Punjab-Haryana High Court
Mohd.Ahsan vs State Of Haryana on 9 October, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
Crl.A. No.233-DB of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.A. No.233-DB of 2007
DATE OF DECISION: OCTOBER 9, 2013
MOHD.AHSAN ...APPELLANT
VERSUS
STATE OF HARYANA ...RESPONDENT
CORAM: HON'BLE MR.JUSTICE M.JEYAPAUL.
HON'BLE MRS.JUSTICE ANITA CHAUDHRY.
1. Whether the judgement should be reported in the digest?
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PRESENT: MR.H.S.JALAL, ADVOCATE
LEGAL AID COUNSEL FOR THE APPELLANT.
MR.DHRUV DAYAL, DAG, HARYANA.
M.JEYAPAUL, J.
1. Accused Mohd.Ahsan who was convicted under Section 302 IPC and was sentenced to undergo imprisonment for life and to pay a fine of `10,000/- and in default of payment of fine, to undergo a further period of 1 year has challenged the same before this Court.
2. The case of the prosecution had been well described in the statement of PW10 Devi Dayal which reads as follows:-
On 17.8.2005 at about 11.30 p.m. Devi Dayal was taking meal at Shiv Dhaba in front of bus stand, Jagadhari. Charan Singh and Rajiv Sharma also were taking meals at Shiv Dhaba. PW11 Neeraj Gulati and deceased Vikrant also came alongwith their companions to Shiv dhaba for taking meal. Deceased Vikrant called one of the waiters of dhaba "Hello". Accused Mohd.Ahsan who was smoking a cigarette in the dhaba abused Gulati Sumit 2013.10.22 14:17 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.233-DB of 2007 -2- deceased Vikrant by calling him "Salle" (brother-in-law). Thereafter, the accused got up from his seat and started grappling with deceased Vikrant. Vikrant and accused Mohd.Ahsan came out of the dhaba. PW10 and his companions Charan Singh and Rajiv Sharma made an attempt to separate them. In the meanwhile, Mohd.Ahsan took out a glass bottle from his Maruti car bearing registration No.DL3CG/7729 which was parked in front of the dhaba and after breaking the glass bottle delivered two blows on the left side of the chest of Vikrant, gave a blow on the left arm and delivered two blows near the left armpit. Vikrant fell down on the ground with blood oozing out in huge quantity. Mohd.Ahsan fled away from the spot after leaving his car. Vikrant was taken to Aggarwal Hospital for treatment by PW10 and his companions. Thereafter, he was rushed to Civil Hospital, Jagadhari and got admitted. After some time, injured Vikrant succumbed to the grievous injuries he sustained in the occurrence.
3. PW10 Devi Dayal, PW11 Neeraj Gulati and PW11 Rajiv Kumar who were eye witnesses to the occurrence completely supported the case of the prosecution. The glass pieces were recovered from the scene of occurrence by the investigating official. The FSL report would disclose that glass pieces contained human blood.
4. PW1 Dr.Vikash Kaushik medico-legally examined injured Vikrant who was brought in an unconscious condition by PW11 Neeraj Gulati on 18.8.2005 at about 00.30 a.m. He found the following injuries on the injured Vikrant:-
"1. Lacerated wound 5cm x 4cm x bone deep on left side of Gulati Sumit 2013.10.22 14:17 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.233-DB of 2007 -3- chest 7cm from mid-line.
2. Lacerated wound 5cm x 3cm bone deep on dorsomedial aspect of left arm and elbow joint.
3. Lacerated wound 4cm x 2cm x bone deep on anterior aspect of right shoulder joint and adjoining area of chest.
4. Lacerated wound 2cm x 1cm x bone deep on the medial wall of right axilla.
5. Punctured wound 1cm x .5cm x bone deep on left side of chest."
5. PW2 Dr.Rajiv Airon conducted post mortem examination on the dead body of Vikrant on 18.8.2005 at about 10.30 a.m. He found the very same injuries noted down by PW1 Dr.Vikash Kaushik. He opined that the deceased had died due to shock on account of massive haemorrhage in the left plural cavity which was sufficient to cause his death in normal circumstances.
6. The accused had contended in his statement under Section 313 Cr.P.C. that when he was taking supper at Shiv dhaba, four young men arrived there to take meals. They addressed him "Hello" to which he objected. They did not relish his stance and, therefore, they physically assaulted him. The accused also grappled with the young persons in defence. One of them pulled out a bottle, broke it and rushed to attack the accused, but he unfortunately fell down and the bottle caused a stab wound in the upper region of his body. The fall on the big broken pieces of bottle Gulati Sumit 2013.10.22 14:17 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.233-DB of 2007 -4- caused him injuries. The accused did not use the bottle in any manner. He had not caused any injury to the deceased. He was not responsible for the death of the young man.
7. The trial Court having relied upon the evidence of PW10, PW11 and PW12, in the background of the FSL report and the medical evidence on record returned a verdict of conviction as against the accused- appellant.
