Jammu & Kashmir High Court
Sanjeev Kumar And Another vs < on 31 August, 2022
Bench: Rajnesh Oswal, Mohan Lal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 29.07.2022
Pronounced on: 31.08.2022
CRA No. 4/2014(O&M)
Sanjeev Kumar and another ...Appellant/Petitioner(s)
Through :- Mr. Ved Bhushan Gupta Advocate
and Mr. Karanvir Gupta, Advocate
v/s
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State of J&K .....Respondent (s)
't
Through :- Mr. Dewakar Sharma, Dy.AG
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT
Per Oswal-J
1. This appeal has been preferred against the judgment of conviction dated 24.12.2013 and order of sentence dated 26.12.2013 passed by the learned Sessions Judge, Kathua (hereinafter to be referred as the trial court), in File No. 29/Sessions titled "State versus Sanjeev Kumar & Anr" whereby the appellants have been sentenced to imprisonment for life and a fine of Rs. 10,000/- each for commission of offence under section 302 RPC. Besides, the appellants have also been sentenced to undergo imprisonment for one month for commission of offence under section 341 RPC.
2. The aforesaid judgement has been assailed on the ground that the learned trial court has not rightly appreciated the evidence available on record and has not taken into consideration the major contradictions and improvements made by the prosecution witnesses in their statements recorded before the 2 CRA No. 4/2014 trial court. It is also stated that the disclosure statement and recovery effected in the case are inconsequential and in no manner connect the appellants with the commission of crime. Besides this, it is also averred that the medical evidence produced by the prosecution runs contrary to the version of the eye witnesses. It is also stated that the Police for reasons best known to them, have suppressed the injuries sustained by the accused party.
Contentions of Appellants:
3. Mr. Ved Bhushan Gupta, learned counsel for the appellants, vehemently argued that the clothes of the witnesses i.e. PW-2 Sheela Devi and PW-3 Bikram Singh were not blood stained, which clearly demonstrates that PW- 2 Sheela Devi & PW-3 Bikram Singh were not present on spot. It was further urged that the conduct of PW-3 Bikram Singh in not informing the Police about the occurrence is an unnatural conduct, which further raises doubt about the credibility of the said witness. Mr. Gupta further argued that the learned trial court has erred in law by placing reliance upon the statement of PW-4 Arjun Singh, as he himself had not seen the occurrence. He further submitted that there was no evidence against the appellant No. 2 and lastly that even if, for the sake of arguments, it is assumed that the prosecution has proved its case beyond doubt still the appellants cannot be convicted under section 302 RPC but under section 304-II RPC, as in the instant case, single blow was inflicted upon the deceased and the deceased died after 12 days of occurrence.
Contentions of Respondents:
4. Per contra, Mr. Dewakar Sharma, learned Dy.AG vehemently argued that there was sufficient evidence placed on record in the form of eye witnesses 3 CRA No. 4/2014 i.e. PW-3 Bikram Singh and PW-4 Arjun Singh for conviction of the appellants and the ocular evidence has been corroborated by the medical evidence. He further argued that the disclosure statement and the consequent recovery of weapon of offence clearly establishes the guilt of the appellants, as such, there is no infirmity in the judgment impugned passed by the learned trial court.
5. Heard and perused the record.
Case of Prosecution:
6. As per the prosecution story, father of the deceased, Kabla Singh lodged a written complaint with the SHO Police Station, Kathua stating therein that he was having a dispute with regard to the boundary of the land with one Bal Krishan S/o Karam Chand R/o Bhagyal. On that day, when his son was working in his land, Bal Krishan stopped him and altercation took place between both of them, that was not tolerated by his nephew i.e. Sanjeev Kumar, as such, at around 4.30 PM, Sanjeev Kumar, who was armed with drat and Raj Kumar with criminal intention stopped his son, Harbans Singh on link road Bhagyal. Raj Kumar caught hold of Harbans Singh and Sanjeev Kumar assaulted his son in order to kill him and inflicted 2-3 blows of drat at the neck of his son (Harbans Singh). On hearing the noise, few persons came on spot and accused persons ran away. This information was received by the Police Station, Kathua at around 7.20 PM and FIR bearing No. 299/2008 for commission of offence under sections 307, 34 and 341 RPC was registered. Investigation was entrusted to Sub Inspector Isher Dass Verma. Samples of soil, blood stained soil and blood of the deceased were collected from the place of occurrence. Statement of the injured could not be recorded as he was not fit for the same. The injured 4 CRA No. 4/2014 was shifted to GMC, Jammu on the same day. Statements of the witnesses were recorded under section 161 Cr.P.C. The appellant No. 1 was arrested and his blood stained under shirt was also seized. The appellant No.1-
Sanjeev Kumar made a disclosure statement about drat and pursuant to the disclosure statement, the same was got recovered from the room of his house situated at Bhagyal. The weapon of offence was also sealed. Appellant No. 2 was also arrested after sometime. The injured remained in the GMC, Jammu from 26.09.2008 till 07.10.2008. On 07.10.2008, the family members of the deceased took him to PGI Chandigarh and on 08.10.2008, Harbans Singh expired. Postmortem of the deceased was conducted and offence under section 307 RPC was converted into section 302 RPC. Statements of some of the witnesses were recorded and after the conclusion of the investigation, charge sheet under section 302, 341 and 34 RPC was filed on 25.11.2008. The charges for commission of offence under sections 302, 341 and 34 RPC were framed against the appellants vide order dated 24.02.2009 and the prosecution was directed to lead its evidence, as the appellants did not plead guilty. Out of total 26 witnesses, the prosecution examined as many as 23 witnesses. No evidence was led by the appellants. After hearing the arguments, the learned trial court convicted the appellants vide judgment dated 24.12.2013, that is impugned in this appeal.
