IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 583-DB of 1998 DATE OF DECISION : 09.01.2009 Harish Kumar and another .... APPELLANTS Versus The State of Haryana ..... RESPONDENT Crl. A. No. 2-DB of 1999 DATE OF DECISION : 09.01.2009 Rajesh Kumar .... APPELLANT Versus The State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. Vinod Ghai, Advocate, for the appellants. Mr. Partap Singh, Senior DAG, Haryana, for the respondent. * * * SATISH KUMAR MITTAL , J. This judgment shall dispose of two appeals, bearing Criminal Appeal No. 583-DB of 1998, filed by accused Harish Kumar and Krishan and Criminal Appeal No. 2-DB of 1999, filed by accused Rajesh Kumar, Crl. A. No. 583-DB of 1998 -2- against the judgment dated 1.12.1998 and order dated 2.12.1998, whereby all the three accused have been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each, under Section 302 read with Section 34 IPC. In brief, as per the prosecution version, on 23.3.1997, Mukesh Kumar son of Prem Nath was coming from his house on his scooter. At about 6.45 P.M., when he got down from his scooter near the grocery shop of Kalu Ram and Ashok Kumar, Partap Gate, Kaithal, three accused, namely Rajesh Kumar, Harish Kumar and Krishan, were standing there. When Mukesh Kumar got down from his scooter, accused Harish Kumar asked him as to why he had hurled abuses to him at noon. It is alleged that as a result thereof, an altercation took place between them. They (accused and Mukesh Kumar) started giving slaps and fist blows to each other. Harish Kumar took Mukesh Kumar in his grip from the back and Krishan asked Rajesh Kumar to give a knife blow to said Mukesh Kumar and that he should not be spared. On this, Rajesh Kumar took out a knife from the pocket of his pant and gave a knife blow to the said Mukesh Kumar on the lower portion of his abdomen. On receiving the knife blow, he become unconscious and fell down and all the three accused ran away from the spot with the knife towards Partap Gate. As per the statement of complainant Krishan Kumar (Ex.PF), on the basis of which FIR was registered, the alleged occurrence was seen by the complainant and one Anil Kumar, who was going with him. It is Crl. A. No. 583-DB of 1998 -3- further case of the prosecution that after the alleged occurrence, complainant Krishan Kumar called the father of the injured Mukesh Kumar. After some time, father of the injured came on the spot and on seeing that the blood was oozing out from the stomach of the injured due to the knife injury, the injured was taken to Civil Hospital, Kaithal at 8.00 P.M., in the car of one Ram Sarup. Immediately thereafter, the Doctor examined the injured, prepared the MLR and sent a ruqa Ex.PC to the police. On receipt of the said ruqa, vide application Ex.PD, at 8.25 P.M., the police sought the opinion of the Doctor about the fitness of the injured (who later on died) to make the statement. The Doctor opined that the injured was not fit to make statement at that time. Thereafter, when the injured died at 8.40 P.M., another ruqa regarding the death of Mukesh Kumar was sent by the Doctor to the police. On receipt of the said ruqa at 9.00 P.M., ASI Dayal Singh, who was present in the Hospital in connection with some other case, recorded the statement of Krishan Kumar at 10.15 P.M. On the basis of the said statement, FIR (Ex.PF/1) was recorded. The inquest report was prepared. During the course of the preparation of the inquest report, statement of Anil Kumar, another eye witness, was also recorded. In the last line of his statement, he stated that the alleged occurrence was also witnessed by Jaswant Rai and Jogi Ram. On 24.3.1997 at 9.45 A.M., the post mortem of the body of the deceased was conducted. The accused were arrested and in pursuance of the disclosure statement of accused Rajesh Kumar, the knife used in the crime Crl. A. No. 583-DB of 1998 -4- was got recovered on 25.3.1997 vide recovery memo Ex.PJ. After completion of investigation, the challan was filed against all the three accused and charge against them was framed under Section 302 read with Section 34 IPC, to which the accused pleaded not guilty and claimed trial. Out of the alleged four eye witnesses, namely Krishan Kumar complainant, Anil Kumar, Jaswant Rai and Jogi Ram, the prosecution only examined complainant Krishan Kumar and Jaswant Rai as PW.3 and PW.7, respectively. However, Anil Kumar and Jogi Ram were given up as un- necessary. In addition to the aforesaid two eye witnesses, Dr. Daizy Sood, who prepared the MLR (Ex.PB) and Dr. S.P. Singal, who conducted the autopsy and prepared the Post Mortem Report