Punjab-Haryana High Court
Kulbhushan Kumar vs State Of Punjab on 24 March, 2009
Author: Daya Chaudhary
Bench: Mehtab S. Gill, Daya Chaudhary
Crl. Appeal No. 66-DB of 2000 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No. 66-DB of 2000
DATE OF DECISION:24.3.2009
Kulbhushan Kumar ..........Appellant
Versus
State of Punjab ..........Respondent
Crl. Revn. No. 146 of 2000
Balwinder Singh ..........Petitioner
Versus
Bhupinder Pal Singh & Ors. ..........Respondents
CORAM:- HON'BLE MR. JUSTICE MEHTAB S. GILL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. D.D. Sharma, Advocate
for the appellant in Crl. Appeal No. 66-DB of 2000.
Mr. Sachin Sharma, Advocate
for the petitioner in Crl. Revn. No. 146 of 2000.
Mr. S.S. Gill, Addl. A.G., Punjab.
****
DAYA CHAUDHARY, J.
This order shall dispose of Criminal Appeal No. 66-DB of 2000 filed by accused-Kulbhushan Kumar against the judgment of conviction and order of sentence dated 27.9.1999 passed by Additional Sessions Judge (I), Sangrur in Sessions Case No.34 of 24.5.1996, whereby, he has been convicted and sentenced to undergo imprisonment for life and to pay a fine in the sum of Rs.1000/- under Section 302 IPC and in default of payment of Crl. Appeal No. 66-DB of 2000 (2) fine to further undergo RI for one year and Criminal Revision No. 146 of 2000 filed by complainant-Balwinder Singh against the aforesaid judgment/ order of acquittal of respondent No.1-Bhupinder Pal Singh and for enhancement of sentence of respondent No.1-Kulbhushan Kumar.
Brief facts of the case as put up by the prosecution are that on 22.2.1996 SI Barjinder Pal Singh, S.H.O. of Police Station Sangrur, along with ASI Gurnam Singh and other police officials was present at Barnala crossing Sangrur, in connection with the duty of checking Dhabas, where, one Balwinder Singh son of Wazir Singh came and got recorded his statement (Ex.PF) to the effect that he is resident of Sangrur and is posted as Clerk in the office of District Education Officer, Sangrur. He has four daughters and his eldest daughter, namely, Rajwinder Kaur was married with Surinder Pal Singh @ Sweety in the year 1986 and out of the said wedlock, she has two kids. Complainant-Balwinder Singh stated that as he has no son, therefore, Surinder Pal Singh @ Sweety used to reside with him as 'Ghar Jawai' and now Surinder Pal Singh has constructed his new house at Punnia Colony, Sangrur. The marriage of Sudhir Kumar, son of Raj Kumar, who is the friend of Surinder Pal Singh had taken place three days earlier to 22.2.1996 i.e. on 20.2.1996. In order to celebrate the marriage, Kulbhushan Kumar, brother of Sudhir Kumar arranged a party in the kothi of Surinder Pal Singh, which was lying vacant. Complainant further stated that he along with one Jaswant Singh had also attended the party. The party was also attended by so many persons and everybody had left the party after taking their meals but Kulbhushan Kumar and Bhupinder Pal Singh stayed there. Surinder Pal Singh, son-in-law of the complainant demanded the money, which was taken by the brother of Kulbhushan Kumar, upon which an altercation took place between them. Complainant and Jaswant Singh tried to settle the dispute but Kulbhushan Kumar started dragging Surinder Pal Singh after holding his long hairs and Crl. Appeal No. 66-DB of 2000 (3) Bhupinder Pal Singh started giving blows to Surinder Pal Singh. Both Kulbhushan Kumar and Bhupinder Pal Singh after dragging Surinder Pal Singh took him outside the kothi. Kulbhushan Kumar lifted one bottle of glass, which was lying there and inflicted 2-3 blows with the glass bottle on the mouth and head of Surinder Pal Singh, while he was lying on the ground. Complainant and Jaswant Singh tried to save Surinder Pal Singh from the clutches of Kulbhushan Kumar and Bhupinder Pal Singh but they were threatened by Bhupinder Pal Singh by saying that they will have to face the same situation. Due to fear, complainant and Jaswant Singh went inside the kothi and bolted the door of the kothi from inside and after 2-3 hours they came out and found that Surinder Pal Singh was lying dead in the street outside the kothi. Complainant after leaving Jaswant Singh near the dead body, went to the police station and recorded his statement (Ex. PF) on which basis a formal FIR (Ex. PF/2) was registered by MHC Gurdarshan Singh.
