Punjab-Haryana High Court
Parvinder Singh @ Rubi vs State Of Punjab on 2 June, 2013
Author: G.S. Sandhawalia
Bench: Jasbir Singh, G.S. Sandhawalia
Crl. Appeal No. 188-DB of 2002 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Crl. Appeal No. 188-DB of 2002
Date of Decision:- July 02, 2013
Parvinder Singh @ Rubi ..............APPELLANT(S)
vs.
State of Punjab ...........RESPONDENT(S)
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present:- Mr. Vinod Ghai, Sr. Advocate,
with Mr. Mandeep Kaushik, Advocate,
for the appellant.
Ms. Ritu Punj, Addl. A.G., Punjab.
G.S. SANDHAWALIA, J.
1. The present appeal is directed against the judgment/order dated 08.02.2002/09.02.2002 passed by Sh. B.C. Rajput, Sessions Judge, Bathinda whereby, the appellant has been held guilty of the offence under Section 302 IPC for murdering Vijay Kumar and sentenced to undergo imprisonment for life and to pay a fine of `500/- and in default to further undergo rigorous imprisonment for a period of 3 months.
2. The complainant in the present case is none other than the unfortunate father who was an eye witness alongwith his younger son to the brutal and fatal assault of his young son Vijay Kumar, aged around 19 years, which took place on the deceased at 9.15 p.m. on 15.06.2000. The statement of Manphul Singh-complainant (Ex. PK) was recorded on 2.15 a.m. on 16.06.2000 by Rajinder Kumar, S.I. Incharge of the police post Canal Colony, Bathinda which was converted into the FIR (Ex. PK/2) at 2.30 a.m. at Police Station Partap Nagar, Bathinda and was received by the Magistrate at 8.15 a.m. The said FIR reads as Crl. Appeal No. 188-DB of 2002 2 under:-
"Statement of Manphul Singh S/o Sukhdev Singh Balmik r/o Partap Nagar, Street No. 14, Bathinda, aged about 42 years. I am serving in the Thermal Plant, Lehra Mohabat. I have two sons and one daughter. The name of my elder son is Vijay Kumar and name of younger son is Ajay Kumar. On the evening of yesterday my son Vijay Kumar did not come to the house till later hours. So I taking my younger son Ajay Kumar alongwith went to find (search of) Vijay Kumar. It would be about 9-15 P.M. the street light was on in the corner of the street. Parminder Singh @ Rubi s/o Gurnam Singh who is the resident of our street had way- laid to my son Vijay Kumar. I and my son Ajay Kumar went near and enquired as to what was the matter upon which Parminder Kumar @ Rubi replied that ultimately with a great difficulty he got an opportunity. On my seeing and seeing of my son Ajay Kumar, Parvinder Singh @ Rubi took out a small kirch (spring actuated knife) from his DUB and gave a blow to my son Vijay Kumar which hit on the left side of his chest near below the nipple. Parvinder Singh @ Rubi gave more kirch blows to my son Vijay Kumar which hit on the outer portion of his right elbow and on the outer side of left elbow and inside the muscle of his left arm. I and my son raised an alarm of 'Marditta Marditta' upon which Parvinder Singh @ Rubi fled away from the spot alongwith kirch. My son was smeared with blood. After making the arrangement of conveyance I got him admitted to Civil Hospital, Bathinda. Since the condition of my son Vijay Kumar was serious, doctor referred him to Ludhiana but my son Vijay Kumar died on the way to Ludhiana. I brought the dead body of my son Vijay Kumar at C.H. Bathinda. Crl. Appeal No. 188-DB of 2002 3
The motive behind the grudge is that about some days ago there was exchange of hot words between by son Vijay Kumar and Parwinder Singh @ Rubi but the matter was got putched (settled) by the residents of the Mohalla. Parvinder Singh @ Rubi kept the grudge in the mind and on that account he killed my son Vijay Kumar by causing kirch blows. Statement heard and is correct.
