IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH [CASE NUMBER] Date of decision: May 14, 2012 [ENTITY] and another Appellants Vs. [ENTITY] Respondent
Coram: Hon'ble Mr. Justice [ENTITY] Hon'ble Mr. Justice [ENTITY] Present: Mr. [ENTITY], Advocate for the appellants.
Ms. [ENTITY], DAG, Haryana for the respondent.
[ENTITY], [ENTITY] and [ENTITY] accused-appellants were convicted vide judgment dated 26/28.2.2002 passed by the learned Additional Sessions Judge, Fatehabad and were sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.5000/- each under [SECTION] [ACT].
A brief resume of facts is that the houses of [ENTITY] and [ENTITY] as well as [ENTITY] complainant (herein referred as, 'the complainant') and his brother [ENTITY] are situated in the same vicinity, divided by a street of village Kirdhan. [ENTITY] was irritating the family of the complainant by urinating from the roof top while facing towards the house of the complainant, about which, wife of the complainant protested to her husband on 7.7.2000 and thereafter on 8.7.2000. She complained to the mother of [ENTITY] and then on 10.7.2000, when [ENTITY] again urinated by standing on the roof top of his house, [ENTITY] wife of the complainant again brought this fact to the notice of the complainant. At this, [ENTITY] suggested that a complaint could be lodged against [ENTITY] in the police station. The complainant replied that he would first raise the protest before [ENTITY] so that [ENTITY] could be reprimanded by his father. Thereafter, [ENTITY] came across [ENTITY] and abused him for this mischievous act.
[CASE NUMBER] On 10.7.2000, at about 8.00 PM, [ENTITY] armed with wooden stick came to the house of the complainant and tried to attack him, but he warded off the blow, whereupon, [ENTITY] and another inhabitant intervened and separated them. After a while i.e. at about 9.00 PM, [ENTITY] told [ENTITY] that he was going to lock the shop (being run in their own house) from out side. As soon as he went outside the house, in the street, [ENTITY] and [ENTITY] armed with Ballies (Wooden sticks) came in the street and started causing injuries to him. The complainant exhorted to prevent them from doing so. However, within his sight, [ENTITY] inflicted injury on the head of [ENTITY] with the said wooden stick. Resultantly, [ENTITY] fell down and they (accused) after exhorting "chak leja tere sher nu" (lift and carry your lion) left the spot with their respective weapons. The complainant, after arranging jeep owned by [ENTITY], took [ENTITY] to Bhattu Kalan where doctor advised him to take the injured to General Hospital, Hisar. However, [ENTITY] succumbed to the injuries on the intervening night of 10/11.7.2000 at Hissar.
On the basis of the aforesaid statement Ex.PC made by the complainant, FIR Ex.PC/1 was registered at 10.00 AM on 11.7.2000. [ENTITY] Investigating Officer prepared the inquest report Ex.PQ and dispatched the dead body for autopsy. He prepared the rough site plan of the place of occurrence and took into possession the belonging of the accused as handed over by [ENTITY], vide memo Ex.PE. He also lifted the blood stained earth and also took into possession the blood stained shirt of the deceased into possession vide memo Ex.PF. On 13.7.2000, Inspector [ENTITY] (PW12) arrested the accused [ENTITY] and got recovered the wooden stick (Ex.P4) from his fodder room, pursuant to the disclosure statement Ex.[ENTITY] made by him.
On 17.7.2000, accused [ENTITY] was arrested and he also produced wooden stick (Ex.P5), which was taken into possession vide memo Ex.PO. On receipt of the report of the Forensic Science Laboratory, Madhuban, Karnal, challan was presented in the court. [CASE NUMBER] The accused were charged under [SECTION] [ACT], to which they pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined as many as thirteen witnesses. [ENTITY] (PW1)has sought the opinion of the doctor on the application Ex.PA as to whether the injury No.1 on the person of [ENTITY] could be caused by the wooden stick. [ENTITY] (PW2) has proved the scaled site plan of the place of occurrence Ex.PB. [ENTITY] (PW3) has proved the FIR Ex.PC/1 and sent the special report through [ENTITY] to the Illaqa Magistrate, Superintendent of Police and Deputy Superintendent of Police. [ENTITY] (PW4) has taken the special report to the Illaqa Magistrate. Dr. [ENTITY] (PW5) has conducted the postmortem examination on the dead body of [ENTITY]. [ENTITY] (PW6) has produced the parcel containing belongings of the deceased before the Investigating Officer and has also proved the seizure memo Ex.PE. [ENTITY] (PW7) is the complainant. [ENTITY] (PW8) is the eye witness of the occurrence. [ENTITY] (PW9) is the formal witness. Dr. [ENTITY] (PW10), Medical Officer has conducted the medico-legal examination of the deceased [ENTITY] and found the following injuries on his person :-
1. A lacerated wound 5 x cm on the anterior part of left parietal region. Fresh bleeding was present and vertically placed. X-ray was advised and referred to the Surgeon.
