Punjab-Haryana High Court
Rajesh & Ors vs State Of Haryana on 19 October, 2011
Author: Rameshwar Singh Malik
Bench: S.S.Saron, Rameshwar Singh Malik
Criminal Appeal No.D-267-DB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Appeal No.D-267-DB of 2002
Date of Decision:19.10.2011
Rajesh & Ors. .....appellants
Versus
State of Haryana .....respondent
CORAM: HON'BLE MR.JUSTICE S.S.SARON
HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK
Present: Mr.J.S.Dahiya, Advocate
for the appellants
Mr.U.S.Dhaliwal, Additional Advocate General, Punjab
(amicus curiae)
Mr.H.S.Sran, Addl.Advocate General, Haryana
***
RAMESHWAR SINGH MALIK, J.:
The present appeal has been filed by the four appellants namely Rajesh, Ashok and Satish sons of Ram Kumar and Ram Kumar son of Hazari, against the judgement of conviction dated 29.01.2002 and the order of sentence dated 30.01.2002 passed by the learned Additional Sessions Judge, Rohtak, whereby they have been convicted for the offences punishable under Sections 302/324 read with Section 34 of the Indian Penal Code ('IPC'- for short ) and Rajesh has been further convicted for the offence punishable under Section 25 of the Arms Act, 1959.
The prosecution case from the perusal of the FIR (Ex.PK/2) which was registered on the statement made by Hans Raj son of Dariyao Singh-complainant, is that the complainant was resident of village Ghillaur Kalan and was serving in the Army. He had come to the village for two months vacations. He was to return for his duty on 10.03.1999. He had an elder brother named Ajit (deceased). Ajit used to drive his own truck Criminal Appeal No.D-267-DB of 2002 2 bearing registration No.HR-46-5660. On 02.03.1999, Ajit (deceased) came to the village in the morning with his truck. He parked the truck in front of the house of Jai Narain, Ex-Sarpanch of the village. At about 02:00 p.m., the complainant and his brother came towards the truck after taking their meals. The complainant went in the truck and sat down on his seat therein, while his brother Ajit (deceased) went towards the house of Ram Kumar (Appellant No.4) son of Hazari, to see Holi being played. Several women and children were playing Holi there. After a short while, the children informed the complainant that Ram Kumar (Appellant No.4) son of Hazari and his sons Satish (Appellant No.3), Rajesh (Appellant No.1) and Ashok @ Siddhu (Appellant No.2) were assaulting his brother. The complainant got down from the truck and rushed to the place of occurrence. He saw that Ram Kumar (Appellant No.4) and his three sons (Appellants No.1 to 3), had made Ajit fall on the ground and were causing injuries to him with knives. He tried to intervene so as to rescue his brother that Rajesh (Appellant No.1) gave a blow with the knife he was holding in his hand on the left side of the abdomen of the complainant. Devender and Mahender residents of village Ghillaur Kalan were also there at the spot and were trying to rescue the complainant side. They rescued the injured from the assailants with great difficulty. The three sons (Appellants No.1 to
3) of Ram Kumar (Appellant No.4) had knives in their hands. They caused injuries to the complainant and his brother with their knives. The complainant with the help of Devender and Mahender brought his brother Ajit (deceased) to Civil Hospital, Rohtak. Ajit, on his reaching at the hospital, was declared dead by the doctor. Ram Kumar and his three sons while playing Holi got into anger and murdered Ajit by causing injuries with knives and they also inflicted injuries to the Complainant.
The investigation was carried out by PW11 Ashok Kumar, SI/SHO, Police Station Sadar, Rohtak who on receiving the information Criminal Appeal No.D-267-DB of 2002 3 went to Civil Hospital, Rohtak, where he found Lakhi Ram, ASI, busy with the investigation of the case, who had already prepared the inquest report by the time SI/SHO Ashok Kumar (PW-11) reached the hospital. The investigation was taken over by Ashok Kumar (PW-11) from Lakhi Ram, ASI. Investigating Officer directed ASI Lakhi Ram to take the dead body of Ajit to PGIMS for post-mortem examination. He further questioned Devender and Mehender, residents of Ghillaur Kalan regarding the incident. Lakhi Ram ASI had already recorded the statements under Section 161 Cr.P.C. Ashok Kumar (PW11) went to the place of occurrence with Devender and Mehender. He inspected the site of occurrence and prepared a rough site plan (Ex.PQ) of the same. On 03.03.1999, when Ashok Kumar was carrying out the investigation at village Ghillaur Kalan, Lakhi Ram ASI came there and handed over to him the post-mortem report and also a parcel containing knives. Thereafter, the investigation was handed over to Welfare Inspector (Ram Kumar, DSP) Rohtak, under the orders of SP Rohtak. On 14.05.1999, on completion of the investigation. The police report (challan) against the accused was filed in the Court of Mr.Krishan Kumar Bali, the then learned Additional Chief Judicial Magistrate, Rohtak. In view of the offence under Section 302 IPC being alleged, the case was committed to the Court of Sessions vide order dated 27.05.1999.
