Punjab-Haryana High Court
Arun Kumar vs State Of Haryana on 20 May, 2009
Author: Jora Singh
Bench: Jasbir Singh
Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 1
Crl. Appeal No. 902-DB of 2003.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No. 53-DB of 2000.
DECIDED ON : 20.05.2009
Arun Kumar
Appellant.
VERSUS
State of Haryana.
Respondent.
Crl. Appeal No. 122-DB of 2000.
DECIDED ON : 20.05.2009
Azad
Appellant.
VERSUS
State of Haryana.
Respondent.
Crl. Appeal No. 902-DB of 2003.
DECIDED ON : 20.05.2009.
Vijay
Appellant.
VERSUS
State of Haryana.
Respondent.
Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 2
Crl. Appeal No. 902-DB of 2003.
CORAM :HON'BLE MR. JUSTICE JASBIR SINGH.
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. Baldev Singh, Sr. Advocate, with
Mr. Deepinder Singh, Advocate, for
Arun Kumar and Azad appellants.
Mr. R.N.Kush, Advocate, for
Vijay appellant.
Mr. S.S. Randhawa,
Addl. Advocate General, Haryana.
JORA SINGH,J.
Arun Kumar son of Chhaga and Azad son of Suraj Bhan preferred Criminal Appeal Nos. 53-DB of 2000 and 122-DB of 2000 respectively to impugn the judgment dated 12.1.2000 and order dated 14.1.2000 rendered by Additional Sessions Judge, Hisar in Sessions Case No. 68 of 1997,bearing First Information Report No. 292 dated 23.5.1997 registered at Police Station Civil Lines, Hisar, under Sections 304/308/148/149/323/ 324 of the Indian Penal Code. Vide this judgment, they were convicted under Sections 148, 147, 302/323/324 read with Section 149 of the Indian Penal Code and were sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/- each Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 3Crl. Appeal No. 902-DB of 2003.
for the commission of offence punishable under Section 302 read with Section 149 IPC. In default of payment of fine they were further sentenced to undergo rigorous imprisonment for one year. Accused Arun was sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 148 IPC. Accused Azad was also sentenced to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 147 IPC Both the accused were also sentenced to undergo rigorous imprisonment for a period of one year each for the offence punishable under Section 324 read with Section 149 IPC. They were also sentenced to undergo rigorous imprisonment for a period of six months each for the offence punishable under Section 323 read with Section 149 I.P.C. All the sentences were, however, ordered to run concurrently.
Whereas Amit alias Sonu and Sandeep alias Nipi were acquitted of the charges levelled against them.
Against acquittal of Amit alias Sonu and Sandeep alias Nipi, no appeal by the State.
Accused Vijay, Sandeep, Deepak and Sat Pal Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 4Crl. Appeal No. 902-DB of 2003.
being juvenile were sent to Juvenile Justice Board to face trial. Later on, Vijay was found to be not juvenile then case of Vijay was committed to the Court of Session for trial. Vide judgment dated 7.11.2003 and order dated 12.11.2003 Vijay was convicted under Sections 302 read with Section 149 I.P.C., 148 I.P.C. and under Section 324 read with Section 149 I.P.C. and was directed to undergo imprisonment as under:-
" Vijay accused was sentenced to imprisonment for life under Section 302 read with Section 149 I.P.C. and to pay a fine of Rs.1000/-. He was sentenced to rigorous imprisonment for two years under Section 148 I.P.C. and was sentenced to rigorous imprisonment for two years under Section 324 read with Section 149 I.P.C. In default of payment of fine, the accused was further ordered to undergo rigorous imprisonment for six months. The substantive sentences were, however, ordered to run concurrently. Learned counsel for the appellants states that Sandeep, Deepak and Sat Pal alias Santu being juvenile Crl. Appeal No. 53-DB of 2000.Crl. Appeal No. 122-DB of 2000. 5
Crl. Appeal No. 902-DB of 2003.
are still facing trial before the Juvenile Justice Board.
