Punjab-Haryana High Court
Shyambir And Others vs The State Of Haryana on 16 March, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-380-SB of 2000 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-380-SB of 2000
Date of decision: 16.03.2011
Shyambir and others
........ Appellants
Versus
The State of Haryana
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
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PRESENT: Mr. R.C. Tacoria and Mr. Karan Pathak, Advocates,
for the appellants No. 1 to 3 and 5 to 7.
Mr. B.S. Bhadana, Advocate, for appellant No. 4.
Mr. Raja Sharma, AAG, Haryana.
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JORA SINGH, J.
Shyambir, Ashok, Dhir Singh, Malkhan, Amar Singh, Arun Raj and Anil Raj, preferred this appeal to challenge the judgment of conviction 11.3.2000 and order of sentence dated 15.3.2000, passed by the learned Additional Sessions Judge (I), Faridabad, in Sessions Case No. 6, arising out of FIR No. 1003 dated 30.10.1998, registered under Sections 304-Part II and 323 read with Section 149 of the Indian Penal Code at Police Station NIT, Faridabad.
By the said judgment, they were convicted under Sections 147 and 323 read with Section 149 IPC. Except Malkhan (appellant CRA-S-380-SB of 2000 -2- No.4) all the other six appellants namely, Shyambir, Ashok, Dhir Singh, Amar Singh, Arun Raj and Anil Raj, were directed to undergo rigorous imprisonment for a period of one year each under Section 147 IPC and further to undergo rigorous imprisonment for a period of one year each and to pay a fine in the sum of ` 1000/- each under Section 323 IPC and in default of payment of fine to further undergo rigorous imprisonment for a period of two months each.
Malkhan-appellant No.4 was in custody w.e.f. 5.11.1998. He had already undergone the period of 1 year 4 months and 10 days. He had already undergone more than one year so he was directed to be released forthwith.
Prosecution story, in brief, is that Dinesh and Rafat Khan (deceased) were studying in Class XI in K.L. Mehta Dayanand Public School, situated in town No.1, NIT, Faridabad. On 30.10.1998, they were late in reaching the school and due to this reason they sat in the ground of Nahar Singh, Stadium. Rohit, school-mate of Dinesh and Rafat Khan, also came there and joined them. In the meantime, complainant party sighted Shyambir, Dhir Singh, Arun Ran and Anil Raj, who were also studying in Senior Secondary School. Shyambir came to drink water and started laughing on seeking Dinesh, Rafat Khan and Rohit. Complainant party enquired as to why he was laughing then Shyambir started abusing them. At that stage, Malkhan also came at the spot and exhorted Shyambir, Dhir Singh, Arun Raj and Anil Raj, to eliminate the complainant party. Dinesh and Rafat Khan, started running away from there and they were chased by the aforesaid five appellants in the Dushehra ground. Malkhan had caught-hold Rafat CRA-S-380-SB of 2000 -3- Khan. Then accused gave fist/kick blows to Rafat Khan. In the meantime, accused namely Ashok and Amar Singh, also came at the spot then accused had also given fist/kick blows to Dinesh. Occurrence was witnessed by Waligujjam and Wajid Ali Khan. They had made an effort to rescue the complainant party then accused had fled away from the spot. Injured Rafat Khan was shifted to B.K. Hospital, Faridabad, by Dinesh. Dr. Dhara Singh, after examining Rafat Khan, declared him dead.
Regarding admission of Dinesh and death of Rafat Khan, ruqa Ex. PE, was sent to the Incharge, Police Post, B.K. Hospital, Faridabad, by Dr. Dhara Singh. On receipt of intimation, SI Ishwar Singh, came to the hospital. Statement of Dinesh Ex. PA, was recorded. After making endorsement Ex. PA/1, statement was sent to the police station on the basis of which formal FIR Ex. PA/2, was registered. Inquest report Ex. PC was prepared. Dead body of Rafat Khan, was sent for post mortem examination. Investigating Officer, had gone to the spot and after inspecting the same, rough site plan Ex. PG, with its correct marginal notes was prepared. Accused were arrested. After completion of investigation, challan was presented in Court.
After hearing learned Public Prosecutor for the State, learned defence counsel and from the perusal of record, trial Court opined that a prima facie case under Sections 147/304-Part II and 323 read with Section 149 of the Indian Penal Code was made out. Accused were charge-sheeted accordingly, to which they pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
CRA-S-380-SB of 2000 -4-
PW-1 Dinesh, is the injured complainant. He has reiterated his stand before the police.
PW-2 Waligujjam, is the eye-witness and stated that on 30.10.1998, at about 9.00/9.30 a.m. he along with Wajid Ali Khan, had gone to Dushehra ground. Two boys namely Dinesh and Rafat Khan, were seen while running. 5-6 other boys were chasing them. Rafat Khan, was caught hold by four boys namely Anil Raj, Arun Raj, Malkhan and Shyambir. Dinesh was caught hold by Amar Singh, Dhir Singh and Ashok. Accused gave fist/kick blows to Dinesh and Rafat Khan. They had intervened to save the complainant party then accused had fled away from the spot.
