Punjab-Haryana High Court
Naresh Alias Kala And Another vs State Of Haryana on 24 July, 2009
Author: Ashutosh Mohunta
Bench: Ashutosh Mohunta, Mohinder Pal
Crl. Appeal No. 75-DB of 2001 [ 1 ]
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl. Appeal No. 75-DB of 2001
Date of Decision: 24 July, 2009
Naresh alias Kala and another ............................... Appellants
Versus
State of Haryana ...................................................... Respondent
Coram: Hon'ble Mr.Justice Ashutosh Mohunta
Hon'ble Mr. Justice Mohinder Pal
Present: Mr. A.D.S. Sukhija, Advocate
for the appellants.
Mr. S.S.Goripuria, DAG, Haryana.
...
ASHUTOSH MOHUNTA, J.
The appellants Naresh @ Kala and Rakesh @ Sundu have challenged the judgment of the Additional Sessions Judge, Jhajjar, dated 7.12.2000 vide which they were convicted for the offence under Section 302 read with Section 34 IPC and were sentenced vide order dated 9.12.2000 to undergo imprisonment for life and to pay a fine of Rs.2000/- each and in default of payment of fine to further undergo imprisonment for six months.
Briefly the facts of the case are that a First Information Report was registered on 11.8.1997 at the instance of Bhim Singh son of Richhpal Singh, a resident of village Nuna Majra wherein he stated that yesterday on 10.8.1997 at about 9:00/10:00 P.M. Naresh @ Kala resident of village Nuna Majra had taken many rounds in front of the house of his brother Khazan Crl. Appeal No. 75-DB of 2001 [ 2 ] Singh. His nephew Yudhvir asked Naresh not to wander in front of his house as it is inhabited by number of ladies also. Yudhvir had also told Naresh that he was an ill-reputed man and a bad character type of person. Upon this, an altercation had taken place between Naresh and Yudhvir and Naresh had threatened him that he will have to pay for this behaviour. On the next morning i.e. on 11.8.1997 at about 10:00 A.M. the complainant along with his cousin Nand Ram and Pawan Kumar, who is the son of his elder brother, and his nephew Yudhvir were standing near the house of Khazan Singh in the village. In the meantime, Naresh @ Kala son of Kartar Singh and Rakesh @ Sundu son of Samunder Singh residents of village Nuna Majra came and challenged Yudhvir as to how he had stopped Naresh from passing through the street yesterday. Yudhvir reiterated his earlier stand as told to Naresh on the previous evening, upon which Naresh started abusing Yudhvir. Thereafter, Rakesh slapped Yudhvir and caught hold of him from the neck whereas Naresh gave two Khokhari blows on the left side of the chest of Yudhvir near the nipple and gave one blow in his abdomen and one on his left thigh. On receiving the Khokhari blows, Yudhvir fell down. The complainant along with Pawan Kumar and Nand Ram tried to catch Naresh but he threatened them by brandishing the Khokhari towards them. The complainant and his companions raised hue and cry and on hearing the same the accused fled away from the scene of occurrence. The conveyance was immediately arranged for taking Yudhvir to the hospital at Bahadurgarh but Yudhvir succumbed to the injuries on the way and was declared dead by the Doctor on his arrival at Civil Hospital, Bahadurgarh. The First Information Report was recorded by Chhattar Singh Head Constable at 12:50 P.M. on 11.8.1997.
Crl. Appeal No. 75-DB of 2001 [ 3 ] After registration of the FIR, investigation was taken up by the police and the dead body of Yudhvir was sent for post-mortem examination. Both the accused were arrested and Naresh made a disclosure statement in furtherance of which Khokhari was recovered. After completion of the investigation, challan was presented in the Court and the case was committed to the Court of Sessions by the Judicial Magistrate Ist Class, Bahadurgarh, vide order dated 12.12.1997.
Charges under Section 302 read with Section 34 IPC were framed against the accused, to which the accused pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined as many as fifteen witnesses out of whom PW13 Pawan Kumar and PW14 Bhim Singh were the eye-witnesses whereas Dr. P.P. Lamoria, Medical Officer, CHC, Jamalpur, who conducted the post-mortem examination on the dead body of Yudhvir was examined as PW8. Apart from them, twelve other official witnesses were also examined.
Dr. P.P.Lamoria, Medical Officer, CHC, Jamalpur, conducted the post-mortem examination on the dead body of the deceased and found the following injuries on the person of the deceased Yudhvir:-
1. Incised wound was present just above and lateral to the left nipple. Elliptical in shape. Margins were sharp, everted.
Odema of margins was present with blood-staining. Size was 3.5 x 2.5cm and going 4cm away from mid-sternal line in between second and third intercostal space on left side. There was fracture of 3rd rib at upper margin and finally penetrating left Atrium of the heart. Size was 1 x .25cm in Crl. Appeal No. 75-DB of 2001 [ 4 ] the left Atrium.
2. Incised wound was present 6 cm away from the left nipple placed slightly obliquely upward. Elliptical in shape Margins were sharp and everted. Odematous margins with blood- staining. Size was 3 x 2.25cm, 10cm away from mid-sternal line in between 2nd and third ribs, stabing the left lung, which is collpsed. There was massive haemothorax on the left side.
