Punjab-Haryana High Court
Gopal Krishan vs Unknown on 10 September, 2012
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
Crl. Appeal No. 950-SB of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal No. 950-SB of 2003
Date of decision: 10.9.2012
Gopal Krishan Appellant
v
State of Haryana Respondents
CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. Baldev Singh, Sr. Advocate with Mr. Deepender Singh and
Mr. Sudhir Sharma, Advocates for the appellant
Mr. Rudra Neel Bhardwaj, AAG, Haryana
Appellant in person
.....
JITENDRA CHAUHAN,J.
The present appeal is directed against the judgment/order dated 1.5.2003/3.5.2003, whereby the Additional Sessions Judge, Ambala convicted the appellant Gopal Krishan under section 304- Part II, and under section 323 Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1000/- for the offence punishable under section 304-Part II IPC; in default of payment of fine, to further undergo rigorous imprisonment for one month. For the offence under section 323 IPC, he was sentenced to undergo rigorous imprisonment for six months with no order as to fine. Both the sentences were ordered to run concurrently.
The brief facts of the case reflected in paras 2 and 3 of the judgment of the Learned trial Court, are re-produced as under:-
"The case of the prosecution is that: 4/5 days prior to the date Crl. Appeal No. 950-SB of 2003 2 of occurrence, the accused had come on leave and was causing nuisance while talking to the daughters of the complainant telephonically. The daughters of the complainant told her and her husband that on 6.1.1999 at around 1 P.M., when Ravinder Kaur and Gurvinder Kaur, daughters of the complainant had gone to purchase groundnuts from the nearby shop, Gopal Krishan-accused son of Shri Krishan Gupta was already there and he again started talking nuisance to the daughters of the complainant, and enquired from them as to whether the holidays were going on in their college.
3. Whatever was put to the daughters of the complainant, they narrated the same to the complainant. She alongwith her husband Baldev Singh accompanied by her daughters went to the shop in order to protest and asked Gopal Krishan as to who is he to ask question regarding college holidays from their daughters. Upon this, accused Gopal Krishan flewed into rage and gave a blow on the nose of the complainant. When her husband and Ramu-shopkeeper tried to make her free from the clutches of the accused, Gopal Krishan left the complainant and attacked Baldev Singh and gave him a push on his chest with his both hands, as a result of which the husband of the complainant Baldev Singh fell on the ground and died. The post mortem of dead body of Baldev Singh was conducted and the doctor opined the cause of death as asphyxia as a result of mugging injury on the neck which was ante-mortem in nature and was sufficient to cause Crl. Appeal No. 950-SB of 2003 3 death in normal course of nature."
On the basis of statement of the complainant, FIR No. 11 dated 6.1.1999, under sections 302/323 IPC was registered at Police Station Baldev Nagar, Ambala. After completion of investigation, accused was challaned and presented before the Court to face trial. He was charge- sheeted under sections 302/323 of the Indian Penal Code, to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined as many as 11 witnesses viz. Richpal Kaur, complainant as PW1; Dr. Mrs. Sunanda Jindal, Medical Officer, General Hospital, Ambala City, as PW2. She medico legally examined complainant Richpal Kaur and proved her MLR, Ex.PC. Dr. RC Jindal, Medical Officer, General Hospital, Amabala City, as PW3. He medico legally examined accused Gopal Krishan and proved on record report Ex.PD. Dr. AK Garg, Medical Officer, Central Jail, Ambala , Ambala as PW4. He conducted the post mortem on the dead body of Baldev Singh. He placed on record post mortem report, Ex. PF. Darshan Singh, H.C as PW5, recorded the FIR Ex. PA/1. Ravinder Kaur, daughter of deceased Baldev Singh, as PW6. Attar Singh ASI, Police Station Chandimandir, Panchkula, as PW7. He got medico legally examined complainant Richpal Kaur and accused Gopal Krishan. Constable Ram Saran-Draftsman as PW8. He prepared the scaled site plan of the place of occurrence. Dr. Vinay Bansal as PW9. He medico legally examained Richapal Kaur. Sadhu Ram, Inspector as PW10, Investigating Officer of the case. Surinder Singh, Inspector CIA Staff as PW 11.