of the deceased, were examined as PW.2 and PW.5, respectively. Prem Nath, father of the deceased, was examined as PW.8 and ASI Dayal Singh, the Investigating Officer, appeared in the witness box as PW.10. In the statements recorded under Section 313 Cr.P.C., all the three accused denied the evidence appearing against them and pleaded false implication. In defence, they examined two witnesses, namely Krishan Kumar (DW.1), Incharge of the Computer Cell, Office of the Municipal Committee, Kaithal, and Ram Kumar (DW.2). After hearing the arguments of learned counsel for the parties and by relying upon the aforesaid prosecution witnesses, the trial court convicted and sentenced all the three accused under Section 302 read with Crl. A. No. 583-DB of 1998 -5- Section 34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each, under Section 302 read with Section 34 IPC. Shri Vinod Ghai, Advocate, learned counsel appearing on behalf of the appellants in both the appeals, submitted that conviction of the appellants under Section 302 read with Section 34 IPC is not sustainable, as there is no reliable evidence, which establish the commission of alleged offence against the appellants. The prosecution version is highly improbable. The alleged eye witnesses, who have been examined, are chance, related and highly interested witnesses, whose statements cannot be relied upon to convict the appellants. During his arguments, learned counsel for the appellants made four fold submissions. Firstly, learned counsel submitted that there is an unexplained delay in recording the statement of complainant Krishan Kumar, on the basis of which FIR was registered. He submitted that during this period, a false version was concocted and the alleged eye witness Krishan Kumar was introduced as complainant. Learned counsel contended that the alleged occurrence took place at 6.45 P.M., near Partap Gate, Kaithal, which is situated at a distance of 1/1 ¼ Kilometer from the Civil Hospital, where the injured was taken at 8.00 P.M. After preparing the ruqa regarding admission of the injured at 8.15 P.M. and after sending the second ruqa regarding death of Mukesh Kumar, which was received by the police at 9.00 P.M., statement of Krishan Kumar, who was alleged to be very much present in the Hospital, was recorded at 10.15 P.M. Learned counsel argued that this Crl. A. No. 583-DB of 1998 -6- delay (i.e. from 9 PM to 10.15 PM) has not been explained by the prosecution and during that period, the manner in which the alleged occurrence took place was concocted and Krishan Kumar, who happens to be a close relative of the deceased, was introduced as an eye witness, though he was not present at the spot. Secondly, learned counsel for the appellants submitted that the prosecution has not established the motive of the crime. Only it has been stated by the alleged eye witnesses Krishan Kumar (PW.3) and Jaswant Rai (PW.7) that appellant Harish Kumar asked Mukesh Kumar as to why he had hurled abuses to him at noon. Except that statement, there is no other independent evidence to corroborate the prosecution version regarding the alleged motive. No independent witness regarding the alleged incident of hurling of abuses at noon has been examined by the prosecution. Therefore, the prosecution version is highly improbable. Thirdly, learned counsel contended that out of the four alleged eye witnesses, only two, namely Krishan Kumar (PW.3) and Jaswant Rai (PW.7) have been examined. According to the learned counsel, their presence at the time of the alleged occurrence is highly improbable and doubtful. The name of Jaswant Rai as a witness does not find mention in the FIR. Neither in the statement of complainant Krishan Kumar nor in the statement of Prem Nath, father of the deceased, which were recorded before the preparation of the inquest report, there is any mention that Jaswant Rai was present at the time of the alleged occurrence. For the first time, his Crl. A. No. 583-DB of 1998 -7- name appears only in the statement of Anil Kumar, which was annexed with the inquest report. Even the said Anil Kumar has not been examined as a witness by the prosecution. Learned counsel submitted that at the end of the statement of Anil Kumar, one line was added subsequently to the effect that Jaswant Rai and Jogi Ram had also witnessed the occurrence. According to the learned counsel, the said inquest report reached the Doctor at 9.30 A.M., on 24.3.1997 and perhaps in the morning of 24.3.1997, the said line was added at the end of the statement by the investigating agency just to introduce the aforesaid two persons