Crl. Appeal No.419-DB of 1998 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.419-DB of 1998 Date of Decision: 30.05.2008 Sunil Kumar @ Kala. ....Appellant. Versus State of Haryana. ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Jora Singh. Present: Mr. B.R. Vohra, Advocate for the appellant. Mr. Ravi Dutt Sharma, D.A.G., Haryana for the respondent. ... J.S. Khehar, J. Through the instant appeal the accused/appellant Sunil Kumar @ Kala has impugned the judgement rendered by the Additional Sessions Judge, Ambala, in Sessions Case No.15 of 1997, on 22.8.1998, by which the accused/appellant Sunil Kumar @ Kala has been convicted for the offence, under Section 302 of the Indian Penal Code for having intentionally committed the murder of Parmil Kumar. Additionally, the accused/appellant Sunil Kumar @ Kala has been convicted under Sections 323 read with Section 34 of the Indian Penal Code, as well as, 506(1) read with Section 34 of the Indian Penal Code. The accused/appellant Sunil Kumar @ Kala has also impugned the order passed by the Additional Sessions Judge, Crl. Appeal No.419-DB of 1998 2 Ambala, on 25.8.1998 whereby, the accused/appellant Sunil Kumar @ Kala has been sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, under Section 302 of the Indian Penal Code. In case of default in payment of fine, he has been ordered to undergo further rigorous imprisonment for one year. Additionally, he has been been sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.500/-, for the offence under Section 323 read with Section 34 of the Indian Penal Code. In case of default in payment of fine, he has been sentenced to undergo further rigorous imprisonment for two months. For the offence under Section 506(1) read with Section 34 of the Indian Penal Code, the accused/appellant Sunil Kumar @ Kala has been sentenced to undergo imprisonment for six months and to pay a fine of Rs.500/-, under Section 302 of the Indian Penal Code. In case of default in payment of fine, he has been ordered to undergo further rigorous imprisonment for two months. The prosecution version of the incident emerges from the complaint made by the complainant Mohan Lal PW5 to ASI Puran Chand PW7, on 8.9.1995. In his complaint, Mohan Lal PW5 stated that he was a resident of village Shahazadpur under Police Station, Naraingarh, and was engaged in agriculture. He stated that on the evening of 8.9.1995, he had gone to a “mela” of the “basera at Guga Mari” at Shahazadpur, and after paying obeisance at the “Guga Mari”, he had returned to his residence alongwith his children, and had gone to sleep at about 8/9 PM. His nephew i.e. the deceased Parmil Kumar came to his residence at about 1.00 AM on the night intervening 8/9.9.1995, and after waking him, told him, that the accused Pawan Kumar, Parmod Kumar @ Tori, Vinod Kumar @ Pinki and Crl. Appeal No.419-DB of 1998 3 two other persons, namely, Sham Singh and Sonu, all residents of Shahazadpur, had given him a beating at the “basera at Guga Mari”. The complainant Mohan Lal PW5 got up so as to get his nephew i.e. the deceased Parmil Kumar treated from a doctor. While he was on his way to the doctor, Pawan Kumar, Parmod Kumar @ Tori, Vinod Kumar @ Pinki, Sham Singh, Sunil Kumar @ Kala and Sonu, armed with “lathis” and hockey sticks, confronted them on the road in front of the flour mill of Gian Chand, blacksmith. Ram Kumar raised a “lalkara” that Parmil Kumar had escaped previously after picking a quarrel with them, now he should be taught a lesson. On hearing the “lalkara” of Ram Kumar, the complainant Mohan Lal PW5 requested all the accused that they had already injured Parmil Kumar, and that, he was taking him to a doctor for treatment, and further that, it was not good for them to quarrel. On hearing the complainant Mohan Lal PW5. Pawan Kumar told his companions, that the complainant Mohan Lal PW5 should be taught a lesson first. Thereafter, Pawan Kumar gave a “lathi” blow on the head of the complainant Mohan Lal PW5, and Parmod Kumar @ Tori gave a “lathi” blow on the right shoulder of the complainant Mohan Lal PW5. Whereas, the accused/appellant Sunil Kumar @ Kala gave a “lathi” blow on the head of Parmil Kumar. On being assaulted, the complainant Mohan Lal PW5, as well as, Parmil Kumar raised an alarm “bachao-bachao” (help-help). At that stage, Dharam Pal, Satish, Raju and Shiv, who were following them, reached the place of occurrence. Despite the arrival of the aforesaid persons, Vinod Kumar gave a “lathi” blow on the head of the complainant Mohan Lal PW5, which he tried to evade of by raising his hand, and as such, the “lathi” blow hit the