Sd/- Manphul Singh, Attested Sd/- Rajinder Kumar I/o P.P. Canal Colony, Bathinda 16-6-2000"
3. On the basis of the said FIR, the appellant was arrested on 17.06.2000 by PW-10 S.I. Rajinder Kumar on the identification of Hari Chand PW-8 and the weapon of offence i.e. one Kirch (spring actuated knife) was recovered from him vide memo (Ex. PN) which was stained with blood. The post mortem report (Ex. PA) of the deceased conducted by Dr. Sushil Gupta PW-1 showed that four injuries had been suffered by him. The said injuries are described as under:-
"1. Incised wound 2-1/2 x 1/2 cm muscle deep transverse oblique in direction situated on the lower and latral aspect of the right upper arm. Clotted blood was present Margins were everted and it was just near the elbow joint.
2. Incised wound 1-1/2 x ½ cm muscle deep oblique vertical in direction situated on the middle of the left upper arm. Clotted blood was present and corresponding mark was present on the wearing T-shirt and outer aspect of the arm.
3. Incised wound of 6 cm x ½ cm muscle deep and skin deep which was coming downwards and obliquely situated on the back of the left elbow. Clotted blood was Crl. Appeal No. 188-DB of 2002 4 present on the way of the wound.
4. Stab incised wound of 2-1/2 x 1 cm situated 6 cm below the left nipple and 7 cms lateral to the mid-line of the chest. It was situated on the left side and front of the chest. Corresponding mark was present on the wearing T- shirt and Banyan. On dissection the direction of the wound was backward and slightly upward. Underlying rib is fractured. Sub-cutaneous tissue had clotted blood. Wound is reaching into the heart piercing in the way pericardial cavity and heart itself. Pericardial cavity was full of fluid and clotted blood. Colour is dark. Margins of wounds were everted."
4. The prosecution examined the father of the deceased Manphul Singh as PW-6 and the brother of the deceased Ajay Kumar as PW-7, who deposed as per the version in the FIR and Mohinder Kumar, Inspector, SHO, P.S. Kotwali was examined as PW-9 to prove the rough site plan Ex. PO. Similarly, Rajinder Kumar, who had taken down the complaint of Manphul Singh-complainant was examined as PW-10 and deposed regarding the arrest of the appellant and recovery of Kirch which was taken into possession.
5. The defence taken by the appellant was that there was a dispute with the deceased in the cricket ground over bowling and he had abused the appellant and caught him from his neck and tried to strangulate him and in the right of private defence, the injury had been inflicted on his chest and even some minor injuries had been received by Vijay Kumar while trying to snatch the knife. It was further stated that the occurrence was witnessed by Harpal Singh s/o Ram Singh and Raju (scooter mechanic) who were examined as DW-1 and DW-2 respectively. After taking into consideration the evidence on the record, the appellant was held guilty of the offence, as noted above and sentenced to Crl. Appeal No. 188-DB of 2002 5 imprisonment for life and to pay a fine of `500/- and in default to further undergo rigorous imprisonment for a period of 3 months. The Trial Court came to the conclusion that the prosecution had been able to establish that the death of Vijay Kumar was due to receiving of injuries on his person at the hands of the appellant and the statements of the eye witnesses could not be rejected on the ground that they had made some improvements. The fact that they had not intervened to save Vijay Kumar was also taken into consideration and it was held that it would depend upon person to person that how one reacts at a particular moment and merely because they were interested witnesses, their evidence could not be discarded. The alleged delay was also discussed and the Trial Court came to the conclusion that it stood fully explained in the facts and circumstances of the case and was not fatal in the present case. The admission by the appellant of the incident in his statement under Section 313 Cr.P.C. was taken note of and held that there was a motive also with the appellant to commit the murder of the deceased, who was empty handed and poorly nourished and moderately built whereas the accused was a young tall man. The fact that the accused had no injuries on his person was also held against him and the evidence of the defence witnesses was rejected since DW-1 had also been removed from his job for committing a theft whereas DW-2, the scooter mechanic was held to be a procured witness. The submission of the counsel for the appellant that the case fell under Section 304 IPC was also rejected on the ground that the accused was waiting for the deceased and armed with the knife having a blade of 8 inches long. A total of four injuries had been inflicted.