as witnesses, though they were actually not present at the time of the alleged occurrence. Learned counsel submitted that as per the record, Jaswant Rai was called by the police on 24.3.1997, , and thereafter, his statement was recorded. Learned counsel submitted that Anil Kumar, who named Jaswant Rai to be present at the time of the occurrence, has not been examined by the prosecution. He further submitted that Jaswant Rai, who while appearing as PW.7, stated that on 23.3.1997, he along with Jogi Ram, came to Partap Gate, Kaithal, to distribute the wedding card of the daughter of Jogi Ram. To prove this fact, the prosecution cited Jogi Ram as witness. But during trial, he was given up being un-necessary. Learned counsel submitted that this fact clearly establishes that the presence of the alleged eye witness Jaswant Rai at the place of the alleged occurrence is highly improbable and the same has not been established. Regarding another eye witness, namely Krishan Kumar (PW.3), learned counsel submitted that admittedly the said witness is related Crl. A. No. 583-DB of 1998 -8- to Mukesh Kumar. Though this witness is alleged to have taken the injured to the Hospital, but his name has not been recorded in the MLR. Learned counsel further submitted that though this witness was allegedly present at the time of the occurrence, but in spite of having relation with the injured, he did not interfere in the alleged occurrence, which is highly improbable. Learned counsel further contended that as per the statement of this witness, he came at the alleged place of occurrence from the lane, which has not been shown in the site plan, prepared by the Investigating Officer. Learned counsel submitted that all these factors clearly indicate that this alleged chance witness was not present at the time of the alleged occurrence and he was subsequently introduced as a witness. Fourthly, while making an alternative submission, learned counsel for the appellants submitted that from the evidence led by the prosecution, it is clear that the alleged occurrence has suddenly taken place without there being an intention on the part of the appellants to murder Mukesh Kumar. He himself came on the spot on his scooter. He was not stopped by the appellants. He himself got down from his scooter. There is no allegation that prior to this, there was any common intention to cause death or to give fatal injury to the said Mukesh Kumar, which may likely cause death of the person. Suddenly, an altercation took place between the appellants and the said Mukesh Kumar. They started giving slaps and fist blows to each other and during the course of that altercation, Rajesh Kumar took out the knife from the back pocket of his pant and gave a knife blow on Crl. A. No. 583-DB of 1998 -9- the lower portion of the abdomen of Mukesh Kumar. Learned counsel submitted that only one blow was given and thereafter, no attempt was made to give another blow to said Mukesh Kumar. Therefore, all the three accused ran away from the spot with the knife. Learned counsel submitted that all these allegations establish that the prosecution case falls under Exception 4 of Section 300 IPC, therefore, it amounts to a culpable homicide not amounting to murder. Therefore, at the most, only accused Rajesh Kumar can be convicted under Section 304 IPC. Learned counsel further submitted that as far as the other two accused, namely Harish Kumar and Krishan, are concerned, the ingredients of Section 34 IPC have not been established against them, therefore, they cannot be convicted with the aid of Section 34 IPC. Learned counsel submitted that in the instant case, the common intention prior to the commission of the alleged offence has not been established. It was a chance incident. When all the three appellants were present at Partap Gate, Kaithal, near the grocery shop, Mukesh Kumar by chance came there. He got down from his scooter. The appellants did not stop him. There is no evidence that prior to the giving of knife blow by appellant Rajesh Kumar to the said Mukesh Kumar, all the appellants conspired to commit his murder. There was no common intention. Learned counsel submitted that suddenly altercation took place between the appellants and Mukesh Kumar and in that altercation, accused Rajesh Kumar gave one stab with knife. These facts are sufficient to establish that there was no common intention in between the three accused to kill the said Crl. A. No. 583-DB of 1998 -10- Mukesh Kumar. Therefore, at least, appellants Harish Kumar and Krishan, who did not cause any injury to Mukesh Kumar, cannot be convicted under