PW-3 Dr. P.S. Parihar, stated that on 30.10.1998 at about 3.00 p.m. medical board had conducted post-mortem examination on the dead body of Rafat Khan and observed as under:
"External:
A. Reddish bruise 2 x 3 cm on the left side of the chest 2 cms below the calvical and 1 cm from the sternum.
B. Abrasion over left side of thigh on the right side on the outer side of right thigh 3 cm above the knee measuring 3 x 2 cm.
C. Abrasion 2 x 0.5 cm on the medial side of the
left elbow.
On dissection both the chambers of heart were found full of blood. Internal organs were pale.
There was bluish discolouration of small intestine 5 cms proximal to ileocoecal junction upto a CRA-S-380-SB of 2000 -5- distance of 5 cms. The discolouration was extending to mesentery. On dissection haemotoma was found in the mesentery.
Serotum was dissected to examine testicles, right testicular evulsion was present with bluish discolouration of the right epitidymes. Left testicle was normal. Penis was also normal.
Duration between injuries and death was almost instant and between the death and the post- mortem examination it could be from 6 to 8 hours.
Cause of death in our opinion was due to shock and as a result of injuries to intestines and testicles. All these injuries were ante-mortem in nature and sufficient to cause death in the ordinary course. Ex. PB is the true carbon copy of the postmortem report."
PW-4 Dr. Sudhir Khurana, stated that on 30.10.1998 at about 2.40 p.m. he had medico-legaly examined Dinesh Kumar and found following injuries on his person:
"1. Complaint of pain in the left renal angel with no external injury. Ultra sound of abdomen was recommended . Tenderness was present.
2. Swelling on the lower lip.
3. Small abrasion on the right lower lip with fresh blood was present."
PW-5 Constable Anoj Kumar, Draftsman, had prepared the scaled site plan Ex. PF.
CRA-S-380-SB of 2000 -6-
PW-6 ASI Raghbir Singh, stated that on 30.10.1998, on receipt of ruqa Ex. PA, he had recorded formal FIR Ex. PA/2. Special report was sent to the Illqa Magistrate, through Constable Ram Niwas.
PW-7 SI Ishwar Singh, is the Investigating Officer. PW-8 Inspector Amar Singh, stated that on 5.11.1998, he had arrested all the accused and after completion of investigation challan was prepared.
After close of the prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded. Accused denied all the allegations of the prosecution and pleaded to be innocent.
In defence, DW-1 Wajid Ali Khan, appeared and stated that on 30.10.1998, he was present in the Maszid along with Waligujjam Khan. At about 10.00 a.m. somebody came and told that Rafat Khan, received injuries. He had gone to the hospital. Dead body of Rafat Khan, was lying in the hospital.
DW-2 Ram Niwas Sharma, Advocate, Oath Commissioner, stated that affidavit Ex. DB of Dinesh was attested by him on 27.9.1999, as Oath Commissioner.
After hearing learned Public Prosecutor for the State, learned defence counsel and from the perusal of evidence available on file, appellants were convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellants, learned State counsel and carefully gone through the evidence available on file.
After arguing for some time, when learned defence counsel for the appellants failed to point out any illegality or infirmity in the impugned judgment then stated that impugned judgment is not challenged on the point of conviction. Under Sections 147 and 323 CRA-S-380-SB of 2000 -7- IPC, appellant were convicted to undergo rigorous imprisonment for a period of 1 year. Malkhan, appellant No.4 remained in custody for a period of 1 year 4 months and 10 days. After conviction, he was ordered to be released forthwith if not wanted in any other case. Appellants and the complainant are the students. Occurrence was in the month of October, 1998. Injuries on the person of Dinesh were found to be simple in nature. Three injuries were also noticed on the person of Rafat Khan (deceased). Appellants were not armed. According to the prosecution story, appellants gave fist/kick blows. Injuries noticed were not the cause of death. Appellants had no intention to murder. They had no knowledge that fist/kick blows were to be prove fatal. Some of the appellants have already undergone about 1 month out of the actual sentence. Requested to take lenient view.
Learned State counsel argued that appellants gave fist/kick blows. Death was due to injuries on the testicles and intestine of Rafat Khan. Period already undergone by the appellant is very less. Immediately, after the occurrence injured was brought to hospital. After checking, Rafat Khan, was declared dead.
No doubt learned defence counsel for the appellant has not challenged the impugned judgment on the point of conviction and only requested to take lenient view but even then I want to scrutinize the evidence as to whether prosecution story inspires confidence or not?
