Crl. Appeal No. 329-DB of 1998 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. Crl. Appeal No.329-DB of 1998 Date of decision: 17.7.2008. Sajjna Devi and another Appellants Versus State of Haryana Respondent CORAM: HON'BLE MR. JUSTICE UMA NATH SINGH HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. H.S. Gill, Senior Advocate with Mr. RK Dhiman, Advocate for the appellant. Mr. S.S. Randhawa, Addl. A.G. Haryana. Rajan Gupta, J. Sajjna Devi and her son Surinder have been convicted by the Court of Additional Sessions Judge, Jind for offence under Section 302 read with Section 34 Indian Penal Code (for short “IPC”) and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- each, in default whereof the appellants would undergo rigorous imprisonment for a period of six months. Both the accused have challenged their conviction awarded by the court below and pleaded that they are not guilty and therefore, deserve to be acquitted of the charges. The case came to be registered on the basis of statement of one Kishan Lal (PW10), who stated that he was a resident of Shadipur Julana, District Jind. On the fateful day, his son Anand Singh had gone to the house of his friend Kailash to attend an engagement ceremony. He Crl. Appeal No. 329-DB of 1998 2 had come back at about 10.00 P.M. At that time, he told Sukhma wife of the complainant that when he was coming back from the house of his friend and reached near the house of Sajjna Devi wife of Hawa Singh, a dog barked and chased him. Due to fear of the dog, he ran up the stairs of the house of Sajjna Devi which is situated in the street. At this, Sajjna Devi started hurling abuses and asked him why he had entered her house. Thereupon, an altercation had taken place between them. When the complainant was told about this episode by his son, he told the deceased Anand Singh to go to sleep and that they would sort out the matter with Sajjna Devi next morning. Due to shortage of space, Anand Singh as usual slept in the cot on the gallery of nearby Dalal Market. At about 10.30 P.M., Sajjna Devi and her son Surinder came to their house accompanied by two more boys. They inquired about the whereabouts of Anand Singh and said that they would teach him a lesson for having entered their house. The complainant replied that Anand Singh was sleeping there in Dalal Market and they told the accused that this was a small issue and no quarrel should be raised on such an issue. Thereafter, all the four went towards the gallery of Dalal Market where son of the complainant was sleeping. The complainant and his other son Ram Bhagat also followed them. However, the four persons started beating son of the complainant and gave him slaps and fist blows. Surinder inflicted a knife blow on the left side of the chest of Anand Singh, on receipt of which Anand Singh raised an alarm “Mar Dia – Mar Dia” and fell down on the cot. Sajjna Devi, Surinder and two other persons Crl. Appeal No. 329-DB of 1998 3 accompanying them, ran away through the back gate of the market. The complainant could not chase them due to fear and took Anand Singh to the hospital at Julana in an injured condition where the doctor declared him dead. The complainant, thus, lodged the instant complaint saying that action be taken against the accused. This complaint was lodged with Wazir Singh SI/SHO, Police Station Julana on the night of 27.10.1997. S.I. Wazir Singh then prepared an inquest report which is Ex.PA/1. He also called a photographer at the Community Health Centre, Julana and got the photographs of the dead-body and of the place of occurrence. He also took into possession blood stained clothes and knitted portion of the cot in his possession. All the articles were sealed in parcels and he took the same into possession vide Ex. PH/4. Rough site plan of the place of occurrence was prepared. The same is Ex.PH/5. S.I. Wazir Singh also lifted samples of blood stains lying on the spot in a small container and sealed it. A pair of shoes belonging to the deceased was also taken into possession from the place of occurrence. The same is Ex.P22. All these parcels were deposited with the MHC of the Police Station. Thereafter, investigation of the case was handed over to Daya Nand (PW15). The postmortem was conducted by Dr. Renu Aggarwal on the dead-body of the deceased Anand Singh at General Hospital, Jind. The doctor found only one wound on the left side of the chest of deceased Anand Singh. She described the wound as under:- “The body was having only one wound on the left side of Crl. Appeal No. 329-DB of 1998 4 chest at the level of 2nd and 3rd intercostal space measuring 1” x ½” elliptical in the shape exposing the underline muscles. Underline rib was also cut. It had well define margins. Clotted blood was present and blood was also coming out on pressing the chest. No other injury was seen any where on the body. On opening the chest there was a tear in left pleura and left lung was also pierced anteriorly and was collapsed. Larynx and trachese contained fluid blood and froth. Right lung was healthy. Heart and Pericardium was healthy. There was an elliptical cut on the anterior wall of iota just as it emerges out of Heart. Clotted blood and liquid blood was present in the chest and abdominal cavity. Abdominal wall was healthy and pale. Peritoneum, mouth, pharynx and oesophagus were also healthy and pale. Stomach contained semi digested food. Large and small intestine contained chyme and gases. Liver, spleen, kidney and bladder were healthy and pale. Organs of generation were normal.” The doctor