Section 302 with the aid of Section 34 IPC. On the other hand, Shri Partap Singh, Senior Deputy Advocate General, Haryana, learned counsel for the respondent-State, while controverting the submissions made by learned counsel for the appellants, submitted that in the instant case, the prosecution has fully proved the charge against all the three appellants and they have been rightly convicted under Section 302 read with Section 34 IPC. Learned counsel submitted that the trial court, after appreciating the evidence led by the prosecution, has rightly come to the conclusion that statements of both the eye witnesses, namely Krishan Kumar (PW.3) and Jaswant Rai (PW.7) are wholly trust worthy and their statements cannot be discarded or brushed aside, merely because Krishan Kumar is related to the deceased and name of Jaswant Rai, who was very much present at the site, came lateron in the statement of Anil Kumar. Learned counsel further controverted the legal position, propounded by learned counsel for the appellants that in the facts and circumstances of the case, accused Rajesh Kumar can be convicted only under Section 304 IPC. In this regard, he submitted that there was a clear cut intention in the minds of the accused persons to commit the murder of the deceased with a common intention. Therefore, all the three accused have been rightly convicted by the trial court under Section 302 read with Section 34 IPC. We have heard learned counsel for the parties and have perused Crl. A. No. 583-DB of 1998 -11- the trial court record as well as the impugned judgment. From close scrutiny of the medical evidence available on the record, it has been established that deceased Mukesh Kumar had died due to the injury caused by the knife, which as per the opinion of the Doctor was sufficient to cause death in normal circumstances. PW.2 Dr. Daizy Sood, who immediately after the occurrence had examined Mukesh Kumar who was brought at 8.00 P.M. in the Hospital in an injured and unconscious condition, found an incised penetrating wound 2.0 cms x 0.5 cm to 0.75 cm in the super pubic region on the right side lateral to his mid line. Fresh bleeding was present. She has opined that duration of the said injury was within six hours, which was caused by a sharp edged weapon. During her examination in the Court, she was shown the knife Ex.P1 (which was got recovered by accused Rajesh Kumar on his disclosure statement), which was used in the crime, and she specifically stated that injury on the person of Mukesh Kumar could have been caused by the said knife. PW.5 Dr. S.P. Singal, who conducted the autopsy of the deceased, has opined that injury on the body of the deceased was sufficient to cause death in the ordinary course of nature. He further opined that the cause of death in this case was haemorrhage and shock due to the injury, which was ante mortem in nature. The duration between injury and the death was stated to be 12 to 24 hours. From the medical evidence, it has also been proved that there was only one injury on the person of the deceased, which was caused with the knife. As per the prosecution version, the aforesaid fatal injury was Crl. A. No. 583-DB of 1998 -12- caused to the deceased by accused Rajesh Kumar with knife on 23.3.1997 at about 6.45 P.M., after forming a common intention with accused Harish Kumar and Krishan to commit the murder of deceased Mukesh Kumar. As per the statement of Krishan Kumar (PW.3), which is the foundation of the prosecution version, in the evening of 23.3.1997, he was going to see off Anil Kumar, who had come to his house in connection with some personal work. When at about 6.45 P.M., they reached near the grocery shop of Kalu Ram Ashok Kumar at Partap Gate, Kaithal, they saw the alleged occurrence. According to him, deceased Mukesh Kumar came at the place of occurrence on his scooter. At that time, all the three accused were already standing near the shop of Kalu Ram Ashok Kumar. Mukesh Kumar got down from his scooter. Then Harish Kumar asked him as to why he had hurled abuses to him at noon. This led to an altercation and they started giving slaps and fist blows to each other. It is further stated by the said witness that Harish Kumar took Mukesh Kumar in his grip from the back and Krishan asked Rajesh Kumar to give a knife blow to him. Then, Rajesh Kumar gave a knife blow on the lower part of the abdomen of Mukesh Kumar. Thereafter, all the three accused ran away from the spot and Mukesh Kumar fell down unconscious. He has also stated that he sent for the father of the injured, who immediately came at the spot and thereafter, the injured