complainant Mohan Lal PW5 on the thumb of Crl. Appeal No.419-DB of 1998 4 his right hand. Even at that juncture, Sham Singh and Sonu continued to give fist blows to the complainant Mohan Lal PW5, as also, to Parmil Kumar. While both, the complainant Mohan Lal PW5, as well as, Parmil Kumar were lying on the ground, persons who had arrived at the place of occurrence, namely, Dharam Pal, Satish, Raju and Shiv, according to the complainant Mohan Lal PW5, saved them. All the aforesaid six persons involved in the assault, left the place of occurrence alongwith their “lathis” and hockey sticks. Thereafter, the complainant's father and other persons, who had gathered at the place of occurrence, took the complainant Mohan Lal PW5 and the deceased Parmil Kumar to the Civil Hospital, Shahazadpur, for treatment. Parmil Kumar, according to the complainant Mohan Lal PW5, had become unconscious when they had reached the Primary Health Centre, Shahazadpur. He was, accordingly, referred to the General Hospital by the attending doctor. In his complaint, the complainant Mohan Lal PW5 asserted that legal action be taken against Pawan Kumar, Parmod Kumar @ Tori, Vinod Kumar @ Pinki, the accused/appellant Sunil Kumar @ Kala, Sham Singh and Sonu. On the basis of the statement made by the complainant Mohan Lal PW5, First Information Report bearing No.115 was registered at Police Station, Naraingarh, at 4.15 AM on 8.9.1995. A special report in respect thereof was signed by the Ilaqa Magistrate at 7.00 AM on 9.9.1995. It would be pertinent to mention, that the aforesaid special report was sent to the Ilaqa Magistrate through “dak” on account of the fact, that the First Information Report, as it was originally recorded, was in respect of offences under Sections 323, 506, 148 and 149 of the Indian Penal Code. On 8.9.1995, ASI Puran Chand PW7 received a ruqa Ex.PH, Crl. Appeal No.419-DB of 1998 5 through a ward-servant at the Primary Health Centre, Shahazadpur, in respect of the arrival of the complainant Mohan Lal PW5 at the Primary Health Centre, Shahazadpur, in an injured condition. On reaching, the Primary Health Centre, Shahazadpur, ASI Puran Chand PW7 moved an application Ex.PJ before the attending doctor to determine whether Mohan Lal PW5 was fit to make a statement. Accordingly, ASI Puran Chand PW7 recorded the statement of Mohan Lal PW5, Ex.PC, leading to the registration of the First Information Report, referred to in the foregoing paragraph. From the Primary Health Centre, Shahazadpur, Parmil Kumar was referred to the Civil Hospital, Naraingarh. ASI Puran Chand PW7 after collecting a copy of the medico-legal examination of the complainant Mohan Lal PW5, inspected the spot and recorded the statements of three witnesses present there. ASI Puran Chand PW7 then received a telephonic message from Police Station, Naraingarh to the effect that the injured Parmil Kumar had been referred to the PGI, Chandigarh, by the attending doctors at the Civil Hospital, Naraingarh. Thereafter, a further message Ex.PL was received in the Police Station, Naraingarh to the effect, that Parmil Kumar had died. ASI Puran Chand PW7 then proceeded towards the PGI, Chandigarh from where he collected ruqa Ex.PL/1, which was sent by the authorities of the PGI, Chandigarh, to the Police Post located in the PGI, Chandigarh, alongwith the death summary Ex. PL/2. From the Police Post, PGI, Chandigarh, ASI Puran Chand PW7 proceeded to the dead house of the PGI, Chandigarh, where the dead body of Parmil Kumar was identified by Ramesh Kumar and Dharam Pal. ASI Puran Chand PW7 prepared the inquest report Ex.P1, whereafter, he moved an application Ex.PN to the Head of the Department of Anatomy and Forensic Medicine, PGI, Crl. Appeal No.419-DB of 1998 6 Chandigarh, for conducting the postmortem examination of the dead body of Parmil Kumar. Vide endorsement Ex.PN/1, the dead body of Parmil Kumar was sent to the General Hospital, Sector 16, Chandigarh, for postmortem examination. The authorities at the General Hospital, however, refused to conduct the postmortem examination. Whereupon, on 9.9.1995, ASI Puran Chand PW7 brought back the dead body of Parmil Kumar to the PGI, Chandigarh for postmortem examination. When ASI Puran Chand PW7 took the dead body of Parmil Kumar to the PGI, Chandigarh, he was directed to get the postmortem examination conducted at the Civil Hospital, Naraingarh. Accordingly, ASI Puran Chand PW7 brought the dead body of Parmil Kumar to the Civil Hospital, Naraingarh. On the same day i.e. on 9.9.1995, the postmortem examination on the dead body of Parmil Kumar was conducted at the Civil Hospital, Naraingarh. On 