8. Learned counsel appearing for the appellant would vehemently submit that the dhaba owner and the servers in Shiv dhaba were not examined. PW10 Devi Dayal and PW12 Rajiv Kumar could not recollect whether the portion of the glass bottle used as weapon of offence was taken away by the accused or not. But, PW11 Neeraj Gulati would depose that the accused left the glass portion of the bottle used as weapon at the scene of crime itself. The investigating agency had not taken any steps to collect the fingerprints on the glass for comparison with the fingerprints of the accused. It is his last submission that the occurrence had taken place in the heat of passion in a sudden quarrel. Even otherwise, the accused had to defend himself from the assault launched by the deceased. Therefore, it is his submission that the appellant is entitled to acquittal.
9. We heard the submissions made by learned DAG, Haryana appearing for the State supporting the verdict of conviction and sentence passed by the trial Court.
10. The case of the prosecution is based on eye witness account. PW10 Devi Dayal was the complainant in this case. He was also a neighbor Gulati Sumit 2013.10.22 14:17 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.233-DB of 2007 -5- to deceased Vikrant. PW11 Neeraj Gulati had admitted injured Vikrant in the hospital for treatment. MLR Ex.PC would disclose that it was only PW11 Neeraj Gulati who had admitted him to the hospital for treatment. Therefore, his presence at the scene of crime cannot be doubted. PW12 Rajiv Kumar was also examined as eye witness to the occurrence.
11. PW10, PW11 and PW12 have spoken in one voice that the accused having felt wounded by the utterances of Vikrant as "Hello" grappled with him. The efforts taken by PW10 and his companions to separate them did not yield result. The accused took out a glass bottle from his Maruti car parked in front of the dhaba and indiscriminately stabbed victim Vikrant on vital parts.
12. The testimony of the eye witnesses inspires confidence. Their evidence establishes the case of the prosecution that accused in fact attacked Vikrant and caused his death.
13. It is not the number of witnesses, but the quality of evidence that matters. When three eye witnesses had been examined by the prosecution, the question of examining the other eye witnesses did not arise. Even otherwise, the owner of the dhaba and the servers in the dhaba cannot take sides as they would loose their customers. Therefore, non-examination of the dhaba owner and the servers in the dhaba does not in any way affect the case of the prosecution.
14. It is true that PW10 and PW12 could not recollect whether the portion of the glass bottle used as weapon of offence was taken away by the accused or not. But the fact remains that PW13 SI Jai Singh, the Gulati Sumit 2013.10.22 14:17 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.233-DB of 2007 -6- investigating officer in this case had recovered the main piece of glass bottle which was used as weapon of offence. PW11 Neeraj Gulati had also categorically deposed that the accused left behind a portion of the glass bottle which was used as weapon of offence.
15. The failure on the part of PW10 and PW12 to recollect as to whether the weapon of offence was taken away or left behind by the accused did not cause any dent in the case of the prosecution.
16. The failure on the part of the prosecution in not lifting fingerprints from the broken glass does not affect the case of the prosecution which was otherwise established through the ocular testimony. The broken glass was found with human blood as per the FSL report. The above evidence also would go to show that the deceased had received lethal injuries on the vital parts of the body. It is found that the deceased had received punctured wound on the left side chest as well.
17. It is true that there was no motive harboured by the accused to commit the murder of the deceased. It is found that the quarrel had erupted all of a sudden in the heat of passion in which the attack had been launched by the accused. In our considered view, the accused had taken undue advantage of the unarmed position of the victim and caused not 1 or 2 injuries, but 5 injuries on the person of the deceased. It is also found that he had chosen the left side chest of the deceased which proved fatal. There is no evidence to show that victim Vikrant was armed with any lethal weapon and the accused had to defend himself from the onslaught of the deceased with lethal weapon. Therefore, the defence set up by the accused that he Gulati Sumit 2013.10.22 14:17 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.233-DB of 2007 -7- had to exercise his right of private defence also does not appeal to us. Inasmuch as the accused had taken undue advantage of the unarmed position of the deceased, he cannot invoke Exception 4 to Section 300 IPC.
18. The evidence on record would go to establish that though the accused had not harboured any motive, he had intended to cause the death of the deceased.
19. We find that the trial Court had rightly evaluated the evidence on record and recorded conviction and sentence as against the accused. We do not find any reason to interfere with the well considered judgement of the trial Court. Therefore, the judgement of conviction and sentence passed by the trial Court is upheld and the appeal stands dismissed.
20. It is brought to our notice that accused-appellant Mohd.Ahsan had jumped parole. Learned Chief Judicial Magistrate, Yamuna Nagar shall take steps to arrest the accused and send him to jail to undergo the unexpired portion of the sentence.
(M.JEYAPAUL)
JUDGE
October 9, 2013 (ANITA CHAUDHRY)
Gulati JUDGE
Gulati Sumit
2013.10.22 14:17
I attest to the accuracy and
integrity of this document
High Court, Chandigarh