Finding a prima facie case against all the four accused for the offences punishable under Sections 302 and 324 IPC read with Section 34 IPC and additionally against Rajesh accused for offence punishable under Section 25 of the Arms Act, the charges were framed against the accused vide order dated 09.07.1999. The accused pleaded not guilty to the charges framed against them and claimed trial.
The learned trial Court, after considering the evidence and material brought on record by the parties, came to the conclusion that the Criminal Appeal No.D-267-DB of 2002 4 prosecution had succeeded in proving its case by leading cogent and reliable evidence against all the accused for the offences punishable under Sections 302 and 324 read with Section 34 IPC and also against accused Rajesh for the offence punishable under Section 25 of the Arms Act beyond reasonable doubt, thereby holding the accused guilty for the aforesaid offences. They were accordingly convicted for the charges framed against them, vide judgement of conviction dated 29.01.2002. Consequently, the convicts were awarded the sentences vide order of sentence dated 30.01.2002, thereby sentencing them to undergo imprisonment for life for the offence punishable under Section 302 IPC. They were also sentenced to pay a fine of Rs.500/-each for the said offence and in default thereof, they were ordered to undergo rigorous imprisonment for a period of 15 days each. They were also sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 324 IPC. Accused Rajesh was further sentenced to undergo rigorous imprisonment for six months for the offence punishable under Section 25 of the Arms Act. However, the substantive sentences were ordered to run concurrently and the period already spent by the convicts in custody, during trial of the case, was ordered to be set off against their sentence.
Feeling aggrieved against the judgement of conviction dated 29.01.2002 and the order of sentence dated 30.01.2002 passed by learned Additional Sessions Judge, Rohtak, the appellants have come in appeal before this Court.
We have heard learned counsel for the parties and with their assistance have carefully gone through the records of the case.
Learned counsel for the appellants submitted that mere presence of the appellants and particularly that of appellants No.2 to 4 at the scene of occurrence, even if admitted only for the sake of argument, Criminal Appeal No.D-267-DB of 2002 5 without there being any specific attribution to them qua any injury having been caused on the person of the deceased Ajit, their involvement in the commission of crime in question, is the resultant effect of manipulations of the complainant, who have falsely implicated three sons and their father, together. Learned counsel for the appellants further submits that as per the version of the prosecution itself, occurrence took place on the day of Holi at about 02:00 P.M when people were playing Holi including several women and children, as well. It is submitted that the occurrence was the result of a quarrel which took place at the spur of moment without there being any previous enmity between the appellants and deceased; besides, there was no motive even for appellant No.1 Rajesh to commit the offence punishable under Section 302 IPC whereas the very presence of remaining three appellants namely Ashok and Satish sons of Ram Kumar and Ram Kumar son of Hazari has not been established from the evidence and material on record and they have been falsely implicated in the present case. Learned counsel for the appellants also submitted that Hans Raj, complainant, who is none-else but the real brother of the deceased Ajit, while appearing as PW12 did not attribute any injury to appellants No.2 to 4 nor there is recovery of any knife from either of them. Therefore, their implication in the case is false on the face of it. Learned counsel for the appellants has further submitted that it is the case of the prosecution itself that Devender son of Mehtab Singh and Mehender son of Samme Ram, both residents of village Ghillaur Kalan were also present at the time and place of occurrence but the prosecution did not examine Devender son of Mehtab Singh, despite the fact that he was an eye-witness. Thus, the prosecution has withheld the relevant evidence available with it and adverse inference against the prosecution is liable to be drawn, in this regard.