Prosecution story, in brief, is that Jai Pal complainant is the resident of Police Line, Hisar. On 23.5.1997 at about 7.45 P.M. he along with Parbhu Ram, Ravi, Dharminder, Mukesh and Harish Kumar residents of Central Jail, Hisar were present in front of STD shop of Krishan Chugh and the shop of Balwan Barber in Patel Nagar Market, Hisar. In the meantime, 8-9 boys including Vijay alias Sonu, Sandeep son of Ved, Deepak, Arun, Azad residents of Patel Nagar, Hisar along with three unknown boys came from the side of Balmiki Mohalla. Deepak and Arun enquired from the complainant and his companions, as to why they are behaving like Dadas. There was an altercation amongst the parties. Vijay alias Sonu took out a knife from his right dub and gave a blow on the left side of the chest of Parbhu. Deepak also took out a knife from his dub and gave knife blow on the left thigh of Jaipal. Arun gave a lathi blow on the head of Jai Pal. Again Deepak gave knife blow on the right foot of Jai Pal. On receipt of injuries, complainant and Parbhu fell down and their injuries started bleedings. Then companions of Vijay Crl. Appeal No. 53-DB of 2000.Crl. Appeal No. 122-DB of 2000. 6
Crl. Appeal No. 902-DB of 2003.
alias Sonu started giving fist blows to Jail Pal and Parbhu. Jai Pal and Parbhu were rescued by Ravi, Dharminder, Mukesh and Harish from the clutches of the accused. After causing injuries, accused had fled away from the spot. Injured were shifted to Civil Hospital, Hisar where they were medico legally examined. Regarding admission of injured, ruqa was sent to the Police Station. On receipt of ruqa, police party headed by Assistant Sub Inspector Jagmal Singh came to the hospital. After obtaining opinion of the doctor regarding fitness of the injured, statement of Jai Pal was recorded. After making endorsement, statement was sent to the Police Station, on the basis of which formal First Information Report was recorded. Parbhu was declared unfit to make a statement.
Police Party headed by Assistant Sub Inspector Jagmal Singh had gone to the spot. Blood stained earth was lifted from the spot and made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Rough site plan with correct marginal notes was prepared. An effort was made to apprehend the Crl. Appeal No. 53-DB of 2000.Crl. Appeal No. 122-DB of 2000. 7
Crl. Appeal No. 902-DB of 2003.
accused but they were not available, then Assistant Sub Inspector Jagmal Singh had gone to Civil Hospital, Hisar where Head Constable Jai Kishan informed the Investigating Officer regarding death of Parbhu and handed over a ruqa Ex.PAA, then offence punishable under Section 304 of the Indian Penal Code was added. Sub Inspector Nanak Chand came to the hospital and thereafter the investigation was taken over by him.
Sub Inspector had gone to dead house. Inquest report was prepared. An application was moved requesting the doctor to conduct the post mortem examination on the dead body of Parbhu. Sub Inspector Nanak Chand received secret information regarding presence of accused near Railway Line. Raid was conducted. Vijay, Deepak, Arun and Azad were arrested. Deepak and Vijay were produced before the doctor for their medical examination. Both were admitted in the hospital by the doctor.
On 25.5.1997 accused Arun was interrogated. In pursuance of his disclosure statement, lathi was got recovered from the specified place. Recovered lathi was taken into police possession vide separate memo attested Crl. Appeal No. 53-DB of 2000.Crl. Appeal No. 122-DB of 2000. 8
Crl. Appeal No. 902-DB of 2003.
by the witnesses.
On 27.5.1997 Vijay was interrogated and he made a disclosure statement to the effect that he has kept concealed a knife. In pursuance of his disclosure statement, knife was recovered from the specified place. Sketch of the knife was prepared and the same was taken into police possession vide separate memo attested by the witnesses. Deepak was interrogated and he made a disclosure statement to the effect that he had kept concealed a knife then knife was recovered from the specified place. Sketch of the knife was prepared and the same was taken into police possession vide separate memo attested by the witnesses.
After the completion of investigation, challan was presented.
Against Arun and others, case was committed to the Court of Session for trial.
Accused were charged under Sections 147/148/302/324/323 read with Section 149 of the Indian Penal Code, to which they pleaded not guilty and claimed trial.
Initially challan against four juvenile including Crl. Appeal No. 53-DB of 2000.Crl. Appeal No. 122-DB of 2000. 9
Crl. Appeal No. 902-DB of 2003.
Vijay was presented in the Court of Juvenile Justice Board. Later on Vijay was found to be not Juvenile, then his case was committed to the Ld. Court of Session for trial.
Accused Vijay was charged under Sections 148, 302/149,324, 323/149 IPC to which he pleaded not guilty and claimed trial.
Prosecution examined PW-1 Dr.K.C.Khurana who had brought the bed head ticket of Jai Pal and proved the same as Ex.PA.
