Punjab-Haryana High Court
Gulshan Vinayak vs State Of Haryana on 30 July, 2012
Author: Rakesh Kumar Jain
Bench: Jasbir Singh, Rakesh Kumar Jain
CRA No.830-DB of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CRA No.830-DB of 2009
Date of Decision: 30.07.2012
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Gulshan Vinayak
. . . .Appellant
Versus
State of Haryana
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE JASBIR SINGH, ACTING CHIEF JUSTICE
HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.R.S. Cheema, Sr. Advocate, with
Ms.Tanu Bedi, Advocate,
for the appellant.
Mr.Sandeep Vermani, Addl. A.G. Haryana.
Mr.Baldev Singh, Sr. Advocate, with
Mr.Ashwani Talwar, Advocate,
for the complainant.
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RAKESH KUMAR JAIN, J.
This appeal is directed against order of conviction dated 25.8.2009 passed under Section 302 of the Indian Penal Code, 1860 (for short 'IPC') for causing murder of Damodar Das (hereinafter referred to as 'the deceased'), under Section 323 of the IPC for causing injury to Jawahar Lal (PW2) and order of the same day, sentencing the appellant under Section 302 of the IPC for life imprisonment with fine of Rs.10,000/-, in default of payment of fine, imprisonment for two years and rigorous imprisonment for a period of three months for offence punishable under Section 323 of the IPC.
CRA No.830-DB of 2009 -2-
On a complaint (Ex.PA) by Jawahar Lal (PW2), formal FIR (Ex.PC) was registered that on 20.12.1993, at about 2:30/3:00 P.M., complainant/PW2 along with his father-in-law Damodar Dass (deceased) was going to their brick kiln situated in village Jarodi. When they reached near Mishthan Bhandar, Nehru Park, Yamuna Nagar, Gulshan Vinayak son of the deceased, brother-in-law of the complainant (PW2), came on his Maruti car, seeing him and his father, took out his face from the window of his car and spat towards them. He stopped his motor-cycle and Gulshan Vinayak (appellant) also stopped his car. He said that they were not on talking terms for many years and having no common business, then why should he spit towards him whenever he passes by. The deceased Damodar Dass also said the same thing to the appellant. It made the appellant angry, who hurled a stone, lying nearby, on the head of the complainant. The deceased came forward to protect but the appellant strongly pushed him with an intention to kill. The deceased fell on Pucca site. The appellant picked up another brick and hurled at the complainant which hit near his thumb of the right hand. Blood started oozing from his head and due to the push, the deceased fell down on Pucca site and died. During this period, his other brother-in-law Dev Raj and his son Vishvinder Seth also came at the spot where Kewal Krishan resident of Rampura was already standing and had seen the entire occurrence. Then his son Vishvinder Seth took him to Civil Hospital and his brother-in-law Dev Raj took the deceased, who died at the spot. It is alleged that the appellant had caused injuries to the complainant by hurling bricks and pushed the deceased with an intention to kill, who died at the spot. The appellant had also said that today he had escaped but next time he will kill him.
CRA No.830-DB of 2009 -3-
PW2 was medico-legally examined on 20.12.1993 at 3.10 PM by Dr.N.K. Kalia (PW6), who has proved his report (Ex.PC) and found the following injuries.
1. A lacerated wound of 4 cm x 0.75 cm x scalp deep on the left temporo parietal region of the skull 6 cm above the pinna of the left ear. Fresh bleeding was present. I advised X-ray skull A.P. lateral and obliquely.
2. A bruise of 2.5 cm x 2 cm on the base of the right thumb with diffuse swelling underlying the injury. I advised X-ray right hand thumb A.P. and lateral view.
In cross-examination, he has submitted that injuries could not be self inflicted nor could be suffered through friendly hand. He also submitted that the injured did not disclose anything regarding the death of his father-in-law to him.
Postmortem of the deceased was conducted by Dr.Sarita Gulati (PW7), who has proved the postmortem report (Ex.PF). In her statement, she has stated that autopsy was conducted on 21.12.1993 at 11.00 A.M. whereas according to the Police papers, the death occurred on 20.12.1993 at 7.00 P.M. On examination, she CRA No.830-DB of 2009 -4- found the body of the deceased, well-built and well-nourished. All the organs were found to be healthy but the heart was preserved and sent for pathological examination to Medical College, Rohtak. She stated that possibility of death having being caused by sudden push or jerk cannot be ruled out because the patient was suffering from heart problem.
She had referred to Pathological report of PGIMS, Rohtak (Ex.D1) in which it was concluded that deceased was suffering from
(i) chronic ischemaic heart disease (ii) advanced atherosclerotic disease of coronary arteries with moderate (right coronary artery) to severe stenosis (left coronary artery) and as per Ex.D2 it was certified that the deceased died because of coronary heart disease.
Besides the aforesaid witnesses, the prosecution examined Dev Raj Bhandari (PW1), Jawahar Lal (PW2), Kewal Krishan (PW3), HC Jaswinder Singh (PW4), Harkesh Chand (PW5) and SI Hardev Kumar (PW8).
