CRAA/21/1998 of STATE OF J AND K Vs JEEWAN LAL AND ORS. on 1 June 2006

HIGH COURT OF JAMMU AND KASHMIR.AT JAMMU, Cr.Acq.Appeal No.21/98Dated:1.06.06Cr.Appeal No.10/98%Confir.9/98°

State Vv. Jeevan Lal and ors

Jeevan Lal and anr State |

Coram:-.

Hon’ble Mr Justice Nirmal Singh, Judge

Hon’ble Mr Justice H.Imtiyaz Hussain,Judge Appearing counsel:

For petitioner: © MrB.S. ManhasFor respondent: Mr SC Gupta, AAG

JUDGEMENT|

This judgment shall govern the disposal of both these appealswhich arise out of the same order dated 20/27[St]Feb’98 passed by thelearned Sessions Judge, Udhampur.

Appellant Jeevan Lal in Criminal Appeal No10/98 along with his|father Shankar Dass, since deceased, and his mother Geeta Devi, sinceacquitted, were prosecuted under Section 302, 307, 448 read with Section34 RPC, for having committed murder of deceased Vijay Kumar andinjuring PW Romesh Chander on 30[th]April’91 at village Malhar tehsiland district Udhampur. |

The prosecution case 1s that on 30[th]April’?91 at about 7.30 pm,Romesh Chander was returning to his house from a Gharat (water flour

mill). When he reached near his house, he met his paternal uncle ShankerDass, who started abusing him. There was an altercation between ShankerDass and Romesh Chander PW. Shanker Dass had a sickle in his hand.He gave a blow hitting on the left eye of Romesh Chander. Shanker Dass.left the scene whereas injured Romesh Chander went to his house. PW.Sheela Devi along with her daughter Sanjokta and three daughter-in-lawsnamely Babli, Rani and Guddi were also present in the house. In themeanwhile,Vijay Kumar, deceased, brother of Romesh Chander alsoreturned to his house and enquired about the incident from his brother. Inthe meanwhile, at about 8 p.m. Shanker Dass accompanied by his sonJeevan Lal and his wife Geeta Devi came to the house of injured Romesh.Chander and started abusing him. Shanker Dass and Jeevan Lal werearmed with daggers. When Romesh Chander came out of the compound, ©Geeta Devi caught hold of Romesh Chander and Jeevan lal gave a daggerblow on the back of Romesh Chander due to which he fell down. VijayKumar, brother of Romesh Chander came to rescue his brother. GeetaDevi also caught hold of Vijay Kumar and Shanker Dass and Jeevan Lalinflicted blows in his abdomen. Vijay Kumar became unconscious and theladies present 1n the house raised alarm. On this, the accused ran awayfrom the spot along with the weapons. The injured were taken to hospitalWhere Vijay Kumar was declared dead. Injured Romesh Chander wasadmitted in the hospital and was given treatment. |

Sheela Devi went to the police station and made a statement on thebasis of which FIR under Sections 302, 307, 448 read with Section 34RPC was registered against the appellants-accused.

P.W. Ganesh Raj, SI, went to the spot, took the dead body into|custody and sent it for autopsy which was conducted by Dr TR Guptavide his report ExPW M/1. During investigation Geeta Devi and ShankarDass were arrested by SI Ganesh Raj and the appellant Jeevan Lal wasfound absconding. Shankar Dass was interrogated. On interrogation, hemade a disclosure statement on 8.5.91 and got recovered the weapon ofoffence. Jeevan Lal was also arrested on 16.4.93. After his arrest, he wasinterrogated and made a disclosure statement. The weapons of offencewere recovered and seized vide seizure memo EXPW JK/1 and EXPWJK/2.

After completion of the investigation, challan was presented and|the accused were charge-sheeted under the aforementioned Sections towhich they pleaded not guilty.

To prove the case, the prosecution has examined PWs namely Mst)Sheela Devi, Krishan Dass, Romesh Chander, Sanjokta Devi, Mst Babli,Mst Rani Devi, Mule Raj, Mango, Joginder Kumar, Shiv Lal, Jai Lal,Kamlesh Kumar, Photographer, Durga Dass, Dr Anju Balla, Dr TRGupta, Nazir Ahmed, Constable, Ganesh Raj Sharma, SI, IsherDass, and Sham lal, ASI.