PW-2 Dr. Pardeep Kumar Sharma stated that on 23.5.1997 he had medico legally examined Parbhu and found the following injuries on his person:-
1. There was an incised wound over left side of chest on anterior auxiliary line 7 cm below the nipple. Fresh bleeding was present. Size was 3.5 cm x 2 cm. Depth was not measured. It was placed posterior anterially above down wards. Omentum was coming out through the wound. X-ray of chest and abdomen were advised and surgeon's opinion sought.
Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 10Crl. Appeal No. 902-DB of 2003.
Nature of injury was dangerous to life and the duration was within six hours. Weapon used was sharp.
At 9.10 P.M. he had medico legally examined Jai Pal and found the following injuries on his person:-
1. There was an incised wound 3 cm x 2 cm placed obliquely above down words on anterior aspect of the left thigh. It was 12 cm below anterior superior alique spine. Fresh bleeding was present. X-ray was advised and orthopaedic surgeon opinion was sought.
2. There was an incised wound 4 cm x 2 cm placed horizontally 4 cm lateral to injury No.1. Fresh bleeding was present. X-ray was advised.
Orthopaedic surgeon opinion was
sought.
3. Lacerated wound 4 cm x 0.2 cm on the
right parietal region of the skull and was placed anterior posteriorly. Fresh bleeding was present. X-ray was Crl. Appeal No. 53-DB of 2000.Crl. Appeal No. 122-DB of 2000. 11
Crl. Appeal No. 902-DB of 2003.
advised. Orthopaedic surgeon opinion was sought.
4. There was a diffused swelling over right lateral malleous. X-ray was advised and orthopaedic surgeon opinion was sought.
On 24.5.1997, he had medico legally examined Deepak and found the following injuries on his person:-
1. There was diffused swelling below left eye in an area of 3 cm x 2 cm painful to touch and black in colour. X-ray was advised. The weapon used for the injury was blunt.
Duration of the injury was given more than 24 hours. Ex.DX is the carban copy of the original MLR.
On the same day i.e. 24.5.1997, he had also medico legally examined Sonu alias Vijay and found the following injuries on his person:-
1. There was an C.A.P abrasion black in colour 4 cm x 0.5 cm on upper in lateral part of the left Crl. Appeal No. 53-DB of 2000.Crl. Appeal No. 122-DB of 2000. 12
Crl. Appeal No. 902-DB of 2003.
scapular region. X-ray was
advised.
2. There was an incised wound on
upper and later part of left leg 2
cm x 0.8 cm. No fresh bleeding
was present. X-ray was advised.
3. There was an incised wound on
posterior lateral aspect of left side of thorax X.ray was advised. No fresh bleeding was present.
PW-3 Dr. Raminder Singh had conducted post-mortem examination on 24.5.1997 and found the following injuries on the dead body of Parbhu:-
1. A stitched wound on left chest, lower and outer aspect measuring 4 cm x 2 cm obliquely placed in the anterior auxiliary line. 12 cm below auxiliary and 7 cm from nipple. On dissection clotted blood was present and the direction of the wound was inwards and slightly downwards. It had pierced deep muscle and other tissues of eight intercostals space and then left come Crl. Appeal No. 53-DB of 2000.Crl. Appeal No. 122-DB of 2000. 13
Crl. Appeal No. 902-DB of 2003.
of diaphragm, a through and through
stitched wound were present. On
underlying tissues and layers stomach.
The abdominal cavity contained small
quantity of blood.
2. A stitched wound L shaped measuring 10 cm x 21 cm starting from left nipple towards sternum and then towards umbilicus. The underlying partition and muscles were stitched in the same direction (laprotomy wound ).
3. A small stitched wound in the left aliac region ( drain wound) skin deep.
4. Small cut down wound on right anterior ankle the rest of the organs were healthy and the large intestine contained fiscal matter.
Cause of death as per opinion of the doctor was due to injury No.1 which was ante mortem in nature and sufficient to cause death in ordinary course of nature. The probable time that elapsed between injury and death was declared as variable and the time between Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 14Crl. Appeal No. 902-DB of 2003.
death and postmortem as within 12 hours.
PW-4 Head Constable Kanwar Singh and PW-5 Constable Krishan Kumar had tendered their affidavits Ex.PJ and Ex.PK respectively.
PW-6 Assistant Sub Inspector Om Parkash has simply recorded the statements of some witnesses under Section 161 Cr.P.C.
PW-7 Jai Pal Singh and PW-9 Ravi are the eye witnesses. Both have supported the prosecution story by saying that the accused had caused injuries to the complainant party. On receipt of injuries, Parbhu had died on 24.5.1997 at 5.40 A.M. PW-8 Girish Kumar Draftsman had prepared scaled site plan Ex.PM.
