Himachal Pradesh High Court
Satish Kumar Alias Bichhu vs State Of H.P on 29 May, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 194 of 2011
Reserved on: 27.05.2015
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Date of decision: 29.05.2015
Satish Kumar alias Bichhu
......Appellant.
Vs.
State of H.P.
.....Respondent.
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Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge
The Hon'ble Mr. Justice Sureshwar Thakur, Judge
Whether approved for reporting?1 Yes.
For the appellant : Mr. Sanjeev Kuthiala, Advocate.
For the respondent: Mr. M.A. Khan, Additional Advocate
General.
Rajiv Sharma, J.:
This appeal is instituted against the judgment, dated 08.03.2006, rendered by the learned Presiding Officer, Fast Track Court, Mandi, H.P. in Sessions Trial No. 18/2004, 79/2005, whereby the appellant-accused, who was charged with and tried for offence under Section 302 of the Indian Penal Code, was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of `10,000/- and in default of payment of fine to undergo further imprisonment for a period of one year.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes.
::: Downloaded on - 15/04/2017 18:17:33 :::HCHP 22. Case of the prosecution, in a nut-shell, is that Karam Singh (PW-1) was employed as a driver in Tata Sumo bearing registration No. HP-01-M-3659. He had gone to Panarsa on 22.01.2004 at about 10:30 .
a.m. in a barat and about 7-8 persons were occupying the vehicle of Karam Singh. There were two other vehicles carrying baratis. The barat reached panarsa at about 1:00 p.m.. Girdhari Lal (PW-2) was also in the barat. The accused had also gone in a barat to Panarsa. Deceased Suman Kumar had also gone in the barat in the vehicle being driven by Karam Singh (PW-1). When at Panarsa the baratis were taking meals, then some altercation took place between the accused and the deceased, as the deceased objected to the act of dispersing rice by the accused at which the accused and the deceased grappled with each other. The fight was averted by Girdhari Lal (PW-2). The baratis left for village Jugahan at about 5:30 p.m. While returning to village Jugahan, the deceased and PW-2 were occupying the vehicle of PW-1, whereas the accused was occupying the vehicle in which bridegroom was sitting.
The vehicle driven by PW-1 was the last in the convoy of the vehicles and at about 7:oo p.m., the vehicle of PW-1 reached at Nerchowk where the accused was standing by the side of the road. The vehicle was stopped by PW-1 at Nerchowk in order to purchase 'biri' and cigarette.
At that time, accused came near the vehicle of PW-1 and asked the deceased Suman Kumar to alight from the vehicle as he wanted to have one to one duel with the deceased. The deceased alighted from the vehicle and the accused and the deceased started grappling with each ::: Downloaded on - 15/04/2017 18:17:33 :::HCHP 3 other. The accused took out Khukhari concealed inside the T. Shirt by him and started stabbing the deceased repeatedly till the deceased fell flat on the ground. The Khukhari blows were struck by the accused all .
over the body of the deceased and the accused ran away from the spot.
The deceased was taken to hospital. He was declared dead by the Medical Officer. An intimation was sent to the police. The statement of PW-1, Karam Singh was recorded under Section 154 of the Cr. P.C. vide Ex. PW1/A, on the basis of which, an FIR was registered vide Ex.
PW10/A. The post mortem of the body was conducted by Dr. Hemant Kapoor (PW-7), Medical Officer, Zonal Hospital, Mandi. He issued the post mortem report Ex. PW7/A and as per his opinion, the deceased died due to bleeding into pericardial sack, left pleural cavity, peritoneal cavity and mediastinum caused by injury Nos. 1 to 9 and 10. He has taken into possession the blood smeared clothes of the deceased bearing cut marks. He has also preserved the viscera of the deceased alongwith blood sample of the deceased and handed over the same to the police for getting the same chemically examined. Spot map Ex.
PW10/D was prepared. The accused was arrested and Khukhari Ex. P1 alongwith cover Ex. P2 was recovered from the possession of the accused in the presence of Sh. Mehar Chand (PW-3), which was seized vide seizure memo Ex. PW3/B. The rough sketch of Khukhari was also prepared which is Ex. PW3/A. The statements of the witnesses were recorded by PW-10 as per their version and Khukhari alongwith viscera, blood sample and clothes of the deceased were sent for chemical ::: Downloaded on - 15/04/2017 18:17:33 :::HCHP 4 examination as per report of the Chemical Examiner Ex. PW10/E. The investigation was completed and after the completion of all the codal formalities, the challan was put up in the Court.
