and his brother Amrik Singh returned to their house after
the days work. They were about tv take meals. when accused Joginder
Singh and Nachhattar Singh came there and demanded hundred rupees E
from Makhan Singh which he had borrowed from accu~ed Joginder Singh.
Makhan Singh was not in a position to pay Rs. I 00, but Joginder Singh
insisted that money should be paid immediately and he started abusing
Makhan Singh and others. Joginder Singh then caught hold of him by tuft
and dragged him towards his house. PW-2 Gurdial Singh and his son F
Amrik Singh followed and Gurdial Singh implored not to kill his son.
Joginder Singh kicked Makhan Singh on his chest and pressed his neck
with his hands. According to the prosecution Nachhattar Singh set on the
legs ofMakhan Singh. Bearing alarm raised by PW-2 Gurdial Singh, three
other persons came to the scene of occurrence. Accused Joginder Singh G
and Nachhattar Singh ran away from the place. Makhan Singh who was
lying on the floor unconsciously was brought to the house of PW-2. An
attempt was made to pour water in his mouth but he died immediately. PW-
2 contacted Dharam Singh, Sarpanch, of the village in the night itself and
as it was the time of disturbed conditions in that area he could not go to H
1166 SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R .

. , · A the police station to lodge FIR and on the next day. at 7.20 a.m. he gave
first infonnation statement which was recorded by the ASL

PW-I to PW-6 were examined on the side of the prosecution. PW-
who conducted the post-mortem examination found as many ·as nine
B injuries on the body of the deceased. Injury nos. I to 8 are abrasions on
the various parts of the body. Injury no. 9 is abrasion 4.5 cm x 2.5 cm on
the joint aspect of neck and its lower point. The post mortem examination
revealed that as a result of the neck injury, Hyoid bone was Fractured and
on dissection of the neck, there was subcutaneous haematoma below the
injury no. 9.
c
The accused persons were questioned under Section 313 Cr.P.C.
Accused Joginder Singh stated that he was not present at the time of the
incident. Accused Nachhattar Singh stated that on the date of incident when
he came to·his house at about 11 p.m. after the harvest work was over he
ID saw his wife being assaulted by deceased Makhan Singh and in order to
gave his wife he grappled with Makhan Singh and when Makhan Singh
tried to strangulate him, he overpowered him and strangulated deceased
Makhan ·Singh. The Sessions Judge accepted the prosecution evidence
and relied on the evidence tendered by the two witnesses namely PW-2
·E Gurdial Singh and PW-3 Gurdev Singh and found these accused persons
guilty.

The High Court reversed the finding of the Sessions Court. According
to the High Court the prosecution story was highly improbable and it•is
~F stated that if five persons including PWs.2 and 3 were present at the time
of incident they could have very well. intervened, and saved the deceased
Makhan Singh from the clutches of Joginder Singh and Nachhattar Singh.
On this pointthe prosecution story·was disbelieved by the High Court. Yet
another reason given by the.High Court is that in the post mortem report
it is stated that there was partly digested food material in the stom~ch of
G the deceased and this indicated that. the deceased must have taken food
2·3 hours prior to the incident and according to the prosecution deceased
had taken food at I 0 0' clock in the night and incident must have happened
much later and therefore the defence version putforth by Nachhattar Singh
must have been probable. The.High Court also found that there was delay
H both in lodging First Information Report and also sending the same to the
ST ATE v. JOGINDER SINGH 1167

Magistrate. The High Court was of the opinion that cumulative effect of A
all these infinnities were sufficient to acquit the accused.

