Punjab-Haryana High Court
Arun @ Shankar vs State Of Haryana on 2 September, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
CRA-D No.781-DB of 2006 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision:02.09.2013
CRA-D No.781-DB of 2006 (O&M)
Arun @ Shankar .... Appellant
Versus
State of Haryana .... Respondent
CRA-D No.817-DB of 2006 (O&M)
Sunil @ Sukha .... Appellant
Versus
State of Haryana .... Respondent
CRR No.2547 of 2012
Ashok @ Shauki .... Petitioner
versus
State of Haryana .... Respondent
CRM No.53-MA of 2007 (O&M)
State of Haryana .... Appellant
Versus
Sandeep @ Kala .... Respondent
CRM No.604-MA of 2007 (O&M)
State of Haryana .... Appellant
Versus
Ravi Kant .... Respondent
CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL
HON'BLE MS. JUSTICE ANITA CHAUDHRY
Present: Mr. Bijender Dhankhar, Advocate with
Mr. B.S.Chahar, Advocate
for the appellant in CRA-D No.781-DB of 2006 and
as Amicus Curiae in CRA-D No.817-DB of 2006.
Bura Sonia
2013.09.16 15:17
I attest to the accuracy and
integrity of this document
Chandigarh
CRA-D No.781-DB of 2006 -2-
Mr. G.S.Hooda, Advocate
for the petitioner in CRR No.2547 of 2012.
Mr. Dhruv Dayal, DAG, Haryana
for the respondent in CRA-D No.781-DB of 2006 and
CRA-D No.817-DB of 2006 and CRR No.2547 of 2012 and
for the appellant in CRM No.53-MA of 2007 and
CRM No.604-MA of 2007.
Mr. Aditya Pal Singh, Advocate
for the respondent in CRM No.53-MA of 2007.
Mr. J.S.Bedi, Advocate
for the respondent in CRM No.604-MA of 2007.
*****
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
Anita Chaudhry, J.(Oral)
This judgment shall dispose of criminal appeals bearing CRA-D-781-DB of 2006 titled as Arun @ Shankar vs. State of Haryana, CRA-D-817-DB of 2006 titled as Sunil @ Sukha vs. State of Haryana, CRM No.53-MA of 2007 titled as State of Haryana vs. Sandeep @ Kala and CRM No.604-MA of 2007 titled as State of Haryana vs. Ravi Kant and criminal revision bearing CRR No.2547 of 2012 titled as Ashok vs. State of Haryana, which have arisen out of the judgment of conviction dated 01.09.2006 and order of sentence dated 11.09.2006 vide which Addl. Sessions Judge, Sonepat convicted accused Arun and Sunil under Section 302/34 IPC and under Section 25 of the Arms Act. Accused -Ashok was a juvenile and was tried by the Juvenile Justice Board, Sonepat and convicted. The State of Haryana have preferred two appeals aggrieved by the order of acquittal of accused Sandeep @ Kala and Ravi Kant. The appellants Arun @ Shankar and Sunil @ Sukha, who were tried by the Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -3- Addl. Sessions Judge, Sonepat were sentenced to life imprisonment along with a fine of Rs.20,000/- for commission of the offence punishable under Section 302 IPC read with Section 34 IPC. In default of payment of fine, they were to further undergo imprisonment for a period of 20 months. Both the accused were also sentenced to undergo rigorous imprisonment for a period of one year along with a fine of Rs.1,000/- for the offence punishable under Section 25(1-B) of the Arms Act. In default of payment of fine, they were to further undergo imprisonment for a period of one month.
Ashok (juvenile) was convicted for commission of offence punishable under Section 302 IPC and Section 25 of the Arms Act and he was ordered to be sent to Special Home/Observation Home for a period of three years vide judgment dated 13.12.2011. The period he remained in the Observation Home was ordered to be set off.