6. Counsel for the appellant has vehemently submitted that the presence of the witnesses was introduced later by the prosecution since there is a delay of five hours from the incident to the lodging of the complaint which was successfully used. Secondly, it has been contended that the witnesses had not suffered any injury in spite of the fact that they were closely related to the Crl. Appeal No. 188-DB of 2002 6 deceased and they had not intervened and, therefore, their presence was not proved and their statements should not be taken into account. Lastly, it is submitted that one injury i.e. injury no. 4 was the fatal injury and the other injuries were only superficial and were on the non-vital parts of the body and, therefore, there was no intention of the appellant to murder the deceased and a lesser punishment under Section 304 IPC should be imposed.
7. Counsel for the State, on the other hand, defended the conviction and submitted that it was a case where the appellant had laid in wait of the deceased and on getting an opportunity, had pounced upon him and inflicted a fatal blow on the left side of his chest and the fact that the incident was not denied and, therefore, no leniency could be shown to the appellant.
8. After hearing counsel for the parties and scanning the evidences of the witnesses and the record of the case, we are of the opinion that the Trial Court has rightly convicted the appellant. Perusal of the FIR goes on to show that the complainant alongwith his younger son Ajay Kumar had gone looking for the deceased at 9.15 p.m. as he had not come back home. On their way, they had seen the appellant, who was also a resident of the same street, way laying the deceased and on enquiry as to what was happening, the appellant had taken out the knife and given a blow to the deceased on the left side of his chest below the nipple. Thereafter also, the appellant had given blows on the outer portion of his right elbow and on the outer side of his left elbow and inside the muscle of his left arm. He had accordingly raised alarm on which the appellant had run away alongwith his weapon and after making arrangement of conveyance, they had taken the injured to the Civil Hospital, Bathinda since the condition of the injured was serious. The intimation regarding the admission of Vijay Kumar was sent to the SHO, Police Station Civil Lines, Bathinda by one Dr. Satpal Garg at 10.15 p.m on 15.06.2000 which would be clear from Ex. PD and in the said intimation, it was also mentioned that the patient was serious and is going to be shifted to DMC, Crl. Appeal No. 188-DB of 2002 7 Ludhiana. Unfortunately, the injured did not survive the journey and died on the way near Rampura and was brought back to the Civil Hospital, Bathinda and intimation of the same was again sent by Dr. Satpal Garg at 12.25 a.m. on 16.06.2000 (Ex. PE) that Vijay Kumar, who had been referred to DMC, Ludhiana, had died on the way. These letters have been proved by Dr. Sushil Gupta-PW-1, who identified the signatures of Dr. Satpal Garg since he had been seeing him writing and signing in his official capacity. In pursuance to the said intimation, the statement of the complainant was recorded by S.I. Rajinder Kumar (Ex. PK) at 2.15 a.m. which was endorsed (Ex. PK/1) and sent to the Police Station Kotwali, Bathinda for the registration of the case and the formal FIR (Ex. PK-2) was registered at 2.30 a.m. The sequence of events would thus show that the father of the deceased and his younger son were more concerned at that point of time to save the life of the person injured rather than report the matter to the police and within one hour, the intimation was sent by the doctor to the police that the patient was being shifted to DMC Ludhiana. Thus, the fact that in one hour the witnesses had taken the deceased from Partap Nagar, Bathinda to the Civil Hospital, Bathinda and thereafter also taken a decision to shift him to DMC Ludhiana would go on to show that the witnesses were present and had taken the injured to the hospital and there was no delay in the lodging of the FIR, which would give time for them to be introduced as witnesses as contended by the counsel for the appellant. It has also come on record that the house of the parents of the accused was located in the same street in which the house of the deceased was located and they had been residing there for the last 10-12 years and, therefore, the accused was living in close vicinity of the deceased and since the deceased had not returned home, it was but natural for the father to look for his son at 9.15 p.m. and be an unfortunate witness to the fatal assault of his son.