Since this appeal is against the acquittal we have carefully considered
the evidence adduced by the prosecution. PWs. 2 and 3 gave a consistent
version regarding the incident, both the witnesses stated that deceased B
Makhan Singh was dragged by Joginder Singh and he was later assualted
by kicking and was strangulated. But nothing is attributed to the accused
Nachhattar Singh. In the cross examination of these two witnesses also
nothing has been brought out to cause serious doubt about the evidence
of these two witnesses. The evidence of these two witnesses clearly shows C
that incident happened at about I 0 p.m. There is no evidence as to when
the deceased Makhan Singh had taken his last meal. PW-2 would say that
Makhan Singh and his brother came from the place of work and they were
about to take their meals. PW-3 would say that the incident happened when
Makhan Singh was taking his meals. There is no other evidence regarding
the time of taking the meals by Makhan Singh. Therefore, High Court D
seriously erred in fixing the time of the murder by assuming that the
deceased must have taken food at about 10 p.m. and thereafter the incident
took place. As there is no clear evidence as to when the last meal was taken
by the Makhan Singh, the High Court seriously flawed in disbelieving the
evidence of PWs. 2 and 3 and the Sessions Judge had rightly relied on their E
evidence.

As regards the delay in loading FIR, PW-2 has given explanation that
the disturbed conditions was prevailing in the locality and it was not
possible for him to go to the police station. It is important to note that he F
infonned Dharam Singh, Sarpanch of the village in the night itself and
this aspect is not challenged in the cross examination. He gave the
statement in the early morning of 21-4-1992 and the delay in sending the
FIR is only few hours and that is not of serious consequence. The High
Court was not justified in reversing the finding of the Sessions Court for
these reasons. G

The incident happened pursuant to a quarrel between deceased
Makhan Singh on the one hand and Joginder Singh and Nachhattar Singh
on the other. Joginder Singh demanded money and insisted that he should
pay immediately. He caught hold of the hair ofMakhan Singh and dragged H
1168 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A him to his house and started assaulting Makhan Singh. That shows that
Joginder Singh was in a very violent mood. PW-2 Gurdial singh and PW-
3 Gurdev Singh and three others were present when this incident happened.
"
Though they were close relatives of the deceased they did not intervene
and this according to the High Court was highly improbable and the
presence of these two witnesses were doubted. We do not think that the
B
High Court was justified in doubting their presence. Accused Joginder
Singh throttled deceased Makhan Singh and when PWs. 2 and 3 and other
persons came, Joginder Singh and Nachhattar Singh ran away from the
place. The physical violence on Makhan Singh lasted only for some time
and he died later when he was brought to the house of PW-2. From these
c facts, it is not possible to assume that the whole story is unbelievable '
merely because these witnesses did not intervene, especially when two
witnesses deposed that they saw deceased Makhan Singh being throttled
by Joginder Singh.

D On a careful consideration of entire evidence, we are of the view that
the acquittal of accused Joginder Singh was not correct and the prosecution
has satisfactorily proved that he strangulated deceased Makhan Singh. Of
course Nachhattar Singh who putforth false case is not proved to have
committed any serious offence. According to PWs. 2 and 3 he only sat on
legs of deceased Makhan Singh. Nachhattar Singh had not caused any
"'
E
injury to deceased Makhan Singh. He was also not armed with any weapon.
Both the accused came to the house of deceased just to demand hundred
rupees borrowed by deceased Makhan Singh. Thererfore, it is not possible
to assume that Nachhattar Singh had common intention with Joginder
Singh for the commission of any offence.
F
The next question is what is the offence, if any, committed by
Joginder Singh. The prosecution evidence shows that he has not am1e<l with
any weapon. He went to the house of the deceased· to get back Rs. 100
he had lent to him. When deceased Makhan Singh was not in a position "·
G to pay the money, accused Joginder got flared up and caught hold of him.
It is proved that he put pressure on the neck of deceased and it caused his
death. The post-mortem report shows that deceased was frail and slight
pressure on his neck must have resulted in his death. When all others came
the accused ran away. It is difficult to assume that by using such force he
H had any intention to cause death, though he could be attributed with
"' l
STATE t•. JOGINDER SINGH 1169

knowledge that his act would cause death of the victim. In the result we A
>
find him guilty of offence punishable with Section 304 Part-II IPC and
sentence him to undergo rigorous imprisonment for six years. He is
directed to surrender to his bail bonds to serve out the remaining period
of sentence. The appeal is accordingly disposed of. Appeal filed by the
State as against Nachhattar Singh is dismissed. B

R.P. Appeal disposed of.