IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.166-DB of 1998 Date of Decision: 28.10.2009 [ENTITY] and another Appellants Versus [ENTITY] Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.[ENTITY], Senior Advocate with Mr.[ENTITY], Advocate for the appellant Ms.[ENTITY], Additional Advocate General, Haryana for the respondent Mr.[ENTITY], Advocate [ENTITY], J.
This order will dispose of Criminal Appeal No.166-DB of 1998 and [CASE NUMBER], arising out of the same FIR. For facility of reference, facts are being mentioned from Criminal Appeal No.166-DB of 1998.
Vide judgment and order dated 11.3.1998, appellant No.1- [ENTITY]-accused (A1) was convicted for commission of an offence punishable under [SECTION] [ACT], for committing murder of [ENTITY]. He was also convicted for commission of an offence punishable under [SECTION] [ACT], for causing injuries to [ENTITY] (PW12), with an intention to cause his death. Appellant No.2-[ENTITY] (A2) was held guilty for the above said offences with the aid of [SECTION] [ACT] on the ground that the offences were committed by A1 in furtherance of common intention of both the accused. Following sentence was awarded to them:-
1. [ENTITY] accused:- under [SECTION] of the [ACT] to undergo imprisonment for life and to pay a fine of Rs.500/- and in default of payment of fine to undergo further rigorous imprisonment for six months.
Under [SECTION] of the [ACT], to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/-, and in default of payment of fine to undergo further rigorous imprisonment for six months.
2. [ENTITY] accused:- under [SECTION] read with [SECTION] of the [ACT] to undergo imprisonment for life and to pay a fine of Rs.500/-, and in default of payment of fine to undergo further rigorous imprisonment for six months.
Under [SECTION] read with [SECTION] of the [ACT], to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/-, and in default of payment of fine to undergo further rigorous imprisonment for six months."
Sentences under both the heads were order to run concurrently.
It is necessary to mention here that A1 and A2 are son and father respectively.
Process of criminal law justice system was put in motion, on a statement made by [ENTITY] (PW8), on the basis of which, formal FIR (Ex.PB/1) was recorded in police station City Bahadurgarh at 5.30 am on 25.9.1995. Special report reached the concerned Ilaqa Magistrate at 8.15 am, on 25.9.1995, at Bahadurgarh.
Case of the prosecution, as noted by the trial Court, in paragraph No1, of its judgment, reads thus:-
"The prosecution story can be conveniently unfolded from the statement Ex.PV, made by [ENTITY] PW-8, on 25.9.1995, wherein he alleged that he had three brothers, [ENTITY], [ENTITY] and [ENTITY] (in order to seniority in age), and he is the youngest, all married and that one of them [ENTITY] resides at Ahmedabad and the remaining three reside together at Bahadurgarh, and that on 24.9.95, the electric light of their house went out of order because of sparking in the wires and that close to their house is the house of [ENTITY] accused, who is their cousin brother. Electric light of his house also went out of order. He had called some personnel of the H.S.E.B., Bahadurgarh centre to rectify the fault. They came and got busy in getting the needful done. Accused [ENTITY] wanted that light of his house should be put in order first, at which, [ENTITY] pleaded that the electric light of all the houses has to be put in order, but [ENTITY] insisted that first of all electric light of his house should be restored, otherwise he would not allow the Electricians to rectify the fault. It was around 11-00 P.M. His brothers [ENTITY] and [ENTITY] were also standing in the street in front of their house. [ENTITY] accused was indulging in abusive language, at which, [ENTITY] also came out of his house and followed by many other neighbourers. His brother [ENTITY] asked [ENTITY] accused not to indulger in abusive language, which angered [ENTITY], who asked his son [ENTITY] to bring a knife from the house so that they could be taught a lesson. [ENTITY] brought a knife and thereafter, [ENTITY] accused gave three knife blows, which landed on the private parts of his brother [ENTITY], resulting in oozing of blood. His brother [ENTITY] came to the rescue of his brother [ENTITY]. He was taken in grips by [ENTITY] accused and [ENTITY] gave a knife blow on the left flank of [ENTITY] and thereafter, both the accused escaped with the weapon of offence"
It is further case of the prosecution that both the injured were immediately shifted to Jaipur Golden Hospital in New Delhi. They were medico legally examined by Dr.[ENTITY] (PW11). On the person of [ENTITY], three injuries were found. He was declared brought dead to the hospital. This witness also examined [ENTITY] (PW12) and found one stab wound 4 cm above the left iliac, at his person. He was referred to Dr.[ENTITY] (PW3), who, to save the patient, conducted a surgical operation on him (PW12) on 25.9.1995.
