Punjab-Haryana High Court
Kashmir Singh And Anr. vs State Of Haryana on 3 June, 1993
Equivalent citations: 1993CRILJ3565
JUDGMENT S.K. Jain, J.
1. Kashmir Singh and Lal Chand alias Rulia were found guilty of the murder of Parkash by Additional Sessions Judge, Kaithal. Kashmir Singh was sentenced to life imprisonment and to pay a fine of Rs. 250/- and in default of payment of fine to further undergo rigorous imprisonment for one month under Section 302, Penal Code. Lal Chand alias Rulia accused was sentenced to life imprisonment and to pay a fine of Rs. 250/- and in default of payment of fine to further undergo rigorous imprisonment for one month under Section 302 read with Section 34, Penal Code vide order dated 6-6-1991.
2. Feeling aggrieved against their conviction and sentence, they have come up in appeal.
3. In brief, the facts of the prosecution case are that about four years prior to the occurrence Gabbar Singh, cousin of Ram Dass PW, was murdered by Chandi Ram son of Kalu Ram but he was acquitted. Since then the family of Chandi Ram entertained a grudge against the family of Ram Dass PW. On 2-5-1990 at 8.30 p.m. Parkash son of Chandu brother of Ram Dass PW had returned from Cheeka to his native village Tatiana. He was accosted by the two accused Kashmir Singh and Lal Chand. Kashmir Singh was armed with a wooden Bala and Lal Chand with a lathi. They picked up a row with him in front of the house Kashmir Singh. They told him that he had not abandoned his old habits in spite of the fact that one of his family members had been killed by them earlier and that they would kill him too that day. Being attracted by the commotion PW Ram Dass along with his other nephew Balkar (brother of Parkash) reached the spot. Within their view, Lal Chand dealt a lathi blow on the back of Parkash. Kashmir Singh accused inflicted a bala blow on his right temple as a result whereof he fell down. Then the two accused dealt injuries with their respective weapons thrust-wise on the abdomen of Parkash. On hearing raula a number of persons arrived at the spot whereupon two accused persons fled away with their respective weapons. After arranging a tractor trolley Parkash was removed to civil Hospital, Guhla but he succumbed to his injuries on reaching there. After leaving Ram Lal, Bhagwana and Purshotam, sons of Jamma Ram to guard the dead body of Parkash, Ram Dass went to the Police Station Guhal and lodged FIR Ex. PJ under Sections 302/34 IPC vide DDR No. 34 recorded at 12.10 a.m. on 3-5-1990. The special report was delivered to the learned Ilaqa Magistate at 7.00 a.m. on 3-5-1990 through Constable Ram Mehar PW 7.
4. On the arrival of the dead body of Parkash in the Civil Hospital, Guhla, Dr. R. C. Goyal PW 1 sent ruqa Ex. PA at 12.15 a.m. on 3-5-1990 to the Police.
5. After recording the FIR Ex. PJ, SI Deep Ram went to Civil Hospital, Guha, and prepared inquest report Ex. PG and sent the dead body of Parkash for post-mortem examination. He prepared rough site plan Ex. PL of the spot.
6. Post-mortem examination on the dead body of Parkash was performed by Dr. A. K. Mittal PW 4 on 3-5-1990. He found that the rigor mortis was present all over the body and postmortem staining present on the dependent parts. Mouth and eyes were closed. He found following injuries on the dead boudy:--
1. Bluish contusion 10 x 2 cm vertically placed on the left lumber area on the lateral aspect going upwards towards the axilla with blood in the sub-cutaneous tissues.
2. There was diffused swelling on the right temporal area extending to the parietal region crossing the mid-line. Going to the occipital region. On exploration, there was haemotoma in the region of subcutaneous tissues and deep to the galea aponeurotica in the temporal parietal and occipital area. There was a haemotoma in the right temporal muscles along with linear fracture of the right, tempore parietal bone. On exploring the cavity there was extensive extra dural haemovtoma in the region of right temporo occipital area, with dura torn. There was laceration of the brain of the right parietal lobe along with haemorrhage intra cerebral and subdural.
7. He further found that lungs were healthy and no abnormality detected. Heart chamber were full of blood. Stomach was full of semi solid yellowish food particles. Small and large intestines contained normal juices. Liver, spleen and kidneys were normal. Bladder was full of urine. The genetalia were normal.
8. The doctor opined that the cause of death was due to head injury which was antemortem in nature and sufficient to cause death in ordinary course of events. The time that elapsed between injuries and death was within few hours and between death and postmortem was within 6 to 24 hours. He removed pant Ex. P1, shirt Ex. P2 and underwear EX. P3 from the dead body of Parkash and delivered the same to the police in the shape of a sealed parcel. On police request he examined wooden bala Ex. P4 and opined that the head injury could be inflicted by it.