9. Even otherwise, there was no reason for the said witnesses to falsely to depose against the appellant and being close relatives, they would be Crl. Appeal No. 188-DB of 2002 8 rather interested in ensuring that the person responsible for the crime is taken to task. The fact that the appellant himself has taken the plea of right of private defence in his statement under Section 313 Cr.P.C., thus goes on to show that the involvement of the appellant itself is not denied though it is submitted that it was due to the conduct of the deceased that he was forced to inflict the injury upon him. The defence witnesses DW-1 and DW-2 also rather in their statements deposed that the father and mother of the deceased and other residents of the mohalla had reached on the inflicting of the injuries which is partly in consonance with the case set up by the prosecution. The relevant portion of the statement of the accused-appellant under Section 313 Cr.P.C. reads as under:-
"Ans. I am innocent. I had a quarrel with deceased Vijay Kumar in the cricket ground over the bowling. The boys standing there told deceased Vijay Kumar that he was at fault and he should go away. On that account Vijay Kumar was feeling vindictive and was finding an opportunity to take revenge from him. On 15.6.2000 Vijay Kumar was standing on the corner of the road and waiting for me. When I reached there Vijay Kumar started abusing me and thereafter he caught me from my neck and tried to strangulate. In the fight of private defence, I took out a spring actuated knife from my pocket and in self-defence gave a blow on the chest of Vijay Kumar. Some minor injuries were received during the scuffle when Vijay Kumar was trying to snatch the knife. The said occurrence was witnessed by Raju scooter Mechanic and Harpal Singh son of Ram Singh."
10. The eye witnesses also have explained that the accused and the deceased were facing each other when they had come in the street and it is also similarly depicted in the rough site plan (Ex. PO) prepared by Mohinder Singh Inspector. On the coming of the witnesses on the spot, the appellant had inflicted Crl. Appeal No. 188-DB of 2002 9 the injuries and even blood stains were lifted from the earth on point mark 'E'. The said parcel containing soil stained with blood was sent to the Forensic Science Laboratory, Chandigarh and as per its report (Ex. PQ), parcel 'B' was stained with human blood. Similarly, the Kirch which was in parcel 'D' was also stained with blood which had been recovered from the accused on 17.06.2000 on his arrest.
11. The cumulative factors above go on to show that the appellant was responsible for the attack on the deceased and PW-6 and PW-7 were two witnesses to the said incident. The fact that they were not injured and did not make any attempt to catch the appellant has been rightly explained by the Trial Court since every individual would react in a different manner and since there was only a quarrel regarding a game on the cricket field, it was not that the complainant would have in his mind that the accused would be having such a grievance that he would want to inflict a fatal injury upon his son for which he would want to intervene. Since it was a sudden act, the shock which the complainant would have faced, would have stunned him from taking any action and at that point of time, his only effort would be to save his son rather than catch the accused. The complainant in his statement has specifically mentioned that he had become nervous at the time when the incident occurred and was making efforts to make arrangement for the lifting of his son and they were in a hurry to save his life and did not go to the police post. The Hon'ble Apex Court in Salim Saheb vs. State of Madhya Pardesh, (2007) 1 SCC 699 has held that merely because the witness is interested and related, it would not affect the credibility of the witness. Rather, the said person would not conceal the actual culprit and evidence has to be analyzed to find out that it is cogent and credible. The relevant portion read as under:-
"11. We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit Crl. Appeal No. 188-DB of 2002 10 and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under :-
"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. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
12. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan (1974(3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614) was also relied upon.
13. We may also observe that the ground that the witness Crl. Appeal No. 188-DB of 2002 11 being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed :
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
14. Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC
202) this Court observed : (p. 209-210 para 14) :
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.......The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to Crl. Appeal No. 188-DB of 2002 12 how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
15. To the same effect is the decision in State of Punjab v. Jagir Singh (AIR 1973 SC 2407), Lehna v. State of Haryana (2002(3) SCC 76) and Gangadhar Behera and Ors. v. State of Orissa (2002(8) SCC 381). In the present case apart from the evidence of PW-1, the evidence of PW-5, who has no axe to grind, is there. So, the plea regarding interested witnesses is without substance."
