Punjab-Haryana High Court
Raj Kumar @ Amit And Others vs State Of Haryana on 30 July, 2010
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
Crl. Appeal No.1752-SB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.1752-SB of 2002
Date of decision:30.07.2010
Raj Kumar @ Amit and others
...Appellants
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr.B.S.Saroha, Advocate
for the apellants.
Mr.Pradeep Virk, DAG, Haryana.
JITENDRA CHAUHAN, J.
1. The present appeal is directed against the judgment/order dated 24/29.10.2002, whereby the accused/appellants have been convicted for the offence punishable under Section 304-II IPC read with Section 34 of IPC and accordingly sentenced each of them to undergo rigorous imprisonment for a period of seven years.
2. The facts, as noticed by the trial Court in para 2 of its judgment, are re-produced as under:
"On 9.12.1998, on receipt of V.T. Message from General Hospital, Panipat, about admission of injured Satpal, HC Prem Singh alongwith Constable Sat Narain reached there and on enquiry from the doctors it transpired that said Crl. Appeal No.1752-SB of 2002 2 Satpal had been referred to PGI Rohtak. Then HC Prem Singh alongwith said constable reached PGI Rohtak and after obtaining opinion of the doctor, regarding fitness, recorded statement of Satpal, injured, to the effect that they were five brothers and he alongwith Madan Lal were residing together; he was un-married; on 8.12.1998, a dispute had taken place of Sunil son of his (Satpal) elder brother with someone and Sunil had told him (Satpal) to accompany him but he (Satpal) advised not to quarrel. At about 8.30 p.m. Sunil, under the influence of liquor started abusing him (Satpal) saying that he (Satpal) belong to just like a dog family and then he (Sunil) left for his house; he then went to the house of his elder brother Harish to protest; Sunil son of Harish, was found standing in the street in front of the house of Harish, having bottle of Campa Cola; he (Satpal) called his elder brother Harish; Harish then picked up a Danda; Raj Kumar son of Harish also picked up a Sota meant for cleaning the clothes; all the three then started abusing him (Satpal); on hearing this, his (Satpal) elder brother Madan Lal son of Sant Lal came at the spot; Harish gave the blow of his Danda on his (Satpal) right knee; Sunil son of Harish after breaking the bottle, gave a blow of it on his (Satpal) left side chest and Raj Kumar gave the blow of his SOTA on his left leg; on Crl. Appeal No.1752-SB of 2002 3 receipt of blow of bottle, he fell down in the street and when Madan Lal tried to pick up him (Satpal). Sunil threw something on him. This occurrence was witnessed by Madan Lal; Sunil son of Harish at the instance of Harish son of Sant Lal and Raj Kumar son of Harish, had caused the injury to him with the bottle, after breaking it and he was apprehending to his life. He then was got admitted in Civil Hospital, Panipat, by his family members and after giving first aid he was referred to MCH Rohtak on account of serious injury; then he was shifted to Prem Kumar Hospital, Panipat, and on account of his serious condition, he was referred to MCH Rohtak by Doctor Prem; and that action be taken against Sunil, Raj Kumar sons of Harish and Harish son of Sant Lal, in accordance with law. Satpal then put his thumb impression on the said statement admitting the same to be correct. HC Prem Singh then made his endorsement Ex.PF/1 on the said statement Ex.PF and sent the same to the Police Station City Panipat, on the basis of which formal FIR of this case under Sections 323/324/34 IPC was registered. Thereafter HC Prem Singh went to Civil Hospital, Panipat, collected MLR, Ex.PA, of Satpal from the doctor. The doctor also handed over to him one parcel containing clothes of Satpal duly sealed with the seal ASK and sample seal which he took into possession Crl. Appeal No.1752-SB of 2002 4 vide memo Ex.PG duly signed by Madan Lal. Thereafter he went to the spot, prepared rough site plan, Ex.PH with correct marginal notes; recorded statements of witnesses. Thereafter the investigation was taken up by ASI Rohtash Singh. On 19.12.1998 Satpal died in PGI Rohtak and ASI Rohtash Singh sent PGI Rohtak and conducted inquest proceedings Ex.PL, on the dead body and got the dead body postmortemed vide postmortem report Ex.PJ by moving application, Ex.PK. Thereafter the investigation was taken up by ASI Partap Singh, who on 9.1.1999 was present at Vir Bhawan Chowk, Panipat, where Kishori Lal produced before him, accused Harish, Sunil and Raj Kumar, who were interrogated and were arrested by him in this case. On 16.1.1999 the ASI also got prepared the scaled site plan, Ex.PB, from Constable Jagbir Singh, Draftsman; recorded statements of witnesses and then on completion of investigations, the accused was booked for trial under the above said offence by the Station House Officer of Police Station City Panipat."
