G S WALIA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) G. S. Walia, a close relative of deceased Balwant Singh has filed this appeal after obtaining leave of this Court. It is directed against acquittal of the respondent Nos. 2 to 6 (hereinafter referred to as 'accused') by the High Court. The trial Court had convicted them under S. 148 and S. 302 read with S. 149, IPC.

(2.) The trial Court accepted the prosecution case that Gurbachan Singh, Harbans Singh, Harjeet Singh, Balwinder Singh, and Avtar Singh had assaulted Balwant Singh on 29-5-1986 at 7-30 p.m. with iron rods, a tyre lever and an axe and that Balwant Singh subsequently died on 16-6-1986 as a result of those injuries. The conviction by the trial Court was based mainly upon the evidence of Kesar Singh, P.W. 4 and the statement of Balwant Singh himself to the police on the basis of which an offence was registered against the accused.

(3.) The High Court disbelieved the evidence of Kesar Singh on the grounds that he was a chance witness, that he was closely connected with the deceased, that his statement was recorded after 6-7 days and that his subsequent conduct was so unnatural as to create a doubt regarding his presence at the time of the incident. He was regarded as a chance witness because he had failed to explain his presence at the place of offence which was 10 kms. away from the place of his residence. He was not considered an independent witness because he was friendly and on visiting terms with the deceased. He was also a co-accused with the deceased in a case which was filed against them 3 to 4 years before the date of the incident. His conduct was considered unnatural because after taking the deceased to the hospital he had not remained there to help him nor he had gone to the nearby police station to lodge a complaint nor he had talked about the incident to anyone till his police statement was recorded. The High Court discarded the dying declaration (Ex. PN) on the ground that not being a statement relating to cause of death it was not admissible under S. 32 of the Indian Evidence Act. The High Court held that the injuries inflicted were not the cause of death as Balwant Singh died because of Pulmonary Embolism which was the result of prolonged bed rest and the complications arising therefrom. It also held that statement was untrue because it stood contradicted by the medical evidence which ruled out the possibility of any blow having been given by 'Kulhari'.