1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 188 of 2005. Judgment reserved on : 21.05.2008. Decided on: May, 27th 2008. ____________________________________________________________ Karam Chand …..Appellant. Versus State of H.P. …..Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. M.S. Guleria, Advocate. For respondent : Mr. P.K. Sharma, Additional Advocate General with Mr. P.M. Negi, Deputy Advocate General. __________________________________________________________ PER SURINDER SINGH,J. The learned trial Court convicted the appellant in Sessions trial No.3 of 2004, decided on 16.4.2005, for committing the offence of murder of Jalam Singh bus driver, punishable under Section 302 of the Indian Penal Code and also under Section 324 I.P.C., for causing hurt with a Knife to Sanjay Kumar, bus-conductor and he was sentenced to undergo imprisonment for life under Section 302 of Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 the Indian Penal Code and to pay fine of Rs.5,000/- and also to undergo rigorous imprisonment for a period of one year under Section 324 of the Indian Penal Code. The appellant was given the benefit of set off under Section 428 of the Code of Criminal Procedure and both the sentences were ordered to run concurrently. The appellant has assailed the impugned judgment of conviction and sentence in the instant appeal, on the law and facts. Precisely, the case of the prosecution has been that Kullu Transport Company (KTC) has a fleet of many buses. Jalam Singh was a driver of one of the KTC Bus bearing Registration No.HP-34-A-1425. On 5.10.2003, all the buses of the said Company, which had come to Manali from different routes, were parked at Bus stand Manali around 8 P.M. The crews of the said buses namely, PW3 Bihari Lal complainant, Sanjay Kumar Conductor (PW1), Mehar Singh Conductor (PW2), Ram Kumar, Bhikham Chand, Dhanu, Raman Kumar and Jalam Singh (deceased) went to the Manu Market around 9 P.M. for taking their meals in Pappu Dhaba, owned by Ishwar Dass (PW5). After taking their meals, the aforesaid persons came out one by one to wash their hands in the tap fixed in a drum outside the Dhaba. 3 The appellant was an employee of PW-9 Dhruv Kumar Awasthi, in his Tea-stall in the Mannu Market, where he was working for the last about 13 years, which is located at a distance of 125 feet away from Pappu Dhaba. It is alleged that the appellant was having a previous enmity with Jalam Singh and he came to Pappu Dhaba with a Chhuri (knife) Ex.P2 and stabbed on the chest of Jalam Singh while he was washing his hands at the tap outside. After sustaining the injuries, he fell down. Thereafter, he attacked PW1 Sanjay Kumar with the same Chhuri, causing injuries on his forehead. Seeing this, PW-3 Bihari Lal caught the appellant from his arm. Since Jalam Singh had fallen down, he left him. The appellant ran away. PW3 immediately removed the injured to the hospital, but Jalam Singh died on the way, before reaching the hospital. The police was informed. On reaching the spot, the statement Ex.PW3/A of Bihari Lal (PW3) was recorded under Section 154 of the Code of Criminal Procedure, on the basis of which a formal FIR Ex.PW12/A was recorded in Police Station Manali. The police prepared the inquest papers Ext.PW15/B and took photographs of the dead-body. The post-mortem of the dead body was performed in Zonal Hospital, Manali on 6.10.2003 at 2 P.M. The viscera was sent 4 for the Chemical Examiner. On receipt of the report Ex.PA, the final opinion of the Doctor was that the deceased had died on account of the ante-mortem injuries on his chest. The post-mortem report is Ext.PW11/B. PW1 Sanjay Kumar was also got medically examined. He had sustained a lacerated wound extending from the medial and on the left eyebrow to the forehead (1.5 cm in length and 2 to 4 mm in width with regular margin). The wound was more deep near the eyebrow than forehead which was bleeding. His Medico Legal Certificate is Ex.PW10/A. The said injury was opined to be simple in nature, caused with a sharp edged weapon, within 12 hours. The appellant was arrested and pursuant to the disclosure statement Ext.PW15/E, Chhuri Ex.P2 was recovered and taken into possession vide memo Ex.PW15/F. The police also prepared site plan Ex.PW8/A of the alleged place of occurrence. The sketch of the Chhuri was also drawn on the piece of paper Ex.PW15/G. After recording the statements of the witnesses and completion of the challan, it was presented in the court for the trial of the appellant under the aforesaid sections. On the basis of the material placed before the learned trial court, the appellant was charge- sheeted under Sections 302 I.P.C. for the murder of 5 Jalam Singh and 324 of the Indian Penal Code for causing the hurt with a sharp edged weapon to Sanjay Kumar. He pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. The case of the appellant was that of denial simplicitor, but during the cross-examination of the prosecution witnesses it was suggested that there was a dispute regarding the distribution of money amongst the drivers and the conductors, which they had received from the passengers during the day. The said suggestion was denied. The appellant was called upon to enter into his defence, but no evidence in defence was led by him. At the end of trial, while relying upon the prosecution evidence and disbelieving the defence raised, the appellant was convicted and sentenced as aforesaid which has been assailed in this appeal. According to Sh.M.S.Guleria, learned counsel for the appellant, there has been material discrepancies, contradictions, omissions and improvements in the statements of the witnesses, the place of alleged occurrence and