Dinesh (PW-1), is one of the injured eye-witness. Dinesh, while appearing as PW-1, has categorically stated that appellants gave fist/kick blows to him and Rafat Khan. Rafat Khan was shifted to B.K. Hospital, but Rafat Khan was declared dead by the doctor. Occurrence was witnessed by Waligujjam and Wajid Ali Khan. PW-2 Waligujjam, is CRA-S-380-SB of 2000 -8- one of the eye-witness and has supported the prosecution story by saying that appellants gave fist/kick blows to Dinesh and Rafat Khan.
Dr. Sudhir Khurana, PW-4, had medico-legally examined Dinesh. Three injuries were noticed on the person of Dinesh but all the injuries were found to be simple in nature. First injury was complaint of pain, second was swelling and third was the small abrasion on the right lower lip. Three injuries were also noticed on the dead body of Rafat Khan but cause of death was due to shock as a result of injuries to intestine and testicles. Post mortem examination was conducted by the board of doctors. Dr. Sudhir Khurana (PW-4) stated that post mortem examination on the dead body of Rafat Khan, was conducted by the board of doctor but doctor has not stated a word that injuries noticed were the cause of death.
In para No. 28 of the impugned judgment it was observed as under:
"28. After giving my careful thought to the submissions advanced by both the sides, I am of the view that the accused have to be held guilty under Section 323 read with Section 149 IPC only even for the injuries caused to Rafat Khan. This is because of the two reasons. Firstly, Section 304 Part II IPC comes into play when somebody commits culpable homicide, not amounting to murder, if he does the said act with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injuries as are likely to cause death. In the present case, the accused had simply CRA-S-380-SB of 2000 -9- caused some blows of kicks and fists to Rafat Khan. In this background, it is difficult to conceive that they had the knowledge that the causing of these blows of fists and kicks could result into his death. If any authority is required on this point, then reference can usefully be made to a judgment of the High Court of Punjab and Haryana reported as State of Punjab Versus Majhail Singh 1997 (4) RCR (Cri.) 345. In this case, the accused had caught the deceased and caused him six injuries with fists and kicks. All the injuries were simple in nature except one injury to brain which proved fatal. In this background, the Division Bench held that the accused were guilty of the offence under Section 323 IPC and not under Section 302 or 304 Part II IPC.
Secondly, the prosecution had projected the case that death of Rafat Khan had resulted because of blows of kicks by Malkhan accused on his private parts. This had been disclosed by Wali Gujjam and Wajid Alik Khan. During trial, however, Wajid Ali Khan disowned having witnessed this incident at all and Wali Gujjam just made an omnibus statement that all the accused had caused blows of kicks and fists to Rafat Khan and Dinesh. He did not attribute the fatal injury to Malkhan accused. Thus, there is no substantive evidence on record as to who, out of the accused had caused blow of kick on the testicles of CRA-S-380-SB of 2000 -10- the deceased. At the most only that accused, who was responsible for the said blow, could be held guilty under Section 304 Part II IPC by presuming that at least he should have known the obvious consequence of his kick on the testicles of the victim. The accused cannot be brought within the net of Section 304 Part II via Section 149 IPC. If any authority is required on this point, then reference can usefully be made to a judgment of the High Court of Punjab and Haryana reported as Surain Singh Vs. State of Punjab 1997 (1) Recent C.R. 79.
So, even for the injuries of Rafat Khan resulting into his death, the accused have to be held guilty under Section 323 read with Section 149 IPC and not under Section 304 Part II read with Section 149 IPC."
As discussed earlier, appellants were not armed. They gave fist/kick blows. Minor dispute regarding drinking of water. Appellants had no intention to murder. They had no knowledge that fist/kick blows were tobe proved fatal. With fist/kick blows there would be death of Rafat Khan. So, evidence on file was rightly scrutinized by the Trial Court. No reason to differ. Impugned judgment on the point of conviction is upheld.
Occurrence was in the month of October, 1998. Appellants and the complainant party were the students of different classes. Appellants were of the age group of 19-21 years. They are the first offenders. Four appellants namely, Shyambir, Arun Raj, Amar Singh and Anil Raj, have already undergone 1 month and 15 days each out of CRA-S-380-SB of 2000 -11- the actual sentence. Two appellants namely, Dhir Singh and Ashok, have already undergone 1 month each out of the actual sentence. Malkhan, has already undergone 1 year 4 months and 10 days. Ends of justice would be fully met, if lenient view is taken otherwise appellants would become hardcore criminals if again sent to jail to undergo imprisonment as ordered by the trial Court.
Keeping in view the facts of the case and antecedents of the appellants, they are directed to undergo imprisonment already undergone (in case of Shyambir, Arun Raj, Amar Singh and Anil Raj 1 month and 15 days each and in case of Dhir Singh and Ashok, 1 month each.) Malkhan-appellant No.4 was in custody w.e.f. 5.11.1998. He has already undergone the period of 1 year 4 months and 10 days. So, after conviction, he was ordered to be released forthwith if not wanted in any other case. Fine maintained.
For the reasons recorded above, appeal without merits is dismissed with modification on the point of sentence.
March 16, 2011 ( JORA SINGH ) rishu JUDGE