IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.206 & 207-DB of 1998 Date of decision: 08.01.2008 Hari Kishan & others. -----Appellants. Vs. State of Haryana -----Respondents. AND Criminal Appeal No.379-DBA of 1998 & State of Haryana. -----Appellant. Vs. Shyam Lal & others. -----Respondents. AND Criminal Revision No.486 of 1998 Harkesh Kumar. -----Petitioner. Vs. Shyam Lal & Others. -----Respondents. CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE S. D. ANAND Present: Mr. R.S. Cheema, Sr. Advocate with Mr. Chankya Pandit, Advocate for the appellants (accused). Mr. Kulvir Narwal, Addl.A.G., Haryana. Mr. Baldev Singh, Sr. Advocate with Mr. Arshwinder Singh, Advocate for complainant. ----- Criminal Appeal No.206, 207-DB of 1998 Criminal Appeal No.379-DBA of 1998 & Criminal Revision No.486 of 1998. Adarsh Kumar Goel, J. This judgment will dispose of the following:- (i) Criminal Appeal No.206-DB of 1998 filed by Hari Kishan, Shyam Lal, Nain Pal and Kanwar Pal against their conviction and sentence which is as under:- Name Under Section Sentence Hari Kishan 302 IPC To undergo imprisonment for life and fine of Rs.5,000/-. In default of payment of fine, to further undergo RI for one year. 324 IPC Rigorous imprisonment for one year. Sentences to run concurrently. Names Under Section Sentence Shyam Lal, Nain Pal and Kanwar Pal 323 IPC To undergo imprisonment for the period of custody already undergtone and to pay fine of Rs.1,000/- each. In default, to undergo further rigorous imprisonment for two months. 2 Criminal Appeal No.206, 207-DB of 1998 Criminal Appeal No.379-DBA of 1998 & Criminal Revision No.486 of 1998. (ii) Criminal Appeal No.379-DBA of 1998 filed by State of Haryana against acquittal of respondents Rambir, Roshan and Nathi and also against Shyam Lal, Nain Pal and Kanwar Pal against their acquittal of the main charge under Section 302 IPC. (iii) Criminal Revision No.486 of 1998 filed by the complainant for modification of conviction and enhancement of sentence. (iv) Criminal Appeal No.207-DB of 1998 filed by Hari Kishan against his conviction under Section 25 of the Arms Act and sentence to the period of custody already undergone. Case of the prosecution is that on 24.6.1995 at 6.15 A.M., Harkesh (PW-2), his brother Suresh (PW-6) and the deceased Dinesh were sitting on the Chabutra of their baithak in Village Gailpur. Dinesh went to his house to bring his clothes for getting ready to go to Faridabad for appearing in B.Ed. Examinaion. While returning from his house, accused Roshan, his sons Shyam Lal, Nain Pal, Kanwar Pal and Hari Kishan, his grandson Rambir and Nathi son of Gurdayal way-laid him. Hari Kishan and Rambir were having knives. Shyam Lal was having gun, Nain Pal and Kanwar Pal were having lathies and Roshan and Nathi were empty-handed. Roshan and Nathi exhorted their companions to kill Dinesh. Harkesh (PW-2) and Suresh (PW-6) ran to save Dinesh. On hearing alarm, Kanti Prakash, uncle of Harkesh (who later died) and Bhim Singh (PW-4) also came to the spot. The accused made Dinesh to fall on the ground by inflicting lathi 3 Criminal Appeal No.206, 207-DB of 1998 Criminal Appeal No.379-DBA of 1998 & Criminal Revision No.486 of 1998. blows on his back. Hari Kishan inflicted knife blows on the left side on his chest. Rambir also inflicted knife blows. When PW-2 Harkesh and his uncle Kanti Prakash attempted to rescue Dinesh, Rambir inflicted knife blow on the left hand of Harkesh. Nain Pal and Kanwar Pal gave 4-5 lathi blows on the person of Harkesh. Nain Pal also gave lathi blow on the head of Kanti Prakash. Shyam Lal accused inflicted a blow by the butt of his gun on the shoulder of Harkesh and also proclaimed that if anybody came in between them he will be shot dead. Reason for the occurrence was that Suresh Kumar had been elected Sarpanch and was not agreeing to the demands of family of the accused. Exchange of hot words had taken place between the two families on earlier night, which was settled by dialogue. Dinesh was taken to the Civil Hospital, Palwal, where he was declared dead by Dr. Krishan Kumar (PW-3), who also sent intimation to the SHO, Police Station Palwal vide Ex.PE/2 at 7.05 A.M. The said doctor medico-legally examined Harkesh (PW-2) and Kanti Prakash. SI Bhoop Singh (PW-8) came to the hospital who recorded the statement of Harkesh at 8.45 A.M. (Ex.PC), which was forwarded for registration of FIR through Constable Balbir Singh. Accordingly, FIR was registered on 24.6.1995 at 8.55 A.M. by ASI Balwant Singh and a copy thereof was delivered at the residence of Area Magistrate at 12.20 P.M. through Constable Chander Bhan. SI Bhoop Singh (PW- 8) conducted inquest proceedings (Ex.PK) and forwarded the dead body for post-mortem examination. Post-mortem examination was 4 Criminal Appeal No.206, 207-DB of 1998 Criminal Appeal No.379-DBA of 1998 & Criminal Revision No.486 of 1998. conducted by Dr. Chandrika Malik (PW-5), Dr. Banwari Lal and Dr. Pramod Kumar on 24.6.1995 at 12.45 P.M. SI Bhoop Singh went to the