12.9.1995, ASI Puran Chand PW7 succeeded in arresting the accused/appellant Sunil Kumar @ Kala. During the course of his interrogation, the accused/appellant Sunil Kumar @ Kala made a disclosure statement that he had kept concealed a “lathi” in his house, which he could get recovered. His disclosure statement was recorded as PQ. The accused/appellant Sunil Kumar @ Kala then led the police party to the disclosed place and got recovered a “lathi”. The “lathi” was put into a sealed parcel, and thereafter, it was taken into possession vide recovery memo Ex.PQ/2. On the same day i.e. on 12.9.1995, ASI Puran Chand PW7 arrested the accused Parmod Kumar @ Tori and Pawan Kumar. During the interrogation of the accused Pawan Kumar, he made a disclosure statement that he had kept concealed a hockey in his cattle house, and that, he could get the same recovered. His disclosure statement was recorded as Ex.PR. The accused Pawan Kumar Crl. Appeal No.419-DB of 1998 7 then led the police party to the disclosed place and got recovered a hockey stick, which was taken into possession vide recovery memo Ex.PR/2. Likewise, the disclosure statement of the accused Parmod Kumar @ Tori was recorded as Ex.PS and the recovery of a “lathi” in furtherance thereof, was recorded vide recovery memo Ex.PS/2. ASI Puran Chand PW7 also arrested the accused/appellant Vinod Kumar @ Pinki on 12.9.1995. The accused Vinod Kumar @ Pinki produced a “lathi”, which was taken into possession vide recovery memo Ex.PT/1. The remaining two accused, namely, Sham Singh and Sonu were also arrested on 12.9.1995. The case property referred to hereinabove, was deposited by ASI Puran Chand PW7 with the Moharrir Head Constable at the Police Station. ASI Puran Chand PW7 then moved an application Ex.PU to the Medical Officer, Civil Hospital, Naraingarh, to determine whether the injuries on the person of the deceased Parmil Kumar could have been inflicted with the “lathi” recovered from the accused/appellant Sunil Kumar @ Kala. On his aforesaid application, the doctor opined that the injury on the person of the deceased Parmil Kumar could have been caused with the “lathi” under reference. After completing the investigation and other essential police formalities, a challan was presented in the Court of the Judicial Magistrate Ist Class, Ambala City, on 28.11.1995. The Judicial Magistrate Ist Class, Ambala City, by his order dated 20.12.1995, on the basis of the facts emerging out of the evidence gathered by the investigating agency, arrived at the prima-facie conclusion, that the accused Sunil Kumar @ Kala, Harish Kumar, Pawan Kumar, Parmod Kumar, Vinod Kumar and Sham Singh had committed the offences under Sections 148, 149, 323, 324, and 302 of the Indian Penal Code. Crl. Appeal No.419-DB of 1998 8 Since the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Session, the Judicial Magistrate Ist Class, Ambala City, by his order dated 20.12.1995, committed the case for trial to the Court of Session. The Additional Sessions Judge, Ambala, by his order dated 27.2.1996 charged all the accused Sunil Kumar @ Kala, Pawan Kumar, Parmod Kumar @ Tori, Vinod Kumar @ Pinki, Sham Singh and Harish Kumar @ Sonu, for having constituted an unlawful assembly with deadly weapons and in furtherance of a common object had caused the murder of Parmil Kumar, and injuries on the person of the complainant Mohan Lal PW5, under Section 148 of the Indian Penal Code. Secondly, all the accused were charged under Section 323 read with Section 149 of the Indian Penal Code, on account of having collected together in an unlawful assembly, and having entertained a common object of voluntarily causing hurt to the complainant Mohan Lal PW5. All the accused were also charged under Section 302 read with Section 149 of the Indian Penal Code, for having intentionally committed the murder of Parmil Kumar, in furtherance of their common intention. Fourthly, all the accused were charged under Section 506 read with Section 149 of the Indian Penal Code, for having, in furtherance of their common object as members of an unlawful assembly, criminally intimidated the complainant Mohan Lal PW5 and the deceased Parmil Kumar by threatening to kill them. The accused were then confronted with the charges levelled against them. All the accused pleaded not guilty, and claimed trial. During the course of the trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses Crl. Appeal No.419-DB of 1998 9 produced by the prosecution is being summarised hereunder. The prosecution first of all, examined Dr. Ramesh Kumar, Medical Officer, General Hospital, Naraingarh, as PW1. Dr. Ramesh Kumar PW1 stated that he had conducted the medico-legal examination of Parmil Kumar on 8.9.1995 at 4.10 AM and found the following injuries on his person:- “1. There was present a depression of the size of 6 cm x 3 cm over the left parietal region of scalp just medial to the parietal eminence. Advised x-ray skull A.P .lateral. 