Statement of the accused was recorded under section 313 of the Criminal Procedure Code in which he denied the allegations and in reply to Crl. Appeal No. 950-SB of 2003 4 the question put to him "Why is this case against you and why are the witnesses deposing against you", he replied as under:-
"Ans. The case is false and has been concocted against me by the complainant in collusion with the police on mere suspicion. I never used any obscene language or gave any call to Ravinder Kaur at any time nor I had any bad intentions in asking her on 6.1.99 at the shop of Ramu and in his presence, from Ravinder Kaur regarding her college being closed. It was per chance, she came tat the shop. Immediately I came there. She might have told this fact to her parents who in a fit of anger, came at the shop to assault me. I requested them with all humanity that Ravinder and Gurvinder Kaur are just like my sisters but being police official, without seeing any reason, they tried to catch hold of my throat in order to throttle me. At that time, thinking that I will be done to death, in order to save myself, I gave them a strong push to leave me. Rachpal Kaur and Baldev Singh feel down and as they were themselves guilty of committing an offence for throttling me, both of them ran away to their house from the spot. Ramnu, owner of the shop was present at the time of the occurrence. Subsequently, the police came to my house and arrested me in this false case. I am innocent. I have put in eleven years of service in the I.A.F at different stations. On 6.1.99 I was posted as Corporal in Barelili where I was also attending evening classes of law. I have completed in LLB course in that year. I had come on two months leave on 6.1.99, and had come to my house in order to Crl. Appeal No. 950-SB of 2003 5 prepare for my final Law Examination. I had to go back on 21.2.99 to join my duties. I had ho bad intention of any kind regarding my treatment towards Baldev Singh, Rachpal Kaur and their children. I am innocent".
In his defence, the appellant examined Suresh Kumar as DW- 1 and tendered into evidence, the following documents-
Exhibit DA Statement of Ravinder Kaur.
Exhibit DB Copy of report
Exhibit DB/1 Report on accidental and self
inflicted injuries
Exhibit DB/2 Medical case (running in 4 pages)
Exhibit DB/3 Degree of B.A
Exhibit DB/4 Marks sheet
Exhibit DB/5 Certificate M.A
Exhibit DB/6 Admission card M.A final
Exhibit DB/7 Certificate of participation in Parsa Sailing
Adventure Camp.
Exhibit DB/8 Participation in Air Force contingent /
organising Committee for Republic Day
Parade 1993.
The Learned trial court relied on the statement of PW4, Dr. A.K. Garg that an injury on the neck of the deceased was sufficient to cause death in the ordinary course of nature and it is immaterial whether the said injury could be caused or could not have been caused with the help of palm. The learned trial court held that accused had the knowledge that death Crl. Appeal No. 950-SB of 2003 6 might follow on account of the injury given by him to the deceased.
After hearing the learned counsel for the parties, the Learned trial Court convicted and sentenced accused Gopal Krishan for a term as noticed in para 1 of this judgment.
The appeal was admitted on 16.5.2003. The sentence of imprisonment was suspended on 3.9.2004 by this Court.
Learned counsel for the appellant submitted that the Ld. Trial Court has wrongly convicted the appellant under section 304-II IPC by carving out a portion of the statement of prosecution witnesses i.e PW1, Richpal Kaur and PW6, Ravinder Kaur, to arrive at a conclusion that a strong push with both hands was given on the chest of the deceased by the appellant, as a result of which he had died. He further submitted that the appellant had a apprehension that complainant Richpal Kaur and her husband would cause harm to him and in his self defence, he pushed the deceased. The appellant had no intention to kill Baldev Singh. He further submitted that the prosecution did not examine material witness Suresh Kumar, shopkeeper, in front of whose shop, the incident took place. He was named in the FIR and ought to have been examined by the prosecution. Rather, he was examined as defence witness. He submitted that the appellant cannot be convicted on the basis of statement recorded under section 313 Cr.P.C. In his statement, the accused has admitted that he has given a push to Baldev Singh in his self defence. He argued that the ld. Trial court has dissected the words "giving push" from the statement of the accused and observed that Baldev Singh had died due to strong push with both hands given by the appellant on the chest of Baldev Singh. He prayed that the offence punishable under section 304-II IPC is not made out and be Crl. Appeal No. 950-SB of 2003 7 converted into offence under section 323 IPC and the sentence be reduced to the period already undergone.
On the other hand, Ld. State counsel opposed the prayer made by the learned counsel for the appellant and submitted that doctor has opined that the injury on the neck of the deceased was ante-mortem in nature and was sufficient to cause death in normal course of nature. He further submitted that the appellant was rightly convicted under section 304-II IPC.