Learned counsel for the appellants has further submitted that Criminal Appeal No.D-267-DB of 2002 6 appellants No.2 to 4 have, in fact, not at all participated in any manner in the commission of the crime in question. He submitted that there was a strong reason for the prosecution not to produce Devender, another eye- witness. Devender was withheld so as to ensure that he may not disclose the true facts besides exposing the serious contradictions and inconsistencies in the statement of complainant Hans Raj PW 12 and the statement of Mahender PW 13, another alleged eye witness. Learned counsel has highlighted the inconsistent statements of these two prosecution witnesses namely the complainant Hans Raj PW12 and Mahender PW13 to the effect that Hans Raj, PW 12 has not made a mention about the injuries on the person of the deceased Ajit as deposed by the other PW13-Mahender. Learned counsel while submitting in this regard, stated that the allegation of catching hold of against appellants No.2 to 4 was levelled only with a view to falsely implicate them in the commission of the offence, which has been done in the present case, so as to involve maximum male members of the family. He placed reliance on the cases of Virender and others versus State of Haryana, 2001, Chandigarh Criminal Cases 280, and Manubhai Chimanlal Senma (Senwa) and others versus State of Gujarat 2004(2) SCC(Crl.) 1780.
Learned counsel for the appellants has further submitted that the prosecution has miserably failed to explain the injury on the head of appellant No.1, Rajesh, which could not be a self-suffered injury to create a right of private defence. He submitted that there is admission by PW14, Ram Kumar, DSP, in this regard, who deposed in his cross-examination that Rajesh had scratch injury on his head and he did not prepare the injury statement of Rajesh. He further deposed that the doctor had also noticed injury on the head and dressed his wounds. However, he denied the suggestion that the statement of injury, which is there on the police file, regarding Rajesh, was deliberately withheld while submitting the challan. Criminal Appeal No.D-267-DB of 2002 7 He admitted it to be correct that the occurrence took place while playing "Faag"(festival of colours). He further admitted that Ajit had put water on the ladies and the same sparked off the occurrence. Thus, while referring to the above said statement of Ram Kumar, DSP, PW 14, learned counsel for the appellants submitted that the prosecution had miserably failed to explain the injury on the head of Rajesh-appellant No.1. The motive, it is submitted, was conspicuously missing besides the incident got sparked off on account of an undesirable act on the part of the deceased Ajit himself who had been teasing the women folk because of which the incident had occurred at the spur of moment. The conviction, therefore, it is submitted is liable to be converted from Section 302 IPC to that under Section 304 Part- II IPC. In this regard, learned counsel has prayed for drawing an adverse inference against the prosecution relying on the law laid down by the Hon'ble Supreme Court in the case of Laxmi Singh etc.versus State of Bihar AIR 1976 SC 2263, submitting that the present case falls under Section 304 Part-II IPC.
Concluding his arguments, learned counsel for the appellants submitted that since there was no motive alleged and there was no previous enmity between the parties coupled with the material fact that no recovery of any alleged weapon of offence had been effected from appellants No.2 to 4 and also because their presence at the time and place of occurrence has not been established by the prosecution, they have been falsely implicated in the present case because of which they are liable to be acquitted of the charges of commission of offence punishable under Section 302/34 IPC. Regarding the fourth appellant-Ram Kumar, learned counsel submitted that since the prosecution has failed to explain the injury on his head and also because an available eye witness namely Devender has been withheld by the prosecution without there being any allegation of previous enmity and motive, he is also entitled for acquittal Criminal Appeal No.D-267-DB of 2002 8 from the charges under Section 302/34 IPC and also under Section 25 of the Arms Act.