12. The last submission of the counsel for the appellant that there was only one fatal blow and the rest were superficial injuries, is necessarily to be rejected in view of the injury no. 4 which has been reproduced above. The perusal of the same goes on to show that it was on the left side and on the front of the chest and corresponding mark was present on the T-shirt and banyan which the deceased was wearing. The direction of the wound was upwards and the rib had been fractured and the wound was reaching into the heart and had pierced the pericardial cavity and heart itself. Perusal of the sketch of the knife (Ex. PN/1) would go on to show that it had a blade 8 inches long which the accused had used with full force to inflict the fatal blow on the heart of the deceased. As per the inquest report, the description of the deceased was a thin person who was only 5' and 6-1/2". Thus, from the size of the weapon and from the same, it cannot be said that the appellant had no intention to murder the deceased. The other injuries on the elbows near the right upper arm and the left upper arm and also on the left elbow would show that the deceased had tried to save himself from the knife being wielded on him and thus suffered the other injuries. That the father of the deceased Manphul Singh PW-6 had also mentioned that the other injuries were Crl. Appeal No. 188-DB of 2002 13 received by his son while he was trying to defend himself and he had raised alarm at the time of occurrence and the accused had given injuries to him from the front side. Accordingly, the submission of the counsel for the appellant that only single fatal blow had been inflicted on the deceased and lesser punishment should be imposed cannot be accepted. Admittedly, the deceased was unarmed and there is nothing on record to show that it was he who had assaulted the accused and keeping in view his physical description from the inquest, it is not acceptable that it was he who had initially assaulted the appellant first. The Trial Court has also commented upon the physical built of the accused that he is a young tall man and thus, had no such occasion to feel threatened by a slightly built person and have a right to inflict such a blow on the person of the deceased. The Hon'ble Supreme Court in Bhagwan Bahadure vs. State of Maharashtra 2007 (11) SCALE 519 has held that merely because single blow was inflicted, would not mean that the petitioner would bring the offence under Section 304 IPC and the intention has to be seen and the injury which has been inflicted. The relevant paragraphs read as under:-
"23. Thus, according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.
24. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or Crl. Appeal No. 188-DB of 2002 14 persons in general as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
25. The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.
26. The position was illuminatingly highlighted by this Court in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr., (1976(4) SCC 382), Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh, 2002(4) RCR (Criminal) 265 : (JT 2002(6) SC 274), and Augustine Saldanha v. State of Karnataka, 2003(4) RCR(Criminal) 570 : 2004(1) Apex Criminal 565 : (2003(10) SCC 472) and Thangaiya v. State of Tamil Nadu, 2005(1) RCR(Criminal) 390 : 2005(1) Apex Criminal 220 : (2005(9) SCC 650).
27. Keeping the aforesaid legal principles in view, the factual position is to be examined. It cannot be said as a rule of universal application that whenever one blow is given Section 302 Indian Penal Code is ruled out. It would depend upon the facts of each case. The weapon used, size of the Crl. Appeal No. 188-DB of 2002 15 weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered."
13. The Trial Court has discussed the conduct of the defence witnesses produced and noticed that DW-1 had been removed from service from the Thermal Plant Authorities for committing a theft and it is also pertinent to mention that the complainant was also working in the said Thermal Plant. It has also come in cross examination that he did not try to report the matter to the police and, therefore, his presence has rightly been discarded because once the complainant and the witness were known to each other, it was not possible and it was very unnatural conduct on his part not to report the matter to the police. Similarly, DW-2, the mechanic, in front of whose shop the alleged incident had taken place and the shop was alleged to be open at that point of time, has stated that he did not try to separate the accused and the deceased because he was busy in some work. This conduct on his part is also highly unlikely that an incident takes place in front of the shop and he would not be involved in helping the injured. The Trial Court has also given cogent reasons for discarding the evidence of the defence witnesses, of which we are in agreement with.
14. Accordingly, keeping in view the above circumstances, we find that there is no illegality or infirmity in the judgment of the Sessions Judge, Bathinda whereby, the life sentence imposed upon the appellant can be modified. Accordingly, the appeal is dismissed. The appellant, who was on bail during the pendency of the appeal, shall surrender to undergo remaining period of his sentence and in case he does not surrender, the CJM, Bathinda shall ensure that his presence is secured.
(G.S. Sandhawalia)
Judge
02.07.2013 (Jasbir Singh)
shivani Judge