2. Left eye was closed. It was referred to Eye Specialist.
3. Abrasion 2 x cm was on the anterior and mid of left ear.
4. Lacerated wound 1 cm x .1 cm on the posterior and lower 1/3rd of left ear.
5. [ENTITY] bruise 12 x 1 cm on the left shoulder. Swelling around was present. X-ray was advised and referred to the Ortho Surgeon.
[CASE NUMBER] Dr. [ENTITY] (PW10) while proving the MLR Ex.PM and ruqa Ex.P1, second ruqa Ex.PJ sent at 2.15 AM informing the police about the death of [ENTITY], has also proved the opinion Ex.PA/1 on the application Ex.PE to the effect that the injury No.1 on the person of the deceased [ENTITY] could be possible by wooden stick (Ex.P4). [ENTITY] (PW11) is a witness to the disclosure statement for recovery of the wooden stick. Inspector [ENTITY] (PW12) and Inspector [ENTITY] (PW13) are the Investigating Officers.
When examined under [SECTION] [ACT] both the accused denied all the incriminating circumstances appearing against them and pleaded their false implication.
In defence, the accused examined [ENTITY] (DW1) who has placed on file copy of the FIR No.235 dated 27.5.2002 under [SECTION] of the [ACT] registered against the deceased [ENTITY]. He has also proved copy of the FIR No.290 dated 10.8.1997 (Ex.DC) registered against [ENTITY] under [SECTION] of the [ACT].
The trial resulted into conviction.
Arguments heard. Record perused.
In order to establish the innocence of the accused, the first contention raised by Mr. [ENTITY], Advocate is that there is an inordinate delay in lodging the FIR which has led to raise suspicion with regard to implication of the accused. In this regard it would be suffice to say that there is no such material delay which may effect the substratum of the prosecution case. The tempers of the parties were rising high since 7.7.2010 due to the continued mischief committed by [ENTITY]. But the accused was bold enough, not to be afraid of the complainant party and continued playing mischief while going on the roof top facing towards the house of the complainant. He did not mend himself despite the protest lodged by [ENTITY] with his mother and he was also remonstrated. The occurrence had started about 8.00 PM on 10.7.2000. However, the tempers did not cool as both the accused were still in the street and trapped [ENTITY] as soon as he came to lock the shop from out side. [CASE NUMBER] The occurrence had taken place at 9.00 PM. Detecting that amongst five injuries, there was a serious injury in the head, the injured was first taken to Bhattu Kalan from where the deceased was advised to be shifted to the General Hospital, Hisar where [ENTITY] had expired. In the meantime, on receipt of the ruqa from General Hospital, Hisar, SI [ENTITY] reached the hospital, Hisar and recorded statement of the complainant as [ENTITY] was not fit to make the statement. The FIR was registered at 10/10.30 PM and it reached the Illaqa Magistrate at Fatehabad on 11.7.2000 at 1:00 PM. The utmost concern of the complainant was to save his brother and not to run after lodging the complaint. Consequently, we have no hesitation to hold that the FIR is a quite genuine document and is free from any fabrication and consultation.
The other contention raised by the learned counsel for the appellants is that though the case of the complainant is that they had taken the injured to the Civil Hospital, Bhattu Kalan but no doctor of the said hospital was examined, therefore, the story with regard to taking him to Civil Hospital, Bhattu Kalan is false.
