Punjab-Haryana High Court
Shashi Bhushan @ Kaka vs State Of Punjab on 14 January, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-403-SB of 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-403-SB of 2001
Date of decision: 14.01.2011
Shashi Bhushan @ Kaka
........ Appellant
Versus
State of Punjab
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
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PRESENT: Ms. Sukhpreet Kaur, Advocate, for the appellant.
Mr. P.S. Grewal, AAG, Punjab.
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JORA SINGH, J.
Shashi Bhushan @ Kaka S/o Bhupinder Mohan, R/o Bajri Company, Phathankot, preferred this appeal to challenge the judgment of conviction and order of sentence dated 1.3.2001, rendered by learned Sessions Judge, Gurdaspur, in Sessions Case No. 5 of 1996, arising out of FIR No. 92 dated 5.8.1995, registered under Section 302 of the Indian Penal Code at Police Station City, Pathankot.
By the said judgment, he was convicted under Section 304- Part II of the Indian Penal Code and sentenced to undergo rigorous CRA-S-403-SB of 2001 -2- imprisonment for a period of five years.
Prosecution story, in brief, is that on 5.8.1995, SHO, Police Station Division No.2, Pathankot, received a telephonic message from Police Station Division No.1, Pathankot, that chit bearing No.353 dated 5.8.1995, was received regarding the death of Sanju S/o Bishan Singh, resident of Bajri Company, Pathankot, from Civil Hospital, Pathankot, Smt. Kamla, had met him near the gate of the hospital. Statement of Kamla was recorded and the same was to the effect that she is the resident of Bajri Company, Pathankot and has three issues. Sanju @ Bharat Singh (deceased) aged about 18 years was her eldest son and the youngest son is Deepu. Bharat Singh @ Sanju, was a student of 10th class of Arya Higher Secondary School, Pathankot. Ajay Kumar, was the classmate of Sanju whereas Shashi Bhushan @ Kaka - appellant, was the student of 10+2 in KFC School Model Town. On 5.8.1995, at about 7.30 p.m. she alongwith her husband and children was in the house when Ajay Kumar came and demanded Hindi guide from her son Sanju. After collecting Hindi guide he started moving from her house along with Sanju. She along with her husband Bishan Singh, followed them and they were on the College Road. Shashi Bhushan @ Kaka, also joined Sanju and Ajay Kumar. They were going ahead of them. When they were inside Bakshi Timber, then they heard Ajay Kumar, saying to Kaka that Sanju @ Bharat Singh be taught a lesson for abusing them in the evening. After that Ajay Kumar had caught hold Sanju from his arms. Kaka gave fist blows on the mouth and head of Sanju. Sanju CRA-S-403-SB of 2001 -3- became unconscious and fell on the ground. They raised hue and cry. Blood was found oozing out from the nostrils of Sanju. He was shifted to Civil Hospital, Pathankot, but he was declared dead by the doctor. Complainant further stated that Sanju @ Bharat Singh, had told her that Ajay Kumar and Shashi Bhushan @ Kaka, had abused him and he had also given abuses to them. On account of that grudge, Ajay Kumar and Shashi Bhushan @ Kaka, have killed him (Sanju). Statement of the complainant Smt. Kamla Ex. PC was recorded by SI Malkiat Singh. After making endorsement Ex. PC/1, statement was sent to the police station on the basis of which formal FIR Ex. PC/2 was recorded.
SI Malkiat Singh, prepared the inquest report of the dead body of Sanju and the same was handed over to police officials for post mortem examination. Investigating Officer, had gone to the spot and after inspecting the same, rough site plan Ex. PL, was prepared with its correct marginal notes. Clothes worn by the deceased were handed over to the Investigating Officer and the same were made into sealed parcel. Sealed parcel was taken into police possession vide memo Ex. PJ attested by the witnesses. Accused were arrested After completion of investigation challan was presented in the Court.
Accused were charge-sheeted under Sections 302/34 IPC of the Indian Penal Code, to which they pleaded not guilty and claimed trial.
Later on as per order dated 7.6.1996, passed by the learned Sessions Judge, Gurdaspur, case of Ajay Kumar was ordered to be CRA-S-403-SB of 2001 -4- bifurcated from the main case and sent to the Court of learned Chief Judicial Magistrate, Gurdaspur, for conducting enquiry regarding his age. Prosecution was also directed to submit supplementary challan.
Vide order dated 10.1.1997, separate challan was ordered to be filed against Ajay Kumar. Supplementary challan was presented against Ajay Kumar and the same was sent to the Juvenile Justice Board.
In order to substantiate its case, prosecution examined number of witnesses.
PW-1 HC Harsharan Singh and PW-2 HC Gurmail Singh, tendered their affidavits Ex. PA and Ex. PB, respectively.
PW-3 Smt. Kamla Devi and PW-4 Bishan Singh are the eye- witnesses and they have supported the prosecution story by saying that in their presence appellant namely Shashi Bhushan @ Kaka, had given fist blows to Sanju (deceased).
