Punjab-Haryana High Court
Veer Bhan @ Toni vs State Of Haryana on 9 July, 2010
Author: Ashutosh Mohunta
Bench: Ashutosh Mohunta
Criminal Appeal No. 592-DB of 2001. 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) Criminal Appeal No. 592-DB of 2001.
Date of Decision : 9.7.2010.
Veer Bhan @ Toni ...... Appellant
Versus
State of Haryana
...... Respondent
(2) Criminal Appeal No. 953-DB of 2003.
Date of Decision : 9.7.2010.
Ramesh ...... Appellant
Versus
State of Haryana
...... Respondent
CORAM : HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA
HON'BLE MR. JUSTICE NAWAB SINGH
Present: Mr. Gorakh Nath, Sr. Advocate with
Mr. Rahul Vats, Advocate,
for the appellants.
Mr. Pardeep S. Punia, Addl. AG Haryana,
for the respondent-State.
NAWAB SINGH J.
Veer Bhan accused-appellant has filed Criminal Appeal No.592-DB of 2001 challenging the judgment of conviction dated September 25th, 2001 and order of sentence dated September 26th, 2001 passed by Additional Sessions Judge, Hisar, whereby, he was convicted and sentenced as under :-
Offence Sentence Fine In default U/S 302 IPC Life imprisonment Rs. 5000/- RI for 6 months U/S 25 of RI for 1-1/2 years Rs. 500/- RI for 2 months Arms Act Both the sentences were ordered to run concurrently.
2. First Information Report No.129 dated March 4th, Criminal Appeal No. 592-DB of 2001. 2 1997 under Section 302 read with Section 34 of Indian Penal Code, Police Station Civil Lines, Hisar was registered against Veer Bhan, Ramesh (Both appellants) and Rajesh alias Raju (proclaimed- offender). Another FIR No.159 dated March 18th, 1997 under Section 25 of Arms Act was registered against Veer Bhan accused-appellant only.
3. During pendency of the trial, Rajesh alias Raju and Ramesh absconded. Both of them were declared proclaimed offenders. Ramesh was arrested on May 15th, 2002. Against him, a de-novo trial ensued. By judgment of conviction dated November 17th, 2003 and order of sentence dated November 20th, 2003, Ramesh was also convicted under Section 302 read with Section 34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/- with default stipulation.
4. Against the said judgment of conviction and order of sentence, Ramesh has filed the present Criminal Appeal No. 953- DB of 2003.
5. Since both the accused were challaned, charge- sheeted and tried on the accusation that on March 3rd, 1997 at about 9 PM they committed murder by intentionally causing death of Kesar Singh so, both the appeals are being disposed of by this judgment.
6. As per the prosecution story, on March 3rd, 1997 at about 9 PM, Rohtash Kumar-complainant-eye witness (PW-9/10) along with Kesar Singh (deceased) was searching for his three wheeler bearing No. HR 20-B-2454 on their scooter No. HR 20-A- 0365 which was allegedly stolen by some unknown persons on the night of February 27th, 1997 while it was parked in front of Haryana Tube Factory, Hisar. When they reached Pushpa Complex, Hisar, Gurmail Kaur wife of Kesar Singh met them. While Kesar Singh and Gurmail Kaur were talking to each other, Veer Bhan alias Toni and Ramesh, both brothers and Rajesh alias Raju residing in the colony of the complainant, came from the side of Haryana Urban Development Authority Office. Kesar Singh asked them as to why they had stolen the three wheeler of Rohtash Kumar. A verbal Criminal Appeal No. 592-DB of 2001. 3 exchange of hot words took place between Kesar Singh and Veer Bhan and others. Veer Bhan took out a knife and gave a blow on the left side of chest of Kesar Singh. Rohtash Kumar tried to chase them but could not apprehend them. All the three left on the scooter of Rohtash Kumar. Kesar Singh was brought to Jindal Hospital where he was not given treatment by the Medical Officer. Thereafter, he was taken to Civil Hospital, Hisar where he was declared brought dead.