7. Before appreciating the rival contentions of the parties, it would be apt to have brief resume of the relevant part of evidence led by the prosecution. Prosecution Evidence:
8. PW-1 Kabla Singh, who is the father of the deceased stated that on 26.09.2008 at around 4.30 PM, the appellants came to him and enquired 5 CRA No. 4/2014 about his son Sonu and he expressed ignorance and after 5 to 7 minutes, he heard a noise that his son has been killed. He went on spot and found that Sonu was injured and some women were wrapping sheet around the wounds. His wife had taken him in her lap. In the meanwhile, Jaimal Singh brought his Maruti Car and he took him to the hospital. He went in another vehicle to the hospital. Thereafter, he went to Police Station, Kathua for registration of FIR. He proved the application (ExTP-1) submitted to Police and also proved the FIR (ExTP-1/1). The injured was referred to GMC Jammu where he remained under treatment for 10 to 12 days and on 07.10.2008 he was referred to PGI Chandigarh, where he expired on 08.10.2008. The postmortem was conducted on 09.10.2008. One month prior to occurrence, the accused threatened him and he called Numberdar- Naseeb Singh and Chajju Singh, who advised them not to fight. Due to boundary dispute, the appellants were having enmity. In cross examination, he stated that as he was not at his home prior to occurrence, so he cannot say as to whether any altercation took place between the appellants and the deceased. He expressed ignorance about the persons, who were present on spot at the time of occurrence. He also stated that he does not know the persons who watched the occurrence. He had not mentioned in his report that prior to the occurrence, the appellants had come to his house and had enquired about his son Sonu. He denied that Naseeb Singh was his relative being son of his maternal aunt. Arjun Singh is the grandson of his maternal uncle. Naseeb Singh is the maternal uncle of Arjun Singh. Chajju Singh is also relative of Naseeb Singh. He does not know about the date when he and his son were threatened by the appellants. He had not lodged any report with regard to the threats. It is wrongly mentioned in his statement recorded 6 CRA No. 4/2014 under section 161 Cr.P.C. that one month prior to the occurrence, the appellants came in front of his house and threatened to kill him. He was not present on spot and he had not seen the appellants injuring his son. He does not know as to who took his son to the hospital from the place of occurrence. It is wrongly mentioned in his statement recorded under section 161 Cr.P.C that his son was sitting in the under construction house of Bikram Singh. He had heard this. He had not mentioned the name of any eye witness to the Police. He does not know the names of the ladies also who were present on spot. His clothes were not blood stained. He also does not know as to whether the clothes of his wife were blood stained or not.
9. PW-2 Sheela Devi, who is the mother of the deceased, stated that on 26.09.2008 when she and her husband were about to take meals, appellant Sanjeev Kumar, who was armed with drat along with Raj Kumar came to her house and enquired about his son Sonu. She expressed ignorance and after 5 to 7 minutes, they heard noise and someone screamed that Sonu has been killed. She ran towards the place of occurrence and Sanjeev Kumar was also coming and was saying that he has killed Sonu and appellant No. 2 was also behind him. She tried to catch Sanjeev but he pushed her and she fell down. Drat was blood stained and his clothes were also blood stained. The tip of drat was broken. She went on spot and found Sonu in an injured condition. She took him in her lap and there was deep cut on his neck. She wrapped the injuries with bed sheet. Injured was taken to hospital in the car of Jaimal Singh. He was referred to GMC, Jammu where he remained for 12 days and thereafter he was referred to PGI Chandigarh, where he died. On the 3rd day of occurrence, Police came to her house. Police was accompanied with accused Sanjeev Kumar and he was 7 CRA No. 4/2014 handcuffed. Sanjeev Kumar got recovered drat from the room of his house and the same was seized. She proved recovery memo (ExTP-2). Prior to occurrence, the appellant, Sanjeev Kumar used to threaten them that they would cut them. Weapon was shown to her and she identified the same. In cross-examination, she stated that first of all she reached on spot. She does not remember the names of persons who came on spot. The house of Bikram Singh was in front of the place of occurrence. Her clothes were also blood stained and she had not given those clothes to the Police. She had also not given those sheets to the Police in which the injured was wrapped. She does not know as to whether altercation took place between the deceased, her husband and Bal Krishan. The appellant No. 1 had threatened them in their land and not in their house and also they were never threatened by the appellants outside their house. She had not told the Police as to how many injuries