Thereafter, SI Barjinder Pal Singh along with other police officials went to the place of occurrence and found that Jaswant Singh was also present near the dead body. SI Barjinder Pal Singh also summoned dog squad team and photographs of the dead body were taken. SI Barjinder Pal Singh inspected the place of occurrence and lifted blood stained earth, green grass, hairs, one cycle, broken pieces of bottle from the place of occurrence and sealed them into separate sealed parcels after affixing seals of BS and were taken into possession vide separate recovery memos. The shoes of the deceased, one empty soda water bottle of make 'Mr. Pik' and one wrist watch with broken chain were also taken into possession, which were lying near the dead body. The inquest report (Ex. PB) was prepared. The dead body was sent for postmortem examination. Rough site plan (Ex. PEE) of the place of occurrence was prepared. Statements of witnesses under Section 161 Cr.P.C. were recorded by SI Crl. Appeal No. 66-DB of 2000 (4) Barjinder Pal Singh and the case property was deposited with MHC with seals intact. On 23.2.1996 SI Barjinder Pal Singh arrested accused- Kulbhushan Kumar and Bhupinder Pal Singh and recovered Rs. 190/- and 110/-, respectively, from them , which were taken into possession vide memo (Exs. PJJ and PKK) . On 25.2.1996 accused Kulbhushan Kumar made a disclosure statement (Ex. PAA) on which basis blood stained clothes, which were worn by him at the time of occurrence, were recovered from the place pointed out by him and the same were taken into possession. Similarly, accused-Bhupinder Pal Singh also made disclosure statement (Ex. PBB) on which basis blood stained clothes consisting of pant, shirt, jersy and underwear were recovered from the place pointed out by him and the same were also taken into possession.
After completion of investigation and necessary formalities, challan was presented in the court of Chief Judicial Magistrate, who after supplying copies of the documents under Section 207 Cr.P.C. to the accused persons, committed the case to the Court of Sessions vide order dated 2.4.1996. Accused-appellant was chargesheeted under Section 302 read with 34 IPC, vide order dated 9.7.1996, to which, he pleaded not guilty and claimed trial.
In order to bring home the charge against the accused, the prosecution examined as many as 15 witnesses, namely, Dr. Parbhat Kumar (PW-1), Balwinder Singh (PW-2), Jaswant Singh (PW-3), Raj Kumar (PW-4), Labh Singh Patwari (PW-5), HC Mahesh Inder Singh (PW-
6), Gurdeep Singh (PW-7), Ramesh Kumar (PW-8), SI Gurpreet Singh (PW-9), Joga Singh (PW-10), Constable Bhim Singh (PW-11), Inder Pal Singh (PW-12), MHC Gurdarshan Singh (PW-13), SI Barjinder Pal Singh (PW-14), HC Rattan Singh (PW-15), tendered into evidence certain documents and closed its evidence.
Statement of accused under Section 313 Cr.P.C. was Crl. Appeal No. 66-DB of 2000 (5) recorded, wherein, he denied the allegations of the prosecution and pleaded innocence.
The trial Court after hearing both the parties and perusing the evidence available on record convicted and sentenced accused-appellant as mentioned above and acquitted accused-Bhupinder Pal Singh.
Mr. D.D. Sharma, learned counsel for the accused-appellant argued that the prosecution has failed to prove the presence of complainant-Balwinder Singh (PW-2) and Jaswant Singh (PW-3), eye witnesses on the place of occurrence. As per the statement of complainant-Balwinder Singh (PW-2), Jaswant Singh (PW-3) had signed the inquest report and his statement was also recorded in the inquest report, whereas, a perusal of inquest report shows that it was not signed by Jaswant Singh. Moreover, the presence of Balwinder Singh (PW-2) and Jaswant Singh (PW-3) was also doubtful from their own conduct, as Balwinder Singh (PW-2) has stated that the incident lasted for about 15 minutes, they came out of the room after 2-3 hours and police was informed after coming out from the room at about 4.30 a.m. It was further stated by complainant-Balwinder Singh (PW-2) that they did not raise any alarm at any time and also made no attempt to save the deceased. The conduct of complainant-Balwinder Singh (PW-2) to remain silent inside the room for 2-3 hours and not to make any attempt to save deceased- Surinder Pal Singh, who was residing with him being "Ghar Jawai", as he was not having any son, seems to be un-natural.
Mr. Sharma further argued that as per the inquest report, four injuries were there on the person of the deceased, whereas, as per the statement of Dr. Parbhat Kumar (PW-1), there were total 12 injuries on the person of the deceased and the cause of death was shock and cardio respiratory failure as a result of multiple injuries and as such the prosecution case has not been corroborated by the medical evidence.