3. The accused/appellants were charge sheeted for the offence under Section 302 of IPC, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined as many as eight witnesses, namely, Dr.Arun Singla as PW1; Constable Crl. Appeal No.1752-SB of 2002 5 Jagbir Singh as PW2; Dr.Shalaj Gupta as PW3; Surjit Singh as PW4; HC Prem Singh as PW5; Dr.S.S.Dahiya as PW6; Inspector Karan Singh as PW7 and ASI Partap Singh as PW8.
5. PW1-Dr.Arun Sehgal, Medical Officer, General Hospital, Panipat, deposed that he medico legally examined the injured Satpal (since deceased).
6. PW2-Constable Jagbir Singh, S.P. Office, Sonepat and PW3-Dr.Shalaj Gupta, Prem Nursing Home, Panipat are formal witnesses.
7. PW4-Surjit Singh deposed that on 8.12.1998 he came to know that his brother-in-law, i.e., Satpal, was taken to Civil Hospital, Panipat in an injured condition. He further deposed that on 20.12.1998 the injured Satpal expired.
8. PW5-HC Prem Singh deposed that he received a wireless message that Satpal (since deceased) had been admitted in Civil Hospital, Panipat on account of sustaining injuries. He recorded the statement of Satpal as Exhibit PF. He further deposed that the injured Satpal (since deceased) put his thumb impressions on it. He further deposed that on 11.12.1998, he handed over the further investigation of the present case to Partap Singh, ASI. He also deposed in his cross- examination that during the course of recording the statement of injured Satpal(since deceased), he was not serious and his condition was normal. The doctor remained present at the time of recording of statement.
Crl. Appeal No.1752-SB of 2002 6
9. PW6-Dr.S.S.Dhaiya, Medical Officer, Civil Hospital, Rohtak, deposed that he conducted postmortem examination on the dead body of Satpal. He opined that the cause of death was hemorrhage and shock due to multiple injuries.
10. PW7 Inspector Karan Singh prepared the report under Section 173 Cr.P.C. and PW8 ASI Partap Singh inspected the case partly.
11. After conclusion of the prosecution evidence, the accused were examined under Section 313 of the Code of Criminal Procedure. The accused denied all allegations and pleaded that they had been falsely implicated in the present case. In defence, they examined one witness, namely, Om Parkash, SBI Agent, GT Road, Panipat as DW1.
12. After hearing the learned counsel for the parties, the learned Trial Court convicted and sentenced the accused/appellants as noticed at the outset of this judgment. Feeling aggrieved from their conviction/ sentence, the accused/appellants have preferred this appeal.
13. The present appeal was admitted on 12.11.2002 by this Court.
14. Learned counsel for the appellants has argued that there is nothing on record to show that there was any previous enmity between the deceased and the accused/appellants. The appellants Raj Kumar and Sunil Kumar are the real nephews of Satpal (since deceased), whereas the appellant Harish is real brother of the deceased. He has further argued that the statement (Exhibit PF) of the deceased recorded Crl. Appeal No.1752-SB of 2002 7 on 9.12.1998 cannot be treated as a dying declaration as the deceased died on 19.12.1998 after ten days of the occurrence. It has also been argued that the deceased remained fit throughout. There were sufficient opportunities with the prosecution to get a proper dying declaration recorded.
15. The learned counsel further submits that as per the alleged dying declaration, the accused/appellant Sunil Kumar picked up a quarrel with someone on 8.12.1993. He approached the deceased for help in the matter. However, the deceased advised the accused Sunil Kumar not to indulge in any quarrel. The deceased went to the house of his brother i.e. accused/appellant Harish Kumar, to lodge protest. At the house of Harish Kumar, the accused/appellant Sunil Kumar, who at that time was having a campa bottle in his hand and was also under the influence of liquor, caused injuries on the left side of the chest of the deceased after breaking the bottle of campa, whereas, the accused/appellant Harish Kumar picked up a danda inflicted danda blow on the right knee of the deceased. The accused/appellant Raj Kumar gave sota blow on the left leg of the deceased.
16. It has further been argued that from the facts, it would reveal that the accused/appellants had no strong and compelling motive to cause injuries to the deceased. As per the case of the prosecution, the occurrence has been witnessed by Surjit Singh, PW4 and one Madan Lal. Surjit Singh, PW4 did not support the allegations and case of the prosecution, whereas Madan Lal could not be produced as he Crl. Appeal No.1752-SB of 2002 8 expired during the trial.