9. Sub Insepctor Deep Ram arrested the accused on 6-5-1990 on being produced by Nafe Singh. On interrogation Kashmir Singh accused got recovered bala Ex. PM. Lal Chand accused on interrogation made disclosure statement Ex. PN and got recovered lathi Ex P5.
10. Scaled site plan Ex. PB of the place of occurrence was got prepared by Pawan Kumar Patwari PW-2.
11. After completion of the investigation, the accused were arraigned for trial on such like allegations for the murder of Parkash.
12. Before the trial Court, in order to prove its above referred case, the prosecution examined eight witnesses. Ram Dass and Balkar Singh eye witnesses, supported the version of the prosecution.
13. The accused when examined by the trial Court under Section 313, Criminal P.C., came forth with the plea of denial simpliciter and false implication contending that it was a blind murder and they had been roped in falsely due to enmity.
14. The accused-appellants, however, did not lead any evidence in defence despite being called upon to do so by the trial Court.
15. The trial Court believing the ocular evidence of Ram Dass and Balkar Singh, eye witnesses, coupled with the medical evidence convicted and sentenced the appellants as referred to above.
16. We have heard the learned counsel for the parties besides perusing the record.
17. The following pedigree history would lead to smooth appreciation of the evidence :
Lachhu Ram had two sons, Bakshi Ram and Radhu Ram, Bakshi Ram had three sons Gurdial, Ramesh Raj and Gabbar Singh alias Des Raj alias Desu. After the death of Dakshi Ram his widow re-married Kalu and out of his loins gave birth to one Chandi.
Radhu Ram had five sons, Ram Dass, PW 5, Ram Lal, Chandu, Ram Kishanand Bishan Dass.
Smt. Kundan was the wife of Chandu. They had two sons Balkar Singh PW 6 and Parkash, deceased.
Lal Chand accused is the brother of Chandi Ram whereas Kashmir Singh accused is the nephew of Chandi Ram.
18. The testimony of two eye-witnesses PW 5 Ram Dass and PW 6 Balkar Singh has been closely scrutinized. They have consistently stated that on the day of occurrence at about 8.30 P.M. when Parkash had returned from Cheeka and Was in the lane near the house of Kashmir Singh accused, the two accursed Lal Chand and Kashmir Singh who were armed with lathi and wooden bala respectively accosted him. Lal Chand had dealt a lathi blow on his back whereas Kashmir Singh accused had inflicted a bala on his right temple as a result whereof he fell down and then the accused had inflicted injuries with their respective weapons thrust-wise on the abdomen of Parkash. Both these witnesses were subjected to lengthy and searching cross-examination but no dent in their testimony could be created. Their testimony cannot be thrown over board because they were close relatives of the deceased as they would normally be most reluctant to spare the real assailant and to falsely mention the name of other persons.
19. Learned counsel for the appellants has argued that Ram Dass and Balkar Singh had seen the occurrence arid that Inspector Deep Ram after examining the dead body had set up an imaginative version regarding injuries given by the accused. In order to buttress his argument he has pointed out; (i) that the genesis of the occurrence had been suppressed by the prosecution; (ii) that no blood was found at the spot; (iii) that there is an inordinate and unexplained delay in lodging of the FIR and delivery of the inquest report; and (iv) that Ram Dass PW 5 and Balkar Singh PW6 had demolished the prosecution version by saying that a large number of people hearing the raula had collected there including the two PWs.
20. Perusal of FIR Ex. PC shows that it was recorded at the instance of Bakshi Ram against Chandu on 25-2-1986, on the allegation that he had committed the murder of Gabbar Singh alias Des Raj alias Desu with guandasi. Chandu father of the deceased had been named as an eye-witness in the said FIR. Ram Dass PW 5 has testified that in the above said case Chandi Ram was acquitted. In view of the above pedigree it was clear that the relations between the parties were strained. PW 6 Balkar Singh has deposed that even after his acquittal Chandi Ram and his family continued to reside in the village and that the accused party had been demonstrating its valour and that since the complainant party had never given any cause of provocation to them no fight had taken place earlier to the occurrence. This shows that the accused party was itching to pick up a row with Parkash son of Chandu and teach him a lesson and on the day of occurrence they found such an opportunity and pounced upon it. This, it cannot be said that the prosecution had suppressed the genesis or the orign of the fight.
21. When the testimony of the two eyewitnesses is read with site plan Ex. PL, it is clear that the occurrence had taken place at point 'A' in the street. It was at a distance of about six karams from the house of Kashmir Singh accused and 15 karams from the house of Chandu father of the deceased. Sub-Inspector Deep Ram PW 8 has stated that the houses of Ram Dass and Balkar Singh were situated at a distance of 25 and 10 paces respectively from the spot. On hearing the raula both the eye-witnesses had rushed to the spot and witnessed the occurrence. PWS Deep Ram Sub-Inspector when inspected the spot did not lift any blood stained earth therefrom As there Was none. It is not the Case of the two eye-witnesses that blood had oozed out of the injuries of Parkash and had fallen at the spot. The medical evidence also reveals that there was no external bleeding. Therefore, non-lifting of the blood from the spot would not in any manner show that the occurrence had not taken place in the street as deposed to by the prosecution witnesses.
