Punjab-Haryana High Court
Dina Nath Son Of Amika Rajwa Resident Of ... vs State Of Punjab on 11 February, 2013
Author: S.S. Saron
Bench: S.S. Saron
CRA No. D-164-DB of 2007 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA No. D-164-DB of 2007
Decided on : 11th February, 2013
Dina Nath son of Amika Rajwa resident of village Hasepur PS Ishipur
Mahanda, District Gajipur
.....Appellant
Versus
State of Punjab
..... Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MR. JUSTICE S.P. BANGARH
*****
Present: Ms. Aditi Girdhar, Amicus Curiae, for the appellant.
Mr. P.P.S. Thethi, Addl. AG, Punjab for the respondent.
***** S.P. BANGARH, J The appellant has assailed the judgment of conviction and order of sentence dated 11.11.2006, passed by the learned Sessions Judge, Patiala, in Sessions Case No. 4 dated 15.02.2005, emanating from FIR No. 73 dated 14.08.2004, under Sections 302 and 323 of the Indian Penal Code (for short - 'IPC), Police Station Lalru, whereby, he was convicted for commission of offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of `5000/- and in default of payment, thereof, to further undergo rigorous imprisonment for a period of one year for commission of offence punishable under Section 302 IPC. The period of sentence already undergone by the appellant during the period of investigation and trial was ordered to be set off from the substantive sentence.
The case of the prosecution is that on 13.08.2004 at about 4.00 CRA No. D-164-DB of 2007 - 2- p.m., appellant was beating his wife Anita. Shahbir (complainant) and Ram Rattan tried to rescue her from the appellant. That ired the appellant who rushed towards them with spade in his hand and threatened them to kill first. They then retreated. Vidya wife of the complainant-Shahbir was holding her son Vinod Kumar in her lap, while standing at the spot. Thereafter, the appellant gave two spade blows on the head of Vinod (deceased) son of the complainant-Shahbir with an intention to kill him. Appellant also gave third blow of spade on the left shoulder of Vidya wife of the complainant-Shahbir. They raised alarm , thereupon, appellant ran away from the spot alongwith the spade. Then, complainant-Shahbir and Vidya took their son Vinod (deceased) to Government Medical College and Hospital, Sector 32, Chandigarh for treatment and got him admitted there, who succumbed to his injuries received at the hands of the appellant.
Rupinder Kumar Bhardwaj, Inspector alongwith Amar Singh ASI and other police officials went to Government Medical College and Hospital, Sector 32, Chandigarh, on the receipt of information regarding the death of Vinod (deceased). He recorded the statement Ex.PD of the complainant-Shahbir and put his endorsement Ex.PD/1, thereon, and sent the same to the Police Station Lalru, where formal FIR Ex.PD/2 was recorded. He also prepared inquest report on the corpse of Vinod (deceased) Ex.PC and sent the same to the mortuary for autopsy alongwith application Ex.PE. He also obtained the opinion of doctor regarding the fitness of Vidya-injured to make statement and the doctor gave his opinion Ex.PF/1. He also prepared site plan Ex.PG of the place of occurrence , as also, lifted the blood stained earth from the place of occurrence, made that into a parcel that was seized vide memo Ex.PH. He also seized the clothes of Vidya-injured, vide recovery memo Ex.PJ. He arrested the appellant vide memo Ex.PK before disclosing him the grounds of arrest CRA No. D-164-DB of 2007 - 3- vide memo Ex.PL.
Rupinder Kumar Bhardwaj, Inspector interrogated the appellant, and the latter suffered disclosure statement Ex.PM and pursuant, thereto, he got recovered spade, that was seized vide recovery memo Ex.PN. He also prepared the site plan of the place of recovery of spade Ex.PO, as also memo Ex.PQ regarding seizure of sample seal chit.
After completion of investigation, Station House Officer of Police Station Lalru instituted police report under Section 173 Code of Criminal Procedure (Cr.P.C-for short) against the appellant, before the learned Illaqa Magistrate to the effect that it appeared that he has committed offences punishable under Sections 302 and 323 IPC.
On presentation of police report, copies of documents, as required under Section 207 Cr.P.C. were furnished to the appellant by the learned Illaqa Magistrate, who later committed the case to the Court of Session, which was entrusted to the learned trial court, where charge under Sections 302 and 323 IPC was framed against the appellant, whereto, he pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, the prosecution examined Dr. Bharat Kumar as PW-1, Shahbir-complainant as PW-2, Ram Rattan as PW-3, Vidya as PW-4, Jaspal Singh as PW-5, Siri Chand Constable as PW-6, Rupinder Kumar Bhardwaj, Inspector as PW-7 and Joginder Singh as PW-8 and closed the evidence, later.