was taken to the Hospital. This witness also went to the Hospital along with the injured. The injured Mukesh Kumar was taken to the Hospital at 8.00 P.M. He was medico legally examined by PW.2 Dr. Daizy Sood at 8.10 P.M. Ruqa Ex.PC Crl. A. No. 583-DB of 1998 -13- was sent by the Doctor to the Police. Dayal Singh ASI, who was very much present in the Hospital in connection with some other case, immediately came there and vide application Ex.PD sought the opinion of the Doctor about the fitness of the injured to make the statement. Vide Ex.PD/1 at 8.25 P.M., the Doctor opined that the injured was unfit to make statement. Thereafter, the injured died at 8.40 P.M and regarding his death, ruqa Ex.PX was sent, which was received in the Police Station at 9.00 P.M. Thereafter, at 10.15 P.M., statement of Krishan Kumar (Ex.PF) was recorded, on the basis of which FIR (Ex.PF/1) was registered. From all the aforesaid factors, it appears that the presence of Krishan Kumar at the time of the alleged occurrence was natural. Though the said witness, admittedly, is related to the deceased, but his presence at the time of the alleged occurrence cannot be suspected. We have carefully scanned the evidence led by the prosecution. In our opinion, contention of the appellants that presence of the said witness, who was a chance witness, at the time of the alleged occurrence, is highly doubtful, cannot be accepted. We find that in the instant case, there was no delay in recording the statement of the said witness by the police. Immediately on receiving the ruqa about admission of the injured, ASI Dayal Singh sought the opinion of the Doctor about the fitness of the injured to make statement at 8.25 P.M. When the Doctor opined that the injured was unfit to make statement, he went back to attend the other case in the Hospital itself. After the receipt of another ruqa regarding the death of Mukesh Kumar at 9.00 P.M., he Crl. A. No. 583-DB of 1998 -14- recorded the statement of Krishan Kumar at 10.15 P.M. and the special report was sent to the Ilaqa Magistrate at 12.30 A.M. We are not in agreement with the contention of learned counsel for the appellants that during the aforesaid period of one hour and fifteen minutes (i.e. from 9.00 P.M. to 10.15 P.M.), the entire prosecution version was concocted and Krishan Kumar was introduced as an eye witness. PW.3 Krishan Kumar has categorically stated that accused Rajesh Kumar gave knife blow to Mukesh Kumar, due to which he fell down unconscious and thereafter, he was taken to Hospital. Regarding the other two accused, he has stated that accused Harish Kumar took Mukesh Kumar in his grip from the back and accused Krishan exhorted accused Rajesh Kumar to cause knife blow to him. From the statement of this witness, which has been corroborated by the other oral as well as medical evidence, it is established that accused Rajesh Kumar consciously gave a knife blow on the lower part of the abdomen of Mukesh Kumar. The blow was so forceful that after cutting the pant, vest (Banian) and underwear, the stab penetrated in the lower part of the stomach. Statement of the aforesaid witness has been duly corroborated by PW.7 Jaswant Rai, another eye witness. The contention of learned counsel for the appellants that presence of the said witness was very much doubtful at the time of the alleged occurrence cannot be accepted. It is true that name of the said witness was mentioned for the first time in the statement of Anil Kumar, who has not been examined by the prosecution. However, the statement of Anil Kumar Crl. A. No. 583-DB of 1998 -15- was very much annexed with the inquest report, which was handed over to the Doctor for post mortem examination of the deceased. In our opinion, statement of this witness cannot be discarded merely on the ground that Anil Kumar and Jogi Ram, who was accompanying Jaswant Rai at the time of the alleged occurrence, were not examined by the prosecution. This witness is totally independent witness having no relation with the deceased. Therefore, in our opinion, his testimony cannot be ignored. Thus, from the statements of PW.3 Krishan Kumar and PW.7 Jaswant Rai, it has been proved that accused Rajesh Kumar gave a knife blow on the lower portion of the abdomen of the deceased with intention to cause fatal injury to him, which in the opinion of the Doctor was sufficient to cause death in the ordinary course of nature. The contention of learned counsel for the appellants that in the instant case, the alleged offence is culpable homicide not amounting to murder, as the instant case falls under Exception 4 of Section