Adverting now to the facts, Dr. Sunil Kumar had lodged a complaint Ex.PE/1 with the police on 15.02.2005 relating to an incident, which occurred the previous evening near his clinic at about 8.15 pm. His son Suhas, a student of 12th Class, as usual had gone for his tuition in Sector 15. After attending his class, he came to meet his father at his clinic at about 7.30 pm. He told his father that he was to go to Yatin's house. Yatin used to stay in house No.15-R, Model Town, Sonepat. He and his son left the clinic on the motor cycle and when they reached near Yatin's house, four persons came on two motor cycles. One of the motor cycle bore registration No.HR 10-F 1739. All of them told Suhas that he would be taught a lesson for picking up the quarrel earlier. Suhas addressed Ravi Kant by name and told him that he had no dispute with him and they had the altercation with Vishnu Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -4- Jaitly. They replied that he (Suhas) was accompanying Arun Jaitly and saying so, all the four boys inflicted knives blows in the abdomen, waist and other parts of the body. The complainant raised alarm and people from the neighbourhood came running. Rakesh Chaudhary s/o Jaipal Chaudhary also arrived on the spot and witnessed the occurrence. All the boys left the place of occurrence on their motor cycles. The complainant had mentioned that he could identify the persons if produced before him. The complainant took his son to G.D.Sharma Hospital, Sector 14, Sonepat but on seeing the critical condition, the doctor referred him to Delhi. The complainant and Rakesh Chaudhary took Suhas to Jaipur Golden Hospital, Delhi where he died. The complainant named Ravi Kant and his companions for murdering his son on account of an old grudge. A supplementary statement was made by the complainant and he named five persons. The matter was investigated and challan was filed against all the accused. Separate trial was held for accused Ashok, who was a juvenile. Charge was framed under Section 302 read with Section 148 and 149 IPC. Accused Arun, Sandeep and Sunil were also charged for keeping a knife in their possession without any license. All the accused pleaded not guilty and claimed trial.
The prosecution examined Dr. Pardeep Dua, CMO, Jaipur Golden Hospital, Delhi -PW-9 (PW-1 in CRR No.2547 of 2012), who had medico legally examined Suhas at Jaipur Golden Hospital, Delhi on 14.02.2005. He stated that the patient was unconscious and was not responding to vocal commands and was in deep pain stimuli. Pulse was not palpable and BP was not recordable. Bilateral nasal bleeding was present. Central venous breathing was absent. Pupils bilaterally Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -5- were fixed and dilated. Heart sound was absent. Breathing sound was absent and the ECG showed straight line. Following injuries were noted:
1. Approximately 4 cms transverse wound in abdomen--
midway between xiphysternum and umbilicus towards right from mid-line with eventration of small bowel with three external punctured wound at different size.
2. Incised wound of approximately 3 x 1 cm at back at level of T-12 vertebrae.
3. Incised wound of approximately 4 x 1 cm at back at level of L-2 vertebrae.
4. Incised wound of approximately 3 x 1 cm at back approximately 5 cms below the angle of left scapula.
5. Superficial cut and laceration wound over left infra- axillary area of approximately 0.5 x 0.5 cm
6. Superficial cut lacerated wound of approximately 1.5 x 0.5 over posterior - lateral aspect of right elbow.
7. Multiple bruises over left line region.
The medical officer had also noted that injuries No.1 to 6 were caused by sharp edged weapon while injury No.7 was the result of blunt weapon. He stated that Suhas was brought to the hospital by his father Sunil Kumar. He stated that he was informed by his father that body of Suhas was found lying on the road side and this fact was disclosed to him(Sunil Kumar) by somebody. The prosecution wanted to cross-examine the witness after declaring him hostile as he had referred to some facts out of record but that request was declined. The fact was not mentioned in the MLR.
Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -6-
Dr. Ashish Jain - PW-10 (PW-12 in CRR No.2547 of 2012) had carried out postmortem on the dead body of Suhas and had noted the following injuries on the person of deceased:
1. Bruise of size 3 x ½ cm and 2 x ½ cm present below left eye and lateral half of upper eye lid was black.
2. Incised wound of size 3½ cm x ½ cm over left lateral side of neck, muscle deep.
3. Lacerated wound of size 1.2 cm x .6 cm over back of right elbow. Muscle deep.
4. Multiple bruises of size 11 cm x ½ cm each 4 cms apart from each other and 10 cm x ½ cm .4 cm apart over left lateral side loin and iliac region.
5. A stab incised wound of size 3.5 cm x 1.5 cm x cavity deep on just right side two mid-lines 5 cms above umbilicus, .21 cms from right nipple and 23 cms from left nipple going into peritoneal cavity and penetrating jejunal loop, omentum and stomach lower end near greater curbature. Intestinal loop coming out from the wound. One end acute and one end blunt.
6. Stab incised wound of size 3.3 cm x 1.5 cm over left side back of chest in ninth intercostal space .13 cm from mid-
line muscle deep one end acute and one end blunt.
7. Stab incised wound of size 3 cm x 2 cm x 5 cms from mid-line 11th intercostal space going into muscle. Both angle acute. Incised wound 2 x 1 cm x muscle deep at left axilla.
8. A stab incised wound of size 3 cms x 1.2 cm .1 cm from Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -7- mid-line on the left side back going into the chest cavity, penetrating pleura and lower lobe of left lung at lower end 2 x 1 x 1 cm wound with left side hemothorax, chest cavity contains about 500 cc of partly clotted blood. Further its penetrating the left crus of diaphragm and entering into abdominal cavity with a cut of size 1 x 1 x ½ cm over left lobe of liver.
The cause of death was stated to be haemorrhage shock as a result of stab injury to vital organs (Ling liver). All the injuries were ante mortem in nature and were sufficient to cause death in ordinary course of nature.
The medical officer stated that injuries No.2, 5, 6, 7 and 8 were possible with a knife and the remaining injuries were possible with blunt weapon.
Dr. Sunil Kumar - PW-5 (PW-8 in CRR No.2547 of 2012) is the complainant and father of Suhas. He spoke about the incident and narrated the sequence. He had disclosed that his son had gone for tuition and on the way back, he came to his clinic and he along with his son started on the motor cycle and went to the house of Yatin around 7.45 pm and all the accused were present on two separate motor-cycles. He gave the number of one of the motor cycle and stated that he could not see the registration number of other motor cycle. He disclosed that all the accused stopped their motor cycle before his son and started quarreling with him. He stated that Suhas told them that he had no dispute with Ravi Kant and they had a dispute with Vishnu Jaitly. The accused were accusing him (Suhas) of being there the other day. Without any further exchange of words, all Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -8- of them took out their knives and inflicted injuries on his stomach, lungs and back. He stated that he got frightened. He disclosed that at the same time, Rakesh Chaudhary had also reached the spot. He also witnessed the occurrence. He stated that all the accused fled on their motorcycles after causing injuries to his son. He stated that he and Rakesh Chaudhary shifted his son to G.D.Sharma Hospital where Dr. G.D.Sharma told them that his condition was serious and should be shifted to Delhi. He deposed that a statement was given to police the next morning and they remained in Delhi during the whole night. The witness also spoke about the recovery of the motorcycle. He had identified accused Sandeep, Arun and Ashok, who were coming together on 18.02.2005. Accused Sandeep, Ashok and Arun were arrested on the spot and pursuant to their disclosure statements, from different places, the knives were got recovered by them. He stated that the accused Sunil was also arrested who was seen driving the motorcycle, without number plate and he also suffered a disclosure statement. He stated that on 10.05.2005 Ravi Kant was arrested and he suffered a disclosure statement. He deposed that all the four accused along with Ashok had caused injuries to his son.
Rakesh Chauhary - PW-11 (PW-10 in CRR No.2547 of 2012) supported the version narrated by the complainant .