spot, prepared rough site plan (Ex.PQ) and lifted bloodstained earth. Roshan, Nathi, Shyam Lal and Nain Pal were arrested on 24.6.1995 itself. Rambir accused was interrogated on 27.6.1995 and he made disclosure-statement (Ex.PS) leading to recovery of knife (P2) from kotha of his tubewell. Hari Kishan was also interrogated on the same day, but his disclosure-statement (Ex.PT) leading to recovery of knife (P3) from the gate of his house. Shyam Lal accused got recovered a double barrel gun of .12 bore (Ex.P1) from his house. Lathies (Ex.P4 and Ex.P5) were recovered at the instance of Nain Pal and Kanwar Pal. Bloodstained earth and two packets containing knives were sent to the FSL and reports Ex.PF and Ex.PF/1 were received to the effect that human blood was detected on the earth and clothes of the deceased. Material on the knives was found disintegrated. After investigation, all the seven accused were sent up for trial. The prosecution examined Ashok Kumar, Draughtsman as PW-1, Harkesh as PW-2, Dr. Krishan Kumar as PW-3, Bhim Singh as PW-4, Dr. Chandrika Malik as PW-5, Suresh Kumar as PW-6, Head Constable Ramesh Chand as PW-7 and SI Bhoop Singh as PW-8. The prosecution further tendered in evidence affidavit Ex.PB of MHC 5 Criminal Appeal No.206, 207-DB of 1998 Criminal Appeal No.379-DBA of 1998 & Criminal Revision No.486 of 1998. Ram Kumar, reports of FSL Ex.PF and Ex.PF/1, affidavits Ex.PG, Ex.PH and Ex.PI of Constable Balbir Singh, Surat Singh and Khushi Ram respectively. PW Kanti Prakash, who was an injured and eyewitness of this incident, died before his statement could be recorded in this trial. The prosecution gave up the remaining witnesses as being unnecessary. The accused denied the prosecution allegations and stated that they were falsely implicated on account of enmity and suspicion. They examined Chattar Singh, DW-1, Sarpanch of Village Alika about Bhim Singh (PW-4) having been fined by the Panchayat for bringing a girl from Village Lohana. Other documents Ex.DF, Ex.DG, Ex.DH and Ex.DI were also tendered. The trial Court after appreciating the evidence on record held the case of the prosecution to be proved under Sections 302/324 IPC against Hari Kishan and under Section 323 IPC against Shyam Lal, Nain Pal and Kanwar Pal, but held the case not to have been proved against Roshan, Nathi and Rambir. Hari Kishan was also convicted under the Arms Act by a separate judgment. Reasons given by the trial Court briefly are:- (i) There was unexplained delay of 2½ hours in lodging the FIR; 6 Criminal Appeal No.206, 207-DB of 1998 Criminal Appeal No.379-DBA of 1998 & Criminal Revision No.486 of 1998. (ii) There was some dichotomy in the medical evidence. According to Dr. Chandrika Malik (PW-5), three incised wounds were of post-mortem nature and there was no injury on the back of the deceased, which created doubt about complicity of Rambir, accused, to whom the said injuries were attributed and also about Nain Pal and Kanwar Pal, who were attributed lathi blows on the back of the deceased; (iii) Presence of Nathi and Roshan at the place of occurrence was doubtful as they would not have come empty-handed in the manner alleged; (iv) Suresh Kumar (PW-6) was the real target, but was not caused any injury, which created doubt about his presence. Bhim Singh (PW-4) had strained relations with the accused and his house was not shown to be situated near the place of occurrence. His presence was also doubtful. Harkesh (PW-2) had received injuries which were not self-suffered. Kanti Prakash (since deceased) had also received injuries; (v) Statement of Harkesh (PW-2) inspired full confidence qua injury on him by Hari Kishan and causing of fatal knife blow by Hari Kishan on the chest of the deceased and causing 7 Criminal Appeal No.206, 207-DB of 1998 Criminal Appeal No.379-DBA of 1998 & Criminal Revision No.486 of 1998. of injuries to him and Kanti Prakash by Nain Pal, Kanwar Pal and Shyam Lal; (vi) Offence of Hari Kishan clearly fell under Section 302 IPC in view of Clause IIIrdly of Section 300 and under Section 324 IPC for causing injury on Harkesh (PW-2). Shyam Lal, Nain Pal and Kanwar Pal were convicted under Section 323 IPC for causing simple injuries on Harkesh and Kanti Prakash. There was no definite evidence of Shyam Lal, Nain Pal and Kanwar Pal sharing common intention with Hari Kishan. It was not clear from the statement of Harkesh (PW-2) that they knew that Hari Kishan might cause knife injury. Hari Kishan may have kept the knife hidden from the other accused and no injuries with a blunt weapon were found on the person of the deceased. We have heard learned counsel for the parties and perused the record. Learned counsel for the appellants-accused submitted that since there was only single blow caused by Hari Kishan, offence committed by him will fall under Section 304 IPC. Learned counsel for the State and the complainant submitted that finding of injuries having been caused after the death, 8 Criminal Appeal No.206, 207-DB of 1998 Criminal Appeal No.379-DBA