17. Learned counsel has further argued that no report of the doctor regarding fitness of the injured Satpal (since deceased) has been exhibited. HC Prem Singh, PW5, stated in his cross-examination that he did not remember the name of the doctor, however, the doctor is stated to be present during recording of the statement. Therefore, he has argued that such a statement does not qualify the doctorine of being considered as dying declaration.
18. Learned counsel has also pointed out that the deceased was an educated person and could sign, whereas on the statement, Exhibit PF, his thumb mark has been obtained. The ocular version is not supported by the medical evidence. As per MLR of the deceased, no injuries were noticed on the left leg and on the right knee which are attributed to the accused/appellants Raj Kumar and Harish Kumar, respectively.
19. On the other hand, learned counsel for the State has argued that there was motive to cause injuries to the deceased as the deceased had refused to help Sunil Kumar. The accused/Sunil caused grievous injuries which led to the death of Satpal. The presence of accused/appellants Harish Kumar and Raj Kumar is duly proved. In the dying declaration, the deceased has clearly spelt out the injuries caused by the accused/appellants.
20. I have heard the learned counsel for the parties and perused the record with their able assistance.
Crl. Appeal No.1752-SB of 2002 9
21. As far as the dying declaration is concerned, it has come in the statement of HC Prem Singh, PW5, that the same was recorded after seeking the report from doctor that the injured was fit to make statement. Such an dying declaration is acceptable under law. The dying declaration is accepted to the extent that the accused/appellant Sunil Kumar caused injuries with the bottle of campa after having broken the same as alleged by the prosecution.
22. Surjit Singh, PW4 and Madal Lal were the eye witnesses in the instant case. Surjit Singh, PW4, in his cross-examination, has stated that he came to know that someone had inflicted injury on the person of Satpal. He has further stated that after receiving injuries, the deceased remained fully unconscious and did not speak a single word to any body. Though this statement indicates that perhaps the dying declaration was fabricated but there is evidence on record that the deceased Satpal was not in critical condition at the time of admission, therefore, the statement of this witness cannot be relied upon. The statement of another witness Madal Lal could not be recorded as he had died during the course of trial.
23. From the record, it is made out that there is inconsistency between the ocular and medical evidence on record with regard to the injuries. As per MLR, Exhibit PA, no injuries were noticed on the left leg and the right knee which are attributed to the accused/appellant Raj Kumar and Harish Kumar, respectively. However, these injuries were stated to be simple in nature, therefore, it appears that the accused/appellants Raj Kumar and Harish Kumar have been named by Crl. Appeal No.1752-SB of 2002 10 the deceased being brother and father of Sunil Kumar, who caused fatal injuries on the person of the deceased. Otherwise also, as per the prosecution case, the deceased went to the house of the accused/appellant Harish Kumar where the alleged injuries were caused. This fact finds duly reflected in the dying declaration.
24. From the facts, it is made out that there was no previous enmity between the deceased and the appellants. The deceased went to the house of the appellants after taking liquor. There is nothing on record on the basis of which, it can be said that the appellant had common intention to cause injuries to the deceased. In the fact situation, I find that in the instant case the common intention on the part of the accused/appellants is not proved. Section 34 of IPC is reproduced as under:-
"34. Acts done by several persons in furtherance of common intention.
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
25. The common intention is a question of fact though it is subjective, but it can be inferred from the facts. In my considered opinion, a finding of common intention should not be reached unless there is clear convincing evidence to support the same. The common intention as required under Section 34 IPC can be inferred from the surrounding circumstances and the conduct of the accused persons preceding, attending and subsequent to the occurrence. Crl. Appeal No.1752-SB of 2002 11
26. In the instant case, it is not that the accused, who went to the house of the deceased and attacked him or there was any history of previous enmity. The incident has occurred at the spur of the moment when the deceased visited the house of the accused/appellant. There is nothing on record to suggest that the preceding conduct of the accused persons was such that they had common intention to cause injuries and in furtherance of their common intention the injuries were caused to the deceased.
27. The essential ingredient of Section 34 of IPC that each must share the intention of the other is not established in the present case. The injuries attributed to the accused Raj Kumar and Harish Kumar were not noticed by the doctor during the medico legal report of the deceased. However, the injuries caused by the accused Sunil Kumar stand duly proved.
28. In view of the above discussions, the appeal qua Sunil Kumar is dismissed, whereas the appeal qua appellants Raj Kumar and Harish Kumar is accepted. The judgment and order dated 24/29.2002 passed by the Additional Sessions Judge, Panipat is modified to the extent indicated above. The appellant Sunil Kumar is stated to be on bail, his bail bonds shall stand forfeited. He be taken into custody forthwith to suffer the remaining sentenced, as awarded by the learned Trial Court.
30.07.2010 (JITENDRA CHAUHAN) mk JUDGE Note: Whether to be referred to the Reporter? Yes/No