Post-mortem on the dead body was conducted by Dr.[ENTITY] (PW10) on 25.9.1995 at 3.00 pm. He deposed that the deceased was brought dead in the hospital on 25.9.1995 at 00.20 am. This witness found that the genitalia and groins were smeared with blood stains. Following injuries were found on body of the deceased:-
"1. One incised wound on the left testicle of size 1.5 cm x 0.5 cm skin to muscle deep.
2. One incised wound over right testicle of size 1.5 cm x 1 cm. Testicular tissue coming out of the capsule.
3. One incised wound of the right groins size 2.5 cm x 1 cm into? (depth). Both the angles of the wound were clearly cut and were acute. There was no abrasion, contusion seen on the angles, margins of the wound"
On internal examination of the body, it was observed as under:-
"On examination of the right groin, right femoral wessel (artery) was seen to be cleanly cut, corresponding to the injury No.3 mentioned in the external injury column. The tissues around were full of liquid and clotted blood extending downwards upto the middle of thigh (medial aspect)."
The injuries were found ante mortem in nature and were sufficient to cause death in ordinary course. This witness has specifically stated that the injuries mentioned in the medico-legal report, could be possible by knife (Ex.P1), which was recovered from A1.
Inquest report on the dead body was prepared by SI [ENTITY] (PW6) of Delhi Police. The appellants-accused were arrested, on a disclosure statement made by A1, weapon of offence was recovered in the presence of [ENTITY] (PW7). The investigating officer went to the place of occurrence. He got seen of the crime photographed, prepared a rough site plan with correct marginal notes. He also lifted blood stained earth from the spot, the same was taken into possession against a recovery memo. Thereafter, he recorded statements of the prosecution witnesses. After getting opinion of the doctor, regarding fitness of the patient, statement of [ENTITY] (PW12) was also recorded by the investigating officer. After recovery, the weapon of offence was sent to the Forensic Science Laboratory, for examination. The knife was found stained with human blood.
On completion of investigation, final report was put in Court for trial. The prosecution produced 13 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence, statements of the appellants-accused were recorded under [SECTION] [ACT] Incriminating material, existing on record, was put to them, which they denied, claimed innocence and false implication. Following specific stand was taken by them in their defence:-
"Whole prosecution story is false. [ENTITY], [ENTITY] and [ENTITY] are residing in the same house. [ENTITY] deceased was residing on the ground floor. He was running his business at Delhi. [ENTITY] some time would stay at Delhi and some times would come at Bahadurgarh. On the day of occurrence, he was not likely to come his house. There was a major electric fault. [ENTITY] went to the house of [ENTITY] to meet his wife but [ENTITY] was already present. The two brothers caused injuries to each other. After the death of [ENTITY], to save the life of [ENTITY], they concocted a false story in consultation with their family members. Since it was their family dispute, they did not go to civil hospital, Bahadurgarh or to MCH Rohtak nor they approached the police authorities for registration of case. [ENTITY] went to private hospital, where the doctors were closely known to him. Wife of [ENTITY] was carrying on illicit relation with one [ENTITY] and [ENTITY] was the talk of street. [ENTITY] and [ENTITY] had suspicion against our family that we have spread this news. In fact we are closely related to each other. My grant father and grand father of [ENTITY] was same person i.e. [ENTITY]. We have also cutely enmity, no ill will to cause death of [ENTITY] and [ENTITY]. FIR was recorded later on."
