Crl.A.No.431-DB of 1998 -1 - IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl.A.No.431-DB of 1998 Date of Decision : 12.12.2008 Vijay Singh @ Bija ..Appellant. Versus The State of Haryana ..Respondent. CORAM : HON'BLE MR.JUSTICE S.S.SARON HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mrs.Baljeet Kaur Mann, Advocate for the appellant. Mr.H.S.Sran, Addl.AG Haryana. *** RAKESH KUMAR JAIN, J. Vijay Singh alias Bija (appellant), Phul Kanwar @ Phul and Mangtu (since acquitted) sons of Prabhu were tried for the offences under Section 302 Indian Penal Code (`IPC' for short) and Section 302 read with Section 34 IPC for the murder of Shamsher @ Shera. The learned trial Court vide its judgment and order dated 29.8.1998 acquitted Phul Kanwar @ Phul and Mangtu who were charged for the offence under Section 302 read with Section 34 IPC by giving them the benefit of doubt. However, Vijay Singh @ Bija (appellant) was found guilty and convicted for the offence under Section 302 IPC for the murder of Shamsher @ Shera. In terms of order of Crl.A.No.431-DB of 1998 -2 - the even date, the learned trial Court sentenced Vijay Singh @ Bija (appellant) to undergo imprisonment for life besides to pay a fine of Rs.500/- and in case of default in payment of fine, to undergo further rigorous imprisonment for one year. The period for which the appellant remained in custody as an under-trial was ordered to be set off from the period of sentence awarded to him. The appellant Vijay Singh @ Bija by way of the present appeal assails the said orders of conviction and sentence. The prosecution version is that on 10.2.1997 at 9.30 p.m. Jai Singh (PW7), brother of the deceased Shamsher, lodged the FIR (Ex.PP) at Police Station Sampla, District Rohtak in respect of the incident that occurred on the same day at 8.30 p.m. His statement is to the effect that he is an agriculturist. They were three brothers. He is the eldest. Jai Kishan is younger to him and Shamsher alias Shera (deceased) was the youngest. Jai Kishan and Shamsher alias Shera (deceased) were residing with their families separately. The father and Jai Kishan, younger brother of the complainant (PW7) but elder to the deceased, were residing together in another house. Shamsher was doing the work of loading of wheat chaff (Turi) along with Vijay Singh alias Bija son of Parbhu Ram, Jat, resident of Samchana. On the day of the occurrence, Jai Singh, complainant returned from his field at about 6.30 p.m. and Shamsher returned at about 8.00 p.m. after loading the wheat chaff (Turi). While the complainant Jai Singh was talking with Shamsher, Vijay Singh alias Bija son of Parbhu resident of Samchana (appellant) came there. The son of Shamsher was indisposed and therefore, he asked Vijay Singh alias Bija to refund the money which he owed him. He (Shamsher Singh) wanted the money to purchase medicines Crl.A.No.431-DB of 1998 -3 - for his ailing son. Vijay Singh alias Bija retorted that he had no money and this led to an altercation between them. Thereafter, Vijay Singh alias Bija asked Shamsher to come out in the street and get the money. Vijay Singh alias Bija started walking ahead and the brother of the complainant namely Shamsher followed him. The complainant had an apprehension that they might pick up a quarrel, so he followed his brother Shamsher. When they reached near the 'Chaupal' adjacent to the house of his father, they got into a heated argument. In the meantime, Mangtu and Phula, the brothers of Vijay Singh alias Bija and Balwan and Jai Pal sons of Mahla also came there. Within the sight of Jai Singh complainant (PW7), Shamsher was caught hold of by Mangtu and Phulla and Vijay Singh alias Bija whipped out a knife from his pant pocket and inflicted 4-5 blows on his chest. The complainant raised an alarm `Mar dia' Mar dia' and along with Balwan and Jaipal tried to over power the assailants, but they fled away. Shamsher, brother of Jai Singh-complainant (PW7) fell down in the street. In the meantime, the father and brother Jai Kishan of the complainant came. Shamsher succumbed to his injuries. Jai Singh, complainant (PW7) then came to the Police Station for lodging a report after leaving his father and brother Jai Kishan at the spot. Action was asked to be taken. The complainant Jai Singh heard his statement, which was accepted as correct. The statement was attested by Hari Kailash SI/SHO (PW13) , Police Station Sampla who lodged report (Ex.PK) which was thumb marked