Rajasthan High Court - Jaipur
Sunil Kumar vs State on 9 September, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH [1] D.B. CRIMINAL APPEAL NO.176/2005 Sunil Kumar Versus State [2] D.B. CRIMINAL REVISION PETIION NO.148/2005 Mahaveer Prasad Versus Hoshiar Singh & Ors. [3] D.B. CRIMINAL APPEAL NO.510/2005 State of Raj. Versus Hoshiyar Singh & Ors. DATE OF JUDGMENT : 09/09/2011 HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE S.S. KOTHARI Mr.S.R. Bajwa, Sr.Adv. with Mr.V.P. Bishnoi, for accused-appellants Mr. Sanjeev Kumar Mahala, P.P., for State None present for the complainant **** BY THE COURT (PER HON'BLE S.S. KOTHARI,J.):
D.B. Criminal Appeal No.176/2005, Sunil Kumar Vs. State of Rajasthan has been filed by the appellant under Section 374 Cr.P.C. challenging his conviction and sentence in Sessions Case No.42/2004, State Vs. Hoshiyar Singh & others under Sections 302, 302/34, 325/34, 323/34 and 452 I.P.C. by the learned Additional Sessions Judge Khetri dated 06.12.2004 by which he has been convicted and sentenced as below:-
1.Under Section 302 IPC: Life imprisonment and fine of Rs.1000/-. In default of payment six months simple imprisonment.
2.Under Section 325 IPC: One year rigorous imprisonment and fine of Rs.200/-. In default of payment one month rigorous imprisonment.
3.Under Section 323 IPC: Six months simple imprisonment.
All the sentences were ordered to run concurrently.
D.B. Criminal Appeal No.510/2005 State of Rajasthan Vs. Hoshiyar Singh & others has been filed on behalf of the State under Section 378 (1) and (3) Cr.P.C. challenging the acquittal of Hoshiyar Singh, Vijay Kumar alias Vijendra and Dharamveer from the charges levelled against them in the aforesaid Sessions Case.
D.B. Criminal Revision No.148/2005, Mahaveer Prasad Vs. Hoshiyar Singh has been filed under Section 397 read with 401 Cr.P.C. by Mahaveer Prasad, the complainant, challenging the acquittal of the accused persons, namely, Hoshiyar Singh, Vijendra and Dharamveer in the aforesaid Sessions Case.
As all the aforesaid cases are against one judgment, they are being decided by this common judgment.
Ram Prakash, SHO, Khetri PW-15 received the information on 28.11.2002 on telephone that a person named Billu has been murdered in village Mandri. On getting the said information, he proceeded to village Mandri with police force where Mahaveer S/o Kan Singh submitted a written report Ext.P1 before him alleging therein that on 27.11.2002 at about 8.00 PM when he was lying in his field, he heard some noise from his house. He went there and saw that Vijendra S/o Hoshiyar Singh was abusing his younger brother, Billu. Thereafter Sunil, Hoshiyar and Dharamveer also reached there and started beating Billu. Sunil kicked him; Hoshiyar Singh also punched him. Sunil, Vijendra and Dharamveer then took Billu away. Sunil inflicted knife blows and the others booted and hammered him. Subsequently, his younger brother, Dharamveer, brought Billu from the lane and it was found that he had expired.
On the aforesaid report, FIR No.474/02 for offences under Sections 302, 323, 452, 34 IPC was registered. The Police conducted investigation in which statements of witnesses were recorded. Medical examination of Mahaveer Singh and Smt. Sajna was got conducted. The postmortem of Billu was conducted. The Police recovered clothes, bangles and blood stained mud from the site. Accused Sunil Kumar gave information under Section 27 of Indian Evidence Act, on the basis of which one knife was recovered. The Police also prepared a site plan and sent the clothes, knife and blood stained mud for analysis to FSL from where report Ext.P38 was received. On conclusion of the investigation, Police submitted a report under Section 173 Cr.P.C. against Hoshiyar Singh, Vijendra, Sunil Kumar and Dharamveer for offences under Sections 302, 323 and 452 IPC. The learned Judicial Magistrate committed the aforesaid accused persons for trial to the learned Additional Sessions Judge, Khetri. After hearing, the learned Court framed charges under Sections 302 & 325/34 I.P.C. against accused Sunil and charges under Sections 302/34, 325/34, 323 and 452 IPC against accused Vijendra alias Vijay Kumar, Hoshiyar Singh and Dharamveer. The accused persons pleaded not guilty and claimed trial. The prosecution examined 16 witnesses in support of its case and produced documents Ext.P1 to P38. On conclusion of the prosecution evidence, the accused persons were examined under Section 313 Cr.P.C. The accused persons stated that the witnesses are related to each other and have deposed falsely. They also stated that they have been falsely implicated in the case. However, they did not produce any defence witness. After hearing, the learned Additional Sessions Judge, Khetri convicted accused Sunil Kumar as stated hereinbefore and acquitted the accused, Hoshiyar Singh, Vijay Kumar alias Vijendra and Dharamveer from the charges levelled against them.