also non- explanation of other injuries on the arm of the deceased except one, which is alleged to have been 6 caused on the chest, makes the case of the prosecution highly doubtful and alternatively argued that in any case of conviction, under the aforesaid circumstances, the matter falls under Section 304 Part-II and not under Section 302 of the Indian Penal Code. Contra, Sh.P.K.Sharma, learned Additional Advocate General, duly assisted by Sh.P.M.Negi, learned Deputy Advocate General has supported the impugned judgment of conviction and sentence and argued that the appellant had selected a vital part of the body to stab and his intention to cause death was clear, thus the appellant was rightly convicted and sentenced under Section 302 of the Indian Penal Code, therefore, the appeal is merit- less. We have given our thoughtful considerations to the rival contentions of the parties and have meticulously examined the material placed during the trial by the prosecution on record. On going through the statements of the prosecution witnesses, we find that Bihari Lal (PW3), complainant has mutatis-mutandis substantiated his version initially given in Ex.PW3/A recorded under Section 154 Cr.P.C. He has deposed that the appellant had stabbed Jalam Singh on his chest and thereafter he attacked Sanjay Kumar with the same 7 Chhuri and he sustained injuries on his forehead. Jalam Singh fell down and thereafter he was taken to the hospital. On the way, he succumbed to the injuries. He further stated that the police had gone to the dhaba, where the alleged incident had taken place, but the blood was cleaned by the said persons and they had closed the door. Though he did not see them cleaning the blood, however he has clarified that there was blood on the spot where Jalam Singh had fallen down. PW1 Sanjay Kumar, injured has also corroborated his version and clearly stated that Jalam Singh was attacked by the appellant in his presence with a Chhuri on his chest. When he had intervened to save him, he was also attacked by the appellant with the same Chhuri and sustained an injury on his forehead. Jalam Singh fell down in the (drain) and the blood was oozing out from the wound. Immediately, he was taken to the Mission hospital Manali but he died on the way. The appellant ran away from the spot. He also stated that he was medically examined by the Doctor, who issued Medico Legal Certificate. In his cross- examination, he has denied that there was a dispute amongst the drivers and conductors over distribution of the money received from the passengers in which he and Jalam Singh had 8 sustained the injuries. He also stated that Bihari Lal, Mehar Singh and Dhanu had made a noise and many other persons gathered there, but none had tried to catch hold of the appellant. PW2 Mehar Singh has also made the similar version as that of the injured (PW1). The aforesaid defence put to him was denied. PW5 Ishwar Dass was owner of the Pappu Dhaba. He did not support the prosecution case as such he was declared hostile. However, he stated that the drivers and conductors used to take meal in his dhaba. At about 8.30 P.M. Bihari Lal, conductor, Majnu (the deceased) driver alongwith 5-6 other persons came in his dhaba to take meals. Around 9 P.M., they left his dhaba and he heard the noise “Maar Diya Maar”. In the cross-examination conducted by the learned Prosecutor stated that there was a drum for washing of hands adjoining of his dhaba where the customers after taking the meal used to wash their hands. It is admitted by him that Jalam Singh sustained the injuries on his chest. He further stated that none of the conductors and drivers accompanying the deceased had any quarrel with him nor any of them stabbed him. He also denied that any dispute had taken place between them in his dhaba. However he has admitted that Jalam Singh after sustaining the injuries was taken 9 to the hospital, but he did not know how Jalam Singh sustained the injuries. Though PW6 Dhan Rai, a driver has turned hostile, but according to him at the relevant time, he was standing at a distance of 100 mtrs from Pappu Dhaba in the shop of Bala, a type puncture mechanic and heard the noise “Mara Mara”. When he came to the spot he saw the knife was in the hands of appellant, Jalam Singh had sustained the injuries on the left side of his chest, but he not see the appellant while stabbing Jalam Singh. He also admitted that Sanjay Kumar had also sustained the injuries while saving Jalam Singh and that Jalam Singh fell down in the Nali near the tank of water, thereafter he was removed to the hospital. He had admitted the presence of Mehar Singh and Bhikham Chand on the spot but denied that there was dispute between the drivers and conductors of the Kullu Transport Company as alleged. In the cross- examination conducted by the accused-appellant, he has admitted that when he reached the spot Jalam Singh had already fallen down. PW9 Dhruv Kumar Awasthi is an owner of the dhaba where the appellant was an employee. PW7 Palmo Devi is the owner of Punjabi dhaba, located in Mannu market. According to her, she did not see 10 anything on that day, as she was not present on the spot. According to Dr. Rakesh Negi (PW10), the injuries found on the persons of Sanjay Kumar (PW1) were simple in nature, caused with sharp edged weapon, as stated above. PW11 Dr. K.C. Sood has performed the postmortem of deceased Jalam Singh. He found the following injuries on the dead-body:- “1. Incised wound on front of left arm in the middle, elliptical in shape with tapering edges 1” x skin deep x 1 cm. 2. Incised wound in the middle of left arm posteriolateran aspect measuring ½ inch x skin deep x 1/4th inch. 3. An incised