by Jai Singh. Hari Kailash SI/SHO (PW13) along with SI Ram Niwas, Constable Mukesh and other police officials as also a photographer went to the place of occurrence where the dead body of Shamsher was found. Balbir son of Crl.A.No.431-DB of 1998 -4 - Daria, Balwan and Jaipal sons of Malha and others were near the dead body. The scene of crime was got photographed and blood-stained earth was lifted and put in a parcel and sealed with seal 'HK' which was entrusted to Jai Pal. The blood-stained earth was taken in possession vide memo Ex.PQ. A pair of 'Jutti' of Shamsher (deceased) was also taken and sealed with seal 'HK' which was also taken in possession vide memo Ex.PQ. A rough site plan Ex.PR of the scene of occurrence with correct marginal notes was prepared. The dead body was sent for post-mortem vide application Ex.PB through Constables Ishwar Singh and Mukesh Kumar. Inquest proceedings Ex.PC qua the dead body of Shamsher was also conducted. The statements of witnesses were recorded and a search was made for the accused, but they could not be traced. Constable Mukesh and Ishwar Singh returned to the spot of occurrence along with bundle sealed parcels containing the clothes of the deceased and the same were taken in possession vide memo Ex.PS. The case property was deposited by Hari Kailash SI/SHO (PW13) with the MHC with seal intact. Ishwar Singh Constable No.1213 and Mukesh, Constable No.880, during the trial of the case filed their affidavits Ex.PE and Ex.PF respectively with regard to taking the dead body for autopsy and handing over the parcel after autopsy. Vijay Singh alias Bija was arrested and he made a disclosure statement Ex.PL and got recovered the knife Ex.PM that was used in the commission of the offence. The knife and blood stained earth were sent to the Forensic Science Laboratory, Haryana, Madhuban, which has given its report Ex.PU/1. After completion of the investigation, the accused were challaned and charge was framed against them on 21.5.1997 to the effect that Vijay Singh alias Bija, Phul Kanwar Crl.A.No.431-DB of 1998 -5 - alias Phul and Mangtu on 10.2.1997 in the area of village Samchana, the accused Vijay committed the murder of Shamsher Singh by intentionally causing his death and thereby committed an offence punishable under Section 302 IPC. Besides, on the said date and place, the accused Phul Kanwar and Mangtu in futherance of the common intention of both of them and their co-accused Vijay did commit the mureder of Shamsher Singh by intentionally causing his death and thereby they both committed an offence punishable under Section 302 read with Section 34 IPC. It was directed that they be tried by the Court. The prosecution in order to prove its case, examined as many as 15 witnesses besides tendered documents in evidence. Dr.S.S.Dahiya was examined by the prosecution as PW1. He conducted the post mortem examination on 11.2.1997 on the dead body of Shamsher and found following injuries on it: “1. An incised would 3.5x1.0 cm in size, oblong in shape and present over the front of right chest over right second intercostal space. It was skin deep. Clotted blood was present over it. 2. An incised wound 2.0 cm. X 1.0 cm present over the front of left chest, 5 cm left to injury No.1 at the same level. It was skin deep and clotted blood was present. 3. An incised wound 2.5 cm. X 1.5 cm present over the front of lest chest, 5.5 cm left lateral to injury No.2 and it was 4.0 cm Crl.A.No.431-DB of 1998 -6 - above the left nipple. It was muscle deep. Clotted blood was present Ecchymosis was present in the muscular tissues. 4. An incised wound 2-0 cm x 0.75 cm present over front of left chest 2 cm down to left nipple. It was piercing underneath tissues and fracturing the fifth rib piercing left ventricle of heart in an area of 2.5 cm x 0.5 cm wound in the left ventricular wall. There was also a tear of 2.5 cm x 0.5 cm of the pericardium just over the left ventricle wound. 150 ml of blood was present in the pericardial cavity and 500 ml of blood was present in the left pleural cavity. 