Punjab-Haryana High Court
Krishan Kumar And Another vs State Of Haryana on 1 October, 2008
Author: K.S.Garewal
Bench: K.S. Garewal, Jitendra Chauhan
Crl. Appeal No. 467 DB of 1998 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 467 DB of 1998
Date of decision: October 1, 2008
Krishan Kumar and another ...Appellants
Versus
State of Haryana ...Respondent
CORAM:- HON'BLE MR. JUSTICE K.S. GAREWAL
HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. Baldev Singh, Senior Advocate with
Mr. Arshwinder Singh, Advocate,
for the appellants.
Ms. Navin Malik, Additional Advocate General, Haryana.
K.S.GAREWAL, J.
Krishan Kumar (20) and Bhoop Singh (28), residents of Durjanpur, Police Station Agroha, District Hisar, were charged under Section 302 read with Section 34 IPC for the murder of Dharmapal (20) of their village. They were tried by the learned Additional Sessions Judge, Hisar, found guilty on August 22, 1998 and sentenced to rigorous imprisonment for life and to pay fine of Rs. 1000/-, in default of payment of fine, they were to further undergo rigorous imprisonment for three months.
Dharampal was the son of Jag Ram @ Jaggu (PW-7) and Sarwan Devi (PW-8) also of Durjanpur. On the evening of August 13, 1996 Crl. Appeal No. 467 DB of 1998 2 at about 7 PM, Jag Ram @ Jaggu, his wife Sarwan Devi and brother Lekh Ram were sitting in the courtyard of their house. Bhoop Singh accused and his nephew Krishan Kumar came to their house and called Dharampal out. Jagram, Dharmpal and Dharmpal's sister Kali were at that time busy cutting green fodder with their gandasa. Dharampal left the gandasa and went out of the house. He was followed by Jag Ram.
They found Krishan Kumar appellant 1 and his maternal uncle Bhoop Singh standing outside the house. Bhoop Singh addressed Dharampal and said that he had beaten their "bitch" for the defecating and they had now come to teach him a lesson. In the meanwhile, Lekh Ram also came out of the house. Bhoop Singh began abusing Dharampal and caught hold him from behind. Krishan Kumar stabbed Dharampal in the abdomen on the right side of the navel. After inflicting injuries both Bhoop Singh and Krishan Kumar left the scene. Jag Ram and Lekh Ram lifted Dharampal and brought him inside their house. Thereafter they arranged for transport and evacuated him to Hisar hospital but Dharampal died outside the hospital gate.
Jag Ram @ Jaggu met ASI Kapoor Singh in the hospital and gave his statement. ASI Kapoor Singh of Police Station, Agroha, had reached the hospital on receiving an intimation from the SHO, Police Station, Hisar, regarding Dharampal's death. Jag Ram's statement was concluded at 11.30 PM and on its basis FIR was registered at Police Station, Agroha, at 1 AM on August 14,1996. The special report of the case was delivered to the Magistrate, Hisar at 3.30 AM.
The Investigating Officer commenced the investigation by preparing the inquest report of the dead body which was lying in Civil Crl. Appeal No. 467 DB of 1998 3 Hospital, Hisar. Thereafter, the body was sent for post-mortem which was conducted by Dr. Ramender Singh (PW-1), Medical Officer, Government Hospital, Hisar at 12.30 PM on August 14, 1996. The Medical Officer found the following injury.
"1. There was a spindle shaped incised wound measuring 2 inch in length. The maximum width was ½ inch in the middle. It was placed obliquely on the right side of abdomen about 3 inches from the umblicus clotted blood was present in and around the wound on probing and dissection the direction of the wound was upwards and slightly medically. It traversed through the muscle and facia of the anterior abdominal wall and there was a cut of 1.5 inch x 0.5 inch in the ascending colon and a cut in the inferior surface of liver which was 1.0 inch x 0.5 inch x 0.5 inch in size. The abdominal cavity contained about one litre of blood. The depth of the wound was about 6 inches.
The heart was healthy and empty. The large intestines contained facecal matter. The stomach was healthy and empty. Other organs were pale and healthy."
In the opinion of the Medical Officer, the cause of death was harmorrhage due to the aforesaid injury which was sufficient to cause death in the ordinary course of nature.