However, they led no evidence in defence.
The trial Court, on appraisal of evidence, found the appellants guilty of the offences, with which they were charged and accordingly, they were convicted and sentenced, as found mentioned in earlier part of this order. Hence, this appeal.
Counsel for the appellants, Mr.[ENTITY], Senior Advocate has vehemently contended that the prosecution has miserably failed to prove participation of the appellants in the alleged crime, the trial Court has failed to appreciate the evidence in its true perspective and committed an error in passing the judgment and order, under challenge. He further argued that there is delay in recording the FIR and the intervening period was used to concoct a false story against the appellants-accused. He further argued that both the alleged eye witnesses namely, [ENTITY] (PW8) and [ENTITY] (PW12) are contradictory to each other. By making reference to their statements, he argued that [ENTITY], in his statement, has stated that injuries to the deceased were caused with a knife by A1, whereas, injured witness [ENTITY] (PW12) has categorically stated that injuries were caused by A2 i.e. [ENTITY]. He also stated that there was no motive to cause the injuries. In the alternative, he argued that quarrel has started for restoration of electric supply to houses of the parties. In the alternative, he stated that it was a case of sudden fight in which some injuries were caused by the appellants to the deceased and [ENTITY] (PW12). Death was not intentional. The bodily injuries caused to the deceased were not sufficient to cause death, which resulted primarily on account of cut of femoral wessel (artery). Without conceding anything, he argued that at the maximum, offence committed by A1 would fall under the provisions of [SECTION] [ACT]. Regarding appellant [ENTITY] (A2), he argued that his participation in the crime is not proved or in the alternative, liability cannot be fastened upon him by invoking the provisions of [SECTION] [ACT]. There is no evidence that at any time, common intention was formed between the appellants to cause death/ injuries to the deceased and [ENTITY] (PW12). To support later contention, Mr.[ENTITY] has relied upon ratio of the judgments in [ENTITY] v. Delhi Administration, AIR 1968 Supreme Court 867 and [PRECEDENT]. He prayed that appeal be allowed, judgment and order, under challenge, be set aside and the appellants be acquitted of the charges framed against them.
Prayer made has vehemently been opposed by counsel for the State Ms.[ENTITY], Additional Advocate General, Haryana. By referring to the eye witness account given by [ENTITY] (PW8) and [ENTITY] (PW12), she argued that the prosecution has proved guilt of the appellants- accused beyond a shadow of reasonable doubt. The trial Court was justified in convicting and awarding sentence to them. She further argued that nature of the injuries caused was such that death in all probability would have been the result. A1 has acted in a very cruel manner, he gave repeated blows to the deceased and thereafter opened assault on [ENTITY] (PW12) and caused injuries to him, which were sufficient to cause death. In that process, he was actively supported by A2. It is not a case of fight between the parties, the complaints did not cause even a slightest harm to the appellants-accused though they were more in number. State counsel with vehemence stated that taking note of a fact that A1 by causing repeated blows on vital part of the body with knife has committed murder of [ENTITY] and he has also caused grievous injury, which was sufficient to cause death to [ENTITY] (PW12), as such, intention to cause death was clear. To support her contention, she has placed reliance upon judgment of the Hon'ble Supreme Court in [PRECEDENT], [PRECEDENT] and [PRECEDENT].
After hearing counsel for the parties, this Court is convinced that no interference can be made in the judgment and order under challenge at the instance of the appellants.