5. An incised wound 1.5 cm x 1.0 cm present in the infra axillary area of left chest wall, 7.0 cm left lateral to left nipple. It was skin deep. Clotted blood was present. Stomach contained 250 ml of semi digested food particles.” In the opinion of the doctor (PW1), the cause of death was haemorrhage and shock due to ante mortem injury No.4, which was opined to be sufficient to cause death in the ordinary course of nature. The probable time between the injury and death was opined to be within few minutes and between death and post mortem within 6 hours to 36 hours. On 26.2.1997 on the request of the police (Ex.PD), the doctor opined that the possibility of death due to injuries inflicted by knife could not be ruled out and that injuries No.1 to 5 could be inflicted by the knife shown to him by the police. Crl.A.No.431-DB of 1998 -7 - PW2 Constable Mukesh Kumar, PW3 Constable Ishwar Singh, PW4 Constable Dharamvir and PW5 Baljit Singh tendered their sworn affidavits Exs.PE, Ex.PF, Ex.PG and Ex.PH respectively. Constable Raju appeared as PW6, who had prepared the scaled site plan Ex.PJ, Jai Singh- complainant, brother of Shamsher (deceased) who had lodged the FIR appeared as PW7, Balwan witness of the occurrence appeared as PW8, Ishwar appeared as PW9, Constable Surender Singh appeared as PW10 and tendered his sworn affidavit Ex.PO, Gian Singh, Inspector appeared as PW11, who filed application Ex.PD before the CMO on 26.2.1997 and produced knife duly sealed in a packet which was opened by the doctor. Thereafter, the knife was again put in a packet, which was sealed and handed over to him and was deposited with MHC with seals intact. ASI Kitab Singh appeared as PW12, Hari Kailash SI appeared as PW13, who stated that on 10.2.1997 Jai Singh came to the police station and lodged report Ex.PK and thereafter, he had carried out the investigations. Balbir Singh had appeared as PW14, Inspector Bhim Singh appeared as PW15. After the closure of the evidence by the prosecution, the substance of the evidence against the accused (appellant) was put to him in terms of Section 313 of the Code of Criminal Procedure (“Cr.P.C.” - for short) who denied the same in toto and alleged that Jai Singh (PW7) and Balwan did not witness the occurrence and had connived with the police to convert a blind murder case into an eye witness account. Investigations conducted by the police were alleged to be tainted. The family of the deceased had enmity with many persons in the village especially Sunder Pandit, a known bad character of the village with whom the deceased had a dispute. The said Crl.A.No.431-DB of 1998 -8 - Sunder Pandit it was stated had been missing from the village since the date of the occurrence. Wife of Balwan was murdered as also his grand-father. In the said murder case, Pirthi and Har Lal were convicted and sentenced. The learned trial Court after considering and appreciating the evidence and material on record, convicted the present appellant for the offence punishable under Section 302 IPC. We have heard learned counsel for the parties. The contention of the counsel for the appellant is with regard to the presence of the eye witness at the scene of the occurrence. It is contended that the brother of the deceased namely Jai Singh (PW7) was not present at the time of occurrence. It is submitted that neither Jai Singh (PW7) nor Balwan (PW8) the eye witness were present at the spot because had they been present then they would have intervened when the occurrence took place and had they been intervened then they ought to have suffered injuries in the alleged occurrence. It is also submitted that Jai Singh (PW 7) in his deposition stated that Balwan (PW8) came after him whereas Balwan (PW8) stated that Jai Singh (PW 7) came after him. It is also contended by the learend counsel for the appellant that at the time when the incident is alleged to have occurred there was no street light. Therefore, the question of identification of the accused allegedly having inflicted injuries to the deceased Shamsher is not proved and is rather seriously doubted. In response, learned counsel appearing for the State has submitted that the prosecution has proved its case in its entirety and there is nothing to dislodge the reasoning and conclusion reached at by the learned trial Court. It is stated that the prosecution case is established from the eye- Crl.A.No.431-DB of 1998 -9 - witness account, the medical evidence and the investigations carried out. The contentions as raised by the learned counsel for the appellant, it is stated, are devoid of any merit and do not warrant the setting aside of the well-merited decision of the learned trial Court. The contention of the learned counsel for the appellant appears be attractive at the first blush but the same does not carry any weight, which may help the appellant in any manner. The