Controverting the above said arguments raised by learned counsel for the appellants, learned Additional Advocate General, Haryana, submitted that there are no discrepancies much less serious discrepancies in the case of the prosecution. Whatever minor discrepancies are there, the same are quite natural and liable to be ruled out of consideration in the given circumstances of the case. He submits that not only the presence but active participation of the convicts-appellants has been duly established on record by the prosecution by leading cogent and convincing evidence. Learned counsel further submits that the prosecution has successfully brought home the guilt against all the four appellants. It is submitted that it was not possible for appellant No.1, alone, to cause as many as six stab wounds on the person of the deceased, without active participation of the remaining three appellants in the commission of offence. It is, in fact, their active participation by catching hold of the deceased they facilitated the fourth co-convict, i.e.appellant No.1-Rajesh to cause repeated knife blows on the vital parts of the body of the deceased Ajit, in furtherance of their common intention. Learned State counsel fairly submits that there was no motive in the present case nor there was any previous enmity between the parties. Besides, there was no recovery of any weapon of offence from appellants No.2 to 4. However, he submits that these aspects will not prove fatal to the case of the prosecution because appellant No.1 caused repeated knife blows in the abdomen of the deceased Ajit with the active participation and help of his other co-convicts i.e.appellants No.2 to 4 and all of them have been rightly convicted and sentenced by the learned trial Court, besides recovery of the weapon of offence i.e.knife has been effected from appellant No.1. In response to the contention of learned counsel for the appellants that at the most an offence against appellant Criminal Appeal No.D-267-DB of 2002 9 No.1-Rajesh, would be within the scope of Section 304 Part -II IPC, learned State counsel submits that as many as six injuries were found on the person of the deceased Ajit, which were caused by giving repeated knife blows and the knife has also been recovered from appellant No.1, the case would not come within the ambit of Section 304 Part-II IPC, but it would fall under Section 302/34 IPC, read with Section 25 of the Arms Act.
Concluding his argument, learned state counsel submits that the learned trial Court very rightly convicted and sentenced all the four appellants and the judgement of conviction and order of sentence is liable to be upheld and the appeal is liable to be dismissed.
After giving our thoughtful consideration to the facts and circumstances of the case, evidence available on record and also the contentions raised on behalf of both the parties, we are of the considered view that the appeal qua appellants No.2 to 4 namely Ashok Kumar @ Sidhu, Satish and Ram Kumar, deserves to be accepted, whereas appeal qua appellant No.1 namely Rajesh, is liable to be dismissed. We say so because as per the case of the prosecution itself, as noted above from the FIR recorded on the statement of complainant Hans Raj, PW 12, neither was there any alleged motive nor any previous enmity between the parties. Besides, the material fact is that there was no specific role attributed to appellants No.2 to 4 in the incident that occurred. Admittedly no recovery of any weapon of offence was effected from them. The incident had occurred on 02.03.1999, which happened to be the festival of Holi. On this day people, in this part of the country, play Holi by sprinkling colour water on each other, because of which this festival is also known as the festival of colours. The case of the prosecution as disclosed from the statement of PW 12 Hans Raj-complainant, who is none else but the brother of the deceased-Ajit, is that Ajit had come to the village along with his truck bearing registration No.HR-46-5660, which he used to drive himself. The Criminal Appeal No.D-267-DB of 2002 10 truck was parked by Ajit-deceased in front of the house of Jai Narain, Ex- Sarpanch of the village. It was about 02:00 P.M.when the complainant and his brother Ajit came near the truck after taking their lunch. While the complainant took his seat in the truck, his brother Ajit-deceased went towards the house of appellant Ram Kumar son of Hazari to see Holi being played. There were several women and children playing with colours. It is also appropriate to note that it is the undisputed case that the day when people play with colours and water, is known as "Faag", which comes on the following day after the festival of Holi which is celebrated in the evening by lighting a fire.
PW 14, Ram Kumar, DSP, who took over the investigation of this case from IO Ashok Kumar SI/SHO, Police Station Sadar Rohtak, under the orders of SP Rohtak, admitted in his cross-examination that he went through the statement of Devender, recorded under Section 161 Cr.P.C. This alleged eye witness Devender was admittedly not produced by the prosecution as one of the prosecution witnesses, for the reasons best known to it. Ram Kumar, DSP PW 14 could not explain as to why this eye witness Devender, whose statement had been recorded under Section 161 Cr.P.C. was not produced before the Court. However, PW14 Ram Kumar, deposed that on the basis of the disclosure statement, Ex.PR, suffered by Rajesh- appellant No.1, knife Ex.P1 was got recovered from his house, the knife was taken in police possession vide recovery memo Ex.PT.
Ashok Kumar, Inspector, PW 11 also conducted investigations in this case as SI/SHO Police Station Sadar Rohtak, before the same was handed over to Ram Kumar,DSP, PW14. He also admits that when he, (i.e., Ashok Kumar, PW-11) reached the Civil Hospital, Rohtak, Lakhi Ram, ASI (PW 10) had recorded the statements of Devender and Mahender under Section 161 Cr.P.C and had also already prepared the inquest report. This witness further deposed in the opening sentence of his cross- Criminal Appeal No.D-267-DB of 2002 11 examination that the occurrence took place on the day of "Faag". He also admitted that the occurrence took place while playing "Faag". Investigating Officer Ashok Kumar PW 11 further deposed that after reaching village Ghillaur Kalan at about 06:30 P.M.on 02.03.1999, he looked for blood stains at the spot, but could not trace any. Thereafter, he made a search for the blood stains in the 'gher' (piece of land meant for tethering the cattles) of Ram Kumar-appellant, because it opened towards the place of occurrence. He further deposed that he questioned various persons in the village but did not record their statements. The street in which the occurrence took place goes towards a thickly populated area. He denied the suggestion that since the people questioned by him, at the spot, did not support the prosecution version and for that reason he did not record their statements.