The entire incriminating evidence was put to the appellant under Section 313 of the Code of Criminal Procedure (for short 'Cr.P.C.) which was denied and defence was taken that he has been falsely implicated because his brother Dev Raj and Vidhya Sagar wanted to deprive him of his share in the ancestral property, who in connivance with PW2, who happens to be his brother-in-law (jija) hatched the conspiracy of implicating him in the false case. He further stated that he has not been maintaining any relationship with his brothers and sisters due to property dispute though he had never nourished any grudge against them. Civil litigation regarding CRA No.830-DB of 2009 -5- the property is pending and that his father (deceased) died a natural death at home as no incident as alleged had ever taken place. In other questions put to him, the appellant denied the presence of his father at the place of occurrence and has rather alleged that he might have died at home. The appellant also led oral evidence in defence by examining Suresh Kumar, Civil Ahlmad as DW1, Rameshwar Parshad Pradhan DW2 and produced documentary evidence.
Learned senior counsel for the appellant has vehemently argued that the learned trial Court has committed a patent error in law in misreading the evidence while convicting the appellant under Section 302 IPC. It is argued that the only allegation against the appellant is of pushing the deceased resulting into his falling on the hard surface (mettaled road) and his death at the spot. It is submitted that the circumstances of the case do not satisfy the provisions of Section 299 of the IPC because in order to prove culpable homicide it is required to prove that the person doing an act has an intention of causing death, or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death. It is submitted that the case does not fall within the Ist explanation of Section 299 of the IPC which provides that a person who causes bodily injury to another who is labouring under a disorder, decease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death because nothing has been brought on record to prove that the appellant had the knowledge that deceased was CRA No.830-DB of 2009 -6- suffering from heart ailment and was at such an advanced stage that a mere push would have been sufficient to cause his death. It is submitted that PW2, who happens to be son-in-law of the deceased did not utter a word about the heart ailment of the deceased in the FIR. Nothing has been brought on record by the prosecution about the past history of the deceased that he has been suffering from heart disease and had ever taken any treatment in that regard. In this regard he has referred to the statement of PW1, the son of the deceased, who has stated that "I do not remember whether any record pertaining to the disease of my father was handed over to the police or not".
It is further argued that even PW2 has admitted that appellant was not even on visiting terms from the last many years and has specifically stated that "my daughter got married in the year 1980 or 1981 and since then I am not in talking terms with the accused. He had not attended the marriage of my daughter. He also did not visit his brothers and sisters after that on any happy or sad occasion. The accused had separated from the family before 1980 and since then he had no relations with his parents either". This statement was recorded on 22.9.2008 meaning thereby, there was no contact of the deceased and the appellant from the last 28 years, there was no occasion for him to know about the state of health of the deceased. He has also referred to document Ex.D7, a civil suit filed by the appellant against his family members regarding partition of the property, after the alleged occurrence, in which written statement has been filed by Vidhya Sagar, brother of the appellant, CRA No.830-DB of 2009 -7- with whom deceased used to reside. In this written statement it is averred by Vidhya Sagar that "this fact is correct that the complainant has been residing separately from Damodar Dass since 1977 and was not on good terms with Damodar Dass and other family members".
Insofar as intention is concerned, PW2 is the only witness to the alleged occurrence, who stated that the appellant was inimical towards him as he used to spit on seeing him and had also done the same thing on the date of occurrence. He stopped his motorcycle likewise the appellant stopped his car. He questioned him as to why does he behave in that manner when they both were neither on talking terms nor were in partnership of any business. At that juncture the appellant got down from his car, picked up a stone and hit on his head. In the meanwhile, the deceased intervened for the first time, he came forward, according to PW2, he was pushed by the appellant as a result of which he fell down on the road. The appellant picked up a brick and hurled towards him which hit on his left hand and after a couple of minutes the other son of the deceased and son of PW2 also reached there.
Counsel for the appellant has submitted that there was no intention on the part of the appellant to cause death of the deceased by pushing him as his push was only to restrain the deceased to interfere in his fight with his brother-in-law (PW2). It is also submitted that at the most, if this occurrence is believed to have happened, an offence under Section 323 is made out and not under Section 302 IPC for which he has been convicted and sentenced. CRA No.830-DB of 2009 -8- The second argument of counsel for the appellant is that as a matter of fact deceased was not present at the scene of occurrence and PW2 is a rank liar. It is submitted that it is highly unnatural behavior of Dev Raj Bhandari (PW1) and Vishwender Seth son of PW2, who has not been examined as prosecution witness, to have not removed the deceased alongwith PW2 to the Civil hospital. PW2 did not mention anything about the death of his father-in-law at the spot when he was medico legally examined for the injuries he had suffered. The prosecution has failed to examine Dr.D. Paul to whom he was taken to by PW1 instead of taking him to the hospital. It is submitted that there was no effort by PW1 or PW2 of reviving the deceased, who according to them remained unmoved on the road. He has also questioned the emergence of all the related witnesses at the place of occurrence at the same time otherwise PW2 was going with the deceased to village Jarodi on his Motorcycle, PW1 was going with son of PW2 to get saw dust for the brick kiln and PW3 Kewal Krishan Sharma came to Mishthan Bhandar for buying the sweet at the same time. Although PW1 & PW2 have stated that large number of persons had gathered but they refrained from divulging their identities. He has also submitted that even sequence of event also does not match as one witness states that first altercation took place then injury on the head and intervention by the deceased and then the second injury whereas the other-one has stated that first intervention was there by the deceased then injury on the head then second intervention by the deceased and then second injury. It is thus submitted that as per the timing given by the police about the CRA No.830-DB of 2009 -9- recovery of dead body from the house of the deceased, the death had occurred not at the spot but at home.