2. Incised wound of the size of 2 cm x ¼ cm x skin deep present on the extension surface of lower-part of right fore-arm. Fresh bleeding was present.” Dr. Ramesh Kumar PW1 also stated that when he had examined Parmil Kumar, he was delirious, and was not speaking. He also stated that injury No.1 was kept under observation, while injury No.2 was simple in nature. It would be interesting to note that Dr. Ramesh Kumar PW1 during the course of his testimony asserted, that he had not removed the clothes of Parmil Kumar when he had conducted his medico-legal examination. The statement of Phool Kumar was recorded as PW2. He stated that he had prepared the report under Section 173 of the Code of Criminal Procedure on 6.11.1995, after investigation of the case had been completed. The statement of Parshotam Lal was recorded as PW3. During the course of his testimony, he asserted that he had recorded the First Information Report. He also stated that he had sent the ruqa to the investigating officer after making his endorsement thereon. Constable Manohar Lal was produced as PW4. He stated that he had visited the place of occurrence i.e. village Shahazadpur on 7.11.1995, and that, at the instance of the complainant Mohan Lal PW5, he Crl. Appeal No.419-DB of 1998 10 had prepared the scaled site plan Ex.PP. The statement of Mohan Lal was recorded as PW5. While appearing before the trial Court, the complainant Mohan Lal PW5 reiterated the factual position as had been narrated by him when he had made the complaint to ASI Puran Chand PW7, on 8.9.1995. The statement of Dharam Pal was recorded as PW6. It would be pertinent to mention, that Dharam Pal PW6 was the father of the deceased Parmil Kumar. While appearing before the trial Court, he stated that on the night intervening 7/8.9.1995, he was sleeping on the roof of his house. At 1.00 AM, he heard some noises and peeped blow. He then came down and reached the flour mill of Gian Chand, blacksmith and saw the altercation between his son i.e. the deceased Parmil Kumar and his brother i.e. the complainant Mohan Lal PW5 with the accused present in Court. Dharam Pal PW6 asserted that the accused Pawan Kumar was armed with a hockey stick, whereas, the accused/appellant Sunil Kumar @ Kala and the accused Parmod Kumar @ Tori were armed with “lathis”. He further stated that Sham Singh and Sonu were empty handed. He corroborated the testimony of the complainant Mohan Lal PW5 in respect of the injuries caused by the accused party to his son Parmil Kumar and his brother Mohan Lal PW5, as well as, seats thereof. The statement of ASI Puran Chand was recorded as PW7. It would be pertinent to mention, that ASI Puran Chand PW7 was assigned the responsibility of the investigation of the case. While appearing before the trial Court, he narrated the details of the investigation carried out by him. Relevant particulars in respect of the investigation of the case have already been recorded above. The prosecution then examined Dr. Anuj Mangla, Medical Officer, Primary Health Centre, Shahazadpur, as PW8. While appearing before the trial Court, Dr. Anuj Mangla PW8 asserted that Crl. Appeal No.419-DB of 1998 11 he had conducted the medico-legal examination of the complainant Mohan Lal PW5 on 8.9.1995 at 2.30 AM, and found the following injuries on his person:- “1. A lacerated wound of 3” x 2 mm x 3 mm, size on the head in the middle. There was blood oozing out and mild swelling was present. There was no loss of consciousness and no dizziness or vomiting. The pupils, pulse and B.P. were normal. 2. An abrasion of 1 x 1 on the left thumb on dorsial aspect was present. There was pealing of skin and blood oozing out. 3. An abrasion with redness on the right shoulder on posterior aspect was present. There was no peeling of skin. X-ray skull was advised for injury No.1.” In the opinion of Dr. Anuj Mangla PW8, all the injuries on the person of the complainant Mohan Lal PW5 had been inflicted with a blunt weapon, the probable duration whereof was between one/two hours. Dr. Anuj Mangla PW8 also opined that injury No.1 could have been inflicted with a blow from a hockey stick, and that, injury Nos.2 and 3 could have been caused with a “lathi”. At 3.15 AM on 8.9.1995, Dr. Anuj Mangla PW8 also conducted the medico-legal examination of the accused Vinod Kumar @ Pinki and found the following injuries on his person:- “1. A lacerated wound of 1-1/2″ x 2 mm x 2 mm size on the head in the middle. There was blood oozing out and mild swelling. There was no loss of consciousness and no vomiting. Pulse and BP was normal. 