were inflicted upon the deceased because she had not seen when the injuries were inflicted to the deceased. She had disclosed to the Police in her statement as well as in the statement recorded under section 161 Cr.P.C. that when appellant Sanjeev Kumar met him near the place of occurrence he was saying that he had killed Sonu. This is not mentioned in her statement recorded under section 161 Cr.P.C. but in her statement recorded under section 164-A Cr.P.C. it has been mentioned that she enquired from Sanjeev Kumar and he told her that he had killed Sonu. Her statement was recorded one month after the death of the deceased. It is mentioned in her statement recorded under section 161 Cr.P.C that she asked the accused that he has killed her son, then the accused pushed her and ran away, however, it is not mentioned in her statement recorded under section 161 Cr.P.C that on enquiry by her, 8 CRA No. 4/2014 Sanjeev Kumar had replied that he had killed Sonu but she had narrated the same. When Sanjeev Kumar was taken to recover drat no one was present in his house. At the time of seizure of drat, she had also gone to the house of Sanjeev. It is also not mentioned in the statement recorded under section 161 Cr.P.C, that 5 to 7 minutes prior to occurrence, the appellant had come to their house and enquired about Sonu.
10. PW-3 Bikram Singh stated that he knows the appellants and his house is situated 40 ft. away from Bhagyal link road. On 26.09.2008, at around 4.30 PM, he was getting the mumty of his house plastered and one labourer namely, Arjun Singh and one mason Vijay Kumar were also with him. He heard the noise outside and found that Harbans Singh (deceased) was lying on the road. Sanjeev Kumar was having drat in his hand and he gave a blow on the neck of the deceased. The accused Raj Kumar was also standing there. He heard noise and went to the place of occurrence and the accused ran away. Some persons also came on spot and his mother also came on spot. He was taken in a car of Jaimal Singh to the hospital. His statement was recorded by the Police and at that time, injured was admitted in the hospital at Jammu. Later on, he came to know that the injured had expired. His statement was recorded on 04.10.2008 in the court. In cross- examination, he stated that by the time he came down, the accused had run away. First of all he reached at the place of occurrence and thereafter, other persons came on spot. He had come on spot on hearing the noise but he cannot tell the names of those persons who were on spot. He neither lifted Harbans Singh on spot nor put him in the vehicle. The deceased was his community brother. He had only seen the deceased lying on the ground and his clothes were not blood stained. It is wrongly mentioned in his statement 9 CRA No. 4/2014 recorded under section 161 Cr.P.C. that the accused stopped the way of the deceased. It is also wrongly mentioned that Raj Kumar caught hold the deceased and Sanjeev Kumar hit Harbans Singh at his neck as a result of which he fell down but Sanjeev had inflicted the injury at the neck of the deceased with drat when he had already fallen down. This is correct that appellant No. 2 was only standing there.
11. PW-4 Arjun Singh stated that on 26.09.2008 at around 4.30 PM, he was working as a labourer in the house of Bikram Singh. Suddenly noise was heard and he came down and found Harbans Singh lying on the ground. He was told by Bikram Singh that Sanjeev Kumar had hit at the neck of Harbans Singh with drat. It was also stated that there was some land dispute between them and because of that appellants stopped the way of Harbans Singh and injured him. Injured was taken in the car of Jaimal Singh to the hospital. In cross-examination, he stated that he is not related to Bikram Singh but he is related to Naseeb Singh, Numberdar. He has not seen the occurrence himself but he was told about the same by Bikram Singh. Number of persons had come on spot but he does not know their names. He had gone to call Jaimal Singh. He did not mention in his statement recorded under section 161 Cr.P.C. that he had gone to the house of Jaimal Singh for bringing car.
12. PW-5 Naseeb Singh stated that there was land dispute between the complainant and the accused party. Police seized the soil, blood stained soil and blood also. He proved the seizure memos as ExTP-5, ExTP-5/1 and ExTP-5/2.
13. PW-7 Chajju Singh stated that on 26.09.2008 when he went on spot, the Police had already arrived. The Police seized the soil, blood stained soil 10 CRA No. 4/2014 and blood from spot. He proved the seizure memos marked as ExTP-5, ExTP-5/1 and ExTP-5/2. The collected material was sealed and marked as A, B and C. In his presence, the injured was taken to Kathua Hospital and thereafter he was referred to GMC, Jammu. In cross examination, stated that he and Naseeb Singh always advised the parties to reconcile but still they used to quarrel with each other. When Police came, he and Naseeb Singh were on spot. He signed 3/4 papers on spot. None else other than them was called on spot.