PW-5 Dr. Tarsem Singh, had conducted post mortem examination on the dead body of Bharat Singh @ Sanju. Ex. PE is the post mortem report wherein he observed that there was no ligature mark on the neck of the deceased. Mouth and eyes were semi opened. Blood was coming out from the right nostril. Rigor mortis was present and post mortem staining was present on the finger tips, nails and lips. The body bore no external injury marks. Cause of death could not be ascertained. Possibility of death being caused due to vasovagal shock cannot be ruled out. The aforesaid vasovagal shock could be due to sudden fear if somebody sees something extraordinary. The aforesaid shock could be CRA-S-403-SB of 2001 -5- due to a blow on the head or chest or any vital part of the body.
PW-6 Gopal Sharma, Kanungo had prepared the scaled site plan Ex. PH.
PW-7 Dr. Sunil Ghai, stated that on 5.8.1995, dead body of Sanju S/o Bishan Singh, was brought in Civil Hospital, Pathankot, at 8.30 p.m. and he had sent the information in this regard to the police station vide chit Ex. PJ.
PW-8 Constable Sham Singh, tendered his affidavit Ex. PK. PW-9 SI Malkiat Singh, was the Investigating Officer. After close of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded. He denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the accused was that he did not take any part in the occurrence.
Opportunity was given to led defence evidence but no defence evidence was lead.
After hearing learned Public Prosecutor for the State, learned defence counsel and from the perusal of evidence available on file, appellant was convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and carefully gone through the evidence available on the file.
After arguing for sometime, when learned counsel for the appellant failed to point out any infirmity or illegality in the impugned judgment, then stated that the impugned judgment is not challenged on CRA-S-403-SB of 2001 -6- the point of conviction but at the time of occurrence appellant was a student. Earlier to the occurrence, there was no serious dispute between the appellant and the deceased. Appellant has already undergone 9 months out of the actual sentence. Requested to take lenient view.
Learned State counsel argued that appellant along with his co-accused Ajay Kumar gave fist blows to the deceased. Immediately after the occurrence deceased was shifted to hospital where he was declared dead. As per post mortem report, blood was coming out from the right nostril. Cause of death could not be ascertained but the doctor states that possibility of death being caused due to vasovagal shock cannot not be ruled out. The aforesaid vasovagal shock would be due to sudden fear if somebody sees something extraordinary. The shock would be due to a blow on the head or chest or any vital part of the body. Complainant party was not inimical towards the appellant, so there was no idea to name the appellant.
Admittedly, deceased was a student at the time of occurrence. Appellant was also a student. Learned defence counsel for the appellant has not challenged the impugned judgment on the point of conviction and only requested to take lenient view because appellant has already undergone 9 months out of the actual sentence.
No doubt, learned defence counsel has not challenged the impugned judgment on the point of conviction but even then I want to scrutinize the evidence as to whether occurrence had taken place or not, as per prosecution story.
CRA-S-403-SB of 2001 -7-
PW-3 Kamla Devi-complainant and PW-4 Bishan Singh, are the father and mother of the deceased. Both on oath stated that they were present near the Bakshi Timber when Ajay Kumar exhorted the appellant that Sanju be taught a lesson for giving abuses to them. Ajay Kumar, had caught hold Sanju when appellant gave fist blows on the head of Sanju. On receipt of fist blows he fell down on the ground and became unconscious. Blood was oozing out from his right nostril. He (deceased) was shifted to the hospital where he was declared dead.
PW-5 Dr. Tarsem Singh, appeared in Court and stated that blood was found coming out from the right nostril.
Prosecution story shows that appellant and the deceased were the students. They had some altercation. Appellant had abused the deceased and deceased had also abused the appellant. Near Bakshi Timber, when the appellant along with his co-accused namely Ajay Kumar, was present then Ajay Kumar was heard while saying to the present appellant that Sanju be taught a lesson for abusing them. On account of this grudge, appellant had given fist blows to the deceased. Death was possible due to blows on the head. Appellant when examined under Section 313 Cr.P.C. then simply stated that he is innocent. No defence evidence was lead. Suggestion was given to the witnesses that death was due to internal disease but no evidence on the file that deceased was suffering from any disease.
In view of all discussed above, I am of the opinion that there is no infirmity or illegality in the impugned judgment. Evidence on file CRA-S-403-SB of 2001 -8- was rightly scrutinized by the trial Court. No reason to differ. Impugned judgment on the point of conviction is upheld.
Occurrence had taken place in the month of August, 1995. At that time appellant was 19 years old and was a student of 10+2 standard. Appellant was not armed. Only fist blows were given to the deceased, so, the intention was not to murder but to cause injuries on account of previous dispute. Appellant has already undergone about 9 months out of the actual sentence. He is to become hardcore criminal if again sent to jail to undergo imprisonment as ordered by the trial Court. Ends of justice would be fully met if lenient view is taken.
Keeping in view the facts and circumstances of the case and antecedents of the appellant, I take lenient view and direct the appellant to undergo imprisonment already undergone (9 months).
For the reasons recorded, above, appeal without merits is dismissed with modification on the point of sentence.
January 14, 2011 ( JORA SINGH ) rishu JUDGE