wound on left forearm below elbow joint-medio dorsal aspect measuring 3”x 1”x muscle deep. 4. Two abrasions on back left side. 5. Incised wound in front of left side chest medial to left nipple in the 4th inter-costal space, elliptical in shape 1 ½ inch long perforating wound, directing infrio medially deep down entering into chest cavity. Pericardium Heart:- Pericardial cavity full of blood left ventricle punctured through enterior wall 1” long with clear margins.” In his opinion, Jalam Singh had died due to the stab injury on his chest. The probable time between injury and death was 15 minutes and between death and post-mortem 12 to 24 hours. His 11 postmortem report is Ex.PW11/B and according to him the incised wounds as mentioned in the postmortem are possible with Chhuri Ex.P2. Further according to him after receiving the injuries with a Knife if a person falls on the back, the injury No.4 i.e. the abrasions could be caused. PW15 SI Rup Singh, Additional SHO after the arrest on 6.10.2003 had interrogated the appellant. He made a disclosure statement Ex.PW15/E in the presence of Khushi Ram (PW4) and Tak Chand (not examined). Khushi Ram has not supported the prosecution case, however, according to SI Rup Singh, pursuant to his disclosure statement on the demarcation of the appellant, a Chhuri Ex.P2 was recovered from the bushes at the place known as Bhajogi, sketch map of which was prepared and was sealed with seal impression ‘T’ vide memo Ex.PW15/F. He has denied that the recovery statement Ex.PW15/F was a fabricated document. On the scrutiny of the above evidence led by the prosecution we have no manner of doubt, in our mind that it was the appellant who had attacked Jalam Singh with the Chhuri (knife) as alleged and Jalam Singh had died on account of the stab wound inflicted on his chest. 12 The contention of the learned counsel for the appellant that all the prosecution witnesses say about a single blow on the chest and the prosecution did not explain how the other injuries on the person of the deceased were caused cast a serious doubt on the authenticity of the prosecution case for not explaining the other injuries, is worth rejecting because on scrutiny of the evidence on record, we find that even a single blow of this type on the chest can also cause the incised wounds No.1 to 3, which are on the left arm as indicated in the postmortem report Ex.PW11/B. The deceased was crouching at the tap to wash his hands. The appellant had given a blow on the chest, near the left nipple in the 4th inter-costal space of the chest. In that event due to the reflex action his left hand must have come in contact with the Chhuri causing the above injuries to the deceased. It is in evidence that after being hit by the said weapon, Jalam Singh fell down. According to Doctor (PW11) the abrasions (injury No.4) could be caused due to fall. Therefore, instead of doubting the prosecution story, rather it gets strengthened in the above proved circumstances and it finds corroboration in material particulars. 13 The another contention that the place of occurrence shown in the site plan Ex.PW11/D is different from that as pointed out by witnesses. This fact also raises a doubt on the correctness of the prosecution case. On re-appraising the evidence of the prosecution, we have found that there is a consistency in the statements of the eye witnesses about the place of occurrence and there is absolutely no ambiguity in the manner in which the incident took place. The site plan was prepared on the next day by the Investigating Officer (PW15) and he has not stated at whose instance it was prepared. Therefore, in our opinion on this score, the prosecution case cannot be thrown out in its entirety when the version given by the eye witnesses is worth inspiring confidence, otherwise also the minor contradiction which does not shake the very foundation of the prosecution case is required to be ignored. The last contention raised by the learned counsel for the appellant is that the single blow without any motive, means or intention caused to the deceased, will not attract the offence of murder, but it would be a case falling under Section 304 Part-II of the Penal Code, is also not tenable. Because the absence of motive looses its importance when there are eye witnesses. After all 14 motiveless crimes are also crimes. The appellant had selected the Chhuri (knife) Ex.P2 to commit the offence charged. The blade of Ex.P2 is 8½” long and has a wooden handle of 4¾”. A person stabbing with such a weapon on the left side of chest where the heart, a most vital part of the body is located, cannot be said to have had no intention to kill the person attacked. As a matter of fact the intention has to be gathered from the circumstances, surrounding the commission of the act and the conduct of the accused, whether he intended the ultimate consequence of his act or not. In the instant case the intention to kill Jalam Singh by the appellant is writ large and the injury in question was sufficient to cause his death in ordinary course of nature, to which the appellant fully knew. Thus on critical examination of the evidence on record, we do not find any infirmity in the impugned judgment of conviction and sentence passed by the learned trial court for the offences charged. The material laid in this case show that the prosecution case is genuine and fully establishes the case against the appellant by leading a cogent evidence. Accordingly, no interference is called for. As such, the conviction and sentence of the appellant is 15 accordingly upheld. Consequently, the appeal filed by the convict is dismissed. (Surjit Singh), Judge (Surinder Singh), Judge. May 27th, 2008. (Pds)