14. PW-8 Jaimal Singh has stated on 26.09.2008 at 4.30 PM, he was at his house. Some boys came to his house and told him that a fight had taken place near the house of Bikram Singh at link road Bhagyal and Harbans Singh was lying in injured condition. He brought his Maruti Car on spot and took the injured to Kathua hospital. He came back at 6 PM and his statement was recorded by the Police. In cross-examination, stated that he does not remember the names of the boys who had come to his house. He does not know who else accompanied him while taking the injured to the hospital in car but the parents of the deceased had not accompanied him in the car.
15. PW-9 Lekh Raj stated that appellant Sanjeev Kumar was arrested on 27.09.2008 at Palli Morh and arrest memo was prepared (ExTP-9). The personal search of the appellant was also conducted and one blood stained under shirt was seized by the Police vide seizure memo (ExTP-9/1). The said under shirt was shown to the witness and he identified the same. In cross examination, he stated that under shirt is ordinary and is easily available. The place from where the accused was arrested, there are number 11 CRA No. 4/2014 of shops and houses. Number of civilians were present at the time of arrest but no one was associated with the investigation.
16. PW-10 Onkar Singh stated that on 27.09.2008, he was posted as constable at Police Station, Kathua and at around 8.00 P.M, the appellant-Sanjeev Kumar was arrested at Palli Morh. During personal search, one blood stained under shirt was also seized. He proved the memo of arrest and seizure memos (ExTP-9 and ExTP-9/1). In cross examination, he stated that the place from where the accused was arrested, there is market and number of houses are also situated there. The market was open at that time and people were moving. The accused-Sanjeev tried to run away but he was arrested after chase. When under shirt was seized, it was not torn but under shirt that was seen today is torn at four places. There was no blood on pant and shoes of the accused Sanjeev Kumar.
17. PW-11 Lucky Singh has stated that on 26.09.2008, Harbans Singh was murdered and he had gone to the Police Station along with Rajinder Singh in connection with the case. Police had arrested Sanjeev Kumar and they were enquiring from Sanjeev, who disclosed that he has concealed drat in his room under the box which he can get recovered. He also stated that it was known to him only. One paper was prepared. He and Rajinder Singh signed the same. He proved the disclosure memo of the accused (ExTP-11) and thereafter, the accused was taken to his house at Bhagyal and he got recovered one drat that was blood stained and the same was identified by Sheela Devi. Drat was measured and sealed on spot. He also identified his signatures on the seizure memo (ExTP-2). The same was signed by Sheela Devi and Rajinder Singh also. His statement was recorded on 28.09.2008. In cross examination, he stated that the statement was recorded in the 12 CRA No. 4/2014 hospital at Jammu and except this, no other statement was recorded. His statement was recorded after noon. His statement was recorded after 2/3 days of the occurrence. He was accompanied by Rajinder Singh, who was maternal uncle of the deceased and his statement was also recorded in his presence. He remained with the deceased for 4/5 days in Jammu. When the disclosure memo was prepared, they had gone to the Police Station at 12 to 1 PM and remained in the Police Station for about 10 to 11 minutes and thereafter went to the place of recovery. He was read over the statement which was recorded with the Police earlier.
18. PW-12 Rajinder Singh stated that he knows the accused. On 28.09.2008, he along with Lucky Singh had gone to Police Station, Kathua to enquire about the case and the Police was enquiring from accused Sanjeev Kumar. Sanjeev Kumar disclosed that he had kept drat in his room under the box. Disclosure memo (ExTP-11) was prepared and he signed the same. Thereafter, in the police vehicle, he went to the residence of Sanjeev Kumar and Sanjeev Kumar got recovered drat from his room below the box. Recovery memo (ExTP-2) was prepared and he signed the same. He indentified drat shown to him in the court. In cross examination, stated that Lucky Singh is his distant relative. They had not gone together from house but they had contacted each other on phone. They had gone to Police Station at 11/11.30 AM. They had reached village Bhagyal in the evening at around 4 PM. When they reached Police Station, the Police told them that the accused has confessed and they too hear the accused. On being asked by SHO, the accused started disclosing. They had moved from Police Station for effecting recovery at 2.30 PM. They reached the house of accused. It was open and not locked. Family members of the accused were 13 CRA No. 4/2014 not there. He does not know that Investigating Officer Isher Dass Verma had registered FIR on 09.10.2008 with regard to the burning of the house of the accused.
19. PW-13 Raj Kumar did not support the prosecution case. He was declared hostile. However, during cross examination by the learned Public Prosecutor, he admitted the contents of the receipt of the dead body (ExTP-
13). However, he denied the contents of the seizure memo of clothes. He identified the signatures on the same.
20. PW-14 Devinder Singh stated that the dead body of the deceased was handed over to Sham Singh and receipt of the same (ExTP-13) was prepared. Seizure memo (ExTP-15) was also prepared and he identified his signatures. Clothes of the deceased were also seized vide seizure memo ExTP-14.