opined that cause of death was due to shock and hemorrhage caused by wound, which was ante mortem in nature and was sufficient to cause death in normal course of nature. The doctor had also removed clothes of the deceased and sealed the same as Ex.P1 to Ex.P5. Inspector Daya Nand thereafter, arrested all the four accused in the case i.e. Surinder Kumar son of Dharampal, Ravinder Kumar son of Satpal, Sajjna Devi wife of Hawa Singh and Surinder son of Hawa Singh. The accused were interrogated. The Investigating Officer thereafter recovered the weapon of offence i.e. knife, which is Ex.P23. A rough site plan of the place of recovery of knife was prepared. The same is Crl. Appeal No. 329-DB of 1998 5 Ex.PJ/3. The sealed parcels were sent to FSL, Madhuban (Karnal) and report of Assistant Director, Serology was obtained, which are Ex.PF/1 and Ex.PF/2. After completion of investigation, challan was presented in the court of Judicial Magistrate 1st Class, Jind, who committed the same to the court of Sessions for trial and the same was received by Additional Sessions Judge ( I), Jind by entrustment. A charge for offence under Section 302 read with Section 34 IPC was framed against the accused persons by the trial Court, for intentionally causing the death of Anand Singh alias Banta on the intervening night of 26/27.10.1997 in the area of village Shadipur (Julana) by all the accused persons in furtherance of their common intention. The accused pleaded not guilty to the charge and claimed trial. The prosecution examined as many as 15 witnesses for proving its case. In their defence under Section 313 Cr.P.C., the accused took up the plea of total denial and stated that they had been framed in the said case. The defence, however, chose not to lead any evidence. The trial Court after considering the evidence, came to the conclusion that the accused Sajjna Devi and her son Surinder were guilty of having committed offence under Sections 302/34 IPC and thus, sentenced them to life imprisonment and imposed a fine of Rs.5000/- each, in default whereof they would also undergo further rigorous imprisonment for a period of six months. The other two accused were Crl. Appeal No. 329-DB of 1998 6 acquitted. We have heard learned counsel for the appellants as well as learned Additional Advocate General, Haryana for State of Haryana. Learned counsel for the appellants has mainly submitted that this was a case of blind murder in which there was no clue as to identity of the assailants. The accused had been falsely framed by the Police in the said case. Neither the accused had any motive to commit the crime nor they ever went to place of occurrence. Learned counsel also attacked the version given by the prosecution witnesses and said that the same was discrepant and could not be relied upon. Alternatively, he argued that the accused had no intention of killing the deceased Anand Singh and no role, whatsoever, could be attributed to the accused Sajjna Devi. The learned Additional Advocate General on the other hand, submitted that sufficient evidence had been led to bring home the guilt of the accused. Sufficient evidence had come on record to prove that the accused had gone to the place of occurrence and intentionally attacked the deceased Anand Singh. The fatal blow was inflicted by Surinder son of Sajjna Devi by knife resulting in immediate death of Anand Singh. The conviction of the accused under Section 302/34 IPC, therefore, deserves to be maintained. We have carefully analysed the entire evidence on record as well as the various exhibits. The material witnesses in this case are being discussed by us hereunder. While Dr. N.K. Verma, who was posted at CHC Julana on Crl. Appeal No. 329-DB of 1998 7 26.10.1997, stepped into the witness-box as PW1 and stated that Anand Singh was brought to the Health Centre at about 10.45 P.M., whereafter he had sent a Ruqa (Ex. PA) to the SHO, Police Station Julana. PW2 Dr. Renu Aggarwal, Medial Officer, G.H.Jind, conducted the postmortem examination on the dead-body of deceased Anand Singh and gave a description of the injury suffered by him, which has been reproduced in the foregoing paragraph. PW3 and PW4 are police witnesses. While PW3 prepared the scaled site plan Ex. PC on 26.11.1997 itself, PW4 Constable Raghbir Singh recorded the First Information Report and sent the same to the Judicial Magistrate, Ist Class at about 6.00 A.M. on 27- 10-1997. Raj Kumar (PW5) is a photographer who has stepped in the witness-box to prove the photographs Ex.P12 to P17. PW6, PW7 and PW8 are police officials and are formal in nature. Constable Suresh Kumar deposed that the police papers and the dead-body of deceased Anand Singh was handed over to him and Constable Ramesh for postmortem examination by SI/SHO Wazir Singh SHO. This witness is PW9. PW10 Kishan Lal is complainant as well as eye witness of the occurrence. He has given a clear cut version of the occurrence. PW11 Ram Bhagat is also an eye-witness of the occurrence. He has fully supported the prosecution case and has corroborated the testimony of PW10 Kishan Lal. The investigating officer has deposed as PW12 and has Crl. Appeal No. 329-DB of 1998 8 given a detailed account of the investigation conducted by him. PW13, PW14 and PW15 are again official witnesses and have thrown light on certain aspects of investigation such as taking samples of blood, sending the body for postmortem examination, disclosure statement made by Surinder, recovery memo of knife Ex.P23, report received from Assistant Director Serology, FSL, Madhuban