After the closure of prosecution evidence, appellant was examined under Section 313 Cr.P.C, wherein, he denied the allegations of the prosecution, pleaded innocence and false implication in this case. He gave his own version that he was falsely involved in this case due to previous enmity with the complainant. In fact, the cause of death of the CRA No. D-164-DB of 2007 - 4- deceased (Vinod) was due to an accident, because he was suffering from paralysis and could not walk. Nothing had happened, as alleged in the FIR. The witnesses testified against him on the false ground at the instance of the complainant.
Appellant was called upon to enter in defence, but he closed the same without examining any witness in defence.
After hearing both the sides, the learned trial Court vide impugned judgment of conviction and order of sentence, convicted and sentenced the appellant, as described in the first paragraph of this judgment. Aggrieved, thereagainst, the appellant, who was accused before the learned trial Court has come up in this appeal with prayer for acceptance, thereof, and for his acquittal of the charge framed against him for the commission of offences punishable under Sections 302 and 323 IPC.
We have heard learned counsel for the appellant and learned Additional Advocate General for the respondent and perused the record of the learned trial Court with their assistance.
PW-1 Dr. Bharat Kumar testified that on 14.08.2004, he conducted the postmortem examination on the corpse of Vinod (deceased) and found the following injuries, thereon:
1. A lacerated wound measuring 8 x 1.5 cm, bone deep, present vertically on right side of forehead, going upwards in frontal region of skull, upper end of wound is 4 cm from mid-line placed in right frontal region. Lower end is 1 cm to outer aspect of right eye. Tailing is present in lower end of the wound. On dissection extra cranial Haematoma C/A Bh. 3.3. cm was present below this wound.
2. On dissection, a linear fracture 3.5 cm in length was present in outer table of skull in right frontal region below injury No.1.CRA No. D-164-DB of 2007 - 5-
3. A reddish bluish abrasion measuring 9.5 cm x 0.6 cm was present at the back of neck extending from 2 cm inner to left shoulder, going horizontally to the right, 3.5 cm below the extenral occipital protuberance mid line, then going right side horizontally and ends 4 cm from right shoulder tip.
4. A reddish bluish abrasion measuring 2 x 1.5 cm was present in the middle of left arm on the back aspect 7 cm above tip of elbow.
5. C shape lacerated wound measuring 4.5 cm x 1 cm was present on the back of head around mid line, 7 cm above posterior hair line. Wound was facing downwards.
6. A lacerated wound measuring 3 x 0.5 cm present horizontally on the back aspect of head, 0.5 cm above injury No.5.
7. A skull fracture 1.7 x 0.3 cm present beneath the injury No.5.
External Haematoma measuring 3 x 3 cm was present below injury No.5 on dissection.
He further testified that in his opinion, death was due to cerebral drainage consequent upon blunt force impact to the head. All the injuries were ante mortem in nature and were caused by blunt weapon with force impact, which could have been occurred, as alleged. He further testified that probable time that elapsed between injuries and death was around 8 hours and between death and postmortem was around 16 hours. He also proved the copy of autopsy report Ex.PA, Chemical Examiner's report Ex.PB and inquest report Ex.PC.
PW-2 Shahbir-complainant, testified that the appellant was addicted to liquor and under the influence, thereof, he used to beat his wife Anita; they used to intervene to save Anita. He further testified that on 13.08.2004 at about 4.00 p.m. the appellant was beating his wife, he and Ram Rattan (PW-3)tried to save her. He further testified that the appellant then rushed to his hut (jhugi in local parlance), brought a spade and tried to CRA No. D-164-DB of 2007 - 6- give blow, thereof, to them, but they managed to retreat. He further testified that his wife was standing near his hut (jhugi in local parlance) carrying her son in her lap and the appellant then gave blow to his wife on her left shoulder, as also, he gave two spade blows to his son Vinod on his head. He further testified that they then brought their son to Civil Hospital, Sector 32, Chandigarh, where he died.
PW-3 Ram Rattan corroborated the testimony of PW-2 (Shahbir) and testified likewise.
PW-4 Vidya-injured also corroborated the testimony of PW-3 (Ram Rattan) by testifying likewise.
PW-5 Jaspal Singh Halqa Patwari prepared the scaled map Ex.PD and proved the same.
PW-6 Siri Chand Constable tendered in evidence his affidavit Ex.PE.
PW-7 Rupinder Kumar Bhardwaj Inspector deposed on the line of investigation, which has been reproduced in the earlier parts of this judgment.
PW-8 Joginder Singh HC tendered in evidence his affidavit Ex.PR.
Learned counsel for the appellant contended that ocular evidence and medical evidence are contradictory to each other and, therefore, the case of the prosecution against the latter cannot be held to be proved one. She also contended that there were 7 injuries on the corpse of Vinod (deceased), as per testimony of PW-1 (Dr. Bharat Kumar), but according to the testimonies of PW-2 (Shahbir), PW-3 (Ram Rattan) and PW-4 (Vidya) there were only two injuries. So, this contradiction must come to the rescue of the appellant to accord him the benefit of doubt. She also contended that weapon, according to the eye witnesses was CRA No. D-164-DB of 2007 - 7- sharp, but PW-1 (Dr. Bharat Kumar) did not corroborate the ocular evidence and he testified that the weapon used for causing injuries to the deceased (Vinod) was blunt.