We have heard the learned Senior Counsel for Sunil Kumar, the appellant, and the learned Public Prosecutor in respect of the appeal filed by Sunil Kumar. We have also heard the learned Public Prosecutor in respect of the appeal filed on behalf of the State and the Criminal Revision filed on behalf of the complainant. The learned Senior Counsel was also heard on behalf of the respondents in the State appeal. However, nobody appeared on behalf of the complainant in the Criminal Revision. We have the advantage of hearing the learned Senior Counsel and the Public Prosecutor at length who took us through the evidence available on record.
The learned Senior Counsel for the appellants has contended that the witnesses produced by the prosecution for proving the case are all close relatives and no independent witness has been produced though such witnesses were available. In the circumstances, the statements of Mahaveer Singh PW-4, Smt.Sajna Devi PW-9, Smt. Shankuntala PW-11, Dharamveer PW-3 and Smt. Tara Bai PW-16 cannot be relied upon and as such the prosecution has miserably failed to prove the offences against the appellant. The learned Public Prosecutor has submitted that the witnesses produced by the prosecution of the incident are natural witnesses whose presence cannot be doubted. They cannot be called chance / planted witnesses; as some of them were also injured, their evidence cannot be disbelieved.
We have given our thoughtful consideration to the rival submissions. The case relates to the death of Vijay Singh alias Billu. Mahaveer Singh PW-4 and Dharamveer PW-3 are brothers of the deceased. Smt. Sajna Devi PW-9 is the mother of the deceased. Smt. Shakuntala PW-11 and Smt. Tara Bai PW-16 are sisters of the deceased. All of them have given eye witness account in detail. The house of Sajna Devi PW-9 is near the field of Mahaveer Singh PW-4. Shakuntala W/o Gopal Singh PW-11 resides nearby as is clear from site plan Ext.P13. Dharamveer PW-15 and Smt. Tara Bai PW-16 also reside with Mahaveer Singh PW-4. Moreover, Mahaveer Singh PW-4 and Smt. Sajna Devi PW-9 also received injuries during the scuffle and they were medically examined. Thus, their presence on the spot is fully established and there cannot be any doubt about their presence.
In this connection it is proper and desirable to examine the legal position. The Honble Apex Court has laid down the law in this respect in the case of Dalip Singh and others Vs. State of Punjab AIR 1953 Supreme Court 364 as below:-
A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person.
The above decision was subsequently followed and approved by the Honble Apex Court in the cases of Vadivelu Thevar Vs. State of Madras AIR 1957 Supreme Court 614, Guli Chand and others Vs. State of Rajasthan, AIR 1974 Supreme Court 276, Baitullah and another Vs. State of U.P., AIR 1997 Supreme Court 3946 and Hardeep Singh and others Vs. State of Haryana AIR 2008 Supreme Court 3113. Honble Apex Court in the case of Bhajan Singh Vs. State of Haryana AIR 2011 S.C. 2552 after considering Abdul Sayeed Vs. State of Madhya Pradesh, (2010) 10 SCC 259, Kailas & others Vs. State of Maharashtra, (2011) 1 SCC 793, Durbal Vs. State of Uttar Pradesh, (2011) 2 SCC 676 and State of U.P. Vs. Naresh & others (2011) 4 SCC 324, held as under:
The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
Keeping the aforesaid principles of law in mind, the evidence given by the aforesaid witnesses namely Mahaveer Singh PW-4, Sajna Devi PW-9, Smt.Shakuntala PW-11 and Smt. Tara Bai PW-16, we are of the opinion that their evidence cannot be brushed aside merely because they are interested / related witnesses as they will not leave out real culprits and rope in innocent persons.
The learned Senior Counsel for the appellant has vehemently argued that offence under Section 302 I.P.C. is not proved against the appellant even if the entire prosecution evidence is taken on its face value. The offence will not travel beyond Section 304 Part II IPC. He has contended that the injuries received by the deceased were not sufficient in the ordinary course of nature to cause death as is crystal clear from the medical evidence. He has placed reliance on the cases of Sukhpal Vs. State of M.P. (1997) 9 SCC 773, K. Ramakrishnan Unnithan Vs. State of Kerala (1999) 3 SCC 309, Chavda Jivanji Chelaji and other Vs. State of Gujarat (2002) 9 Supreme Court Cases 576, 12 SCC 543, Augustine Saldanha Vs. State of Karnataka (2003) 10 SCC 472, State of M.P. Vs. Kalu Ram and another (2004) and Rajpal and others Vs. State of Haryana (2006) 9 SCC 678.