As per case of the prosecution, on 24.9.1995, electric supply to houses of the parties went off due to some mechanical defect. [ENTITY] (PW8) made a complaint, which attracted [ENTITY] (PW5), Assistant Lineman, City Sub-Division Bahadurgarh and [ENTITY] to the spot. PW5 has specifically stated that at about 10.30 P.M., he went to the Aggarwal Colony along with [ENTITY], on account of damage to the supply wires, they expressed their inability to rectify the fault. In the meantime, one person came there and he asked them to regulate the fault and give supply/light first to his house. In the meantime, a discussion started between A2 and the others. [ENTITY] (PW5) is an independent witness. His deposition clearly establish that the occurrence has taken place between the parties, as depicted by the prosecution in its case. Vivid eye witness account has been given by [ENTITY] (PW8), who has reiterated the averments made in the FIR, as noted earlier, in this order. He has specifically stated that regarding restoration of electricity to house of the parties, A2 insisted that defect be removed regarding his house first, only then he will allow others to get the electricity supply. At about 11.00 pm when [ENTITY] (deceased) and [ENTITY] (injured) were standing in front of their house in the street, [ENTITY] A2 started abusing them without any justification. When he was asked not to do so, he got enraged and asked his son A1 to bring a knife so that lesson be taught to [ENTITY] deceased. [ENTITY] (A1) brought knife from his house and inflicted three repeated blows on front side of the body at private parts of the deceased. When [ENTITY] (PW12), who was standing nearby, wanted to rescue his brother, he was taken in arm lock by A2 and A1 gave knife blow to him, on right flank, causing a deep injury. Even if we ignore statement made by [ENTITY] (PW12), case of the prosecution is proved on a statement made by [ENTITY] (PW8).
Contention of counsel for the appellants that in view of different stand taken by [ENTITY] (PW12), case of the prosecution lost its veracity, is liable to be rejected. It is not in dispute that [ENTITY] (PW12) has authenticated whatever has been said by [ENTITY] (PW8), except as to who had caused injuries to the deceased, whether A1 or A2. After depicting the seen as to how fight has started and A1 has brought knife from his house, PW12 has stated that thereafter, [ENTITY] A2 has caused three knife blows to the deceased. After looking at tone and tanner of the entire statement made by PW12, it appears that name of [ENTITY] has been mentioned in the statement, due to some typographical mistake or inadvertence, when evidence was recorded. Otherwise, reading of the entire statement indicates that accusation of causing injuries to the deceased was against A1 only. The trial Court has rightly held so in the judgment, under challenge.
So far as delay in recording the FIR is concerned, in view of facts of this case, it is insignificant. As per facts on record, occurrence has taken place at about 10.30 / 11.00 pm on 24.9.1995. In that process, two male members of the family were badly injured, first priority of the others was to shift them to some hospital. Immediately, they were taken to the nearby hospital. Medical aid was given to them and thereafter, they were shifted to Jaipur Golden Hospital at Delhi, on advice given by Dr.[ENTITY] (PW4), where they reached at about 00.20 am on 25.9.1995. [ENTITY] was declared brought dead in the hospital. Condition of [ENTITY] (PW12) was very serious. He was referred to a surgeon and a Surgical operation was conducted upon him by Dr.[ENTITY] (PW3). On receipt of intimation, the investigating officer reached the hospital and on statement made by [ENTITY] (PW8) at about 4.30 am, formal FIR was recorded in police station Bahadurgarh at 5.30 am. Special report reached the Ilaqa Magistrate at 8.15 am on 25.9.1995 at Bahadurgarh. Sequence of events clearly indicates that act and conduct of [ENTITY] (PW8) and other family members was natural and probable. They were eager to save the injured and in that process, they went to one or the other hospital, as such, time taken in reporting the matter to the police is perfectly justified.