PW-10 Assistant Sub Inspector Jagmal Singh had initially investigated the case in hand.
PW-11 Sub Inspector Nanak Singh had partly investigated the case in hand after Assistant Sub Inspector Jagmal Singh.
In the subsequent Session trial faced by Vijay, prosecution examined all the witnesses stated above except Sub Inspector Nanak Singh on account of his Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 15Crl. Appeal No. 902-DB of 2003.
death.
After the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. to explain the allegations levelled against them. Accused denied all the allegations and claimed to be innocent. Defence version of the accused was that they are innocent. They have been falsely involved in the present case. In fact, Jai Pal Singh and his brother Dharminder gave beatings to Deepak and Vijay while present near the bridge situated near the Officers Colony. Number of persons had collected on the spot and they saved Vijay and Deepak by throwing brick bats and gave beatings to Prabhu and Jai Pal. They did not cause any injury to any one.
Opportunity was given to lead defence but no defence was led by Arun Kumar and Azad but Vijay produced Balwan Singh as DW1, who stated that on the day of occurrence, Deepak and Vijay were present near his shop. Prabhu along with two/three boys came out of the shop and had some altercation with Vijay. Prabhu and his companion caused injuries to Deepak and Vijay. Vijay and Deepak had also caused injuries to Prabhu Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 16Crl. Appeal No. 902-DB of 2003.
etc in self defence.
We have heard Mr. Baldev Singh Sr. Advocate with Deepinder Singh, Advocate for Arun Kumar and Azad appellants-accused; Mr. R.N.Kush, Advocate for Vijay appellant-accused; Mr. S.S.Randhawa, Additional Advocate General, Haryana for the respondent and have gone through the evidence on the file very carefully and thoroughly with their assistance.
Learned counsel for the appellants-accused argued that occurrence was in the area of Patel Nagar, Hisar. Appellants-accused are the residents of Patel Nagar, Hisar. Complainant party was not the resident of Patel Nagar, Hisar. House of the complainant was at a distance of one and one and a half kilometer from the place of occurrence. Jai Pal and Ravi are the sons of police officials/ employees. Arun Kumar was armed with a lathi whereas Vijay armed with knife. Azad was not carrying any weapon. According to the story, complainant party was present in front of the shop of Krishan and Balwan. Appellants-accused came and enquired from the complainant party as to why they are doing Dadagiri. Complainant party replied that they are Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 17Crl. Appeal No. 902-DB of 2003.
not doing any Dadagiri then there was some altercation amongst the parties. Suddenly, Vijay took out a knife from his right dub and gave a blow on the left side of the chest of Parbhu. Blow was not repeated. Injuries alleged to have been caused by Arun were found to be simple in nature. When the appellants-accused came near the complainant party then they exchanged hot words. Presence of the appellants-accused was per chance. They had not come on her planning. Azad was not armed. He had not caught hold the deceased or the complainant. In case, appellants-accused had the intention to murder then Azad should have brought weapon. Three/four unknown assailants accompanying the appellants-accused simply gave fist/kicks blows. Arun Kumar or Azad had no knowledge that Vijay was carrying a knife in his right fold when there was some altercation qua Dadagiri then without knowledge of Arun Kumar or Azad, Vijay after taking out a knife from his right fold gave only one blow. There was no intention to murder. Deepak and Vijay also suffered injuries. They were medico legally examined by the same doctor namely Dr. Pardeep Kumar. Injuries on the Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 18Crl. Appeal No. 902-DB of 2003.
person of appellants-accused Vijay were not explained. Defence counsel for the appellants-accused argued that there was no enmity amongst the parties. Per chance appellants-accused had met the complainant party. When the blows were not repeated then Arun Kumar is liable for his own act. Appellants per chance met the complainant party when there was exchange of hot words and some altercation then Vijay gave blow. At the most Vijay is liable for the commission of offence punishable under Section 304 Part-II I.P.C.
Mr. S.S.Randhawa, Additional Advocate General, Haryana, argued that complainant party was present in front of the shop of Krishan and Balwan situated in Patel Nagar, Hisar. Appellants-accused came fully armed and gave injury on the vital part. Appellants-accused had the intention to murder.