3. Incised wound was present of size 3.5 x 2.5cm, 12.5cm from the umblicus obliquely on the left side of the abdomen. Margins were sharp odematus and clotted blood was present. Wound after crossing musscle peneterating the Rectus sheath and finally puncturing the stomach. It was 14.5cm from the left nipple.
4. Incised wound was present over the left thigh of size 4 x 2.5cm, depth 6cm margins everted. Surrounding tissues were congeted and Odematus with clotted blood. On deep dis- section underlying blood vessels cut (peneterated). This wound was located 24 (24) cm below left anterior superior illiac spine and 23 cm above the upper border of Patella.
5. Contusion was present over left upper arm, size of which was 2 x 0.5 cm and 7 x 0.3cm. Reddish blue discolouration was present.
6. There was contusion present on the left side of the face on the left part of orbit. Size was 5 x 2cm.
According to the Doctor the death was instantaneous and the cause of death was cardiogenic and haemorrhagic shock due to multiple stab Crl. Appeal No. 75-DB of 2001 [ 5 ] injuries and the injuries were sufficient to cause death in the ordinary course of nature. It was further opined that the injuries could be caused by the Khokhari.
PW13 Pawan Kumar stated that on 10.8.1997 at about 9:00/10:00 P.M. Yudhvir asked Naresh not to roam around in the street in front of his house which infuriated the accused Naresh and he went away by giving a threat to the deceased. On the next day i.e. on 11.8.1997 at about 10:00 A.M. PW13 Pawan Kumar along with Bhim Singh, Nand Ram and Yudhvir were present in front of the house of Kanwar Singh and at that time Naresh along with Rakesh came there. Rakesh slapped Yudhvir and caught hold of him from behind by putting his arms around his neck and Naresh caused four blows with his Khokhari on the chest and abdomen of the deceased Yudhvir. It was further stated by this witness that while Naresh was inflicting the injuries with his Khokhari the deceased was firmly secured from his neck by the other accused Rakesh.
The deposition of PW14 Bhim Singh is also on similar lines and he has given a detailed account of the manner in which Yudhvir was killed by the two accused. This witness has reiterated what he had stated to the police on the basis of which the First Information Report was recorded. He has categorically mentioned that Rakesh had first given a slap to Yudhvir and had caught hold of him by putting his arms around the neck of the deceased and thereafter Naresh gave two blows near the chest of the deceased; one blow in the abdomen and one blow in the thigh with the Khokhari.
The accused made their statements under Section 313 Cr. P.C. where they denied the occurrence and stated that they have been falsely Crl. Appeal No. 75-DB of 2001 [ 6 ] implicated.
The trial Court on the basis of the ocular account given by PW13 Pawan Kumar and PW14 Bhim Singh and by taking into account the medical and other evidence which was led by the prosecution found both the accused guilty of having committed the murder of Yudhvir and accordingly convicted them under Sections 302/34 IPC and sentenced them to undergo imprisonment for life.
We have heard learned counsel for the parties at length and have also perused the record.
Counsel for the appellants has submitted that the accused Rakesh did not have any motive to commit the murder of Yudhvir. It was contended by the learned counsel that the altercation had taken place a day prior to the incident with Naresh and that Rakesh was not present on that day. Learned counsel has further submitted that the accused Rakesh has not caused any injury to the deceased and therefore he is entitled to be acquitted of the charges of murder. It was also contended by the learned counsel that the accused Rakesh did not have the knowledge that his co- accused Naresh was carrying a knife or a Khokhari with him or that he would cause stab injuries to the deceased Yudhvir. Learned counsel for the appellants has placed reliance on a Division Bench judgment of the Rajasthan High Court in Issaq Mohammed and another v. State of Rajasthan 1988 Criminal Law Journal 537. In that case, accused `A' held the victim from his collar whereas accused `B' stabbed the deceased by a Gupti (sharp edged weapon). `A' did not know that `B' had a Gupti in his pocket. It was held that it cannot be said that `A' shared the common intention of `B' to commit murder. It was also held that `A' cannot be Crl. Appeal No. 75-DB of 2001 [ 7 ] convicted under Section 302 read with Section 34 IPC and conviction was altered to under Section 326/34 IPC. Learned counsel has also placed reliance on Munna and Ayyia v. State of U.P. 1993 Criminal Law Journal 45 wherein one of the accused had suddenly stabbed the victim. The conviction of the co-accused under Section 302/34 IPC was set aside and he was convicted under Section 326/34 IPC.
This argument has been controverted by the counsel for the State who has submitted that the accused Rakesh had played an active role in catching hold of the deceased in the entire incident as he had caught hold of the deceased by his neck and while the deceased had been immobilized, Naresh struck the fatal blows with his Khokhari and, hence, the trial Court has rightly convicted the accused. It was further argued by the counsel for the State that the authorities relied upon by the counsel for the appellants are not applicable in the present case because the appellant-Rakesh had caught hold of the deceased by his neck and did not release him till he had been dealt with four khokhari blows on vital parts of the body by his co- accused Naresh.