In this regard, it may be mentioned that the deceased was having a serious head injury as well as serious injury in his eye and it is also a matter of common experience that there remains no sufficient infrastructure and adequate apparatus to treat the injured in small hospitals, therefore, the doctor at Civil Hospital, Bhattu Kalan must have issued a reference slip in order to avoid wastage of time and in the interest of the injured, therefore, to prove the record of the Civil Hospital, Bhattu Kalan was not essential as he was mainly treated at General Hospital, Hisar. But testimonies of Dr. [ENTITY] (PW5) and Dr. [ENTITY] (PW10) reveal that the injured had reached the General Hospital, Hisar at mid night when he was medico-legally examined and he died there at 2.15 AM on 11.7.2000. [ENTITY] (PW5) had conducted the postmortem examination upon the deceased. As such, mere non proof of the entry regarding the arrival of the injured at Civil Hospital, Bhattu Kalan, being insignificant feature hardly effects the prosecution case. [CASE NUMBER] We are also not in consonance with the argument advanced by the learned counsel for the appellants that there is a discrepancy in the injury report made by Dr. [ENTITY] (PW10) at the time of conducting medical examination and Dr. [ENTITY] (PW5) at the time of conducting autopsy on his body, because such discrepancy in the circumstances of the case is bound to occur.
Before we discuss the discrepancies, we need to reproduce the injuries as recorded by Dr. [ENTITY] (PW10), which reads as under :-
1. A lacerated wound 5 x cm on the anterior part of left parietal region. Fresh bleeding was present and vertically placed. X-ray was advised and referred to the Surgeon.
2. Left eye was closed. It was referred to Eye Specialist.
3. Abrasion 2 x cm was on the anterior and mid of left ear.
4. Lacerated wound 1 cm x .1 cm on the posterior and lower 1/3rd of left ear.
5. [ENTITY] bruise 12 x 1 cm on the left shoulder. Swelling around was present. X-ray was advised and referred to the Ortho Surgeon.
However, Dr. [ENTITY] (PW5), at the time of conducting autopsy observed the following injury on the person of the deceased [ENTITY] :-
"There was a compound fracture of the temporal parietal bone and frontal bone on the right side. Brain matter was coming out. Extra dural haematoma was present on the left side of the skull."
On close scrutiny of the injuries it transpires that the doctor who conducted the postmortem examination might have left the minor injuries No.3, 4 and 5 un-noticed for the reason that they were minor bruise, [CASE NUMBER] abrasion or laceration. The injury No.2 was inside the eye which was due to the impact of the injury No.1, therefore, obviously injury No.2 could not be noticed. However, the main injury which was the cause of death was recorded by both the doctors.
We are also not in concurrence with the argument that there are discrepancies with regard to seat of injury as mentioned by both the doctors. According to Dr. [ENTITY] (PW10) the injury was on the left parietal region whereas according to Dr. [ENTITY] (PW5), the injury was on the right side of the parietal bone.
Having pondered over the contention it appears that there is no dispute that the injury was on the parietal region as detected by both the doctors. It is also not in dispute that the injury was the result of blunt weapon as opined to by both the doctors. The mere fact that one doctor judged it to be on little right side and the other doctor judged on the left side of the head is too petty a matter to be given undue importance because some times these mistakes occur while standing on a particular direction. Again this injury is quite consistent with the ocular version as given by both the witnesses, namely, [ENTITY] (PW7) and [ENTITY] (PW8). Both of them have consistently stated that the accused [ENTITY] had caused the fatal blow on the head of the deceased.
We are also not in agreement with the contention of the learned counsel for the appellants that it was a night time occurrence and the presence of the accused is doubtful as it is not established on the record that who caused the other four injuries, because both the witnesses have consistently stated that on hearing the cries of [ENTITY], when they came, they found that both the accused were causing injuries and in their sight [ENTITY] gave a balli (wooden stick) blow on the head of [ENTITY] and thereafter both the accused escaped. It is also significant to mention here that injury No.2 was the result of injury No.1, therefore, the injury No.2 could also be attributed to [ENTITY]. Since both the witnesses in their statements have not stated as to who caused the injuries No.3, 4 and 5, therefore, as an abundant caution, the benefit could be extended to Purkha [CASE NUMBER] Ram. Since the witnesses have uttered the truth that they had seen [ENTITY] causing injury on the head, therefore, their presence at the spot cannot be doubted being improbable and unnatural.