21. PW-15 Sham Singh stated that the dead body of the deceased was handed over to him. He signed the receipt of the dead body and fard maqboozi nash.
22. PW-16 Sushil Kumar Patwari stated that he had prepared the dasti site plan of the place of occurrence pursuant to the identification by the Police and had also issued the copy of the khasra girdhawari of kharif 2008 regarding khasra No. 76 of village Bhagyal. They were marked as ExTP 16 and ExTP 16/1.
23. PW-17 Kala Ram stated that on 26.09.2008 he along with SHO and Investigating Officer went to the village Bhagyal and the photographs of the blood that was lying on spot were taken and handed over to the Investigating Officer and photographs were marked as mark-1 to mark-7. 14 CRA No. 4/2014
24. PW-18 Shamsher Singh stated that on 26.09.2008 in the evening he was sitting in his shop when Monu called him on telephone and told him that Harbans Singh has been injured by Sanjeev Kumar and Raj Kumar by inflicting injuries on his neck and they ran away from the spot. He closed his shop and straight way went to Kathua and thereafter, went to Jammu. He found that injured Sonu was very serious. From Jammu, he was referred to PGI Chandigarh and the next day, he died.
25. PW-19 Bishamber Singh stated that on 15.10.2008 one ring was given to him on supurdnama. He admitted the contents of the supurdnama (ExTP-
19). During cross examination, he admitted that ring was not used in his presence.
26. PW-21 Mool Raj stated that he proved the FSL report that was marked as ExTP-21. Five sealed packets were received on 14.10.2008 through constable Anju in connection with FIR No. 299/2008. In cross examination, stated that the blood group of the deceased was not supplied to him.
27. PW-22 Anju Bala, Lady Constable stated that on 21.10.2008 she had handed over the five sealed packets marked as A, B, C, D and E to FSL Jammu. She identified the receipt placed on file.
28. PW-23 Dr. Vasna Kumari stated that on 09.10.2008, she was posted as Assistant Surgeon at District Hospital, Kautha and she conducted the autopsy of the deceased. She found that the deceased was having an infected open wound foul smelling on the nape of neck extending from stercledo mastoid muscle to left nape of neck having width of 5 cms. deep bone with dark brown sloughed surface. She further stated that in her opinion, the deceased died due to cerebral anoxia leading to multi organ failure. The report is in her handwriting and bears her signature (ExT-P- 15 CRA No. 4/2014
23). During cross-examination, she stated that she has not seen the original injury certificate where the injuries were mentioned upon the deceased when he was admitted in the hospital. This type of injury can be protected from infection by the best management/treatment of the patient by giving special treatment. In this case, infection leads to cerebral anoxia leading to multi organ failure. The main reason of death of the deceased was due to infection. In the postmortem report, there was only single external injury on the body of the deceased.
29. PW-26 Krishan Kumar stated that five sealed packets were produced before him for resealing regarding FIR No. 299/2008 on 04.10.2008. He resealed the same and issued authority letter in the name of Director, FSL, Jammu. Certificate bears his signatures (ExTP-26).
30. PW-24 Isher Dass Verma stated that FIR bearing No. 299/2008 under section 307/341 RPC was in his handwriting and contents are true. He conducted the investigation in the case. The injured was not in a position to make statement. He prepared the site plan (ExTP-24). Photography was also done. The samples of soil, blood stained soil and blood were collected from the place of occurrence. The dead body of the deceased was shifted to the hospital for postmortem. The clothes of the deceased were also seized along with bed sheet. Appellant No. 1 was arrested and he made a disclosure statement and pursuant to the disclosure, weapon of offence (drat) was also recovered. Blood stained under shirt was also seized during personal search. He proved the offence under sections 302, 341 and 34 RPC as the deceased had died in the hospital. The documents prepared by him are correct. In cross examination, he stated that in FIR it is not mentioned that who was the eye witness to the occurrence. This is correct 16 CRA No. 4/2014 that on the disclosure memo and recovery memo, same set of witnesses have been kept as marginal witnesses and it has not come in his investigation that both these witnesses were the relatives of the deceased. Both the witnesses to the disclosure memo had come to the Police Station for making inquiry about the case. This is correct that when the accused was taken for recovery to his home, his house was open. This is correct that drat was blood stained. In his investigation, it has come that only one blow was inflicted and it was stated by Bikram Singh. Bikram Singh has stated in his statement under section 161 Cr.P.C. that accused Raj Kumar caught the deceased and Sanjeev Kumar, in order to kill the deceased, inflicted the injury on the neck of the deceased, as a result of which, he fell down and in his presence, the accused inflicted injuries upon the deceased. This is correct that Bal Krishan has also lodged FIR with regard to the altercation in which he was injured. He admitted that FIR No. 310/2008 has been registered with regard to causing fire to the house of the accused on his docket because he was there in connection with investigation of FIR bearing No. 299/2008. He has not seized sheet that was used for wrapping the injuries of the deceased.