depositions made by PW7 and PW8 are quite consistent and almost the same except for some minor discrepancies which normally are there in a criminal trial. However, the discrepancies as alleged are not as such which go to the root of the prosecution case so as to cast any doubt as to the veracity of the prosecution case. As per the prosecution case, the deceased and the appellant were well known to each other as they were working together and even visiting each others' houses frequently. The presence of the witness PW7 Jai Singh at 8 p.m. at the house of Shamsher (deceased) is in the normal course of event. It is not in dispute that they both were residing together in the village, therefore, for them to be together at 8 p.m. in the evening at the house of Shamsher (deceased) would in fact be quite natural even though, they were residing separately. It is in the presence of Jai Singh (PW7) that the money was demanded by Shamsher (deceased) from the appellant and then both of them came out of the house and started towards 'Chaupal' when as a natural reaction Jai Singh (PW7) had followed them apprehending a scuffle. The appellant was well known to Jai Singh (PW7). Therefore, the contention that there was no electricity at the place of occurrence, even if it is presumed to be so, would make no difference. Besides, Balwan (PW8), who Crl.A.No.431-DB of 1998 -10 - is also a resident of the same village, had witnessed the occurrence. He stated that the appellant had given knife blows to the deceased and despite their efforts to nab him, he succeeded in escaping from the place of the occurrence. Therefore, we do not find any strength in the argument of the learned counsel for the appellant in this regard. In the alternative, learned counsel for the appellant has contended that in any case, the present is not a case of murder which would attract the provisions of Section 302 IPC but is a case which falls within the parameters of Section 304 Part-II IPC. It is contended that even according to the statement of the eye witness the occurrence took place due to a sudden fight and without any pre meditation. The act was done in the heat of passion and the appellant had not taken any undue advantage or acted in a cruel manner as is evident from the injuries found on the person of the deceased during autopsy. It is submitted that injuries No.1, 2 and 5 are skin deep, injury No.3 is muscle deep and only injury No.4 has been found to be fatal with pierced the left ventricle of the heart. It is also submitted that in the cross-examination, PW1 Dr.S.S.Dahiya had stated that but for injury No.4, death would not have been caused and except injury No.4, remaining injuries could have been caused either when the victim was running or the weapon was used in a slanting manner. Therefore, it is submitted that the appellant had not acted in a cruel manner and he had no intention to kill but may have had the knowledge that the injury would cause death. Learned counsel for the appellant has placed strong reliance on the cases of Surender Kumar Vs. Union Territory, Chandigarh, AIR 1989 SC 1094, Sukhdev Singh Vs. Delhi State (Govt. of NCT of Delhi) AIR 2003 SC Crl.A.No.431-DB of 1998 -11 - 3716 and Manke Ram Vs.State of Haryana AIR 2003 SC 4147 and Dayanand Vs. State of Haryana 2008 Crl.L.J.2975 in support of her contentions. As against this, learned counsel for the respondent-State has submitted that the appellant was already armed with a knife, therefore, it can not be taken that he had no intention. In the case of Surender Kumar (supra), the facts were noticed by the Supreme Court in para No.2, which is reproduced as under : - “On January 3, 1975 at about 7.15 p.m., PW2 and his deceased brother had a heated argument with the appellant and his brother Amrit Lal in regard to the return of the kitchen. In the course of this heated exchange PW2 is alleged to have showered filthy abuses. Although PW2 denies this fact, PW4 has admitted the same. PW2 also threatened to throw out the utensils and lock the kitchen. Since PW2 was uttering filthy abuses in the presence of the appellant's sister and Nitya Nand did not restrain him, the appellant got enraged, went into the kitchen and returned with a knife with which he inflicted one blow on the neck of PW2 causing a bleeding injury. In the melee the appellant inflicted three knife blows to Nitya Nand; one on the shoulder, the other on the elbow and the third on the chest, as a result whereof Nitya