IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.563 of 2000 Decided on : August 19, 2009 Naresh Kumar and others …Appellants. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : Mr. Jagdish Vats, Advocate. For the Respondent : Mr. J.S. Rana, Assistant Advocate General. Surjit Singh, J (Oral) Appellants have appealed against the judgment, dated 26th August, 2000, of Sessions Court, whereby they have been convicted of offences, under Sections 302 and 323 of the Indian Penal Code, and sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-, for offence, under Section 302 of the Indian Penal Code, but no separate sentence for offence, under Section 323 of the Indian Penal Code, has been awarded. 2. Case of the prosecution may be summed up thus. Appellants and one Sunil Kumar @ Kaku were accused of committing murder of Sunil Kumar son of Prithvi Raj and causing injuries to him on 24th January, 2000, outside the gate of Government College Hamirpur. According to the prosecution, deceased Sunil Kumar and his friend Mukesh Whether reporters of the local papers may be allowed to see the judgment? …2… Kumar (PW-4) used to tease girl students of the College. It appears that one of the girls subjected to teasing by them related to Sunil Kumar @ Kaku, the acquitted accomplice of the appellants. 3. The present appellants alongwith Sunil Kumar @ Kaku, their acquitted accomplice, went to the College on 24th January, 2000. At that time PW-4 Mukesh Kumar and one Rajesh were present near the Canteen of the College. They were called outside by appellants Ravinder and Manoj Kumar. When said Rajesh and PW-4 Mukesh Kumar reached outside the College gate, appellants Ravinder and Manoj Kumar were joined by the third appellant, namely Naresh Kumar and their acquitted accomplice Sunil Kumar @ Kaku. Deceased Sunil Kumar was also present outside the gate. All the appellants started giving beating to deceased Sunil Kumar as also to PW-4 Mukesh Kumar. 4. In the meanwhile, PW-5 Rajiv Sharma happended to reach there. On seeing the deceased and Mukesh Kumar (PW-4) being beaten up, he tried to intervene. He too was manhandled and given a few fist and kick blows. PW-4 Mukesh Kumar somehow got himself released and went back to the College to inform the Principal about the assault on deceased Sunil Kumar. Principal was not in his Office. When PW-4 Mukesh Kumar was still looking for the Principal, Rajesh went to PW-4 Mukesh Kumar and told him that deceased had fallen down near the rain shelter, outside the …3… College gate. PW-4 Mukesh Kumar went running to the rain shelter. He and PW-5 Rajiv Sharma and said Rajesh tried to put water into the mouth of deceased Sunil Kumar, who was lying flat near the rain shelter. Water did not go down his throat. He was rushed to the hospital at Hamirpur. Doctor, who attended upon him, declared him brought dead. 5. Police was informed by the doctor, telephonically. That information was entered in the Rojnamcha (Daily Diary), per entry copy Ex. PW-8/B. PW-11 Sansar Chand, Station House Officer, rushed to the Hospital. He conducted inquest and approached the doctor, on duty, to conduct postmortem on the dead body. Postmortem was conducted by PW-3 Dr. Sudershan Sharma. The doctor did not notice any external injury, except ante-mortem ecchymosis diffuse on the outer angle of the right eye, which was dull purplish in colour. On opening the dead body, he noticed that lungs were congested. Right chamber of the heart was congested and left chamber was empty. Peritoneum cavity was full with blood. Liver was congested. Spleen was ruptured “at the tip and through its body” (sic). Left kidney was also ruptured. The doctor opined that the cause of death was rupture of spleen and left kidney and time lag between the injury and the postmortem was “within 24 hours”. 6. PW-11 Sansar Chand recorded the statement of PW-4 Mukesh Kumar, under Section 154 of the Code of Criminal Procedure, which is Ex. PW-4/A and forwarded the …4… same to the Police Station, vide endorsement Ex. PW-11/A, for the formal registration of the case. Case was registered, vide FIR Ex. PW-8/A. 7. On completion of investigation, report, under Section 173 of the Code of Criminal Procedure, was filed in the Court of concerned Judicial Magistrate, who, after complying with the requirement of Section 207 of the Code of Criminal Procedure, committed the case to the Sessions Court. Learned Sessions Judge charged the appellants and their accomplice Sunil Kumar @ Kaku with offences, under Sections 302 and 323, read with Section 34 of the Indian Penal Code, and on their pleading not guilty proceeded to try them. 8. Prosecution examined PW-4 Mukesh Kumar and PW-5 Rajiv Sharma as eye-witnesses to bring the charge home to the appellants and their accomplice. Appellants did not raise any specific defence plea. They denied the allegations. At the end of the trial, learned Sessions Court convicted and sentenced the appellants, as aforesaid. Their co-accused Sunil Kumar @ Kaku was, however, acquitted. Appellants are aggrieved by their conviction and sentence. 9. We have heard the learned counsel representing the appellants as also the learned Assistant Advocate General representing the State (respondent) and perused the record. …5… 10. PW-4 Mukesh Kumar testified that on 24th January, 2000, around 12.30 p.m., when he alongwith one Rajesh was sitting in the Canteen of Government College Hamirpur, appellants Manoj Kumar and Ravinder @ Bikki, who are students of the said College, came there and asked him (the witness) to come out of the College. He stated that on their asking he went outside the gate of the College where appellant Naresh Kumar and acquitted accused Sunil Kumar @ Kaku were already present. He stated that appellants Naresh Kumar, Manoj Kumar and Ravinder caught hold of deceased Sunil Kumar, who had earlier been called outside the College gate, and started giving beatings to him (deceased Sunil Kumar). He further stated that he was overpowered by Sunil Kumar @ Kaku and given beatings. He further testified that deceased Sunil Kumar was given fist and kick blows