22. The occurrence had taken place at 8.30 P.M. On 2-5-1990 in village Tatiana which is at a distance of 9 kilometers from Guhla and the special report was conveyed to the learned Ilaqa Magistrate at 7.00 A.M. on 3-5-1990. It is evident from the statement of the two eye-witnesses that after the occurrence when the accused had bolted away they had consumed lot of time in arranging a tractor trolly in order to remove Parkash to the Hospital at Guhla. Dr. R.G. Goyal PW 1 had sent the ruqa Ex. PA at 12.15 A.M. on 3-5-1990 to the police informing the arrival of the dead body of Parkash in the hospital. Ram Dass PW 5 in his cross-examination has explained that tractor-trolly for taking Parkash to the hospital at Guhla. could be arranged at about 10.00/10-30 P.M. and that they had reached Guhla at 11.00 P.M. He had gone to the police Station Cheeka which was at a distance of 2 1/2 miles from village Tatiana on account of his anxiety to take the injured to the hospital. He had reached Police Station Guhla at 11.45 P.M. and then the Inspector had accompanied him to Civil Hospital. PW 6 PW 6 Balkar Singh brother of the deceased has stated that he had accompanied the tractor-trolly to the hospital and after staying there for 10/15 minutes, he left the place, hired a taxi and went to village Jhansla near Rajpura to inform his sister about the occurrence and by that time the police had arrived in the hospital. He had reached village Jhansla via Cheeka, Naya Gaon and Patiala within a matter of l 1/2 hours. He brought his sister and reached the hospital at 3.30 A.M. Sub-Inspector Deep Ram PW 8 has stated that he had reached the hospital at Guhla at about 12.40 A.M. with Ram Dass. Balkar Singh was not present there. He had prepared inquest report etc., and left the hospital at about 2.30 A.M. Thus, it is evident that the delay in lodging and delivery of the FIR stands satisfactorily explained. Ram Dass and Balkar Singh have no doubt stated that a large number of persons were present at the spot and the two accused were also there but they have nowhere stated that the two accused had arrived at the spot after the occurrence but what they mean was that a number of other persons had also arrived at the spot before the accused had run away.
23. Medical evidence has also fully corroborated the ocular account given by the two eye-witnesses. After seeing wooden bala Ex. P4 the doctor had opined that the head injury on the person of Parkash could be inflicted by it.
24. In view of the discussion that the eyewitnesses PW 5 Ram Dass and PW 6 Balkar Singh who have deposed about the occurrence are natural, they have given a consistent, straightforward and unbiased account which inspires confidence, the question doing rounds right now is as to whether the accused intended to kill the deceased or had given him injuries in a sudden flare up. In this regard, it is noteworthy that when the two eye-witnesses had arrived at the scene of the crime, they saw the accused giving injuries to the victim saying that he had not improved his old habits. PW 6 Balkar Singh in his cross-examination has stated that when the accused gave threats to Parkash, he did not return to his house to lift some weapon of offence, lathi etc., and that none from the persons present there had attempted to over power the accused. Thus, these two PWs were not aware about the inception of the occurrence. But seemingly there had been some verbal altercation between the accused and the deceased and, therefore, by no stretch of imagination it can be said that the accused had given injuries with intent to kill the victim, especially when all the injuries had been caused by blunt weapon. Injury No. 2 had been attributed to Kashmir Singh accused. According to the Autopsy Surgeon injury No. 2 was the cause of death in ordinary course of nature. Thus, by inflicting a bala blow on the head of the deceased, Kashmir Singh accused certainly had the intention to cause such bodily injury as was likely to cause death and, therefore, he was guilty of culpable homicide not amounting to murder punishable under Section 304, Part I, IPC. Injury No, 1 attributed to Lal Chand accused was declared simple. He was, therefore, guilty of an offence punishable under Section 323, Penal Code.
25. Consequently, for the reasons recorded above, the conviction of the appellant Kashmir Singh under Section 302, IPC and that of Lal Chand under Section 302 read with Section 34, IPC for the offence of culpable homicide amounting to murder being not sustainable, is hereby set aside and on the other hand, Kashmir Singh appellant is held guilty of offence punishable under Section 304, Part I, Penal Code and Lal Chand of an offence punishable under Section 323, IPC. Kashmir Singh appellant is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 250/- and in default of payment of fine to further undergo rigorous imprisonment for one month. Lal Chand appellant is sentenced to undergo imprisonment for the period already undergone.
26. Appeal is partially accepted.