7. The Medical Officer, Civil Hospital, Hisar sent the information (Exhibit PA) to the In-charge, Police Post Government Hospital, Hisar. Rajesh Kumar Duggal, Station House Officer, Police Station Civil Lines (PW-13) reached the hospital. He recorded the statement of Rohtash Kumar (Exhibit PB) and made his endorsement (Exhibit PB-2). The First Information Report was recorded. Inquest proceedings (Exhibit PG) were conducted. The Post-mortem Examination on the dead body of Kesar Singh was conducted by Dr. J.S. Bhatia (PW-6). He found one injury on the person of the deceased, that is, transverse incised wound 4 cm below the left nipple. Length was 1-1/2 cm and breadth was 1 cm. On probing the depth was found to be 7-1/2 cms. It was opined by him that Kesar Singh died due to shock and haemorrhage on account of injury caused which was sufficient in the ordinary course of nature to cause death. It was also opined that injury could be caused with the knife (Exhibit (P-5).
8. After completion of the investigation and other formalities, the accused-appellants were arraigned for trial.
9. Charge, in respect of commission of offence punishable under Section 302 read with Section 34 of Indian Penal Code was framed against the all accused. Veer Bhan accused- appellant was also charged under Section 25 of Arms Act. They pleaded not guilty and claimed trial.
10. Trial commenced. The prosecution examined 13 witnesses against both the accused vis Dr. Pardeep Kumar Verma (PW-1), Yaad Ram (PW-2), Balbir Singh (PW-3), Suraj Bhan (PW-4), Criminal Appeal No. 592-DB of 2001. 4 Chhaju Ram (PW-5), Dr. J.S. Bhatia (PW-6), Kanwar Singh (PW-7), Krishan Kumar (PW-8), Rohtash Kumar (PW-9), Garish Kumar Draftsman (PW-10), Prem Singh (PW-11), Krishan Lal Sub Inspector (PW-12) and Rajesh Kumar Duggal (PW-13). In both the trials, witnesses were the same but their serial numbers were different because trial against Ramesh re-started after his arrest.
11. In their examination under Section 313 of Code of Criminal Procedure, the accused-appellants denied the allegations and pleaded that they were implicated falsely.
12. Learned counsel for the accused-appellants while arguing the case of Veer Bhan-appellant has submitted that he does not challenge the findings on merits, that is, regarding the causing of fatal injury to the deceased, rather, has submitted that the accused- appellant had not committed an offence of murder punishable under Section 302 IPC because the offence was committed without pre- meditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner and as such, the case falls under exception 4 to Section 300 IPC and it is only culpable homicide not amounting to murder punishable under Section 304-I IPC.
13. The eye witness account has been rendered in the case of Veer Bhan by Rohtash Kumar (PW-9). He is the sole eye witness. According to him, while they were in search of a three wheeler Veer Bhan accompanied by Rajesh and Ramesh appeared on the scene from the side of HUDA office. Kesar Singh (deceased) asked them as to why they had stolen the three wheeler of Rohtash Kumar. A squabble took place between the three. Veer Bhan took out the knife and gave a blow on the left side of the chest of the deceased. Dr. J.S. Bhatia (PW-6) who conducted the autopsy on the dead body of Kesar Singh found the injury as described in paragraph 7 of this judgment. The injury was in consonance with the eye witness account. The question is whether the appellant could be said to have caused that injury with the intention of causing death of the deceased. As the totality of the established facts and circumstances Criminal Appeal No. 592-DB of 2001. 5 do show the occurrence had taken place rather unexpectedly in a sudden quarrel and without pre-meditation during the course of which Veer Bhan accused-appellant caused a solitary injury on the chest of the deceased which was sufficient in the ordinary course of nature to cause death as opined by the Medical Officer. Since there was solitary injury caused by the appellant and that too, with kitchen knife, it can be presumed that accused-appellant had not taken undue advantage and acted in a cruel manner. It is the then case of the prosecution that after causing the injury, he immediately fled away from the scene of occurrence. The dimensions of the injury, that is, 1-1/5 cm x 1 cm which on probing was found to be 7.5 cms further suggests that Veer Bhan accused-appellant did not cause the injury to the deceased in a cruel manner. The offence committed by Veeer Bhan-appellant is the one punishable under Section 304-I IPC but not under Section 302 IPC. There are series of decisions in support of the view taken by this Court but it would be appropriate to refer to two decisions of the Hon'ble Apex Court (i) Ramkishan vs. The State of Maharashtra 2007(1) RCR (Criminal) 614 and; (ii) Bangaru Venkata Rao vs. State of Andhra Pradesh 2009(1) RCR (Criminal)
452.