2. An abrasion of 1 x 1 cm on the left index finger on lateral aspect. There was no blood oozing out and no swelling.” Crl. Appeal No.419-DB of 1998 12 In the opinion of Dr. Anuj Mangla PW8, both the injuries on the person of the accused Vinod Kumar @ Pinki were simple in nature, and had been inflicted with a blunt weapon. On the same day i.e. on 8.9.1995, at 3.30 AM, Dr. Anuj Mangla PW8 had conducted the medico-legal examination of the accused Pawan Kumar and found the following injuries on his person:- “1. A lacerated wound of 1-1/2 x 2 mm size on the left side of head. There was mild swelling and blood oozing out. There was no loss of consciousness or vomiting. Pulse and BP were normal. 2. A swelling of 1 x 1 inch size on the left should on posterior aspect at the acromion. There was pain on palpation. 3. A swelling of 2x3 inch size on the right fore-arm on post aspect 2 inch below the elbow joint. There was pain on palpation and movement. 4. The swelling on the ring and middle finger of right hand and pain on movement. “ The statement of Dr. Ashwani Kashyap, Medical Officer, Junior Resident, Department of Anaesthesia, Postgraduate Institute of Medical Sciences, Rohtak, was recorded as PW9. He stated that on 9.9.1995, he was posted as Medical Officer at the Civil Hospital, Naraingarh, and that, he had conducted the postmortem examination on the dead body of Parmil Kumar on the said date. According to the postmortem report furnished by Dr. Ashwani Kashyap PW9, Parmil Kumar had the following injuries on his person:- “1. An abrasion was present on right arm of size 3 x 1 cm. 2. An incised wound 1 cm x 0.2 cm x skin deep on right wrist Crl. Appeal No.419-DB of 1998 13 joint medial aspect. 3. Abrasion 3 x 2 cm on right knee joint. 4. Abrasion on left shoulder, round in shape 4 x 1 cm. 5. Linear abrasion on left scapular region of size 7 x 1 cm. 6. A depressed area felt on left side on scalp 5 x 3 cm.” On dissection of the scalp, haemotoma was present on the left frontal posterior part of the left peritorial part. The left parietal and left temporal bones were fractured and subdural haemotoma was present. He also found that the brain matter was pressed. In the opinion of Dr. Ashwani Kashyap PW9, the cause of death of Parmil Kumar was due to the aforesaid head injury, which was ante-mortem in nature, as also, sufficient to cause death in the ordinary course of nature. After recording the statement Dr. Ashwani Kashyap PW9, the prosecution evidence was closed by order. The statements of the accused were then recorded under Section 313 of the Code of Criminal Procedure. In the first instance, all the accused were confronted with the incriminating evidence appearing on the record of the case. All the accused denied the correctness of the incriminating evidence available on the record of the case. In his defence, the accused/appellant Sunil Kumar @ Kala stated that a false case had been fastened against him. He also stated that he had heard the statement of his co-accused Vinod Kumar @ Pinki, and that, he desired to adopt the same. In his defence, the accused Vinod Kumar @ Pinki, had inter-alia stated as under:- “The case is false. The occurrence did not take place in the manner alleged. In face on 7.9.95 at about evening time, I alongwith my family members had gone to attend the Gugamari Crl. Appeal No.419-DB of 1998 14 fair at Shahzadpur. My family members had returned to their houses, however, I stayed there in the fair. On that night at about 11.30 P.M., there was fight between Parmil Kumar (now deceased) and Sunil Kumar my co-accused in the fare. I, Pawan Kumar, Sonu alias Harish Kumar, my co-accused had separated them. Parmil Kumar being aggrieved there attend that he would take revenge from Sunil Kumar. Thereafter, Parmil Kumar left the fair for his house. Then at about 1.00 A.M. on the same night when I alongwith Pawan Kumar, Parmod Kumar alias Tori and Sunil my co-accused were returning to our houses and had reached near the flour house of Gian Chand, we came across Parmil Kumar (now deceased), his father Dharam Pal, Satish Kumar, Rajo and Mohan Lal PW-1 who were coming from the side of their houses. As soon as they reached near us, Mohal Lal threatened me and exclaimed that I was also present in the fair when Parmil Kumar was given beating by sunil kumar. Mohan Lal, Dharam Pal and Satish Kumar