IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 161-DB of 1999 DATE OF DECISION : 19.02.2009 Chand .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. B.S. Saroha, Advocate, for the appellant. Mr. Partap Singh, Senior DAG, Haryana, for the respondent. * * * SATISH KUMAR MITTAL , J. 1. This appeal has been filed by accused Chand against the judgment dated 13.1.1999 and order dated 15.1.1999, passed by Additional Sessions Judge, Rohtak, in Sessions Case No. 47 of 1997/1998, arising out of FIR No. 590 dated 7.7.1997 registered at Police Station City, Rohtak, whereby the appellant has been convicted and sentenced to undergo life imprisonment and to pay fine of Rs. 500/- under Section 302 IPC. The other two accused, namely Rajesh and Pawan, who have been convicted and sentenced under Section 323 IPC for the period already undergone by them, have not filed any appeal against their conviction. 2. In this case, the FIR was registered against the accused on the Crl. A. No. 161-DB of 1999 -2- basis of statement (Ex.PB) made by PW Jai Pal, the brother of the deceased, wherein he had stated that he was resident of Roop Nagar, Rohtak and working as Halwai in Bara Bazar, Rohtak. On 7.7.1997, when he was coming to his house for taking meals, his elder brother Ashok Kumar met him on the way. When they reached their house, their mother Smt. Bhani Devi told them at the door of the house that their brother Joginder had been quarreling with some boys in connection with selling of liquor in their Mohalla and those boys had gone towards Gau Karan Talab. She further told that she called Joginder many times to come back, but he did not come back. Thereupon, complainant Jai Pal along with his brother Ashok Kumar went towards Gau Karan Talab, where they saw that accused Chand, Pawan, Rajesh, Parmod, Sushil @ Pappi and Dee Cee were grappling with Joginder and saying that he (Joginder) should be given beatings. He further stated that all the accused were giving fist and kick blows to Joginder, who raised noise of Bachao-Bachao. When Jai Pal and his brother Ashok Kumar went towards them, within their sight, Chand who was holding a knife in his hand, gave a knife blow on the chest of Joginder. On receiving the said blow, Joginder fell down and all the other assailants continued giving him kick and slap blows. Thereafter, Chand and other accused ran away from the spot and Joginder expired at the spot. 3. The said statement of the complainant was recorded by Inspector Nar Singh, SHO, Police Station City Rohtak on 7.7.1997 at 1.20 P.M., on the basis of which FIR Ex.PB/2 was registered against the accused Crl. A. No. 161-DB of 1999 -3- under Sections 302/323/148/149 IPC at 1.45 P.M. Thereafter, the police party went to the spot. The inquest report Ex.PQ was prepared and the dead body of Joginder was sent for post mortem examination. Blood stained earth and a pair of chappals were recovered near the dead body and the same were taken into possession vide recovery memos Ex.PC and Ex.PR, respectively. Rough site plan Ex.PS of the place of occurrence was prepared and statements of the witnesses were recorded. 4. As per the prosecution version, on the same day, Gandhi Ram, employer of Ashok Kumar, produced three accused, namely Chand, Pawan and Rajesh before the Investigating Officer. They were arrested and their disclosure statements were recorded. In his disclosure statement Ex.PE, accused Chand stated that he along with Pawan, Rajesh, Parmod, Sushil and Dee Cee gave fist blows to Joginder for preventing them from selling the liquor and murdered him with knife. He further disclosed that he had kept concealed the knife under the Neem tree near pond. In pursuance of this disclosure statement, he got recovered the knife, which was taken into possession vide recovery memo Ex.PE/1. Similarly, on the basis of the disclosure statement (Ex.PF), accused Pawan got recovered a sword, which was taken into possession vide recovery memo Ex.PF/1. 5. On 8.7.1997 at 10.05 A.M., Dr. Narender Singh (PW.8) conducted the post mortem examination on the dead body of Joginder. During the post mortem examination, only one injury i.e. incised wound 3 cm x 1 cm x 3 cm was found on the chest of the deceased. The wound was Crl. A. No. 161-DB of 1999 -4- retracted, spindle shaped with a gaping of about 2 cm, above left nipple. The wound was obliquely placed cutting the underlying intercostal muscles. Bleeding was present. As per the opinion of the Doctor, the cause of death of the deceased was due to shock and massive internal haemorrhage. The injury, which was found on the person of the deceased, was sufficient to cause death in the ordinary course of nature. 