Coming to the statement of PW 10 Lakhi Ram, SI, who started the investigation of this case as ASI at that time, after reaching General Hospital, Rohtak, on receiving a telephonic information therefrom, recorded the statement (Ex.PK) of Hans Raj, complainant and made his endorsement thereon as Ex.PK/1. Thereafter, he conducted the inquest proceedings about the death of Ajit and inquest report Ex.PE was prepared by him. He denied the suggestion of FIR being ante timed.
Insofar as the medical evidence is concerned, Dr.Raman Shukla, M.O.Civil Hospital, Rohtak, appeared as PW3 and deposed that he conducted the post mortem on the dead body of Ajit son of Daryao Singh, aged 45 years, resident of Ghillaur Kalan, District Rohtak. The body was brought by Lakhi Ram, ASI, Sadar, Police Station, Rohtak from Government Hospital, Rohtak and the same was identified by Hans Raj son of Daryao Singh, resident of village Ghillaur Kalan and Devender Singh son of Mehtab Singh resident of village Ghillaur Kalan.
While conducting the post mortem examination on the body of Criminal Appeal No.D-267-DB of 2002 12 Ajit-deceased, PW3, Dr.Raman Shukla found six stab wounds on the body of the deceased with the following descriptions:
1. A stab wound of size 2.5 cm x 1 cm present over anterior aspect of chest wall on right side, situated 10 cm away from mid line, 9 cm below mid clavicle point and 5.5. cm above right nipple. It was in oblique direction with tailing effect at the lateral end. The margins of the wound were reddish and clean cut. On dissection, it had pierced to second intercostal space by cutting through intercostal space and correspondingly piercing the lung parenchyma at upper lobe of right lung. Right chest cavity was full of blood. The direction of the wound was right to left and slightly below upwards.
2. Stab wound of size 3 cm x 1 cm present over antero lateral aspect of chest on right side. It was situated 19 cm below apex of right axillary in anterior axillary line and 11 cm above costral margin. The margins of the wound were reddish and clean cut. It was vertically placed and direction was antero posterior. On dissection,it had cut 7th rib on right side in verticle direction and correspondingly lower lobe of right lung. Right half of chest cavity was full of blood.
3. Stab wound of size 2.5 x 1 cm on anterior aspect of chest on right side in transverse line, 1 cm from the mid line and
5.5 cm above xiphoid sternum. The direction of the wound was antero posterior and on its way it has cut through right lateral margin of sternum at the level of 5th rib on right side.
4. Stab wound of size 3.5 cm x 1 cm situated over anterior abdominal wall of left side in oblique direction with tailing effect towards mid line. The margins of the wound were Criminal Appeal No.D-267-DB of 2002 13 reddish and clean cut. It was situated 11 cm below xiphoid, 20 cm above pubic symphsis and 3.5 cm supero lateral to umblicus. The direction of the wound was right to left and antero posterior piercing to greater ommentum and injuring the gut, with gut contents lying in abdominal cavity along with blood.
5. Stab wound of size 2 cm x 1 cm over anterior aspect of abdomen on left side in oblique direction, 2.5 cm away from umbilcus, 17 cm below the third and 16 cm above pubic symphsis going antero posterior piercing greater and injuring gut with its contents in the abdominal cavity mixed with blood.
6. There was sharp cut over left ear of size 1 cm x 0.3 cm at its upper part and the hellix was cut through and through. Lungs, liver, spleen and kidney were pale in colour and both chamber of heart were empty.
The cause of death of Ajit, in the opinion of the doctor, was due to shock and haemorrhage caused by the injuries noted above particularly injuries No.1 to 3, which were ante mortem in nature and were sufficient to cause death in the ordinary course of nature.