On the other hand, learned Additional Advocate General for the respondent contended that there was no enmity between the appellant and the eye witnesses and, therefore, no motive can be ascribed to them (eye witnesses) to testify falsely in this case.
We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties, and we find that the charge under Section 302 IPC cannot be held to be proved against the appellant. The learned trial Court fell in grave error by holding the appellant guilty for commission of offence punishable under Section 302 IPC, as there was no enmity between the appellant and the parents of the deceased (Vinod), PW-2 (Shahbir-father of the deceased) and PW-4 (Vidya-mother of the deceased). Deceased was 5 year old polio afflicted child. Even, the spade in this case has not been recovered . Injuries on the person of the deceased (Vinod) were caused by blunt weapon.
Indubitably, spade is a sharp edged weapon, which was not shown to PW-1 (Dr. Bharat Kumar) at the time of his deposition. Even, that was not shown to the eye witnesses and Investigating Officer at the time of their deposition. Indeed, the weapon of offence was not produced during the trial. So, the injuries on the corpse of Vinod (deceased) could not be caused by the appellant with the spade.
Even, it has not come in evidence that the appellant had intention to kill his wife. He was, at the most, quarreling with his wife under the influence of liquor. This evidence given by PW-2 (Shahbir), PW-3 (Ram Rattan) and PW-4 (Vidya) is probable. It is also probable that PW-2 (Shahbir) and PW-3 (Ram Rattan) tried to rescue Anita wife of the CRA No. D-164-DB of 2007 - 8- appellant from the latter. That, would have provoked the appellant to assault PW-2 (Shahbir) and PW-3 (Ram Rattan). When he (appellant) attempted to assault PW-2 (Shahbir) and PW-3 (Ram Rattan), the latter retreated and then, he (appellant) rushed towards PW-4 (Vidya) who was having deceased-child (Vinod) in her lap and in the melee, Vinod (deceased) son of PW-2 (Shahbir) and PW-4 (Vidya) fell down on the ground and received injuries numbering 7 by fall.
As already held, as per the testimony of PW-1 (Dr. Bharat Kumar), these injuries could be caused with blunt weapon. So, in this manner, the appellant had no intention to kill Vinod-Deceased, who was 5 year old polio afflicted child. But he had sufficient knowledge that by his act, the deceased-child (Vinod) from the lap of her mother (PW-4/Vidya) could fall on the ground and receive injuries and succumb, thereto.
The learned trial Court, thus, wrongly convicted the appellant for commission of offence punishable under Section 302 IPC, while on the contrary, he could be held guilty for commission of offence punishable under Section 302 IPC, if he had intended to kill his wife, or the deceased, PW-2 (Shahbir), PW-3 (Ram Rattan) and PW-4 (Vidya). Intention to kill any one is missing in this case. Appellant was simply quarreling with his wife when PW-2 (Shahbir) and PW-3 (Ram Rattan) intervened to rescue his wife, that ired him (appellant). In the insensement, he shoved PW-4 (Vidya) and deceased-child (Vinod) fell down on the ground, received injuries and later succumbed, thereto. Knowledge was definitely there with the appellant, that his act could cause the death of the deceased-child (Vinod). So, the appellant can only to be held guilty that he did the act of shoving PW-4 (Vidya) knowing full well that his such act would result in fall of the deceased-child (Vinod) on the ground and by that fall, deceased- child (Vinod) could receive injuries and succumb, thereto. CRA No. D-164-DB of 2007 - 9-
In these circumstances, appellant alone can be held guilty of commission of offence punishable under Section 304 Part II IPC. Only, if it would have been proved that appellant had intended to kill his wife and he was distracted, therefrom by PW-2 (Shahbir) and PW-3 (Ram Rattan) and by such distraction, he had caused the death of Vinod (deceased), only then he could be held guilty of offence punishable under Section 302 IPC. When he had no intention to kill his wife, it cannot be held that he had intention to kill Vinod (deceased) with whom no enmity has been alleged.
Resultantly, the appeal is partly allowed; impugned judgment of conviction and order of sentence are set aside partly and the appellant is acquitted of the charge framed against him for commission of offence punishable under Section 302 IPC. However, he is held guilty of commission of offence punishable under Section 304 Part II IPC for causing the death of Vinod (deceased).
As per the custody certificate, the appellant has already undergone imprisonment for a period of 8 years 05 months and 25 days, as on today. Therefore, he is sentenced to the period (supra) already undergone by him in jail during investigation, trial and pendency of this appeal. He is ordered to be released, forthwith, if not required to be detained in any other case.
(S.P. BANGARH) (S.S. SARON)
JUDGE JUDGE
February 11, 2013
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