of 1998 & Criminal Revision No.486 of 1998. was erroneous, and similarly, the trial Court was in error in not accepting involvement of Roshan and Nathi, who were empty-handed and common intention of Shyam Lal, Nain Pal and Kanwar Pal in causing the death of Dinesh. We first take up the appeals filed by the accused. According to PW-5 Dr. Chandrika Malik, who conducted post-mortem examination on the dead body of Dinesh Kumar, deceased, following injuries were found:- “Stab wound on the left side of his chest measuring 2.5 x 1 cm which was 3.5 cm medial to the left nipple in the 5th intercostral space. Upper Margins were lacerated and the lower margins were regular. It was obliquely placed on following the path of injuries upper border of 6th rib was found cut and then piercing pericardium and in the apex of the left ventrical anteriorly having a size of 2.3 cm. This very wound was passing through cavity of the left ventrical and then going through the posterior vaul and entering the left lung. Corresponding cut was found on the shut. 2. An incised wound on the left arm in the middle part of the lateral aspect measuring 1.5 x 0.25 with inverted margine. It was skin deep. 9 Criminal Appeal No.206, 207-DB of 1998 Criminal Appeal No.379-DBA of 1998 & Criminal Revision No.486 of 1998. 3. Incised wound measuring 1.5 x 0.25 on the left forearm on the lateral aspect on the upper part below the elbow. It was also skin deep and margins were inverted. 4. Incised wound 4x 5 cm on the middle part of left thigh on lateral aspect with margins inverted and skin deep.” Injury No.1 was ante mortem and sufficient to cause death in the ordinary course of nature. Duration between the injuries and the death was few minutes. According to her (PW-5), injury No.1 was possible with the knife. There is no doubt about veracity of direct evidence of PW- 2 Harkesh, brother of the deceased and an injured eyewitness. Knife was duly recovered from Hari Kishan. Mere fact that death was by single blow, was not conclusive of the nature of offence. The weapon used, the nature of injury and seat of injury have to be taken into account. The weapon used was sharp-edged. The injury was caused in the chest. Death was instantaneous. Intention to cause death or to cause injury which was found sufficient to cause death in the ordinary course of nature, was clearly established. 10 Criminal Appeal No.206, 207-DB of 1998 Criminal Appeal No.379-DBA of 1998 & Criminal Revision No.486 of 1998. Learned counsel for the appellant Hari Kishan was also not able to distinguish the applicability of judgment of the Hon’ble Supreme Court in Virsa Singh v. State of Punjab AIR 1958 SC 465. The appeals filed by the accused are, thus, without any merit and are liable to be dismissed. Coming now to the appeal filed by the State and revision filed by the complainant on the question whether Shyam Lal, Nain Pal and Kanwar Pal should be held to have shared common intention and whether acquittal of Rambir, Roshan and Nathi was justified, we find that Roshan and Nathi are alleged to be empty-handed and they have been attributed only lalkara. No injury attributed to Nain Pal and Kanwar Pal was found on the deceased. According to the post- mortem report, injuries attributed to Rambir were caused after the death. The finding of the trial Court in accepting the statement of doctor that injuries attributed to Rambir were not ante mortem, is not shown to be perverse. As regards sharing of common intention by accused Nain Pal and Kanwar Pal and Rambir, at best, two views may be possible, but in absence of clear evidence or corroboration to the testimony of Harkesh (PW-2), view taken by the trial Court cannot be held to be perverse. No doubt common intention is a matter of inference from the circumstances, there being no evidence about pre- arranged plan, no participation by the said accused in assaulting the deceased, nothing to show that they were aware about possibility of 11 Criminal Appeal No.206, 207-DB of 1998 Criminal Appeal No.379-DBA of 1998 & Criminal Revision No.486 of 1998. knife being used by Hari Kishan, it could not be held that common intention must have been inferred. No doubt, they were present on the scene of occurrence, but as held by the trial Court, they may not have pre-conceived the result that ensued. In these circumstances, we are unable to hold that the view of the trial Court in excluding sharing of common intention by the other co-accused, cannot be held to be perverse. Parameters for interference with the acquittal have been laid down by the Hon’ble Supreme Court in Jaswant Singh v. State of Haryana AIR 2000 SC 1833 and Main Pal v. State of Haryana AIR 2004 SC 2158 and interference with the acquittal is permissible only if the view of the trial Court is unreasonable or perverse. On these parameters, no ground for interference is made out. Accordingly, the criminal appeals as well as criminal revision are dismissed. ( ADARSH KUMAR GOEL ) JUDGE January 08, 2008 ( S. D. ANAND ) ashwani JUDGE 12