Vishnu Jaitly @ Ankush Jaitly - PW-2 (PW-4 in CRR No.2547 of 2012) stated that he had no altercation with anyone. He stated that earlier his name was Ankush and he had changed it to Vishnu Jaitly. He did not know the accused nor Suhas but had come to know about 6-7 months earlier that Suhas had been murdered. The witness was turned hostile.
Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -9-
Ravinder - PW-4 (PW-6 in CRR No.2547 of 2012) had stated that he had given his motorcycle to Dinesh (brother-in-law) and received it from the police station.
Dinesh - PW-7 (PW-7 in CRR No.2547 of 2012) did not support the prosecution version and had stated that the motorcycle was owned by Ravinder, which he used to ply and nobody had taken motorcycle from him. He denied that Sunil had taken the motorcycle for some time.
Pardeep Singh, DSP - PW-14 had arrested Ravi Kant accused on 10.05.2005. He stated that a disclosure statement was made by him but no recovery was effected but he demarcated the spot. ASI Tej Pal - PW-17 stated that DDR No.40-A Ex.PX was entered when information was received from Jaipur Golden Hospital, Delhi and he carried out the inquest proceedings and sent the dead body for postmortem examination. In the cross-examination, he admitted that an application Ex.DA was given by Anil Girdhar. He also admitted that Ex.DB was part of the inquest report. He stated that on inquiry made by him, the father of the deceased was not in a condition to make any statement. He stated that Dr. Sunil Kumar did not name any person and he only disclosed that someone had given knife blows to his son. The prosecution wanted this witness to be declared hostile as he had gone against the record but it was not allowed.
After close of the prosecution evidence, in the statement recorded under Section 313 Cr.PC, accused Sandeep and Ravi Kant took the plea of alibi. Accused Ravi Kant had taken a plea that he was attending a marriage party at Kharkhoda from 6.00 pm to 10.00 pm that evening and the police had found him innocent during Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -10- investigation but he had been falsely implicated in this case by Pardeep Singh, DSP. Accused Sandeep @ Kala took the plea that he was admitted in the hospital from 12.02.2005 to 16.02.2005 and was working as a conductor in a private bus at Delhi and was residing with his maternal uncle Siraju and he was not present at the place of incident. Accused Arun stated that he had been falsely implicated and was not present at the place of incident. The remaining accused also pleaded false implication.
In defence the accused examined Vikas Dhawan - DW-1, who deposed that he knew Dr. Sunil Kumar as his house was near his house. He deposed that on 14.02.2005 at 8.00 pm when he was returning he found someone lying injured and some person were seeking help to shift him to the hospital and there was one male and one female present. He stated that he could not recollect their names and the injured was shifted to G.D.Sharma Hospital. He stated that the lady was referring to the male person as Krishan and he came back after dropping them at the hospital. He stated that the person, who had taken the injured to the hospital, telephonically informed his father and intimated him that his son was being taken to the hospital.
Suhas Chand Sharma, SDE, BSNL- DW-2 was asked to get the outgoing and in coming calls of the mobile No.9416012052, which he failed to get as they were not available.
Rajnish Kaushik of Idea Mobile - DW-3 brought the summoned record relating to mobile phone related to Sunil Kumar. He deposed that a call was made from mobile No.9812141907 to mobile No.09416012052 on 15.02.2005 at about 20.42 hours. He proved the record Ex.DW-3/A. He stated that he could not give the location of the Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -11- mobile number or the name of the user.
Raj Singh - DW-4, a retired Headmaster, spoke about his son's reception held on 14.02.2005 at Kharkhoda. He stated that Ravi Kant had attended it from 7.00 pm to 9.30 pm and he was one of the guests. The total numbers of guests at his party were 100 persons. He stated that as it was second marriage of his son, no cards were printed nor any video film was made. He stated that he had not taken any bill for the tent, electricity, decoration or other items etc. He stated that he had no proof to show the presence of Ravi Kant at the reception. He stated that the function was held at Kharkhoda, which was at the distance of 16 kilometres from Sonepat and the distance could be covered within 15 minutes. He stated that the function was held in the open space and even no tents were installed.