etc. However, material evidence is that of Kishan Lal (PW10), who is an eye-witness to the occurrence and in whose presence his son was killed. Ram Bhagat is another eye-witness of the occurrence who has totally corroborated the testimony of Kishan Lal. Coupled with this, the medical evidence clearly goes to show that the solitary injury on the person of the deceased could be easily inflicted by the knife Ex.P23 and the same was solely responsible for causing the death of the deceased. The ocular testimony finds total corroboration from the medical evidence as well. Even the knife, with which the injury was caused, was recovered at the instance of accused Surinder. There has been no plea by the accused that they had any previous enmity either with the deceased or with the prosecution witnesses. We, therefore, find no reason to disbelieve their testimonies. From the facts and circumstances of the case, it is clearly established that death of Anand Singh was caused by the single knife blow inflicted by accused Surinder. However, as regards the question of intention to kill Anand Singh, it creates serious doubt. The entire episode has taken place in such a manner that it cannot be said to be a Crl. Appeal No. 329-DB of 1998 9 premeditated murder. Neither there is any motive on record to show that the accused wanted to get rid off Anand Singh nor any preconceived intention to commit his murder. The unfortunate incident appears to have occurred when Anand Singh inadvertently climbed the stairs of Sajjna Devi due to the fact that a dog was chasing him. The accused, thereafter, took offence to this intrusion in their house by Anand Singh, especially because it was slightly late in the night. However, Surinder inflicted the solitary knife injury on the chest which resulted in death of Anand Singh. No other injury was found on the person of the deceased. In such a situation, we would feel that ingredients of offence under Section 302 IPC would not be strictly made out. In our view, this type of a crime would fall within the ambit of Section 304 Part-II IPC. The question that arises for consideration is whether the offence can be said to be covered by the clause `thirdly' of Section 300 of Indian Penal Code. This Section requires that the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. The clause is in two parts, the first part is a subjective which indicates that the injury must be an intentional one and not accidental. The second part, however, is objective. The Court must be satisfied that the injury intended to be caused was sufficient to cause death in the ordinary course of nature. We think that in the present case, the injury was intended to be caused but the second part, in our opinion, is not fulfilled as there was only a solitary injury which may not have caused death of the deceased, had the knife not penetrated aorta as it emerges out of the heart. Crl. Appeal No. 329-DB of 1998 10 We are, therefore, of the view that accused Surinder is guilty of having committed an offence under Section 304 Part-II IPC and convict him for the same. To this extent, judgment of the Court below is set aside. As regards Sajjna Devi, we have perused the record and put a query to the learned State counsel whether there had been any exhortation on part of Sajjna Devi to commit the crime or whether any role had been attributed to her in the entire case. To this, answer of the State counsel is in the negative role. Even otherwise, we feel that Sajjna Devi can be attributed no role except that she accompanied her son Surinder to the place of occurrence. Had Surinder been carrying the knife openly, even father of the deceased would not have told him about the exact location of deceased Anand Singh. It is, therefore, reasonable to infer that Sajjna Devi also would not be aware that her son was carrying a knife. This is so because it is on record that before proceeding to the place of occurrence, both Sajjna Devi and Surinder had met the father of the deceased. Apart from this, neither in the FIR nor at any later stage of the case any role was attributed to Sajjna Devi by any of the witnesses, except that she accompanied her son to the scene of the occurrence. Not even a word was uttered by any witness to say that Sajjna Devi exhorted her son to attack the deceased Anand Singh. Most importantly, there was no repetition of the attack on the deceased. Only a solitary injury by knife was caused. This goes to show that Sajjna Devi has hardly any role to play in causing the injury which ultimately proved Crl. Appeal No. 329-DB of 1998 11 fatal. We are, therefore, of the view that Sajjna Devi deserves acquittal. We, therefore, set aside the judgment of the trial Court to this extent and acquit Sajjna Devi of all the charges levelled against her. As regards the sentence to be awarded to the accused Surinder, it cannot be lost sight of that he inflicted a knife blow and caused the death of a young man. Keeping in view the fact that he himself is stated to be 17 years of age at the relevant time, we feel that a sentence of rigorous imprisonment of seven years will be appropriate in the facts and circumstances of the case. The accused Surinder is, therefore, sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.3,00,000/-. In default of payment of fine, he would undergo a further rigorous imprisonment for a period of three years. The fine to be deposited by the convict shall be disbursed to the next kin of the deceased Anand Singh son of Hawa Singh. (UMA NATH SINGH) (RAJAN GUPTA) JUDGE JUDGE July 17, 2008 'rajpal/ask'