While taking the case from another angle, the houses of the accused and the deceased adjoin each other. The blood was boiling between the parties since 7.7.2000 when [ENTITY] invited the quarrel after urinating from the roof top while facing towards the house of the complainant. He after being remonstrated did not mend his ways, rather he turned violent. The occurrence had taken place in the street in front of the house of the deceased, therefore, obviously both [ENTITY] (PW7) and his wife [ENTITY] (PW8) being present in the house, their presence cannot be said to be doubtful. Both the witnesses have consistently made statement with regard to time, place and the manner in which the occurrence had taken place. Barring minor discrepancies, which are bound to occur in the statements of the rustic villagers, and truthful witnesses with the passage of time and lapse of memory but they have withstood the test of cross examination. Their statements, if gone through completely, do not suggest of any tutoring or an after thought.
The argument that, had they been present at the spot, then they would have intervened in the matter and they would have also caused injuries to the accused is not acceptable. In this regard [ENTITY] (PW7) has categorically stated that he did not try to intervene out of fear. In any case, it was a night time, the witnesses when came out were unarmed, whereas, the accused were armed with wooden sticks and the witnesses could expect damage to them to any extent if they would have intervened.
While taking the case from another angle, as soon as the witnesses came out, the accused after causing injuries on the head and exhorting had run away. The occurrence took place within no time, therefore, the witnesses had no occasion to intervene in order to save the deceased. Even otherwise the court has to bear in mind that different persons react differently under different situation. Some people on seeing the occurrence feel threatened and rendered helpless; they became [CASE NUMBER] speechless; some start evading and some flee away out of fear and those are only few people, who put themselves into trouble and have the courage to face the attack. It depends upon individual to individual, but the fact that the presence of the witnesses could be weighed on the ground that had he been present, he would have intervened, is no ground to disbelieve his presence. To support this view, a reference if any could be made to the judgment delivered in case [ENTITY] (dead) through Duli Chand v. [ENTITY], 1994 (4) R.C.R. (Criminal) 588.
Having scrutinized the testimony of these two witnesses and the corroborative medical evidence, we have no reason to discard their testimonies on the ground that they being relative or interested witnesses would not speak the truth. They may be relatives but were having no such enmity or hostility to involve them for such a heinous crime while leaving the real culprits.
The next contention raised by the learned counsel for the appellants is that assuming the story of the prosecution to be truthful, the accused and the deceased were the neighbours. The occurrence had taken place on a petty issue and this solitary injury was not caused with the intention to cause death so as to take the case within the purview of [SECTION] [ACT], therefore, the offence, if any, committed by the accused is covered by the 2nd proviso to [SECTION] [ACT].
Having pondered over the contention, we do not find ourselves persuaded by the same. The facts and circumstances of the case transpires that the accused and the complainant party were at daggers drawn for the reasons that the accused [ENTITY] was urinating from the roof top facing towards the house of the complainant which annoyed the latter. The repeated remonstrations did not bear any fruit. [ENTITY] had gone to the house of the accused with wooden stick and tried to cause injuries to the complainant but he warded off the same. Thereafter, both the accused armed with wooden sticks,with an intention to cause more injuries to the complainant party, were hiding themselves in the street. As soon as [ENTITY] came out to lock the shop from out side, [ENTITY] appeared at the [CASE NUMBER] scene and caused injuries and thereafter exhorted in a taunting way that they should take their lion, clearly make out the intention of the accused to cause death. In the similar circumstances, the Apex Court in case [PRECEDENT], observed that in case of even single injury, where the intention to cause death is present the offence falls within the [SECTION] [ACT]. The relevant observations are reproduced as under :-
"7. The circumstances of the case thus show that the assault was premeditated and the blow on the head of [ENTITY] was not accidental. The fact that the appellant gave only blow on the head would not mitigate the offence of the appellant and make him guilty of the offence of culpable homicide not amounting to murder. The blow on the head of [ENTITY] with lathi was plainly given with some force, and resulted in. a 3"long fracture of the left parietal bone. [ENTITY] deceased Died instantaneously and as such, there arose no occasion for giving a second blow to him. As the injury on the head was deliberate and not accidental and as the injury was sufficient in the ordinary course of nature to cause death, the case against the appellant would fall squarely within the ambit of [SECTION] [ACT]. According to that clause, culpable homicide is murder if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. [SECTION] also provides for some exceptions but we are not concerned with them in this case.