Prem Singh - DW-5, a guest at the wedding, stated that he had seen Ravi Kant at the party and police had made inquiry from him. He could not give the details of Ravi Kant or his family. He stated that he saw Ravi Kant inside the tent set up in the open space of the house of Raj Singh - DW-4.
Thambu Ram - DW-7, father of accused Sandeep, had stated that his son was a conductor on a private bus and was working with his maternal uncle, Siraju and Sandeep remained admitted in Mehrauli Hospital from 12.02.2005 to 16.02.2005. He stated that after discharge from the hospital, his son returned to village Karala. He stated that he came to know on 17.02.2005 that his son had been picked up by the police and he gave application Ex.DW-7/A. He admitted that he had no proof to show that his son was working in Delhi. He stated that he might have mentioned in his complaint Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -12- Ex.DW-7/A that his son was suffering from an ailment one month prior to 12.02.2005. He stated that he had no proof to show that any treatment was taken prior to 12.02.2005.
Siraju - DW-8 stated that Sandeep @ Kala, his nephew, was working as a conductor. He stated that he had taken a bus on contract from Ram Bilas Gupta. Sandeep was suffering from dysentry and vomiting and was admitted in CHC Mehrauli on 12.02.2005. He stated that police arrived in the night on 17.02.2005 and told him that Sandeep was required for investigation in a murder case and he showed the record as Sandeep was on duty. He admitted that in the diary, the name of Sandeep alone was mentioned and the details did not contain his parentage or address. He stated that no appointment letter was issued in his favour.
Dr. A.K.Pandey - DW-9, Incharge, Primary Health Centre, Mehrauli, brought the summoned record. He stated that Sandeep was admitted in PHC from 12.02.2005 to 16.02.2005. He proved OPD card, admission and treatment card and the discharge slip Ex.DW-9/A to Ex.DW-9/D. In the cross-examination, he admitted that at page 44 of the register, there were two other persons suffering from gastroenteritis but they were treated as out-door patient. He stated that it was 12 bed hospital. He stated that the record of treatment was prepared on plain paper as the printed proformas were not available. He admitted that the CR file No. was not printed on the papers. He stated that the patient remained conscious during the treatment period and was able to move. He stated that he attended to the patient in the morning at 10.00 am and then at 9.00 pm on all four days. He admitted that all the entries were in his hand and not of any Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -13- other doctor though there were other doctors. He stated that the duty hours of dispensary were from 8.00 am to 4.00 pm. No evidence was led by accused Ashok in his defence. The trial Court convicted Arun, Sunil and Ashok. The plea of alibi set up by Sandeep and Ravi Kant was accepted and they were acquitted.
We have heard the submissions made by counsel appearing for the parties at length and have minutely examined the record with their assistance.
Learned counsel appearing for the appellants had submitted that there was a delay in lodging the FIR and the incident had occurred at 8.15 pm on 14.02.2005 while the FIR was registered at 10.10 am on the next day and in the FIR only Ravi Kant's name figures and there was no other name whereas the complainant had stated that he knew all the accused. It was urged that Dr. Sunil was present in Jaipur Golden Hospital, Delhi but he did not give the names of the assailants to the doctor and the place of incident mentioned in the MLR is quite different to the one referred to by the complainant. It was also urged that the trial court had failed to consider the DDR and the application Ex.DB given by one of the relatives of the complainant, which is part of the inquest proceedings and in that application, there is a different version and Dr. Sunil had reached the spot after the occurrence and it demolishes the prosecution version. It was urged that Dr. G.D.Sharma should have been examined the injured and he would have disclosed as to who actually brought the injured to his hospital. It was vehemently urged that the recoveries were planted and if proved then the recovery was effected from open place. It was Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -14- urged that there is a contradiction in the statements of PW-5 and PW- 11 and use of belt has been spoken of which was not there in the original version and it also goes to show that they were not present on the spot. It was urged that Dr. Sunil Kumar and Rakesh Chaudhary were not together, they had summoned the call record which show a call made by Dr. Sunil on the telephone of Rakesh Chaudhary -PW-11 after the incident and had they been together there was no need for making that call. It was urged that the plea of alibi with respect to Ravi Kant and Sandeep was accepted and the plea should also be accepted in view of the voluminous evidence, which speaks about their presence at a different spot. It was urged that Ravi Kant was attending a wedding and the witnesses have come forward to vouch his presence at a different place whereas Sandeep was admitted in a Primary Health Centre and record has been produced. It was urged that if the Appellate Court has a different view even then the view taken by the trial court should not be upset. Summing up the argument, it was urged that in the first application given by the uncle of the deceased some unknown persons had inflicted injuries and on the next day the complainant had named only Ravi Kant and the supplementary statement was undated and it came into existence later on and the names were introduced.