[ENTITY] (PW12) is a stamped witness. As per medical evidence on record, he received grievous injury at the hand of A1. He was medico legally examined by Dr.[ENTITY] (PW11) on 25.9.1995. Only one stab wound was found at his person above the left llliac crest. Patient was referred to Dr.[ENTITY] for surgical treatment. It has also come on record that thereafter PW12 was shifted to Jaipur Golden Hospital at Delhi, where to save his life, he was operated upon by Dr.[ENTITY] (PW3). This witness has declared injury caused to PW12 as grievous in nature and sufficient to cause death in an ordinary course. As has been discussed earlier, this witness has also given very clearly, the sequence of events happened on the date of occurrence. The witness was taken in arm grip by A2 and injury was caused to him by A1. Injuries to PW12 are also of the same duration when injury was caused to the deceased [ENTITY]. In the face of clear picture given by this witness, no doubt is left regarding involvement of the appellants in the crime charged against them. Statement given by [ENTITY]) shows that the stand adopted by the appellants in their statements under [SECTION] [ACT] was false. Otherwise also, that averment do not inspire any confidence in the mind of the Court.
In this case, it appears that A2 is the real motivator. He asked his son A1 to bring a knife and teach a lesson to the deceased which he did. He is an old man, it was his duty to prevent his son from causing the injuries, however, he acted to the contrary. When [ENTITY] (PW12) came forward to rescue the deceased, he was taken in arm lock by A2 and A1 caused injuries to PW12 also, which were declared dangerous to life. Facts on record indicate that A2 was equal partner in the crime. Rather, it was he, who instigated his son to cause injuries to the deceased and the witness.
In view of facts on record, contention of Shri [ENTITY] that injuries were caused in a spur of moment, do not appeal to the Court. It was a pre-determined attack upon the deceased. A1 on asking of A2 went inside, brought out a knife and then inflicted the fatal blows. Judgment in the case of [ENTITY]'s (supra) is of no help to the appellants - accused. In that case, there was only two injuries on person of the deceased, one was a stab wound and another was only an abrasion. Taking note of facts of that case, it was held that intention to cause death was not proved on record. Similarly, in the case of [PRECEDENT] (supra), it was a case of sudden fight between the parties. The Hon'ble Supreme Court also came to a conclusion that the accused therein had not acted in a cruel manner.
In the present case, facts are altogether different. As has been discussed earlier, A1 on asking of A2 made a determined attack upon the deceased causing fatal injuries and also caused injuries to [ENTITY] (PW12). In the case of [PRECEDENT], their Lordships of the Hon'ble Supreme Court have held that a question whether intention to kill was there or not, is one of a fact and not of law. In that case, on person of the deceased, only one injury was found, which was a punctured wound 2"x 1 " on abdominal wall in the lower part of the iliac region just above inguinal canal, like in the present case that one injury proved to be fatal. Their Lordships of the Hon'ble Supreme Court held that when there is no evidence or explanation on record as to why the accused thrust a spear in abdomen of deceased with such a force that it penetrated the bowels and three coils of the intestines came out of the wound, it would be preverse to conclude that accused did not attempt to inflict the injury that he did. In the present case also, position is the same. One injury was on vital part of the body, which resulted into cut of right femoral wessel (artery). In the case of [PRECEDENT] (supra), injury to the deceased was caused with a wooden stick at his head, which resulted into death. Their Lordships of the Hon'ble Supreme Court held that his act would fall within clause thirdly Section 300 [ACT] punishable under [SECTION] [ACT]. In the case of [PRECEDENT] (supra), three blows on head of the deceased were caused with a bamboo stick, he died after two weeks. Their Lordships of the Hon'ble Supreme Court held that his case would fall within clause thirdly Section 300 [ACT] and punishable under [SECTION] [ACT]. Same is the situation in this case. Not only that, A1 has acted in a cruel manner. He also caused repeated blows on person of the deceased and thereafter, to the witness also.
In view of facts and circumstances mentioned above, this appeal fails and is accordingly dismissed. [CASE NUMBER] is also dismissed.
([ENTITY]) Judge 28.10.2009 ([ENTITY]) gk Judge