by Sunil Kumar (acquitted accused). Further he stated that PW-5 Rajiv Sharma and one Rajesh tried to rescue deceased Sunil Kumar, but they too were beaten up by Sunil Kumar @ Kaku. He stated that he then went to the College to inform the Principal and that when he was still in the College looking for the Principal, as he was not available in his Office, Rajesh Kumar came to him and told that deceased Sunil Kumar had fallen and that when he went to see him he saw that he was lying flat and Rajesh then brought water for offering to deceased Sunil Kumar. He stated that the appellants and Sunil Kumar @ Kaku fled from …6… the scene and he, with the help of Rajiv Sharma and Rajesh Kumar, took the deceased to the Hospital, in a Jeep. He stated that the doctor, who attended upon the deceased declared him brought dead. 11. PW-5 Rajiv Sharma stated that on 12th January, 2000, around 12.30 p.m., when he reached near the gate of the College, he saw deceased Sunil Kumar being beaten up by appellants Naresh Kumar, Ravinder and Manoj Kumar, while PW-4 Mukesh Kumar was being beaten up by Sunil Kumar @ Kaku. He stated that when he tried to rescue deceased Sunil Kumar, he too was sought to be assaulted and in the meanwhile deceased Sunil Kumar fell on the ground. He stated that the deceased was given fist and legs (sic, it should have been kick instead of leg) blows in the abdomen. He stated that in the meanwhile one Rajesh Kumar came there and he asked him to fetch water and the water brought by said Rajesh Kumar could not be engulfed by the deceased. He further stated that the deceased was taken to the Hospital in a Jeep, where he was declared brought dead. 12. From a bare reading of the testimony of the two witnesses, it is clear that the fatal injury has not been attributed to any particular appellant. According to PW-4 Mukesh Kumar, all the appellants gave beating to the deceased. Though he did say that he was dealt fist and kick blows, but in the statement, Ex. PW-4/A, under Section 154 …7… of the Code of Criminal Procedure, with which he was duly confronted, he did not make mention of kick or fist blows. As a matter of fact, in his statement as PW-4, Mukesh Kumar stated that fist and kick blows were being given to the deceased only by Sunil Kumar @ Kaku, i.e. the acquitted accused. He was not there, per his own statement, when the fatal blow was given to the deceased, as according to him when deceased Sunil Kumar was being beaten up he had gone to the Office of the Principal to apprise him of the incident. 13. PW-5 Rajiv Sharma did not say as to which particular appellant dealt kick and fist blows in the abdomen of the deceased. He stated that when he tried to intervene to disengage the appellants and the deceased, the deceased fell down. 14. Testimony of PW-3 Dr. Sudershan Sharma, who conducted postmortem examination as also postmortem report Ex. PW-3/B, suggest that rupture of spleen and the left kidney was caused by a single blow. The witness, while in the witness box, stated that spleen is just below the 12th rib on the anterior and that kidney lies behind the spleen. The spleen was ruptured through and through and it appears that the impact of the blow, which caused the rupture of spleen, was so forceful that it caused the rupture of kidney also which lay behind the spleen. …8… 15. Of course, it was a blow dealt by one of the appellants or their accomplice Sunil Kumar @ Kaku, who has been acquitted, which caused the rupture of the spleen and the kidney, because there is categorical statement of PW-5 Rajiv Sharma that the deceased was being given kick and fist blows, which we have no reason to disbelieve, but that does not mean that the appellants had the common intention to kill the deceased. The reason is that all the appellants and their accomplice were empty handed. They did not have any weapon with them. They were dealing only kick and fist blows to the deceased. The fact that they were unarmed and that they did not pick up any stone or anything like that even from the spot to hit the deceased, while beating him up, suggests that they did not have the intention to cause the death of the deceased, but wanted to give only a thrashing to him. Therefore, Section 34 of the Indian Penal Code cannot be pressed into service for holding the appellants guilty of causing death of deceased Sunil Kumar, leave alone holding them guilty of murder. Appellants cannot be held guilty of causing the death, even without the aid of Section 34 of the Indian Penal Code. For the fatal blow only that individual accused, who gave that blow, can be made liable. There is no evidence, indicating which of the four accused (including the acquitted one) gave the fatal blow, that is to say the blow which caused rupture of the spleen and the kidney lying below it. Therefore, in our considered view, …9… none of the appellants can be held guilty of the offence of murder or culpable homicide. 16. As regards conviction of the appellants for offence, under Section 323, read with Section 34 of the Indian Penal Code, the evidence, as discussed hereinabove, conclusively proves that all of them joined hands to assault deceased Sunil Kumar and to cause him injuries voluntarily. That suggests that they had common intention to cause injuries to the deceased. Therefore, the conviction of the appellants for the offence of voluntarily causing hurt to deceased Sunil Kumar, under Section 323, read with Section 34 of the Indian Penal Code, is upheld. They are sentenced to undergo imprisonment for one year and to pay a fine of Rs.1,000/-, each; in default of payment of fine to undergo imprisonment for a further period of three months, each, for the offence, under Section 323, read with Section 34 of the Indian Penal Code. 17. Appellants have already been in custody for more than two years. Therefore, they are not to be sent to jail for serving out the sentence of substantive imprisonment or even for the imprisonment awarded on account of default in payment of fine. Appeal stands disposed of accordingly. ( Surjit Singh ), J August 19, 2009(sd) ( Surinder Singh ), J