I have heard the counsel for the parties and perused the record. As per custody certificate, appellant has undergone 1 year, 5 months and 25 days actual sentence.
`The proposition that emerges is whether on the basis of the material on record, offence against the appellant under section 304-II IPC is made out. In the alternative whether offence under section 323 IPC is committed by the appellant.
The incident is admitted by both the sides. There is small variation in the versions of the prosecution and the accused-appellant in his statement under section 313 Cr.P.C. Presence of the witnesses is also proved on record and admitted by the accused-appellant. As per record, , there is no earlier enemity between the deceased and the accused-appellant. It appears that both the parties were known to each other for some time.
The accused-appellant was charge sheeted on two counts, which are reproduced here-under:-
"That on 6.1.1999, in the area of Ambala City, P.S. Baldev Nagar, you committed murder by intentionally causing the death of Baldev Singh and you thereby committed an Crl. Appeal No. 950-SB of 2003 8 offence punishable under section 302 of the Indian Penal Code and within the cognizance of this Court.
Secondly, on the same date, time and place, you voluntarily caused injuries to Smt. Richpal Kaur with blunt weapon and that you thereby committed an offence punishable under section 323 of the Indian Penal Code and within the cognizance of this Court."
The incident took place at 1 p.m. On 6.1.999. The statement of Richpal Kaur was recorded on the same day at 3 p.m. FIR was registered at Police Station Baldev Nagar, Ambala at 3.15 p.m. The special report reached the Additional Chief Judicial Magistrate at 7 p.m. So, there is no delay either in lodging the report or sending of the special report to the Illaqa Magistrate. It is worthwhile to mention here that PW1 Smt. Richpal Kaur was medico legally examined on the same day at 6.1.999 at 8.25 p.m. It was natural for the complainant PW1 Richpal Kaur and PW6 Ravinder Kaur first to attend the victim, who was their husband and father respectively. The report in these circumstances is very prompt. As early as the FIR is lodged, there are less chances of concoction, twisting and fabrication.
Now, coming to the occurrence. PW1. Smt. Richapal Kaur stated that the accused-appellant started giving blows to his husband on his chest. Then he gave blow on his (victim) neck and throat. Accused caught hold the victim by neck and pressed his throat due to which he died. When confronted with her statement Ex.PA, it was not so recorded. Certainly, there are improvements in the statements of the prosecution Crl. Appeal No. 950-SB of 2003 9 witnesses. PW1, Richpal Kaur is a Head Constable in the police and is supposed to be familiar with the intricacies of law.
The prosecution witnesses are termed as partly reliable, as there are chances of improvements convenient to the prosecution.
Where there are two versions before the Court, one put by the prosecution witnesses and the other by the accused specifically pleaded in his statement under section 313 Cr.P.C corroborated by defence witness, the court has to choose the version which is believable, natural, probable and acceptable. In this case, DW1 Suresh Kumar is an independent witness, who knows the genesis of the occurrence. A trivial talk turned into an altercation at his shop, in his presence. Narrating the events, DW1 Suresh Kumar stated that the deceased Baldev Singh and his wife Richpal Kaur came in an aggressive mood and started abusing the accused in a filthy language, asking him as to who was he (the accused ) to inquire from their daughters about their vacations or closure of college. This witness further stated that both of them gave some fist blows to the accused and then both of them tried to caught hold of the accused by his neck in order to throttle him claiming that they belong to police force. The accused in order to escape throttle, gave a strong push to both of them i.e. PW1, Richpal Kaur and her husband. Both of them fell on the ground. PW1 Richpal Kaur received some injury on her face. Baldev Singh also fell down and became unconscious. This defence witness and Smt. Richpal Kaur then removed Baldev Singh, in a rickshaw, to the hospital, were he had died. This witness is natural to whom this Court is believing for the reason that the occurrence took place in front of his shop; that at the time of occurrence, he was present there and he has no relationship or enemity with Crl. Appeal No. 950-SB of 2003 10 either of the parties and lastly that he took the victim to the hospital. This witness has no axe to grind. So the deposition of this witness is believed to be truthful version.
The age of deceased Baldev Singh was 60 years, while the accused was 30 years at the time of incident. The accused was a young energetic person serving Indian Air Force. PW4, Dr. A.K. Garg opined that the cause of death in this case was asphyxia as a result of mugging, which was sufficient to cause death in the ordinary course of nature. The injury was on the neck which resulted into death. The doctor explained the mugging as the restriction of the air passage by means other than the palmer aspect of the hands. So, it is held that the push given by the accused- appellant to the victim proved fatal and mugging was the direct result of death.