The Investigator proceeded to Durjanpur, recorded the statements of the eye witnesses Sarwan Devi, Lekh Ram and took blood stained earth from the spot. He looked for the accused but could not find Crl. Appeal No. 467 DB of 1998 4 them. Krishan Kumar was arrested on August 19, 1996 from Bus Stand Durjanpur. He was interrogated and his disclosure statement led to the recovery of a knife from a rain water outlet (parnala) of the kitchen of his house. Bhoop Singh was also arrested on August 19, 1996.
After completion of the investigation, both the accused were sent up for trial. Charges were framed against Krishan Kumar under Section 302 IPC and against both Krishan Kumar and Bhoop Singh under Section 302/34 IPC, to which they pleaded not guilty and claimed trial. The main witnesses examined by the prosecution were Dr. Ramender Singh (PW-1), Jag Ram @ Jaggu (PW-7), Sharwan (PW-8) and ASI Kapoor Singh (PW-
10).
After completion of the prosecution evidence, the accused were examined without oath under Section 313 Cr.P.C. Both denied the prosecution case but Krishan Kumar pleaded a counter-version to the following effect:-
"Bhoop my co-accused is my maternal uncle. My parents are dead and I have minor sister who is unmarried and reside with me at village Dobhi. I occasionally visit village Durjanpur to meet my maternal uncle. My maternal uncle and I were not having any bitch. My maternal uncle has four children two of them are sons and two of them are daughters. There is a public latrine abutting the street in the vicinity of the house of my maternal uncle. On the alleged day of the occurrence my maternal aunt Chameli alias Guddi had gone to answer the call of nature in the public latrine. I was present at the house of my maternal uncle who had gone to sell milk at Hisar as he is a Crl. Appeal No. 467 DB of 1998 5 milk vendor. After sometime I heard the cries of my maternal aunt and I immediately rushed to the street near the latrine and saw that Dharampal had caught hold of my maternal aunt with intend to molest and ravish her. I caught hold of Dharampal deceased but immediately thereafter he took out a knife and attempted to assault me. In my attempt to save myself I caught the arm of Dharampal and twisted it and in the struggle he suffered an injury with that knife in his abdomen".
When called upon to enter defence Bhoop Singh pleaded alibi in the following terms:-
"I am a milk vendor. I used to go to sell milk Hisar at 6.00 AM and used to return to my village at 11.00 AM and again I used to go at 3.00 P.M. and used to return at 8/9.00 P.M. On 13.9.96 at about 7.00 P.M. I was not present in my village and had come to Hisar for selling milk."
The accused were called upon to enter defence. Guddi @ Chameli appeared as DW-1 and testified that she had gone to the common public latrine at 6.30 AM. The deceased entered the latrine with bad intention, caught hold of her to outrage her modesty. She raised an alarm which attracted Krishan Kumar. The deceased came out of the latrine and she also followed him. Krishan Kumar caught hold of the deceased's hand but the deceased took out a dagger from the fold of his pyjama to assault Krishan Kumar. Krishan Kumar caught hold of his hands and twisted them. In the struggle the dagger which the deceased was holding entered his own abdomen. Blood drops fell on the ground around the latrine.
The learned Trial Judge accepted the prosecution version in its Crl. Appeal No. 467 DB of 1998 6 entirety. The defence pleaded by the accused was rejected as being improbable. The learned Trial Judge held as under:-
"It is pertinent to mention here that the case of the defence, is that Krishan accused had grappled with the deceased and the knife had hit the deceased in that scuffle. So the presence of Krishan accused at the spot is not disputed. From the evidence on record it is clear that deceased had only one injury on his person. There is no evidence on record to prove that Krishan accused had received any injury on his person. Had there been any scuffle in between Krishan and Dharmapal deceased there would have been injuries on the person of both of them as both of them are young persons. The absence of injury on the person of accused as well as any other injury on the person of deceased suggests that the defence version is improbable. Otherwise also from the site plan it is apparent that the public latrine is near the Abadi. So no one will dare to molest a woman at such a place during day time."