Another witness is PW 13 Mahender son of Samme Ram, who is stated to be an eye witness along with one Devender. However, the said Devender was not produced as a prosecution witness-Mahender. PW-13 deposed that he saw some women and children playing "Faag", while he was going towards the 'gher' of Ram Kumar. A little ahead of that place, Satish, Rajesh, Ashok and Ram Kumar were giving knife blows to Ajit, after he fell on the ground. He (PW-13) further deposed that he along with Devender tried to rescue Ajit-deceased and in the meantime, Hans Raj complainant, brother of Ajit-deceased also came there to rescue his Criminal Appeal No.D-267-DB of 2002 14 brother. Rajesh gave a knife blow on the abdomen of Hans Raj also, and thereafter Rajesh, Satish, Ashok and Ram Kumar ran away from the spot with their weapons. Then, he (PW-13) along with Devender and Hans Raj brought Ajit to Civil Hospital, Rohtak. Ajit breathed his last on the way to the hospital. This witness (PW-13), in his cross-examination, further deposed that it being the day of "Faag" people were playing with colours in all the streets. He further deposed that he did not count the blows given to the deceased-Ajit by Rajesh. He also deposed that it was informed by him to the police that Rajesh gave several blows with knife on the chest and abdomen of the Ajit-deceased. He deposed that the police officials entered the house of Ram Kumar, which was lying open but there was no blood inside the house. This witness (PW-13) further deposed that when he along with Devender reached the spot, about hundred persons had already collected there.
This witness (PW-13) does not allege any specific attribution or any particular injury against appellants No.2 to 4, rather the thrust of his statement particularly the cross-examination thereof is also restricted only against Rajesh-appellant No.1.
A combined reading of the above said oral as well as documentary evidence brought on record by the prosecution would lead only to this unassailable conclusion that the prosecution has miserably failed to bring home the guilt against appellants No.2 to 4 namely Ashok Kumar @ Sidhu (appellant No.2), Satish (appellant No.3) and Ram Kumar (appellant No.4) because of which, they are liable to be acquitted of the charge for the offence punishable under Section 302/34 IPC for more than one reasons. Firstly, the motive is conspicuously absent in the present case. Secondly, there is not even an allegation from the side of the prosecution that there was any previous enmity between the parties. Thirdly, the day of occurrence being admittedly the day of festival i.e., Criminal Appeal No.D-267-DB of 2002 15 'Faag', the incident occurred at the spur of moment when people were playing 'Faag'. Further, the prosecution has also failed to establish the presence of appellants No.2 to 4 and also their participation in the occurrence. Besides, another material fact is that admittedly no recovery of any alleged weapon of offence has been effected from any of these appellants No. 2 to 4, because of which the chain of events necessary for reaching a finding of guilt in respect of the commission of crime remains clearly incomplete so far as appellants No.2 to 4 are concerned.
Although the learned trial Court, in para No.27 of the impugned judgement has recorded that it is true that the evidence of the prosecution is not consistent about the role of the accused other than Rajesh, yet the learned trial Court failed to appreciate the above noted material aspects of the matter in their correct perspective, while recording the judgement of conviction against these three appellants No.2 to 4. We are in respectful agreement with the law laid down by the Hon'ble Supreme Court and this Court in the cases referred to above and relied upon by the learned counsel for the appellants.
The following observations made by the Hon'ble Supreme Court in the case of Manubhai Chimanlal Senma (Senwa) and others versus State of Gujarat (Supra) are apposite:-
7. PW2-widow and PW9-daughter of deceased specifically stated before the Court that appellant No. 1 came near their house, called the deceased out and when the deceased went, A2 and A3 caught hold of him and at that time A1 gave a knife blow. A1 tried to give second knife blow, which was warded off by the deceased and, therefore, it landed on the left hand wrist of the deceased. With regard to the alleged overt act on the part of A2 and Criminal Appeal No.D-267-DB of 2002 16 A3, we have to test the prosecution version on the basis of the complaint Ex.59 filed by A1 immediately before his arrest. A1 has specifically narrated in the FIR that there was a scuffle between him and the deceased. During that scuffle, he got injuries. Injury to A1 is proved by PW-1. If during that scuffle A2 and A3 had intervened and tried to hold the deceased or separate A1 and the deceased, it cannot be said that A2 and A3 were sharing any common intention of causing any injury to the deceased. Admittedly, accused and the witnesses are relatives. It is the prosecution version that A1 to A3 were using the open space in front of the house of the deceased for drinking or gambling purposes.