6. After completion of investigation, the police filed challan against three accused, namely Chand, Pawan and Rajesh. The remaining three accused, namely Parmod, Sushil and Dee Cee were juvenile and they were sent to Juvenile Court for trial. 7. Charge under Section 302 IPC was framed against accused Chand, whereas charge under Section 302/34 IPC was framed against accused Pawan and Rajesh. All the accused pleaded not guilty and claimed trial. 8. In support of its case, the prosecution examined 11 witnesses, including PW.1 Jaipal (complainant), who supported the prosecution version, PW.3 Bhani Devi (mother of the deceased), PW.4 Subhash Chander, before whom disclosure statements Ex.PE and Ex.PF were made by accused Chand and Pawan, and in whose presence, knife and sword were recovered vide recovery memos Ex.PE/1 and Ex.PF/1, respectively. PW.9 Inspector Nar Singh is the Investigating Officer, who also supported the prosecution version. The prosecution has not examined Ashok Kumar, who along with PW.1 Jaipal saw the occurrence, and Gandhi Ram, who had Crl. A. No. 161-DB of 1999 -5- produced three accused before the Investigating Officer. 9. After closing the prosecution evidence, the accused were examined under Section 313 Cr.P.C., wherein they denied all the incriminating circumstances appearing against them in the prosecution evidence and pleaded false implication. Accused Chand took the plea that the deceased was attacked by some unknown person in the morning and on receipt of information regarding dead body lying there, police reached there and afterwards, the brother of deceased was called from his working place and a false story was concocted. In defence, accused Chand did not examine any witness. 10. The learned trial court, after taking into consideration the evidence led by the prosecution, convicted appellant Chand and other two accused, as mentioned above. The learned trial court has convicted all the three accused according to their individual act. A finding has been recorded that in the instant case, the prosecution has failed to bring out any evidence of common intention or common object of all the accused for killing Joginder, for the alleged motive. Against that judgment, only Chand has filed this appeal. 11. We have heard learned counsel for the parties and perused the impugned judgment as well as the trial court record. 12. Learned counsel for the appellant argued that in the instant case, as per the prosecution version, two witnesses, namely PW.1 Jai Pal and Ashok Kumar ( who has not been examined ), real brothers of the Crl. A. No. 161-DB of 1999 -6- deceased, had seen the alleged occurrence. He submitted that presence of both the eye witnesses at the time of the alleged occurrence was highly improbable and doubtful. Learned counsel submitted that both the witnesses were doing work under two different employers at two different places and as per the prosecution version, both of them were coming back to their home to take meal at 11.00 A.M., which was not a time of meal. Learned counsel further submitted that though both the eye witnesses had stated that they saw that all the accused were giving fist and kick blows to Joginder, but their ocular version is not corroborated by the medical evidence, where on the body of the deceased, only one knife blow injury was found. Therefore, these facts create a doubt regarding the presence of these two eye witnesses at the time of the alleged occurrence. Learned counsel submitted that actually, the said eye witnesses had not seen the alleged occurrence, which might have happened at 7.00 A.M., as Dr. Narender Singh (PW.8) has stated that the possibility cannot be ruled out that the deceased may have received injury at about 7.00 A.M. on 7.7.1997. 13. Learned counsel for the appellant further pointed out some contradictions in the statements of the prosecution witnesses. He submitted that firstly there is contradiction regarding the time, when the dead body of the deceased was lifted from the spot. PW.1 Jai Pal states that the dead body was taken from the spot at 12.00 noon, whereas PW.9 Inspector Nar Singh states that it was taken at about 2.00 P.M. Secondly, there is a contradiction with regard to the presence of PW.4 Subhash Chander on the spot. PW.9 Crl. A. No. 161-DB of 1999 -7- states that when he reached at the spot at about 12.00 noon, Subhash was already present on the spot. On the other hand, PW.4 Subhash Chander states that he reached at the spot at about 2.30 P.M. Similarly, learned counsel for the