When the appellant-accused were examined under Section 342Cr.P.C, to explain the incriminating evidence appearing in the prosecutionevidence, they have not denied the occurrence. Accused Shankar Dass —took the plea that after closing of his office when he was returning homeand was passing through the passage which passed from outside the houseof complainant, PW Romesh Chander caught him and started beating himwith a stick and also called his brother Vijay Kumar and exhorted him to.reach there with a drat for killing him. Vijay Kumar came with a drat.Thereafter he raised alarm and his wife Geeta Devi also reached on spot.According to Shankar Dass, both Romesh Chander and Vijay Kumar gavehim beating. Vijay Kumar deceased then handed over the drat to RomeshChander who tried to gave a blow to him but instead of hitting him, it hit.the deceased Vijay Kumar.

The accused were called to lead defence. In defence, they examinedBadri Nath and Mohan Lal.

The learned Sessions Judge after appreciating the evidence of the|prosecution and the defence, acquitted Geeta Devi. However, ShankerDass and Jeevan Lal were convicted and sentenced to undergo rigorous

imprisonment for life and to pay a fine of Rs. One lac u/s 302 RPC. Forcommission of offence under Section 307 RPC, accused Jeevan Lal wasfurther sentenced to undergo rigorous imprisonment for a period of tenyears and was also liable to pay fine of Rs. 10,000. For commission ofoffence under Section 448 RPC, both the accused were sentenced toundergo rigorous imprisonment for a period of one year and to pay fine ofRs. 500/-.All the sentences were ordered to run concurrently. |

It 1s against this conviction and sentence, the appellants Shanker|Dass and Jeevan lal have filed Criminal Appeal No.10/98 and the Statehas preferred acquittal appeal No.21/98, whereas the learned SessionsJudge, Udhampur, has made a reference under Section 374 Cr.P.C. forconfirmation of sentence imposed upon Shankar Dass and Jeevan Lal.

During the pendency of appeals, appellant Shanker Dass has died.Proceedings against him, therefore, shall stand abated.

First of all, we take the appeal filed by the State against the|acquittal of Geeta Devi.

When a matter pertains to acquittal, the appellate or revisional courthas to be slow to interfere in the order passed of acquittal. The order ofacquittal can be interfered with only 1f the judgment passed by the court |

below is palpably perverse or based on mis-reading of evidence andwhere two views are possible, the one taken by the trial court in making ajudgment of acquittal should not be disturbed. |

Mr SC Gupta, learned AAG, appearing for the State virtually failed|to assail the finding of the learned Sessions Judge with regard to theacquittal of Geeta Devi by pointing out that order of acquittal 1s perverseor based on mis-reading of the evidence.

We have perused the evidence on record. After appreciating the|same, we are of the view that the learned Sessions Judge has notcommitted any legal error in acquitting Geeta Devi, rather, the findingrecorded by the court below is in consonance with the evidence on record.The prosecution had examined Smt Sheela Devi, mother of the deceasedVijay Kumar. She had deposed in her statement that on the day ofoccurrence, her son Romesh Chander had gone to a flour mill (Gharat)..At about 7.30 pm she along with her daughter Sanjokta and threedaughter- in-laws, Mst Babli, Mst Rani and Guddi, were present in thehouse. Her son Romesh Chander had gone to a Gharat to fetch flour andher other son was sowing the wheat crop in the land. When RomeshChander returned to the house, he was having an injury which was givenby Shanker Dass . She further deposed that after about half an hour, all thethree accused came to their house and attacked Romesh Chander.

Accused Jeevan Lal stabbed him at his back with = a dagger.Romesh chander fell down. Geeta Devi caught hold of Vijay Kumarfrom his arm and Shanker Dass and Jeevan Lal stabbed him with)the daggers at his abdomen. To the same effect is the statement ofSanjokta, Babli, Rani and Romesh Chander.