Crl. Appeal No. 66-DB of 2000 (6) Mr. Sharma also argued that the prosecution case totally rests upon the statements of Balwinder Singh (PW-2) and Jaswant Singh (PW-
3), who are closely related to the deceased and no independent witness has been examined. As per the story of the prosecution, the party was arranged and many persons attended the party but neither the party has been proved to be arranged nor any person who attended the party has been examined as witness. Even no item relating to the party was recovered near the dead body.
Mr. Sharma, learned counsel for the appellant also submitted that the prosecution has miserably failed to prove the motive. As per prosecution story, deceased-Surinder Pal Singh demanded the money, which was taken by the brother of accused-Kulbhushan Kumar, as is clear from recovery of Photostat pronote (Ex.PL), on which an altercation took place. The dispute was between Surinder Pal Singh and brother of Kulbhushan Kumar and the accused has nothing to do with the dispute and he has falsely been implicated in this case without any motive.
Mr. Sharma further argued that there is a conflict between medical evidence and ocular evidence. As per the statement of complainant-Balwinder Singh (PW-2), dead body of Surinder Pal Singh was dragged by accused-Kulbhushan Kumar, whereas, as per the opinion given by Dr. Parbhat Kumar, the cause of death was shock and cardio respiratory failure as a result of multiple injuries. Dr. Parbhat Kumar (PW-
1) has stated in his cross-examination that if the dead body is dragged, generally abrasions are expected but there was neither any abrasion on the back of the deceased nor there was any contusion. He further stated that in injuries No.1 and 2 he did not find any remanant of glass piece, could be caused by any sharp edged weapon and possibility of injuries No.3 to 11 caused due to dang blow, cannot be ruled out. The statement of complainant-Balwinder Singh has not been corroborated by medical Crl. Appeal No. 66-DB of 2000 (7) evidence.
Mr. Sharma, learned counsel for the appellant also relied upon a judgment of Hon'ble the Apex Court in Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 3 SCC 210, in support of his arguments.
At the end learned counsel for the accused-appellant argued that the present case at the most can be a case under Section 304 Part I IPC and not under Section 302 IPC, as there was no intention to commit the murder and sudden fight occurred on a trivial issue.
Mr. S.S. Gill, Addl. A.G., Punjab, argued that the prosecution has fully proved its case beyond reasonable doubt and presence of the complainant-Balwinder Singh (PW-2) and Jaswant Singh (PW-3) cannot be doubted, as they were natural witnesses.
Mr. Sachin Sharma, learned counsel for the complainant adopted the arguments raised by learned counsel for the respondent-State and submitted that the sentence of fine qua respondent No.2 may be enhanced and respondent-1-Bhupinder Pal Singh may also be convicted under Section 302 IPC with a fine of Rs.1 lakh.
We have heard the arguments of learned counsel for the parties and perused the evidence and other documents available on record.
The argument of learned counsel for the appellant that statements of complainant-Balwinder Singh (PW-2) and Jaswant Singh (PW-3) cannot be relied upon being in relation to the deceased and their presence at the place of occurrence was doubtful on the basis of their conduct, cannot be accepted. Admittedly, complainant-Balwinder Singh (PW-2) is the father-in-law of deceased-Surinder Pal Singh and Jaswant Singh (PW-3) is wife's sister husband of Balwinder Singh and were directly related to the deceased. . The testimony of both these witnesses cannot Crl. Appeal No. 66-DB of 2000 (8) be doubted only on the ground that they were closely related to the deceased. It is a settled law that the case of the prosecution cannot be thrown only on the ground that the prosecution witnesses are closely related to the deceased. The only reason to believe the testimonies of closely related witnesses is that they should be consistent in their statements and should be scrutinized carefully. This view has also been supported by Hon'ble the Supreme Court in Malhu Yadav Vs. State of Bihar 2002 (2) RCR (Criminal) 769. Mere relationship of the witnesses with the deceased is no ground to discard their testimony. If there is no in- consistency on material points, therefore, their presence at the place of occurrence cannot be doubted. Moreover, there is nothing on record to show that these witnesses were inimical towards accused and there was no reason for them to falsely implicated them and to go scot free the real culprits. Hon'ble the Apex Court in State of U.P. Vs. Ballabh Dass and others 1985 Criminal Law Journal 2209 has held that that there is no rule, which says that in the absence of any independent witness, the evidence of interested witnesses should be thrown out at the behest of or should not be relied upon for convicting an accused. It has further been held that what the law requires is that where the witnesses are interested, the Court should approach their evidence with due care and caution in order to exclude the possibility of false implication. Once it is found by the Court, on an analysis on the findings of the interested witness that there is no reason to disbelieve him, then the mere fact that the witness is interested, cannot persuade the Court to reject the prosecution case on this ground alone.