The learned Public Prosecutor has submitted that the learned Trial Court has discussed both the ocular and medical evidence in detail and come to the conclusion that offence under Section 302 is proved. He has further submitted that no interference is called for in that finding.
We have carefully considered the above rival submissions and gone through the aforesaid citations carefully. It deserves to be noted that in all the aforesaid citations the case of Virsa Singh V. State of Punjab A.I.R. 1966 S.C. 1874 has been relied upon. In the scheme of IPC culpable homicide is the genus and murder, its specie. All murder is culpable homicide but not vice versa. Speaking generally, culpable homicide sans special characteristics of murder is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide, which is defined in Section 300 as murder. The second may be termed as culpable homicide of the second degree. This is punishable under the first part of Section 304. Then, there is culpable homicide of the third degree. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
In Virsa Singh V. State of Punjab (Supra), which has become locus classics and is now ingrained in our legal system and has become part of the rule of law, Honble Mr. Justice Vivian Bose, as his Lordship then was, explained the meaning and scope of clause thirdly. It was observed that the prosecution must prove the following facts before it can bring a case under Section 300 thirdly. First it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
It was laid down in the aforesaid case, The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.
Having regard to the above legal position, it is necessary to examine the prosecution evidence produced in this case. Mahaveer Singh PW-4, Smt. Sajna Devi PW-9, Nathu PW-10, Smt. Shankuntala PW-11 and Tara Bai PW-16 have given eye witness account of the incident. Mahaveer Singh PW-4 has stated that Vijendra was abusing his younger brother Billu. He enquired from him why he was abusing him and requested him to stop. In the meantime Hoshiyar Singh, Dharamveer and Sunil also reached there. Sunil and Hoshiyar Singh hit him while he was sitting on the chabutara of his house. His mother Sajna reached there and all the four persons gave her a beating. Tara Bai, Dharamveer, Surjan Singh, Vimla and Mangej reached there one after the other and tried to intervene but they were also beaten. Thereafter, the accused persons entered his house. He and the others followed them. The accused persons gave them all a beating and brought his younger brother Billu outside the house and took him towards a lane near the shop of Kailash. In the meanwhile Nathu Jat also reached there. One hand of Billu was held by Dharamveer and another by Vijendra. Hoshiyar Singh held his neck. Thereafter Sunil took out a knife from his pocket and thrust it in the right side of Billu's abodmen. Billu raised an alarm and fell down. Sunil caused another injury by knife on Billu's head and, as Billu took his right hand towards his head, another blow was given by Sunil which struck the finger of Billu's right hand. Smt. Shankutala raised an alarm and asked them not to beat Billu. Thereafter, the accused persons left the place. Smt. Sajna Devi PW-9 has also given detailed account of the incident. Similarly, Nathu Jat PW-10, Smt. Shankutala PW-11 and Smt. Tara Bai PW-16 have also given detailed account of the incident. All these witnesses were cross-examined on behalf of the accused persons in great detail but their evidence could not be shattered as no material contradiction could be brought out in their statements. There is nothing in their cross-examination to suggest that they are not giving a correct account of the incident and are deposing against the accused persons due to extraneous consideration.
Dr. Girdhari Lal Meena PW-3 conducted postmortem of Vijay Singh alias Billu and prepared report Ext.P9. A perusal of Ext.P9 shows that following injuries were found on the person of Billu:-
1. Incised wound in 8th intercostal space antero lateraly. Size 3 cm x 1 cm x cavity deep (abdominal).
2. Incised wound 3 cm x x muscle deep.
3. Lacerated wound 4 cm x 1 1/3 cm x upto bone.
4. Bruise 3 cm x 1 cm x 1 below & posterior of left elbow.
5. Multiple abrasions cm to 1 cm x cm to 1 cm below left knee anteriorly.
On internal examination, it is found that there was an incised wound on thora on antero lateral aspect and in 8th intercostal space 3 cm. 1 cm going upto cavity. Cut wound 3 cm was found on liver completely cutting it. Thus, it appears that out of the five injuries, three injuries were caused in the abdomen of Billu by knife. The cause of death given in the report Ext.P5, is that injured died by escaping whole blood in the peritonial cavity due to injury in the right lobe of liver by a sharp instrument (Homorrhagic shock) - cause of death.