Appreciation:
31. From the charge sheet, it transpires that PW-3 Bikram Singh and PW-4 Arjun Singh have been cited as eye witnesses to the occurrence. A perusal of the statement of the PW-3 Bikram Singh reveals that he had seen appellant Sanjeev Kumar with drat in his hand and giving blow on the neck of the deceased, who was lying on the road. Though the said witness has been cross-examined at length by the appellants but they have not been able to impair the credibility of the said witness. The presence of PW-3 17 CRA No. 4/2014 Bikram Singh on the spot was natural as his house was situated near the place of occurrence and the place of occurrence was visible from his house. It is also substantiated by the site plan (ExTP-24) prepared by the PW-24- Investigating Officer. Though the appellants tried to dispute the presence of the said witness on spot by laying stress upon the unnatural conduct of PW- 3, Bikram Singh in not informing the Police with regard to the alleged occurrence but it needs to be noted that the occurrence took place at 4.30 PM on 26.09.2008 and information was received at 7.30 PM by the Police pursuant to which FIR bearing No. 299/2008 was registered. It is not that the FIR has been registered after inordinate delay but FIR was registered immediately after the occurrence by the father of the deceased so we do not agree with the submissions made by the learned counsel for the appellants that there was any unnatural conduct on the part of said witness. We have no doubt in our mind that PW-3 has made any wrong statement before the learned trial court, rather the manner in which he has deposed before the learned trial court clearly demonstrates that he had himself seen the occurrence. Law is well settled that the conviction can be recorded on the basis of statement of a solitary eye witness provided the said witness is trustworthy. In "Amar Singh v. State (NCT of Delhi)", (2020) 19 SCC 165, the Apex Court has held as under:
"16. Thus, the finding of guilt of the two appellant-accused recorded by the two courts below is based on sole testimony of eyewitness PW
1. As a general rule the court can and may act on the testimony of single eyewitness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the courts will insist on corroboration. It is not the number, the quantity but quality that is 18 CRA No. 4/2014 material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise [see Sunil Kumar v. State (NCT of Delhi) [Sunil Kumar v. State (NCT of Delhi), (2003) 11 SCC 367 : 2004 SCC (Cri) 1055] ]."
32. In view of our finding that the statement of PW-3 is trustworthy and the same can be safely relied upon, the consideration of other issue raised by the appellants that the learned trial court has wrongly relied upon the statement of PW-4 Arjun Singh, that was made on the basis of information furnished to him by PW-3 Bikram Singh, as the PW-3 Bikram Singh in his deposition has no where stated that he had disclosed about the occurrence immediately to PW-4, becomes irrelevant. The prosecution has proved the disclosure statement as also the recovery of the weapon of offence i.e. drat as PW-12 Rajinder Singh, PW-11 Lucky Singh and PW-2 Sheela Devi has proved the recovery memo (ExTP-2). More so, the blood stained under shirt of appellant-Sanjeev Kumar has also been seized and proved vide seizure memo (ExTP-9/1) and all these circumstances clearly prove that it was the appellant-Sanjeev Kumar, who inflicted injury upon the deceased.
33. The learned trial court has also laid much stress upon the statement of PW-
2 Sheela Devi (mother of the deceased) that when after hearing cries, she was going towards the place of occurrence, she met the appellant-Sanjeev Kumar who was having a drat with broken tip and appellant No. 2 was also behind him and appellant No. 1 was saying that he has killed her son Sonu (deceased). She also stated that she tried to catch appellant No. 1 but he pushed her and ran away. PW-2 Sheela Devi has admitted that she has not seen the occurrence. In her cross examination, she has stated that she has 19 CRA No. 4/2014 made statement before the Police as well as in her statement recorded under section 164-A Cr.P.C that while she was proceeding towards the place of occurrence, the appellant No. 1 met her and was saying that he has killed his son Sonu. The said fact was not found to have been stated by her in statement recorded under section 161 Cr.P.C. but in her statement recorded under section 164-A CrPC, it was mentioned that she enquired from the accused Sanjeev Kumar and then accused stated that he has killed Sonu (deceased). She also admitted that her statement was recorded in the court after one month of the occurrence. It was also not mentioned in her statement recorded under section 161 Cr.P.C. that on enquiry by her, the accused had replied that he has killed Sonu but it has been mentioned in her statement recorded under section 161 Cr.P.C. that she enquired from the accused as to why he killed her son, then the appellant pushed her aside and ran away. When PW-2 Sheela Devi was confronted with the statement recorded under section 161 Cr.P.C, it was found that it was not stated by her in her statement recorded under section 161 Cr.P.C that 5 to 7 minutes prior to occurrence, the appellants had come to their house and had enquired about the whereabouts of the Sonu (deceased). PW-1 Kabla Singh (father of the deceased) stated in his chief examination that on 26.09.2008, the appellants had come to his house at 4 PM and enquired about Sonu and when he expressed ignorance, the appellants went away and after 5 to 7 minutes, noise was heard that his son has been killed. He in his cross examination stated that the statement recorded under section 161 Cr.P.C. was recorded on 02.10.2008 by the Police and he had never made such statement as recorded under section 161 Cr.P.C. that the appellants about one month prior to the occurrence had come outside his house and were 20 CRA No. 4/2014 threatening to kill them. He also admitted that he was not present on the place of occurrence. The perusal of the statement of PW-1Kabla Singh reveals that he has not mentioned that when the appellants came to him 5 to 7 minutes prior to occurrence, the appellant Sanjeev Kumar was having a drat in his hand. If this statement is read in conjunction with the statement made of PW-2 Sheela Devi, then there is material contradiction between the statements of both these witnesses with regard to the fact that appellant- Sanjeev Kumar was armed with drat. Once there are two sets of evidence one favouring the accused and the other against him, then the benefit of doubt has to be granted to the accused. In view of above material contradictions, it would not be safe to place reliance upon the statement of the PW-2 Sheela Devi that 5 to 7 minutes prior to occurrence the appellants had come to their house and Sanjeev was having drat in his hands and further that they enquired about the whereabouts of his son and thereafter when she proceeded towards the spot, appellant-Sanjeev Kumar met him and was saying that he has killed Sonu. It shows that it was not a premeditated killing and also that there is no witness as to what transpired between the appellants and deceased on spot when injury was inflicted upon the deceased.