14. In Ramkishan's case (supra), there was land dispute between the parties. On the day of occurrence, the accused met the deceased. There was sudden quarrel. The accused gave one axe blow on the head of the deceased who was unarmed which resulted in his death. Hon'ble Supreme Court altered the conviction from one Section 302 to 304-I IPC and sentenced the accused to undergo imprisonment for ten years.
15. In Bangaru Venkata Rao's case (supra), sudden quarrel took place between husband and the wife. The accused- husband inflicted a single blow on the abdomen of the wife with the knife resulting into her death. Hon'ble Supreme Court altered the conviction from Section 302 IPC to 304-I IPC and accused was sentenced to undergo imprisonment for ten years. Taking into consideration the facts and circumstances and following the ratio of Criminal Appeal No. 592-DB of 2001. 6 the above mentioned decisions, this Court holds that the case of Veer Bhan-accused-appellant falls under exception 4 to Section 300 punishable under Section 304-I IPC.
16. Now comes the case of Ramesh. Learned counsel for the accused-appellant has urged that in the first version given by Rohtash Kumar and the statement made by him in the Court on April 27th, 2000, he nowhere stated that Rotash Kumar participated in the occurrence. It was for the first time when he made second deposition before the Court on September 20th, 1993, that is, after about 6 years of the occurrence that he added that Veer Bhan and Ramesh caught hold of Kesar Singh and Veer Bhan gave the knife blow which shows that material improvement has deliberately been introduced so as to implicate Ramesh by attributing an overt act to him. The occurrence was sudden and for six long years there was no whisper regarding any active role played by Ramesh. Mere presence or accompanying the main accused Veerbhan cannot be sufficient to hold accused Ramesh guilty of the offence.
17. Rohtash Kumar-eye witness in his statement (Exhibit PB) on the basis of which First Information Report (Exhibit PB/1) was recorded has stated that verbal exchange of hot words took place between Veer Bhan and Kesar Singh. The same was his version at the time of his deposition on April 27th, 2000. From his two statements, it is evident that Ramesh did not participate in the occurrence at all. For the first time when he again deposed on September 27th, 2003 he gave another version that this accused had also caught hold of Kesar Singh which, of course, creates doubt on the credibility of this witness. Had Ramesh caught hold of Kesar Singh, it would have been mentioned by Rohtash Kumar in his statement (Exhibit PB) to the Police or at least, when he deposed before the Court on April 27th, 2002. Under these circumstances, it is not safe to believe Rohtash Kumar so far as role attributed by him to Ramesh is concerned. Except the deposition made by him for the first time in the year 2003 that Ramesh also caught hold of Kesar Singh when Veerbhan gave a knife blow on the chest of Kesar Singh, Criminal Appeal No. 592-DB of 2001. 7 there is no evidence against Ramesh that he actively participated in the occurrence, a fact which could not be controverted by the State counsel. Thus, the prosecution failed to prove the case against Ramesha-appellant. At least, he is entitled to the benefit of doubt.
18. In view of above, it is ordered as under:-
(i) The appeal filed by Veer Bhan-appellant is partly allowed. The judgment of conviction and order of sentence dated September 25th, 2001 and September 26th, 2001 respectively are modified to the effect that he is held guilty and convicted under Section 304-I IPC and sentenced to undergo Rigorous Imprisonment for 10 years and to pay the fine imposed by the trial Judge. The sentence awarded to Veer Bhan under Section 27 of the Arms Act is maintained. Both the sentences are ordered to run concurrently. He was released on bail by this Court during the pendency of the appeal.
His bail/surety bonds are cancelled. He be arrested and sent to jail to undergo the remaining part of sentence. Learned trial Judge is directed to comply with this order forthwith under intimation to this Court.
(ii) The appeal filed by Ramesh-appellant is allowed. The judgment of conviction dated November 17th, 2003 and order of sentence dated November 20th, 2003 passed by the trial Judge are set-aside. He is acquitted of the charges. The bail-surety bonds shall stand discharged.
(ASHUTOSH MOHUNTA) (NAWAB SINGH)
JUDGE JUDGE
9.7.2010.
SN