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3. The prosecution has examined as many as 10 witnessed to support its case. The accused was also examined under Section 313 of the Cr. P.C. Accused denied the case of the prosecution. The accused was convicted and sentence, as noticed hereinabove. Hence, this appeal.
4. Mr. Sanjeev Kuthiala, learned counsel for the appellant has vehemently argued that the prosecution has failed to prove the case against the appellant.
5. Mr. M.A. Khan, learned Additional Advocate General has supported the judgment, dated 08.03.2006.
6. We have heard the learned counsel for the parties and gone through the judgment and records, carefully.
7. PW-1, Karam Singh, has deposed that on 22.01.2004, he carried baratis from his village Jugahan to Panarsa at 10:30 a.m. and 7-8 baratis were occupying his vehicle. There were two other vehicles carrying baratis. The vehicles carrying baratis reached at Panarsa at 1:00 p.m. At Panarsa, the Baratis took meal and tea. Suman Kumar told him that a fight had taken place between him and accused Satish alias Bichhu. He identified the accused in the Court. Suman Kumar was sitting in his vehicle. At 5:30 p.m., the bride left for matrimonial home and while returning with the bride to their matrimonial home, his ::: Downloaded on - 15/04/2017 18:17:33 :::HCHP 5 vehicle was last in the convoy of vehicles. Suman and Girdhari were occupying front seat alongwith him. On the back of the vehicle, 7-8 baratis were sitting. He did not remember the name of those persons. At .
7:00-7:30 p.m., his vehicle reached Nerchowk and Bichhu was standing by the side of the road and two vehicles plying in front of his vehicle had already left. He stopped the vehicle at Nerchowk, as Suman wanted to purchase biris and cigarette. When the vehicle stopped at Nerchowk, accused Bichhu came near his vehicle and went to the seat occupied by Suman that he should alight from the vehicle, as he wanted to have one to one duel with him. Suman alighted from the vehicle and walked a few places and thereafter both started grappling. In the course of grappling, the accused took out Khukri concealed inside the T-Shirt and repeatedly started stabbing Suman till he did not fell down. The Khukhari blows were struck all over the body. Suman Kumar was taken to hospital at CHC, Ratti. Accused ran towards Subzi Mandi alongwith Khukhari. The deceased was taken to CHC, Ratti, he was declared dead by the doctor. Police was intimated by the doctor. His statement was recorded under Section 154 Cr. P.C. which is Ex.
PW1/A. He identified Khukhari Ex. P1 and sheath Ex. P2. In his cross-
examination, he has admitted that the quarrel between the deceased and the accused has taken place in their presence. However, they did not try to avert the fight as the accused was wielding the weapon.
8. PW-2, Girdhari Lal, deposed that he proceeded to attend the marriage in Tata Sumo bearing registration No. HP-01-M-3659 and ::: Downloaded on - 15/04/2017 18:17:33 :::HCHP 6 Karam Singh (PW-1) was driving the same. The deceased was occupying the front seat alongwith him, Moti Ram, Parkash Chand and other baratis including 2-3 children were sitting in the rear of the vehicle. The .
baratis were being carried in three vehicles. They reached at Panarsa.
Accused started dispersing rice, on which deceased Suman objected that food should not be wasted, at which both grappled which fight was averted by him. They left for Jugahan at 5:30 p.m. in the same vehicle.
They reached at Nerchowk at 7:15 p.m.. Accused was standing by the side of the vehicle near the seat which was occupied by the deceased.
He advanced threat to the deceased that he should alight from the vehicle as he wanted to have one to one duel with him. The deceased alighted from the vehicle. Accused pulled a Khukhari kept inside the T-
Shirt and without wasting the time started repeatedly stabbing the deceased. The deceased fell on the ground. Thereafter, the accused fled away from the spot. In his cross-examination, he has admitted that the accused signalled the deceased from a distance of 7 feet and Suman went to the place where the accused was standing on the left side of the vehicle. They raised hue and cry. They immediately got down from the vehicle to save the deceased.
9. PW-3, Sh. Mehar Chand, has deposed that in his presence and Up-Pradhan, Mani Ram of Bhangrotu, the accused handed over Khukhari Ex. P1 alongwith cover Ex. P2 by taking out the same from the pocket of his trouser to the police regarding which sketch Ex.