Per contra, it was urged that the plea of alibi set up by Ravi Kant and Sandeep is false and the evidence itself shows the falsity of the claim. It was contended that Ravi Kant was stated to be attending a wedding where no photographs were taken, no video was prepared, no invitation cards were distributed and there is no bill to show the payments for tents, crockery or food etc. It was urged that the Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -15- witnesses examined in defence are false and this kind of evidence can easily be procured. As regards Sandeep, it was submitted that the treatment record is on plain paper and there were 2-3 patients suffering from the same problem but no reason was given why only one of them was admitted in the hospital. It was contended that the same doctor could not have attended to the patient on all the four days day and night when there is evidence that there were nurses and doctors. It was urged that Ex.DB is not part of the inquest papers. It was further urged that the father was expected to take his son to the hospital for treatment rather than reporting the incident and he remained at Delhi during the whole night and it has come in evidence that he returned to Sonepat next morning and record shows that his statement was taken down at 9.00 am and the FIR came into existence at 10.10 am. It was urged that there was no reason for the father to implicate false people and let go the real culprit and it has come in evidence that earlier a dispute had arisen between the boys and their appeal against acquittal be accepted and the judgment of the trial court as regards the remaining appellants be dismissed.
The main plank of the argument of the appellant is that there is a delay in lodging the FIR and the motive has not been proved. Besides these some more issues have been raised which will be dealt a little later. In order to examine whether there is a delay in lodging the FIR it has to be observed whether delay in lodging the FIR is fatal to the case and whether this proposition merits acceptance. No doubt mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -16- must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court in fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact it has on the mind of the court that is important. No strait jacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another.
In the instant case there are two eye-witnesses Dr. Sunil Kumar - PW-5 and Rakesh Chaudhary - PW-11 who have spoken about the manner in which the occurrence took place. Dr. Sunil Kumar is the father of Suhas whose clinic is 700 meters away from the place of occurrence. The witness has spoken about the incident and had given a detailed account of the manner of the incident. He had Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -17- deposed that Suhas after attending his tuition had come to his clinic at 7.30 pm and he was to go to his friend's house to bring a file and both of them went on the motorcycle around 8.00 pm. When they were in front of Yatin's house, the accused came on two motorcycles. The registration number of one of the motorcycle was given by him. He stated that all of them started quarreling with Suhas upon which Suhas addressed Ravi Kant calling him by name and told him that he had no dispute with him and their dispute was with Vishnu Jaitly but the accused were accusing him of supporting Vishnu Jaitly and knives blows were inflicted in the stomach, lungs and on the back. He had also stated that Rakesh Chaudhary had also reached the spot in his car and all the accused fled away along with their weapons. The appellants are disputing the presence of Dr. Sunil Kumar and Rakesh Chaudhary on the spot. Their argument is that they were both related and were bound to support the prosecution version and as there was a delay in lodging the report, which goes to show that they were not present.
There is no dispute that Dr. Sunil Kumar's clinic is at a stone's throw. There is no dispute either that it was Dr. Sunil Kumar, who admitted his son in Jaipur Golden Hospital in Delhi at 10.00 pm. It is not disputed that Suhas was first taken to G.D.Sharma Hospital, Sector 14, Sonepat.