In reply, learned counsel for the State assisted by counsel for the complainant, has argued that even if there is no past history of the deceased being heart patient available on record or any treatment of the blockade of the arteries, PW1 has stated that his father was a heart patient since long and this fact was within the knowledge of the appellant. He has also submitted that the case falls within the Ist explanation of Section 299 of the IPC as the appellant knew about the bodily infirmity of the deceased that he was suffering from heart disease and with intention to cause his death he pushed him, threw him on the hard surface, causing his death instantly.
In respect of argument of learned counsel for the appellant that no occurrence took place at the spot and the deceased expired at home, it is submitted by counsel for the State that there is injured witness account of the occurrence (PW2) coupled with other two witnesses PW1 & PW3, who have proved the presence of the appellant at the place of occurrence. It is further alleged that PW7 has also opined that the possibility of death having been caused by a sudden push or jerk to the patient suffering from heart disease cannot be ruled out.
We have heard learned counsel for the parties and have perused the record with their able assistance and are of the view that the learned trial Court has committed a patent error in misreading the evidence while convicting the appellant under Section CRA No.830-DB of 2009 - 10 - 302 IPC because the prosecution had to prove that appellant had the intention of causing death or intention of causing such bodily injury likely to cause death or had the knowledge that he is likely by his such act would cause death. Firstly, it was a chance meeting of the appellant with the deceased and PW2. The grievance of PW2 is that the appellant used to misbehave with him always as he did not like him and use to spit towards him. Meaning thereby, he was not intentionally belligerent against his father/deceased. The prosecution has miserably failed to prove on record by leading any documentary evidence to prove the state of health of the heart of the deceased. Rather evidence has come that he was hale and hearty man riding pillion on a motorcycle for going to the brick kiln even at the age of 80. It has been discovered only in the report (Ex.D1), which too has been produced by the appellant in his defence, that the deceased was suffering from heart disease otherwise the appellant has been living separately from the last many years and was not even on visiting terms on any occasion. It is also not the case set up by the prosecution in the FIR (Ex.PC) that the appellant had the knowledge of the weak heart of the deceased, taking advantage of the circumstance, pushed him with force, threw him on the ground and caused his death. Rather the appellant had a quarrel with PW2, whom he caused injuries with brick/stone and only pushed the deceased aside, who was trying to intervene to rescue PW2 from the appellant. As a matter of fact, the prosecution has tried to encash the circumstance and the story has been built to exploit the situation.
CRA No.830-DB of 2009 - 11 -
We are, thus, satisfied that the learned trial Court has committed a patent error in not appreciating the evidence in its true perspective while convicting and sentencing the appellant for offence punishable under Section 302 IPC. Insofar as the argument of learned counsel for the appellant that no occurrence had ever taken place in which the deceased was involved at the spot, is concerned, it has been stated by PW6 that injuries suffered by PW2 are not self suffered. He is the eye-witness of the occurrence. The other two witnesses PW1 & PW3, who came a couple of minutes later have also supported the prosecution version about the presence of the appellant at the place of occurrence and also of the deceased, who was removed from there. It hardly makes any difference if PW2 had not mentioned to the doctor, attending him, about the death of his father-in-law as he was concerned more about his injuries at that time. In these circumstances, the offence, if any, committed by the appellant is of simple hurt, which comes within the purview of Section 323 IPC.
Resultantly, the order of conviction is modified and the appellant is hereby convicted under Section 323 of the IPC.
No arguments have been raised with regard to the injuries caused to PW2 for which he has been convicted and sentenced under Section 323 IPC, therefore, the said conviction and sentence is hereby upheld.
In view of the aforesaid discussion, the appeal is partly allowed. The conviction and sentence of the appellant under 302 IPC is hereby set aside. However, the appellant is sentenced under CRA No.830-DB of 2009 - 12 - Section 323 IPC for causing simple hurt to the deceased which he has already suffered more than the maximum of sentence which can be awarded under Section 323 IPC of a period of one year. Since, the sentence awarded for offence under Section 323 IPC is already undergone by the appellant, he is directed to be released forthwith, unless involved in some other case.
(JASBIR SINGH) (RAKESH KUMAR JAIN) ACTING CHIEF JUSTICE JUDGE JULY 30, 2012 Vivek