::: Downloaded on - 15/04/2017 18:17:33 :::HCHP 7PW3/A was prepared and the same was seized vide seizure memo Ex.
PW3/B. He identified his signatures on the recovery memo.
10. PW-4 Sh. Rajinder Singh, PW-5 Shri Arun Sharma and PW-
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6, Constable Puran Chand are formal witnesses. PW-7, Dr. Hemant Kapoor, Medical Officer conducted the post mortem on the body of the deceased. According to him, the probable time that was left between injury and death was around 10 to 15 minutes and between death and post mortem, it was 12 to 24 hours. He issued post mortem report Ex.
PW7/A. According to him, the cause of the death was due to bleeding into pericardial sack, left pleural cavity, peritoneal cavity and mediastinum caused by injuries No. 1 to 9 and 10.
11. PW-8, HC Amar Nath, sent the case property to FSL, Junga through Constable Puran Chand. PW-10, SI Uttam Singh deposed that on 22.01.2004, rapat No. 17, Ex. PW9/A was recorded in Police Station, Balh. He went to the spot where the statement of Karam Singh alias Kalu was recorded under Section 154 Cr. P.C. vide Ex. PW1/A. Thereafter, FIR Ex. PW10/A was recorded. Photographs of the deceased were taken by Rajinder Singh, which are Ex. PW4/A-1 to Ex. PW4/A-6.
Accused was arrested on 22.01.2004 and Khukhari was recovered vide seizure memo Ex. PW3/B. It was properly sealed. He deposited the case property with MHC, which was lateron sent for chemical examination alongwith viscera or the deceased and his clothes. The report of the Chemical Examiner is Ex. PW10/E. ::: Downloaded on - 15/04/2017 18:17:33 :::HCHP 8
12. The case of the prosecution, precisely is that the accused and deceased have gone in a barat to village Panarsa on 22.01.2004. A quarrel took place between the accused and the deceased at Panarsa.
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When they were coming back to village Jugahan, accused was standing on the side of the road. He challenged the deceased to come out of the vehicle to have duel with him. The deceased came out from the vehicle.
They grappled and the injuries were inflicted upon the deceased by the accused with the Khukhari Ex. P1. Suman Kumar was taken to hospital. He was declared dead by the Medical Officer. The post mortem on the body of the deceased was conducted by PW-7.
13. It is evident from the statements of PW-1, Karam Singh and PW-2, Girdhari Lal that when the incident has taken place, there were other baratis in the Jeep who have seen the incident, but they have not tried to separate the accused and the deceased. If PW-1, Karam Singh and PW-2 Girdhari Lal and other baratis had intervened, the life of deceased could be saved. The accused and the deceased had also quarreled as per PW-2 Girdhari Lal at the time of taking their meal.
However, in his cross-examination, he has admitted that he has not seen them quarrelling at village Panarsa. Accused has challenged the deceased to come out from the vehicle to have a duel with him and thereafter they grappled in the presence of PW-1 Karam Singh, PW-2 Girdhari Lal and other baratis. The deceased was stabbed by the accused with Khukhari Ex. P1.
::: Downloaded on - 15/04/2017 18:17:33 :::HCHP 914. The act of the accused was not premeditated. In fact, the quarrel has taken place earlier at village Panarsa, which has resulted in another fight between the accused and the deceased at Nerchowk.
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15. Mr. Sanjeev Kuthiala, learned counsel for the appellant has strenuously argued that it is not a case of murder. According to him, the fight has taken place all of a sudden. Mr. M.A. Khan, learned Additional Advocate General has vehemently argued that it was a case of murder.
16. We are of the considered view after analyzing the evidence that it is not a case of murder, but the accused had the knowledge that his act would result in the death of the deceased and, thus, this case would fall within the ambit of Section 304-I and not under Section 302 of the Indian Penal Code.
17. Accordingly, the appeal is partially allowed and the accused is convicted under Section 304-I of the Indian Penal Code instead of Section 302 of the Indian Penal Code. The respondent-State is directed to produce the accused for hearing on the question of quantum of sentence on 17th June, 2015.
(Rajiv Sharma) Judge (Sureshwar Thakur) Judge May 29, 2015 (bhupender) ::: Downloaded on - 15/04/2017 18:17:33 :::HCHP