34. It was also contended by the appellants that the clothes of PW-2 Sheela Devi and PW-3 Bikram Singh were not blood stained which clearly shows that the prosecution has projected a false story that the deceased was taken in the lap by PW-2 Sheela Devi and that PW-3 Bikram Singh was present on spot. PW-2 Sheela Devi has also admitted that her clothes were blood stained. The mere fact that she had not seen the appellant No.1 inflicting injuries upon the deceased makes this contention irrelevant. So far as PW-3 21 CRA No. 4/2014 Bikram Singh is concerned, he has already deposed that he had neither lifted the deceased nor kept him in the vehicle of Jaimal Singh. He has expressed his ignorance as to who kept the deceased in the vehicle but stated that there were 20 to 25 people on spot, as such, we do not find any force in the contention raised by the appellants.
35. It was also urged that as per statement of Dr. Vasna Devi that the deceased had died because of infection and further that even if the prosecution evidence is to be believed, then also the appellant-Sanjeev Kumar has inflicted a single blow and there is no evidence that it was sufficient in ordinary course of nature to cause the death of the deceased, in view of the fact that the deceased died after 12 days of occurrence. From the statement of PW-3 Bikram Singh, it is evident that the appellant-Sanjeev Kumar inflicted only one injury on the neck of the deceased. There is no thumb rule that when the death is caused by a single blow, the accused cannot be convicted under section 302 RPC, what is required to be seen is as to whether the injury resulting into the death of the deceased was sufficient in ordinary course of nature to cause the death of the deceased or not. From the evidence brought on record, we do not find any evidence that the weapon of offence was shown to Doctor either during investigation or during trial as to whether the injuries on the body of the deceased could be inflicted by the weapon or not. It assumes significance in view of the fact that the nature of injury has not been mentioned in postmortem report (Ext- P-23). Thus, it remains a mystery as to whether injury was caused by sharp side of drat or blunt side.
36. The statement of PW-23 Dr. Vasna reveals that the deceased had died due to cerebral anoxia leading to multiple organ failure. She has further stated 22 CRA No. 4/2014 that this type of injury can be protected from infection by the best management/treatment of the patient by specialized treatment and the main cause of death in this case was due to infection that led to cerebral anoxia. She further stated that as per postmortem, there was single external injury on the body of the deceased. It is not the case that the deceased died instantaneously because of a single blow of drat but rather the deceased sustained injury on 26.09.2008 and he died on 08.10.2009 i.e. after 12 days of the incident. Further, it was incumbent on the part of the prosecution to seek opinion from the Doctor as to whether the injury inflicted upon the deceased was sufficient in the ordinary course of nature to cause death of deceased particularly when the deceased survived for 12 days after the occurrence. No such opinion has been sought by the prosecution. In "Kartarey v. State of U.P.", (1976) 1 SCC 172, Apex Court has held as under:
"26. We take this opportunity of emphasising the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specifically on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g. stab wounds, and the problem before the Court is whether all or any of those injuries could be caused with one or more than one weapon. It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may, sometimes, cause aberration in the course of justice. ------."
This judgment was relied upon by Apex Court in Amar Singh v. State (NCT of Delhi), (2020) 19 SCC 165.