Now this Court will come to the pivotal point as to what offence is made out from the facts and circumstances of the case. Admittedly, the parties are the residents of the same locality. They know each other. There was no previous ill will, altercation or enemity. This was the first and last unfortunate incident between the parties. No earlier telephonic nuisance by the appellant is proved though alleged. DW1 Suresh Kumar stated that relation between the accused and Ravinder Kaur was of brother and sister. The accused was on two months leave. A small dialogue about the holidays in college between Ravinder Kaur and the accused- appellant offended the parents of the former. They came at the shop of DW1 Suresh Kumar, misbehaved with the accused and scuffling took place between parents of PW6 Ravinder Kaur on one side and the accused- appellant on the other side. Nothing was pre-planned. The nature of injury Crl. Appeal No. 950-SB of 2003 11 proved by medical evidence indicated that the occurrence was a short and sudden affair of altercation. None of the party was armed with any weapon. The deceased and PW1, Richpal Kaur were in exasperated mood and suddenly ensued a quarrel at the shop of DW1 Suresh Kumar. He stated that both of them gave some fist blows to the accused-appellant and tried to catch him by neck with an intention to throttle him. The accused in order to save himself from the throttle gave a strong push to both of them, who fell on the ground. The push appears to be not given with an intention to throw the victim on the floor, but it was with an intention to keep safe physical distance from the duo to avoid grappling and to save himself from their clutches. Push given by the accused-appellant was an act of self defence. Admittedly, the accused had not acted in cruel manner nor did he take any undue advantage of the situation or repeated the blows. It was a solitary push. It cannot be said that he had the knowledge that such push would result into the falling of the victim and causing the death of the victim. Section 304-II IPC reads as under:-
"304. Punishment for culpable homicide not amounting to murder- Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life] or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death , or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with Crl. Appeal No. 950-SB of 2003 12 both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
Keeping in view the facts and circumstances, this Court is of the opinion that conviction of accused-appellant under section 304- Part II of the Indian Penal Code for causing the death of deceased Baldev Singh is unsustainable, and is hereby set aside. Rather the accused- appellant is convicted under section 323 of the Indian Penal Code for causing simple hurt to victim Baldev Singh. However, the conviction upon accused-appellant under section 323 IPC for causing voluntarily simple injury to PW1 Smt. Richpal Kaur is hereby affirmed. The conviction of accused-appellant under section 304-Part II IPC is modified to section 323 IPC, meaning thereby that the accused-appellant is convicted under section 323 IPC on two counts for causing simple injury each to deceased Baldev Singh and PW1 Richpal Kaur.
Now coming to the quantum of sentence. The accused-
appellant has been convicted under section 323 IPC on two counts and sentenced to undergo R.I for a period of six months for causing simple hurt to PW1` Richpal Kaur. Learned counsel for the appellant cited judgment of Paramjit Singh v. State of Haryana, 2011 (2) Recent Criminal Report (Crl.) 855 and argued that the accused is not a previous convict; he is 30 years of age; he is air force personnel, married having one daughter and is only bread earner of the family. The FIR is dated 6.1.1999. The counsel further submits that benefit of provisions of section 360 Cr.P.C and the Crl. Appeal No. 950-SB of 2003 13 Probation of Offenders Act may be extended to him. The sentence imposed by the trial court under section 323 IPC upon the accused-appellant is modified as indicated below.
Keeping in view the facts and circumstances, nature of offence, character and antecedents of the accused-appellant in the instant case, he is ordered to be released on probation of good conduct under section 4 of the Probation of Offenders Act, on his furnishing personal bond in the sum of Rs. 25,000/- with one surety of the like amount for a period of one year to the satisfaction of the Chief Judicial Magistrate, Ambala, on the following terms and conditions-
(i)that he shall appear and receive sentence when called upon to do so during this period;
(ii) in the meantime to keep the peace and be of good behaviour.
As the appellant has been allowed to be released on probation, this may not affect his service career in view of section 12 of the Probation of Offenders Act.
The requisite bonds be furnished on or before 24.12.2012. If the appellant fails to furnish the requisite bonds within time so prescribed, the period of imprisonment already undergone by him, shall be set off.
(JITENDRA CHAUHAN) JUDGE 10.9.2012 MS Note: Whether to be referred to Reporter? Yes/No