Nand collapsed to the floor and latter died while on the way to the hospital. The fact that Nitya Nand died a homicidal death is not in dispute.” In the said case, it was held by the Supreme Court as under:- Crl.A.No.431-DB of 1998 -12 - “To invoke Exception 4 to S.300 four requirements must be satisfied, namely (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must not have acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. Thus where in case of quarrel between the deceased and the accused regarding possession of premises, it was reasonable to infer from the facts that the deceased must have intervened on the side of his brother and in the course of the scuffle he received injuries, one of which proved fatal, the accused would be entitled to the benefit of the Exception 4 to S.300. Merely because three injuries were caused to the deceased during the scuffle it could not be said that he had acted in a cruel and unusual manner. In the case of Sukhdev (supra) the facts recorded therein were as under :- “Appellant was attached to Mangat Ram, a Municipal Crl.A.No.431-DB of 1998 -13 - Councilor and Chairman works Committee of the Municipality as a Personal Security Officer. On 14.6.1989 there was an altercation followed by scuffle between the accused appellant and one Devender Singh (hereinafter referred to as `the deceased'). On the date of occurrence, deceased had parked his three-wheeler scooter opposite the gate of Mangat Ram's office. He opened lid of the engine. This was objected to by the accused-appellant who asked him to take away the vehicle. The deceased ignored the objection which led to further altercations. Accused-appellant threatened the deceased that he would take the vehicle to the police station. Thereupon, the deceased retorted that he would see as to what the accused appellant could do. On hearing this accused-appellant boarded the scooter and asked the deceased to take scooter to the police station at Adarsh Nagar. The deceased did not take the correct route and tried to proceed in a wrong direction. Accused- appellant asked him to stop and again a scuffle took place. During the course of scuffle, accused-appellant took out his pistol and fired at the deceased. The bullet missed the target, and instead hit the thigh of one Vijay Kumar (PW7) who was standing nearby. The accused-appellant fired again and the bullet hit the deceased and he collapsed. The deceased and Vijay Kumar were taken to Hindu Rao Hospital. The deceased was declared to be dead, but doctor examined Vijay Kumar (PW7) and he was admitted to the hospital. On the basis of Crl.A.No.431-DB of 1998 -14 - information lodged, investigation was undertaken and charge sheet was placed. Accused claimed trial. His defence was that besides the deceased there was another person and when he asked them to remove the vehicle for security reasons, the deceased and his companion picked up quarrel with the accused-appellant and dragged him about 20 feet. Thereafter three or four drivers joined the deceased and his companion. They assaulted him and his shirt was torn. They snatched away his pistol and he grappled with them to recover his pistol. In this process the pistol went off. He told the incident to Mangat Ram (PW 3). The trial Court held that the case would not fall within the Exceptions 1, 2 and 4 of Section 300 IPC and it was clearly covered under Section 302.” It was held by the Supreme Court as under : “The factual position shows that the accused deliberately used the gun of course during the scuffle. The evidence of PW3 Mangat Ram is very significant. He is an independent witness and the accused-appellant was posted as his Personal Security Officer. Immediately after the occurrence, the accused- appellant told him (as deposed by PW3 in Court about the incident and did not tell him that the deceased snatched away the pistol, or that he was accompanied by 3-4 persons who were scooter drivers. He specifically told him that as the deceased tried to snatch the pistol, he fired at him. But he did not tell him as to how many shots he had fired. Even if PW7 injured resiled Crl.A.No.431-DB of 1998 -15 - from his statement made during investigation there was no departure from the statement made that the person who fired the shot was the accused-appellant. The hypothetical answer given by PW27 that the possibility about trigger being pressed unintentionally second time during the course of scuffle cannot be ruled out, does not in