It has been forcefully argued that the prosecution has failed to establish any real motive. The two accused were said to have stabbed the deceased because he had beaten their bitch. However, the prosecution has failed to show when this incident occurred, whether it was seen by any one else and what was so special about that bitch that had made the accused so sensitive. There did not appear to be any other past enmity or motive between the two families. Therefore, beating of a bitch did not sound to be such a strong motive that would drive any one to commit murder.
A lot of stress was placed on the fact that the place of Crl. Appeal No. 467 DB of 1998 7 occurrence was not outside the house of the deceased but at a little distance therefrom, as no blood was found outside the house. Blood was found outside the latrine which was about 33 ft from the entrance of the house, therefore, this lent corroboration to Guddi's version. It was also argued that neither Sarwan Devi nor Jag Ram @ Jaggu had mentioned the name of Lekh Ram in their evidence. They had testified that one Prabhu was with them when the occurrence took place.
Lastly, it was argued that Bhoop Singh had been empty handed while Krishan Kumar had acted in exercise of right of self defence. Krishan Kumar was attracted to the spot when he heard his aunt Guddi's screams coming from latrine. When he reached the spot he found the deceased had caught hold of Guddi and was trying to outrage her modesty. It was then that Krishan Kumar stabbed the deceased.
On behalf of the State, it was argued that Guddi's version had not been supported by any one else from the village. She had not made any complaint to any senior officials about the false implication of her husband and nephew. As regards, the discrepancy over Lekh Ram, it was stated that Lekh Ram and Prabhu are the same person. Indeed in the statement of Sarwan (PW-8) it has been clearly brought out that she alongwith Parbhu and Lekh Ram were sitting in the courtyard. Lastly, it was submitted that Bhoop Singh was not a milk vendor but a barber. His alibi that he was in Hisar to sell the milk was false. There was no proof that he was engaged in selling the milk.
We are unconvinced about the so-called motive that the deceased was stabbed because he had beaten Bhoop Singh's bitch. Something else must have happened which had led to Dharampal getting Crl. Appeal No. 467 DB of 1998 8 stabbed. It was obvious that Dharampal was stabbed outside the latrine and not outside the gate. This is because no blood was found outside Dharampal's house, but had been collected from near the latrine. If this is so, then it can be said with certainty that Dharampal was stabbed near the latrine. It seems to us that the defence version was built up around the latrine for the reason that it was near the latrine that Investigator had found the blood.
The prosecution case that it was a fight over a bitch does not appear to be convincing. In the same way, even the defence version that Dharampal had stabbed himself with his own dagger is equally unbelieveable. However, it is certain that occurrence had taken place outside the latrine. It is possible that Guddi was present there and something may have occurred between the deceased and Guddi. We are not supposed to re-construct the scene of occurrence, by borrowing bits from the prosecution and the defence case. Either the prosecution or the defence version have to be accepted or rejected in totality. Improbability of Dharampal's stabbing himself is very high. A person holding a knife realizes at once that someone is trying to snatch it, he would immediately loosen his grip to avoid hurt. However, Krishan Kumar inflicted only a single knife blow on the abdomen of Dharampal. He did not give repeated blows. The fight over the bitch was a trivial matter. Krishan Kumar may have had no intention to murder Dharampal.
Therefore, while rejecting the defence version and accepting the prosecution case, we find that the offence committed by Krishan Kumar is not one punishable under Section 302 IPC but one under Section 304 Part-II IPC. Krishan Kumar is acquitted of the charge under Section 302 Crl. Appeal No. 467 DB of 1998 9 IPC. Bhoop Singh did not share any common intention with Krishan Kumar. Bhoop Singh is accordingly entitled to a complete acquittal.
Consequently, this appeal is partly allowed. Krishan Kumar's conviction is converted from Section 302 IPC to one Section 304 Part-II IPC. Krishan Kumar is sentenced to undergo five years imprisonment under Section 304 Part II IPC and to pay fine of Rs. 25,000/-, in default of payment of fine, he shall undergo further rigorous imprisonment for one year. Bhoop Singh is acquitted of all charges. Fine, on recovery, shall be paid to the heirs of the deceased.
(K.S. GAREWAL)
JUDGE
1.10.2008 (JITENDRA CHAUHAN)
prem JUDGE
Whether refer to Reporter Yes