After giving our thoughtful consideration to the arguments raised by the learned counsel, we find from the statements made by the eye- witnesses PW13 Pawan Kumar and PW14 Bhim Singh that the accused Rakesh had initiated the fight by first slapping Yudhvir and had thereafter caught him by the neck. After the deceased was caught from the neck by the accused Rakesh, Naresh gave four Khokhari blows on his chest and abdomen. We have seen the diagram of the weapon of offence which shows that it was a big Khokhari having more than 6 inches blade. When the accused Naresh was stabbing the deceased Yudhvir, Rakesh never released Crl. Appeal No. 75-DB of 2001 [ 8 ] him from his grip and never dissuaded his co-accused Naresh from giving any further blows. Yudhvir was given four blows, three of which were given on the vital parts of the body i.e. on the chest and abdomen. This clearly shows that the accused Rakesh shared the common intention of murdering Yudhvir. The judgments relied upon by the counsel for the appellants are not applicable to the facts of the present case. In Issaq Mohammed's case (supra) the accused Mohammed Safi did not know that Issaq Mohammed was carrying a Gupti with him and moreover only one blow with a Gupti was given by the accused Issaq Mohammed whereas in the present case not only did the accused-Rakesh initiated the fight by slapping the deceased Yudhvir but had also caught hold of him from neck till such time that Naresh inflicted four injuries with a Khokhari. This clearly shows that the accused-Rakesh shared the common intention of committing the murder of the deceased Yudhvir.
Reliance by the counsel for the appellants in the case of Munna and Ayyia (supra) is also misplaced and this judgment is also inapplicable to the facts of the present case. In Munna's case (supra) the deceased was suddenly stabbed by one of the accused and hence the co- accused was convicted under Sections 326/34 IPC and not under Section 302/34 IPC. However, in the present case both the accused Rakesh and Naresh had come together. The accused Rakesh had started the fight and had caught hold of the deceased so tightly from his neck that he was immobilized and then the other accused Naresh had caused the fatal injuries, therefore, the aforementioned authorities relied upon by the counsel for the appellants are inapplicable to the facts of the present case.
It was next contended by the counsel for the appellants that Crl. Appeal No. 75-DB of 2001 [ 9 ] both the eye-witnesses i.e. Pawan Kumar PW13 and Bhim Singh PW14 were closely related to the deceased and were interested witnesses, hence, their testimonies should not be believed. It was also contended that the prosecution failed to associate any independent witness although others also might have witnessed the occurrence and, thus, the entire prosecution case becomes doubtful and adverse inference should be drawn in favour of the accused.
There is no force in this argument also because both the eye- witnesses have given a consistent and truthful account of the manner in which the murder of Yudhvir was committed. The incident took place at 10:00 A.M. on 11.8.1997 and the FIR had been lodged by Bhim Singh PW14 at the Police Station Sadar, Bahadurgarh, at 12:50 P.M. on the same day. Hence, there was no delay in informing the police about the incident and the testimonies of both the eye-witnesses i.e. PW13 Pawan Kumar and PW14 Bhim Singh are consistent, reliable and trustworthy. Merely because PW13 and PW14 were related to the deceased would not dilute their testimonies. Apart from the above, the manner in which the deceased was killed also finds support from the medical evidence which shows that the deceased had suffered incised injuries with a Khokhari and, hence, the ocular version is fully corroborated by the medical evidence.
In view of the above, we are of the considered opinion that the deceased Yudhvir was killed by both the accused Naresh and Rakesh. The murder was pre-planned and both the accused shared a common intention in committing the crime. The accused Rakesh had caught hold of the deceased from his neck and did not release him till the other accused Naresh had given four blows with a Khokhari on the vital parts of the body of the Crl. Appeal No. 75-DB of 2001 [ 10 ] deceased. The entire occurrence was witnessed by PW13 Pawan Kumar and PW14 Bhim Singh who have given a graphic account of the manner in which the murder had been committed.
Resultantly, we find no ground to interfere with the judgment of conviction and order of sentence dated 7.12.2000 and 9.12.2000 passed by the Additional Sessions Judge, Jhajjar and upheld the same. Consequently, the appeal is dismissed.
Counsel for the appellants has submitted that during the pendency of this appeal the accused Naresh has perhaps died. Learned counsel was not sure while making the aforementioned statement and, therefore, we had asked the counsel for the State to find out whether the statement made by the learned counsel for the appellant is correct or not. Counsel for the State has submitted a report from the Administrative Officer of Police Station Sadar, Bahadurgarh, dated 18.7.2009 according to which accused Naresh may have died although there is no proof of the same. As both the parties are not certain whether the accused Naresh has died or not, therefore, we uphold his conviction and sentence as imposed by the trial Court. However, in case the appellant Naresh has died, then this appeal abates qua him.
The accused Rakesh is on bail and as such his bail/surety bonds stand cancelled and he shall be taken into custody forthwith to serve out the remaining portion of his sentence.
( ASHUTOSH MOHUNTA )
JUDGE
24.7.2009 ( MOHINDER PAL )
Rupi JUDGE