Suhas was not admitted in the hospital at Sonepat as his condition was serious and he was taken to Delhi. The admission in Jaipur Golden Hospital, Delhi is at 10.00 pm. The fact that Suhas had reached the hospital at 10.00 pm by Dr. Sunil shows that he was present at the spot and he wasted no time in carrying his son to a local hospital and then to Delhi. The anxiety on the part of the father can Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -18- well be understood. Suhas was declared dead on admission. It is in the statement of the official witnesses including the doctor that father of Suhas was present in the hospital at Delhi. There remains no dispute that the father had accompanied his son to Delhi. The relatives were present in the hospital during the whole night. A medical ruqqa had been sent to the police at Delhi and DD No.40-A was entered at Police Station Rohini, Delhi. The time entered in the DD is 10.20 pm. It refers to a call received from Jaipur Golden Hospital, Delhi regarding admission of Suhas.
It has come in evidence that the complainant returned to Sonepat on the next morning and his statement was recorded at 9.00 am and the FIR was lodged at 10.10 am. Considering the circumstances and keeping in view the totality of the evidence, We find that the prosecution has succeeded in giving a reasonable explanation for the delay and it is not fatal to the case of the prosecution.
Dr. Sunil Kumar - PW-5 had spoken about the incident and he had also refer to an earlier incident, which had taken place few days earlier. The argument made on behalf of the appellant was that no motive had been proved and there was no reason for the appellants to cause injuries to Suhas and it was a blind murder and the case has been foisted upon them. The father is a witness to the incident. He was at a short distance and had heard his son calling Ravi Kant. The assailants were accusing Suhas and he was giving an explanation. This story could not have been made up by the father. There was no reason for him to name the accused. It is true that in the first statement the complainant had named only Ravi Kant but a supplementary statement was given by him and he named all the Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -19- accused and his statement gets support from the statement made by Rakesh Chaudhary - PW-11. Rakesh Chaudhary had also supported the case of the prosecution that the accused had come on two vehicles. Sunil Kumar had identified them at the time of arrest. The story projected by the defence that a man and woman had shifted Suhas to the hospital is totally a false statement and concocted one. This kind of evidence can be procured and is not acceptable. Vikas Dhawan could not give the name of the persons, who had taken the injured to the hospital. He is a bought up witness as he did not try to report the incident to the police. His presence on the spot has not been proved.
As regards the motive is concerned, it is always in the mind of the person and is difficult to prove from direct evidence. The absence of motive cannot demolish the prosecution case when the evidence of the eye-witness is convincing. Dr. Sunil Kumar had spoken about the fact that he had over-heard his son giving an explanation to the assailants that he had nothing to do with the previous altercation that goes to show that there was some animosity relating to some incident for which accused had assaulted him.
With respect to motive, the Hon'ble Apex Court in State of Uttar Pradesh v. Kishan Pal & Ors., (2008) 16 SCC 73 examined the importance of motive in cases of circumstantial evidence and observed:
".......the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -20- unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
Before going through the plea of alibi set up by Ravi Kant and Sandeep, the evidence led by them has to be examined. The defence had examined Raj Singh whose son is said to have got married on 14.02.2005. It is their case that Ravi Kant had attended that function. But the testimony is neither convincing nor can be relied upon. The accused were unable to show that any such function was held on that day. It is their admitted case that no invitation cards were printed nor any video was prepared. Even the tent was not set up. The witnesses have come forward only because Ravi Kant's father was Sarpanch of the village. It is clear that during the course of inquiry conducted earlier, the name of the Ravi Kant had been dropped because of the influence of his father. He was given a clean chit. But subsequently, the DSP held an inquiry and submitted a challan against him. The witnesses of the defence are not reliable and their evidence is not acceptable and hence rejected.