The argument of the learned counsel for the accused-appellant that there is a conflict between medical evidence and ocular evidence and ocular evidence has not been corroborated by medical evidence, does not carry any weight. As far as dragging of deceased-Surinder Pal Singh by Crl. Appeal No. 66-DB of 2000 (9) accused-Kulbhushan Kumar is concerned, photographs (Exs. P-15 to P-
22) depicts the real picture. Exs. P-15, P-16, P-17, P-20 and P-21 indicate that there was katcha passage having grass, where the deceased was dragged outside the house and was given blows with the broken glass bottle. So, by dragging the deceased on the katcha passage and on grass ground, the deceased had not received any injury. The argument of the learned counsel for the appellant that no remanant of glass piece was found in injuries No. 1 to 2, also carries no weight, as there is no hard and fast rule that the glass piece must remain in the injury. Therefore, the ocular evidence is consistent with the medical evidence and there is no conflict between the two.
The next argument of learned counsel for accused-appellant that accused-appellant has falsely been implicated, is also not of much importance. Nothing except false implication has been stated by the accused-appellant in the statement recorded under Section 313 Cr.P.C. Now dealing with the last argument of the learned counsel for the accused- appellant that the present case at the most can be a case under Section 304 Part I IPC, as there was no intention of the accused to cause death of the deceased, as it was a sudden fight. Both the accused and the deceased have participated in the party arranged by the brother of the accused-Kulbhushan Kumar and the quarrel took place over a trivial issue of pronote of some amount. Now we are to see whether this can be a case under Section 304 Part I IPC or not. Section 304 Part I IPC is reproduced as under:-
"When it is proved that the accused had the intention to cause such bodily injury as is likely to cause death, the offence committed is punishable under Section 304, Part I, IPC. When he had the grave and sudden provocation to cause death of the deceased, the offence committed is punishable under Crl. Appeal No. 66-DB of 2000 (10) Section 304, Part I, IPC."
As per the statement of complainant-Balwinder Singh (PW-2), who is the star witness of the prosecution, the party was over at about 11.00 p.m. and Jaswant Singh (PW-3), Surinder Pal Singh and both the accused were present there. He further stated that Surinder Pal Singh was dragged by accused-Kulbhushan Kumar as there was exchange of hot words between them on the demand of money by deceased-Surinder Pal Singh from Kulbhushan Kumar. Apparently, accused Bhupinder Pal Singh did not utter even a single word and there was no exchange of hot words between them. Similarly Jaswant Singh (PW-3) has also stated that the dispute between Surinder Pal Singh and Kulbhushan Kumar took place on account of some money transaction and accused Kulbhushan Kumar caught hold the hairs of Surinder Pal Singh and started dragging him. Here, the prosecution witnesses have tried to bring accused-Bhupinder Pal Singh into the picture, as in the FIR (Ex. PF/2), it was stated that accused- Kulbhushan Kumar started dragging Surinder Pal Singh from his hairs and Bhupinder Pal Singh started giving him fist blows. As per PW-2 and PW-3, the quarrel between the accused and the deceased was on a trivial issue and it has not been proved that there was any planning to commit murder of deceased-Surinder Pal Singh. In a similarly situated circumstances, Hon'ble the Apex Court in case Joseph Vs. State of Kerala 1995 Supreme Court cases (Cri.) 165 has observed as under:-
"We find considerable force in the submission. The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances, the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient Crl. Appeal No. 66-DB of 2000 (11) (sic). At the most it can be said that by inflicting such injuries, he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under Section 304 Part II IPC and sentence him to five years RI."
In view of the discussion made above, we set aside the conviction of appellant-Kulbhushan Kumar under Section 302 IPC and the sentence of life imprisonment awarded thereunder and convict appellant- Kulbhushan Kumar under Section 304 Part I IPC and sentence him to undergo RI for ten years.
With the aforesaid observations, criminal appeal is disposed of and criminal revision filed by the complainant is dismissed. Appellant- Kulbhushan Kumar, who is on bail, is directed to surrender to custody to serve the remainder of sentence.
(DAYA CHAUDHARY)
JUDGE
March 24, 2009 (MEHTAB S. GILL)
pooja JUDGE