37. In "State of Rajasthan v. Shera Ram", (2012) 1 SCC 602, the Supreme Court has held 23 CRA No. 4/2014 "29. Another aspect of this case which requires consideration by this Court is that the case of the prosecution suffers from legal infirmity. In fact, the prosecution has failed to prove beyond reasonable doubt that the injury inflicted by the respondent upon the deceased was sufficient in the ordinary course of nature to cause death. It is the case of the prosecution that the respondent had hurled a stone which had caused injury (lacerated wound on the left side of the forehead) whereupon the deceased fell on the ground and subsequently collapsed. The injury is said to be 2'' x =" x upto bone, transversely Lt. side of forehead and another lacerated wound 2" x =" x <" near injury No.1 towards the forehead. These are the injuries which the deceased is stated to have suffered. In addition, abrasion of 1 cm x 1 cm on the left eyebrow was also present. According to the doctor, all these injuries were ante mortem in nature and the cause of death was shock and haemorrhage due to head injury.
30. In the statement of PW-20, Dr. C.P. Bhati, it is nowhere stated that the injuries caused by the respondent were sufficient in the ordinary course of nature to cause death. It is also not recorded in the post- mortem report, Ext. 37. This was a material piece of evidence which the prosecution was expected to prove in order to bring home the guilt of the respondent. This is a serious deficiency in the case of the prosecution. Absence of this material piece of evidence caused a dent in the case of the prosecution. The High Court has not taken note of this important aspect of the case."
38. Thus, we are of the considered opinion that the prosecution has miserably failed to prove the fact that the appellant No. 1 has inflicted such injury upon the deceased that was sufficient in the ordinary course of nature to cause death of the deceased.
39. In "Firaoz Gani Mujawar v. State of Maharashtra", (2020) 19 SCC 551 Apex Court modified the conviction from 302 IPC to 304-1 IPC by observing that there were some injuries, but those are not sufficient in the ordinary course of nature to cause death and further observed that as per Dr Jadhav (PW 7), the proximate cause of the death was septicaemia in an operated case and the deceased survived for fifty-one days.
40. In "Sanjay v. State of U.P.", (2016) 3 SCC 62, Hon'ble Supreme Court observed that in such facts and circumstances, the prosecution should have elicited from Dr. Laxman Das (PW 9) that the head injury 24 CRA No. 4/2014 sustained by the deceased was sufficient in the ordinary course of nature to cause death. No such opinion was elicited either from Dr Laxman Das (PW 9) or from Dr Gulecha (PW 3) and further held as under:
"16. In the instant case, the appellants used firearms, countrymade pistol and fired at Roop Singh at his head and the accused had the intention of causing such bodily injury as is likely to cause death. As the bullet injury was on the head, vital organ, the second appellant intended of causing such bodily injury and therefore, conviction of the appellant is altered from Section 302 IPC to Section 304 Part I IPC. The learned counsel for the appellant Sanjay submitted that it was only Narendra who fired at Roop Singh at his head, appellant Sanjay fired on Sheela (PW 2) on her neck, stomach and leg. The learned counsel for the appellant Sanjay contended that as Sanjay fired only at Sheela, he could not have been convicted for causing death of Roop Singh under Section 302 IPC read with Section 34 IPC. There is no force in the above contention. The common intention of the appellants is to be gathered from the manner in which the crime has been committed. Both the appellants came together armed with firearms in the wee hours of 11-8-1998. Both the appellants indiscriminately fired from their country made pistols at Roop Singh, deceased and Sheela (PW 2) respectively. The conduct of the appellants and the manner in which the crime has been committed is sufficient to attract Section 34 IPC as both the appellants acted in furtherance of common intention. The conviction of the appellant Sanjay under Section 302 IPC read with Section 34 IPC is modified to conviction under Section 304 Part I IPC."
41. We have gone through the judgment impugned. The learned trial court has rightly appreciated the evidence so far as appellant-Sanjeev Kumar is concerned and has come to the conclusion that it was the appellant-Sanjeev Kumar, who assaulted the deceased-Harbans Singh with drat but the learned trial court has not considered the statement of PW-Dr. Vasna Kumari in its right perspective, particularly when she made the statement that the death in this case was due to infection. More so, we find that there is not even an iota of evidence against the appellant No. 2 and as such, we are of the view that the learned trial court has erred in convicting appellant No. 2.
25 CRA No. 4/2014
42. In view of all what has been discussed above, the conviction of the appellant No.1 is modified to section 304-II RPC from section 302 RPC as he can be presumed to have a knowledge that by inflicting injury on the neck of the deceased, death may be caused. The appellant No.1 is sentenced to rigorous imprisonment for ten years. The appellant No.1 has remained in jail for nearly 11 years and thereafter he was granted bail. As the appellant No.1 has already undergone the sentence and the appellant No. 2 has been acquitted, their bail bonds stand discharged.
43. Judgment dated 24.12.2013 passed by the trial court in File No. 29/Sessions, titled, "State vs. Sanjeev Kumar & Anr" is modified accordingly.
44. Reference is answered accordingly.
45. Record of the trial court be sent back along with copy of this judgment.
(MOHAN LAL) (RAJNESH OSWAL)
JUDGE JUDGE
JAMMU
31.08.2022
Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No