In the case of Sandeep, the Medical Officer posted at Mehrauli has created documents to show that Sandeep was admitted in the primary health centre from 12.02.2005 to 16.02.2005. All the Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -21- proceedings have been drawn up on plain papers. It is strange that no other doctor had attended to Sandeep. Sandeep was suffering from gastroenteritis for which admission is not necessary. Only oral tablets had been prescribed. The record shows that there were two-three other patients with similar complaints but they were treated as outdoor patients. No admission was given to them. Whereas in the case of Sandeep he was admitted. Surprisingly Dr. A.K.Pandey was the only doctor, who attended to him in the morning and at night during his so call admission in the govt. hospital. The falsity of the evidence is apparent from the record. The documents had been prepared . The father of the accused had sent a complaint to the Chief Minister but he did not mention in his complaint that in which hospital he was admitted. It seems that the record on plain papers was prepared with the assistance of Dr. A.K.Pandey to help the accused, which was intentionally kept back as the inquiry would have revealed the falsehood.
Learned counsel for the appellants had vehemently urged that application Ex.DB is a hand written complaint by one Anil Girdhar, who is a relative of the complainant and this document was part of the inquest proceedings and it refers to some facts which shows that Sunil was not present at the time of occurrence and there is a reference to a telephone call made at 8.00 pm that Suhas had been injured and some persons had taken him to G.D.Sharma Hospital and it is thereafter that the family members had reached and this goes to show that Dr. Sunil was not present there. To us it appears that Ex.DB is not a part of the inquest proceedings for the simple reason that there is no reference to it in the inquest proceedings. The author of the application could have Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -22- been examined by the defence.
The proceedings under Section 174 Cr.PC have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or it is an unnatural death and if so, whether it assigns apparent cause. The question regarding the details as to how the deceased was assaulted and who assaulted him and under what circumstances he has been killed are not within the ambit and scope of the proceedings under Section 174 Cr.PC. There is neither a practice nor in law it is necessary for the police to mention the details in the inquest reports. By that time, the complaint had not been lodged. There was no occasion for Delhi police to start the investigation.
The testimony of the father and maternal uncle of the deceased is reliable and convincing. It is a case of direct testimony and all the accused have been named. Their statements do not suffer from any serious infirmity and it is held that all the accused, who were named by the complainant, had participated in the assault which led to the death of Suhas.
Keeping in view the facts and circumstances of the case, the judgment of the trial court regarding Sandeep and Ravi Kant is set aside and accused Ravi Kant and Sandeep are convicted under Section 302 IPC read with Section 34 IPC and sentenced to undergo imprisonment for life along with a fine of Rs.20,000/- each under Section 302 IPC read with Section 34 IPC. In default of payment of fine, they will undergo rigorous imprisonment for a period of 20 months. Accused Sandeep is also convicted under Section 25 of the Arms Act. Sandeep is further sentenced to undergo rigorous Bura Sonia 2013.09.16 15:17 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.781-DB of 2006 -23- imprisonment for a period of one year along with a fine of Rs.1,000/- for the offence punishable under Section 25(IB) of the Arms Act.
The appeals filed by Arun @ Shankar and Sunil @ Sukha are dismissed. The revision filed by Ashok is also dismissed whereas the appeals filed by the State of Haryana are allowed. Accused Ravi Kant and Sandeep would surrender before the Chief Judicial Magistrate, Sonepat within a period of 10 days. In case, the surrender is not made within the above given period, the Chief Judicial Magistrate, Sonepat is then directed to take all coercive steps to secure their arrest and send them to jail to undergo the sentence awarded above. Necessary jail warrants of both the convicts be also prepared under Rules by the Chief Judicial Magistrate, Sonepat. All the sentences awarded to each accused shall run concurrently. Lower Courts record along with copy of judgment be sent back forthwith for necessary compliance.
(M.Jeyapaul) (Anita Chaudhry)
Judge Judge
02.09.2013
sonia
Bura Sonia
2013.09.16 15:17
I attest to the accuracy and
integrity of this document
Chandigarh