The prosecution has also produced other corroborative evidence to prove its case. The appellant was arrested vide arrest memo Ext.P32. Ram Prakash S.H.O. PW-15 has deposed that while in police custody, he gave the information under Section 27 of Indian Evidence Act, Ext.P35, in furtherance of which a knife was recovered at his instance vide recovery memo Ext.P36. Mohar Singh PW-1, Gopal Singh PW-12 have proved Ex.P36 which was prepared by Ram Prakash PW-15. Hardayal PW-2 has stated that the aforesaid knife was deposited in the Malkhana of Police Station Khetri in sealed condition. Banwari Lal PW-8 has stated that he took the knife in sealed condition to FSL for examination. Report Ext.P38 has been received from FSL which certifies that the knife was stained with human blood.
From the aforesaid oral evidence of the witnesses, medical evidence and corroborative evidence, it is clearly proved that the deceased died due to the injuries caused by knife in his abdomen by the appellant Sunil Kumar.
The question that remains for consideration is whether on the basis of the material on record it can be said that the appellant gave blows on the deceased with the intention of causing murder of the deceased so as to be convicted under Section 302 IPC. It deserves to be mentioned that Mahaveer Singh PW-4, Smt. Sajna Devi PW-9, Smt. Shankutala PW-11, Dharamveer PW-13 and Smt. Tara Bai PW-16 have deposed that the appellant Sunil Kumar inflicted knife blows in the abdomen, head and hand of deceased Billu. The postmortem report Ext.P9 and the statement of Dr. Girdhari Lal PW-3 support the aforesaid injuries. Of course, it has not been mentioned in postmortem report Ext.P9 that the injuries were sufficient in the ordinary course of nature to cause death. Dr. Girdhari Lal PW-3 has also not deposed so but from the nature of the injuries it is clear that they were grievous and serious. A perusal of Recovery Memo of knife Ext.36 goes to show that the blade of knife was 16 cm and breadth 2 cm and the handle of knife was 13 cm long. Thus, the knife used by the appellant was not an ordinary knife but a special knife. In the circumstances, it is beyond doubt that the appellant had full knowledge that the injuries being caused by it were likely to cause death. In the circumstances, the offence under Section 302 IPC is not fully proved against the appellant and offence under Section 304 Part II IPC is well proved against him.
The appellant Sunil Kumar was charged for offence under Section 325/34 IPC for causing injury to Mahaveer Singh. A perusal of the statement of Mahaveer Singh PW-4 shows that the appellant clobbered him causing injury. Dr. Girdhari Lal PW-3 has proved the injury report of Mahaveer Singh Ext.P4 and stated that it was grievous in nature as there was fracture of mandible bone as per x-ray plate and his report Ext.P7. The learned Trial Court has convicted the appellant for substantive offence under Section 325 IPC. Similarly the appellant was charged for offence under Section 323 IPC for having caused injuries on the person of Billu and Smt. Sajna. However, the learned Trial Court has convicted the appellant for substantive offence under Section 323 IPC. We have considered this aspect of the matter carefully.
Section 34 IPC does not create a new offence but it is a rule of law and applied only when a criminal act is done by several persons of whom the accused charged thereunder was one. It follows, therefore, when an accused along with co-accused is charged with offence under a section of the Penal Code read with Section 34 Penal Code, he can be convicted for committing the offence himself if he is found guilty even if the others are found not guilty and acquitted. Hence, the convictions recorded by the learned Trial Court are justified and call for no interference.
This brings us now to the State Appeal and Criminal Revision. The learned Public Prosecutor has contended that the respondents, who have been acquitted by the learned Trial Court, participated in the incident and are also liable for being convicted. The learned Senior Counsel has submitted that no infirmity or compelling circumstances have been shown due to which the order of acquittal passed by the learned Trial Court should be disturbed.
We have carefully considered the above submissions and gone through the judgment of the learned Trial Court. A careful reading of the judgment shows that the learned Trial Court has carefully considered the evidence produced in the case and come to the conclusion that offences are not proved against the respondents. We are conscious that it is settled law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. A reference may be given to the judgment of Honble Apex Court in this regard to the case reported in AIR 2007 SC-1236, State of Madhya Pradesh Vs. Bacchudas alias Balaram & ors. The Honble Apex Court has further laid down a principle that order of acquittal should not be interfered with unless there are some compelling and substantial reasons or circumstances for doing so.
For the aforesaid reasons, the appeal filed by Sunil Kumar is partly allowed and he is held guilty for offence under Section 304 Part II IPC instead of Section 302 IPC. However, his conviction for offence under Sections 325, 323 and 452 IPC are maintained. He is in custody for over nine years and therefore he is convicted for offence under Section 304 Part II IPC for the undergone period. The appeal filed by the State and Criminal Revision filed by the complainant being devoid of merits are dismissed.
(S.S. KOTHARI),J. (MOHAMMAD RAFIQ),J. FRBOHRA176DBCRLAPPEAL2005.do