First submission of learned counsel for the appellants-accused was that appellants-accused are the residents of Patel Nagar, Hisar. Complainant party was not the resident of Patel Nagar, Hisar. Jai Pal and Ravi are the sons of police officials. Per chance the appellants-accused came in front of the complainant Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 19Crl. Appeal No. 902-DB of 2003.
party. There was some altercation amongst the parties. Suddenly, Vijay took out a knife and gave blow. Azad was not armed. He had not caught hold of the deceased or the complainant. So, the occurrence had not taken place as alleged by the prosecution. Submission of learned defence counsel carries some weight. Appellants-accused are the residents of Patel Nagar, Hisar whereas the complainant party was not the resident of Patel Nagar, Hisar. Jai Pal and Ravi are the sons of the police officials and their residences were in Police Line, Hisar. Three/four unknown assailants were accompanying the appellants-accused but they were not armed. Azad was also not armed. Before the present occurrence, there was no dispute amongst the parties. When the appellants-accused suddenly came in front of the complainant party then there was exchange of hot words. Fist and kick blows were given. Blow was not repeated by Vijay or Arun Kumar. Simple injuries were noted on the person of Jai Pal. Without knowledge of the co-accused Vijay took out a knife from his right fold and gave blow hitting Prabhu. Deepak and Vijay also received injuries as per Dr.Pardeep Kumar. One injury Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 20Crl. Appeal No. 902-DB of 2003.
was noted on the person of Deepak and three on the person of Vijay. Injuries were simple in nature, injury No.1 on the person of Vijay was not on the vital part. Remaining injuries noted on the person of Deepak and Vijay were found to be simple in nature. They were medico legally examined on the next day i.e. 24.5.1997. As per suggestion to Jai Pal and Ravi there was a scuffle amongst the complainant, Vijay and Deepak while present near the bridge of Officer Colony. As per suggestion to Vijay some persons intervened and caused injuries to the complainant. Contrary to the suggestion given to the complainant party, suggestion was given to Ravi who was the eye witness that he and Dharminder gave beatings to Deepak and Vijay while present near bridge. Then number of persons collected on the spot saved Deepak and Vijay by hurling brick bats but injuries on the person of Vijay were not explained by the prosecution. In Kashmira Singh Vs. State of Punjab, AIR 1994 Supreme Court 1651, Hon'ble Supreme Court held that appellant-accused along with co-accused caught hold of deceased and another accused took out knife from his pocket and inflicted simple injury on deceased. Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 21Crl. Appeal No. 902-DB of 2003.
Accused not having prior knowledge that another accused was armed with knife. Common intention on the part of that accused not proved. Conviction under Section 302 read with Section 34 set aside. In the present case also, complainant party was present in front of the shop of Krishan and Balwan. Per chance appellants-accused came in front of the complainant party then there was exchange of hot words. Azad was not armed. He had not caught hold either the deceased or the injured. Arun Kumar did not repeat blow. So, presence of Azad at the time of occurrence is doubtful. When appellants-accused had no common intention to commit the crime then all the accused are liable for their own acts.
As discussed earlier, before 23.5.1997 appellants-accused had no enmity with the complainant party. Complainant party was from a different Mohalla and was found present in front of the shop of Krishan and Balwan situated in Patel Nagar, Hisar. Appellants- accused are from Patel Nagar, Hisar. That means, per chance appellants-accused came in front of the complainant party. There was no planning. If there was Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 22Crl. Appeal No. 902-DB of 2003.
a planning to murder then Azad and unknown assailants should have brought weapons. After exchange of hot words, blows were exchanged. Nothing on the file who gave blows. Injury No. 1 on the person of Jai Pal was found to be simple in nature. Vijay did not repeat the knife blow, if intention was to murder then number of knife blows could easily be given to Prabhu Ram. That means, the intention was not to murder but was simply to cause injuries.
No other submission was put forward.
In the light of the above discussion, we are of the opinion that when intention was not to murder and there was no common intention amongst the accused then Vijay is liable for the commission of offence punishable under Section 304 Part-II instead of 302 IPC. Offence punishable under Section 302 I.P.C. is converted to offence punishable under Section 304 Part-II I.P.C.
Criminal Appeal No. 53-DB of 2000 is dismissed. Arun Kumar is directed to undergo
imprisonment already undergone for his individual role for the commission of offence punishable under Section 323 I.P.C.
Crl. Appeal No. 53-DB of 2000.
Crl. Appeal No. 122-DB of 2000. 23Crl. Appeal No. 902-DB of 2003.
Criminal Appeal No. 902-DB of 2003 on behalf of Vijay is partly allowed and under Section 304 Part-II he is to undergo imprisonment for seven years. Fine maintained.
Criminal Appeal No. 122-DB of 2000 filed by Azad is accepted. He is acquitted of the charge levelled against him.
( JORA SINGH )
JUDGE
20.05.2009. ( JASBIR SINGH )
Anoop JUDGE