Because of this, 15 days prior to the date of the incident, there was a quarrel between A1 and the deceased. In that set of circumstances, the presence of A2 and A3 at the scene of offence cannot be said for causing any injury to the deceased. It is also to be stated that there is some force in the contention of the learned counsel for the appellants that if in reality the deceased was caught by A2 and A3, then it would have been difficult for the deceased to ward off the second blow. But this would be a matter of conjecture as it depends upon the circumstances and force used by the deceased at the relevant time.
8. Further, A2 and A3 were unarmed. If they had gone along with A1 to pick up quarrel with the Criminal Appeal No.D-267-DB of 2002 17 deceased, it is quite probable that they would not go there unarmed. It is the say of PW-2 and PW-9 that only A1 came to their house and shouted that Kanti should come out. However, the prosecution has not examined other independent witnesses whose statements were recorded by the I.O. PW-2 and PW-9 have not stated any thing about the scuffle between A1 and the deceased. But in view of the Exs. 59, 43 and the medical evidence, said version proved by the prosecution cannot be rejected. In the circumstances, it would be difficult to draw an inference that A2 and A3 shared any common intention with A1, particularly, when medical evidence discloses only one knife blow to the deceased.
In the present case, there is no scope to hold that appellants No.2 to 4 were also sharing the common intention of causing any injury to the deceased. Had they been sharing any common intention with appellant No.1 for committing the offence under Section 302 IPC, they would not have gone unarmed at the place of occurrence. It is the admitted case on record, as noted above, that no recovery of any alleged weapon of offence had been effected from appellants No.2 to 4.
A Division Bench of this Court in para No.6 of the judgment passed in Virender & Ors.versus State of Haryana (supra) observed as under:
The role assigned to Virender has been that he caught hold of Lokesh-deceased and had facilitated Binesh alias Binni to cause the Khukhri blows on his person and, therefore, he was liable Criminal Appeal No.D-267-DB of 2002 18 for the offence alleged against him. However, the cross-examination of PW14- Rakesh refers that father of the deceased had gone out of station in the State of Uttar Pradesh to attend the marriage. The marriage party had left around 3.00 PM on
09.07.1991. The witness admitted that Virender-
accused had also gone in that marriage party. The witness admitted that his own father had not been able to return by 5.00 AM. on the date of occurrence i.e. on 10.7.1991. In such a circumstance when Virender is stated to be unarmed and did not inflict any injury to anyone, the mere fact that he allegedly caught hold of the deceased prima facie does not inspire any confidence. In view of such an admitted position, it would be quite unsafe to rely upon that part of the statement of PW 14 Rakesh who happens to be the real brother of the deceased. Virender's return from the marriage at the time the occurrence took place is doubtful. As far as the role of Karam Singh is concerned, he allegedly inflicted only one lathi blow on the arm of Ravinder and the injuries are contusions, abrasions and swelling. None of the injuries on his person is of serious in nature. There appears to be no seriousness in the role attributed to Karam Singh also. He is an old person and the controversy was only to desist Binesh alias Binni from pumping out the water and the occurrence did not escalates so as to involve so many persons in Criminal Appeal No.D-267-DB of 2002 19 the episode.
In the present case, since neither any specific attribution is there against appellants No.2 to 4 nor recovery of any weapon of offence had been effected from them, their presence at the place of occurrence is doubtful.
In fact, the evidence led by the prosecution, insofar as it relates to appellants No.2 to 4, does not inspire confidence for the reasons recorded above. The evidence led by the prosecution against appellants No.2 to 4 was not at all sufficient to prove or establish its case beyond reasonable shadow of doubt so as to warrant their conviction. No reason is forthcoming on behalf of the prosecution as to why the available alleged eye witness Devender was not produced before the Court so as to reconcile the inconsistencies between the statements of other witnesses namely PW 11 Ashok Kumar, Inspector, PW 12 Hans Raj, complainant, PW 13 Mahender and PW 14 Ram Kumar, whose statements have been discussed hereinabove.
In view of the reasons recorded above, we have no hesitation in coming to the conclusion that the prosecution has failed to prove its case beyond reasonable shadow of doubt against appellants No.2 to 4 and they are entitled for acquittal of the charges under Section 302/34 IPC. Resultantly, the present appeal qua appellants No. 2 to 4 is allowed and their conviction as well as sentence is set aside.