appellant pointed out that there is a contradiction with regard to the time, when the police reached at the spot. PW.1 Jai Pal stated that the police reached at the spot after 20 minutes of the occurrence, whereas PW.9 Inspector Nar Singh stated that the police reached the spot at about 12.10 P.M. Learned counsel further pointed out that there is another discrepancy regarding distance of the places, from where the weapons of offence were recovered. PW.9 stated that the place from where the knife was recovered was 150 yards away from the place where the dead body was lying. On the other hand, PW.4 stated the said distance as 50 to 70 yards. Learned counsel further pointed out that there was also a discrepancy in the statements of PW.4 and PW.9 with regard to the place of arrest of the accused. PW.4 states that Gandhi Ram produced all the accused at Gau Karan Talab, whereas PW.9 states that Gandhi Ram produced all the accused near Gaur College building. Learned counsel further pointed out that PW.4 states that four accused were produced, whereas PW.9 states that only three accused were produced. While referring to all these discrepancies, learned counsel argued that presence of the eye witnesses at the time of the alleged occurrence, arrest of the accused and recovery of the weapons from them are highly doubtful. Therefore, conviction of the appellant on the basis of the aforesaid evidence is not safe. In the Crl. A. No. 161-DB of 1999 -8- alternative, learned counsel for the appellant argued that in the facts and circumstances of the case, conviction of the appellant under Section 302 IPC is not made out and at the most, he can be convicted under Section 304 Part II IPC. 14. On the other hand, learned counsel for the respondent-State argued that in the instant case, from the statements of PW.1 Jai Pal, PW.3 Bhani Devi and other evidence, the prosecution has fully established the commission of the offence by the appellant under Section 302 IPC. He supported the judgment of the trial court on the same reasoning, as given in the impugned judgment. 15. After hearing learned counsel for the parties and going through the record of the case as well as the facts and circumstances of the case, we are of the opinion that in the present case, the prosecution has proved that the Joginder was killed by appellant Chand by giving a knife blow on his chest. The incident of giving knife blow on the chest of the deceased by Chand was witnessed by Jai Pal and Ashok Kumar. Out of these two eye witnesses, the prosecution has examined only Jai Pal, whose testimony cannot be said to be not trust-worthy or un-reliable. The testimony of PW.1 Jai Pal regarding his coming to the house for taking meal and thereafter going to Gau Karan Talab, where he saw the alleged occurrence, has been corroborated by his mother Bhani Devi (PW.3). In our opinion, the testimonies of these two witnesses cannot be discarded only on the ground that they are related to the deceased or that the other eye witness was not Crl. A. No. 161-DB of 1999 -9- examined by the prosecution. The contradictions, which have been pointed out by learned counsel for the appellant, are not material contradictions, which may go to the root of the matter. On the basis of these minor contradictions, in our opinion, the prosecution version cannot be disbelieved. It is well settled, as has been held by the Supreme Court in Bur Singh & Anr. v. State of Punjab, 2008 (4) RCR (Criminal) 834, that the normal discrepancies in evidence are those which are due to normal errors of observation or errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence. Such normal discrepancies are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. It has been held that the normal discrepancies do not corrode the credibility of a witness, whereas material discrepancies do so. Therefore, merely on the basis of normal discrepancies in the statements of two witnesses, the prosecution version cannot be considered to be doubtful. In our opinion, the presence of PW.1 Jai Pal at the time of the alleged occurrence cannot be said to be improbable and doubtful, merely because except the knife blow injury, no other injury was found on the body of the deceased. PW.1 Jai Pal had seen the accused grappling with Joginder from a distance and he formed the opinion that all the accused were giving fist blows and kick blows to Joginder. In our opinion, due to witnessing the occurrence from a distant place, there may be some mistake in observing the giving of fist and kick blows. But merely on account of such discrepancy, Crl. A. No. 161-DB of 1999 -10- statement of PW.1 cannot be discarded or disbelieved, as we are of the opinion that these minor discrepancies do not go to the root of the matter. As far as the fatal injury is concerned, PW.1 Jai Pal has categorically stated that appellant Chand gave knife blow on the chest of Joginder and after that injury, Joginder fell down and died on the spot. This version of the witness is fully corroborated by the medical evidence. Therefore, statement of this eye witness cannot be disbelieved. In addition to this, the prosecution has further proved the recovery of weapon of offence at the instance of appellant Chand. In this regard, statement of PW.4 Subhash Chander, in whose presence, the disclosure statement was made by appellant Chand and a knife was got recovered by him, cannot be disbelieved. The recovery of knife from appellant Chand is further proved by PW.9 Inspector Nar Singh, the Investigating Officer. Again some minor discrepancies with regard to the time of arrest of the accused and the recovery are immaterial. Thus, in our opinion, the prosecution has fully established that appellant Chand gave a knife blow on the chest of Joginder, due to which he died. 16. Now, the question arises for consideration is whether in the facts and circumstances of the case, appellant Chand is liable to be convicted under Section 302 IPC or Section 304 Part II IPC. As per the prosecution version, Joginder and the accused were quarreling on the issue of selling liquor by the accused in the area of Joginder. It is not the case of the prosecution that for that issue, the accused wanted to kill Joginder and for that motive, there was any pre-plan or pre-meditation between all the Crl. A. No. 161-DB of 1999 -11- accused. In his statement, PW.1 Raj Pal had stated that when he along with his brother Ashok Kumar reached at the spot, they saw that the accused were grappling with Joginder and were saying that he should be given beating. It is not the case of the prosecution that they were saying that he (Joginder) should be killed. Thus, from these facts and circumstances, we are of the opinion that the accused, including the appellant Chand, were having no intention to cause death of the deceased. Their intention was only to give beating to him, so that the deceased may not prevent them from selling liquor in the area. Undisputedly, appellant Chand had given only one knife blow to the deceased and thereafter, he ran away from the spot. It appears to us that fight between the accused and Joginder on the issue of selling liquor in the area of Joginder was a sudden fight, without there being any pre-meditation to kill the deceased, in which appellant Chand gave a knife blow to Joginder, without any intention to kill him, which ultimately proved fatal and resulted into the death of Joginder at the spot. In these circumstances, we are of the opinion that in this case, the culpable homicide does not amount to murder, as the instant case falls under Exception 4 of Section 300 IPC. 17. Now, the question arises as to whether the appellant is liable to be punished under Part I or Part II of Section 304 IPC. Part I provides that if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. The punishment is imprisonment for life, or imprisonment of either description Crl. A. No. 161-DB of 1999 -12- for a term which may extend to ten years and shall also be liable to fine. Part II of Section 304 IPC provides that if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. The punishment is imprisonment of either description for a term which may extend to ten years, or with fine, or with both. We have already held that in the instant case, the appellant was having no intention to cause death of Joginder. However, in our opinion, the appellant was having intention to cause an injury on the body of the deceased, as he gave a knife blow on the chest of the deceased, which was likely to cause death. Therefore, in our opinion, the instant case falls under Part I of Section 304 IPC and not under Part II of Section 304 IPC, as claimed by learned counsel for the appellant. Accordingly, conviction of the appellant under Section 302 IPC is altered to Section 304 Part I IPC and he is sentenced to undergo rigorous imprisonment for 8 years and to pay a fine of Rs. 5,000/-, in default of payment of fine he shall undergo further rigorous imprisonment for six months. 18. Consequently, the instant appeal is partly allowed. The appellant, who is on bail, is directed to surrender to custody to serve the remainder of sentence. ( SATISH KUMAR MITTAL ) JUDGE February 19, 2009 ( DAYA CHAUDHARY) ndj JUDGE