8. Clause "3rdly"consists of two parts. Under the first part, it has to be shown that there was an intention on the part of the accused to inflict the particular injury which was found on the body of the deceased. The second part requires that the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. So far as the first part is concerned, the court has to see whether the injury which was found on the deceased was the one intended by the accused or whether it was accidental without his having intended to cause that bodily injury. Once it is found that the injury was not accidental and that the accused intended to cause the injury which was actually inflicted and found on the body of the deceased, the first part shall be satisfied. The court would then go into the second part of the clause and find in the light of medical [CASE NUMBER] evidence as to whether the bodily injury inflicted was sufficient in the ordinary course of nature to cause death. If the court finds that the requirements of both the parts have been satisfied, the case shall be held to be covered by clause "3rdly" unless it falls within one of the exceptions.
9. In the present case, both parts of the clause "3rdly" have been, satisfied. As observed earlier, the injury which was inflicted by the accused on the head of [ENTITY] was not accidental. It is not the case of any one that the appellant aimed a blow on some other part of the body and because of some supervening cause like sudden intervention or movement of the deceased the lathi struck the head of the deceased. The fact that the appellant aimed a blow on the head of [ENTITY] with the lathi would go to show that it was the intention of the appellant to cause the precise injury which was found on the head of the deceased. The evidence of Dr. [ENTITY] who performed post mortem examination shows that the above injury was sufficient in the ordinary course of nature to cause death and actually resulted in the death of the deceased., The case of the appellant would thus be covered by [SECTION] and he would be guilty of the offence of murder."
Similarly, the Apex Court again discussed the case of solitary injury in case [PRECEDENT] and observed as under :-
"38. Finally, we are unable to uphold the argument of the learned counsel for the appellant-accused that the case falls under [SECTION], [ACT]. Considering the nature of weapon used by the accused (axe) and the vital part of the body (head) of the deceased chosen by him, it was clear that the intention of the accused was to cause death of [ENTITY]. PW4 Dr. [ENTITY] in his deposition stated that injury No.1 was sufficient in the ordinary course of nature to cause death of the victim. In the circumstances, both the Courts were right in holding that the case was covered by [SECTION] [ACT]."
In this case also, the accused had administered one axe blow in the head of his father. Thus, in that situation, the Apex Court observed that keeping in view the weapon of offence, part of the body chosen and the nature of injury, the Court was right in upholding the conviction of the [CASE NUMBER] accused under [SECTION] [ACT].
The crux of the matter is that before the nature of offence is determined, the court has to see the intention, motive, part of the body chosen, type of weapon used, the force with which the injury has been caused, nature of injury and cumulative effect of these factors. The Apex Court in case [PRECEDENT], also elaborated these factors while observing as under :-
"16. In our opinion, as nobody can enter into the mind of the accused, its intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crow bar as the weapon of offence. He has further chosen a vital part of the body i.e. head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly lead to one and the only conclusion that the appellant intended to cause death of the deceased."
The Apex Court in another case [PRECEDENT] observed that since the intention and the motive to commit crime stands proved and it is also established that the accused had taken part in the assault and their presence at the spot and overt act attributed to them stands established, the offence under [SECTION] [ACT] could be treated as established.
As such, while putting the facts and circumstances of the present case to the parameters of the aforesaid judgments we are of the view that the single injury on the head caused by the accused [ENTITY] which proved fatal being sufficient to cause death in the ordinary course of nature, certainly is covered by [SECTION] [ACT], punishable under [SECTION] [ACT]. Since no specific injury has been attributed to [ENTITY] and the witnesses had also not stated if [ENTITY] had caused any specific injury, therefore, benefit of doubt is being extended to him. [CASE NUMBER] Resultantly, this appeal is partly allowed, impugned judgment is set aside qua [ENTITY] and he is acquitted of the charges framed against him, whereas, the appeal qua accused [ENTITY] is dismissed.
([ENTITY]) ([ENTITY]) Judge Judge May 14, 2012 deepak