Insofar as appellant No.1-Rajesh, is concerned, we are of the considered opinion that the present appeal qua appellant No.1 is liable to be dismissed. The argument of learned counsel for the appellants that the present case falls under Section 304 Part -II IPC is not tenable for the reason that there were as many as six injuries found on the person of the deceased Ajit by PW 3 Dr.Raman Shukla, who conducted the post mortem examination on the body of Ajit-deceased. This would mean that the Criminal Appeal No.D-267-DB of 2002 20 appellant No.1-Rajesh repeated the blows. The detailed description of six injuries has been reproduced above, which go to show that there an intention on the part of appellant No.1 to commit the murder of Ajit. Had it been a case of, single injury, the case may have fallen within the ambit of Section 304 Part-II IPC, but the medical evidence reproduced above, qua all the six injuries found on the person of the deceased coupled with the recovery of knife i.e. the weapon of offence on the disclosure statement of appellant No.1 -Rajesh, the case can not be said to be one that would fall under Section 304 Part II IPC.
Further, this appellant No.1-Rajesh admitted his presence at the time and place of occurrence, while taking the plea of self defence in his statement under Section 313 Cr.P.C to the effect that he caused the knife injuries to Ajit-deceased while exercising his right of private defence. Although the prosecution has not explained the injuries suffered by this convict/appellant-Rajesh on his head, yet the very fact that he caused repeated knife blows on the vital parts of the body of the deceased causing as many as six injuries, reproduced above, clearly goes to show that he was not causing the injuries and that too on the vital parts of the body of the deceased, in the exercise of his right of private defence.
In the given circumstances of the present case, we are of the view that the learned trial Court has rightly recorded the conviction of Rajesh-appellant No.1, rejecting his plea of self defence and we also find ourselves in agreement with the learned trial Court in this regard. We say so because had the right of private defence been really available with appellant No.1 , as he has tried to project it, he was under a legal obligation to examine someone because the case put up by the appellant No.1 is that deceased-Ajit was misbehaving with the women and the incident had occurred because of that reason. Since, despite taking plea of right of private defence in the background of alleged misbehaviour on the part of Criminal Appeal No.D-267-DB of 2002 21 deceased-Ajit with women playing 'Faag' at the place of occurrence, appellant-Rajesh did not examine even a single person in that regard. Therefore,his plea of private defence is nothing but an afterthought and the same is liable to be rejected being untenable.
The argument of learned counsel for the appellants that the prosecution has failed to explain the injury on the head of appellant No.1- Rajesh, is also untenable for the reason that it was only a scratch on his head as deposed by PW-14 Ram Kumar DSP in his cross-examination. This also indicates that Rajesh-appellant No.1 was not causing as many as six injuries on the vital parts of the person of the deceased-Ajit in exercise of his right of private defence. Further, the involvement of this convict- appellant No.1-Rajesh is an admitted fact. Once, we have rejected his plea of self defence and the prosecution has proved its case qua this convict while alleging specific attribution for causing as many as six injuries on the vital parts of the body of deceased followed by the recovery of weapon of offence pursuant to the disclosure statement suffered by this appellant- Rajesh, we are of this considered view that his conviction has been rightly recorded. Insofar as the judgements relied upon by the learned counsel for the appellants in this regard are concerned, the same are not of any help to appellant No.1-Rajesh, being clearly distinguishable on facts.
No other argument was raised by learned counsel for the appellants.
In view of the facts and circumstances of the case, coupled with the reasons, aforementioned, we are of this considered opinion that the present appeal qua appellant No.1 is without any merit and the same is liable to be dismissed. Thus, the appeal qua appellant No.1-Rajesh is dismissed. The impugned judgement of conviction dated 29.01.2002 and order of sentence dated 30.01.2002 passed by Additional Sessions Judge, Rohtak, qua appellant No.1-Rajesh are upheld. Rajesh-appellant No.1, be Criminal Appeal No.D-267-DB of 2002 22 taken in custody to serve the remaining period of his sentence, whereas the appeal qua appellants No.2 to 4 i.e.Ashok Kumar @ Sidhu (appellant No.2), Satish (appellant No.3) and Ram Kumar (appellant No.4) is accepted. Since these three appellants No.2 to 4 are on bail, their bail bonds shall stand discharged.
Accordingly, the appeal is partly allowed.
(S.S.SARON) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
19.10.2011
neenu