Deceased Vijay Kumar and PW Romesh Chander were quite)young. It 1s not believable that Geeta Devi would have caught hold of ©young men to facilitate stabbing by the other co-accused. The learnedSessions Judge has rightly observed in this regard as under:- “According to the case of the prosecution while the accusedJeewan Lal firstly, stabbed PW Romesh Chander accused Mst Geeta hadkept him held up and likewise the accused Shanker Dass and Jeewan Lalhad stabbed the deceased Vijay Kumar, she had again held up thedeceased Vijay Kumar’ The eye witnesses PW Romesh Chander andothers have stated so in their evidence but on the fact of it, it appearshighly improbable and it will be doubtful. There would not have been thenecessity of holding PW Romesh Chander by accused Mst Geeta as PWRomesh Chander had come in the compound alone at that time......

....Similarly when the deceased Vijay Kumar was assaulted and stabbedby accused Shanker Dass and Jeewan Lal at that time PW RomeshChander had alreadyfallen on the ground so again there would not have —

(S)

been any necessity of holding deceased Vijay Kumar by accused GeetaDevi for facilitating the stabbing on him. In this view of the matter theparticipation of the accused Geeta Devi in the occurrence seems to bedoubtful....

Thus, the observations made by the learned Sessions Judge are not|perverse or mis-reading of the evidence. Rather, these are correct as it 1sthe tendency in this part of the country that when a party is involved in ahurt case, the complainant party tries to involve as many as persons >possible of the accused side as it has been done in this case. Therefore, noeround is made out for disturbing the finding recorded by the learnedSessions Judge in acquitting Geeta Devi.

Now, we take the appeal filed by Jeevan Lal.

Mr BS Manhas, learned counsel appearing for the appellantsubmitted that the learned Sessions Judge has not appreciated theevidence on record in right perspective and has based his finding onsurmises and conjectures. He submitted that there is delay in lodging theFIR. The occurrence 1n this case has taken place at about 8 p.m. but theFIR has been got registered after due deliberations and consultation on theday of occurrence at llpm. He pointed out that from the place ofoccurrence, when a person goes to the hospital, he has to pass by the side ©

of the police station of the area concerned. He further submitted that theinjured Romesh Chander was the best witness to lodge the complaint but.instead of that the complaint has been lodged by Sheela Devi. He furtherpointed out that when Romesh Chander was medically examined, he wasaccompanied by policemen. This shows that the complainant party firstlywent to the police station and then went to the hospital but had not lodgedthe report, and therefore, this delay in lodging the FIR 1s fatal to the caseof prosecution.

We have given our thoughtful consideration to the submissions|made by the learned counsel for the appellant and find the same withoutany substance. The delay ifso-facto 1s not fatal to the case of theprosecution. The delay is fatal when the prosecution concoctes a falseStory, introduces the false witnesses who have not witnessed theoccurrence and implicate the innocent persons as accused. In the instantcase, the occurrence has not been denied by the appellants. |

Appellant Shankar Dass, since deceased, when was examined under|Section 342, as indicated above, did not deny the occurrence. Rather, headmitted the presence of injured Romesh Chander as well as that of ViyyayKumar but he tried to put counter version by explaining that when he was.returning home after closing his office and was passing through thepassage which was Just outside the house of the complainant, PW Romesh

(10) |

Chander started beating him with a sickle and also called his brotherVijay Kumar and exhorted him to reach there with a Darat for killingShankar Dass. He had further deposed that Vijay Kumar came there witha Darat and his wife Geeta Devi also reached there. He further deposedthat Vijay Kumar handed over the sickle to Romesh Chander and he triedto gave a blow with it to him but instead of hitting him, it hit the deceasedVijay Kumar. When the occurrence 1s admitted, then, if there 1s any delayin lodging the FIR, it loses its importance. In that eventuality, it 1s for thecourt to see whether the version given by the prosecution 1s correct orthat of the accused.

As per the prosecution version, there were two occurrences. The|first occurrence had taken place at about 7.30 p.m and the second hadtaken place at about 8 p.m. PW Romesh Chander had deposed that whenhe was returning home and carrying about 20/25 kgs wheat flour on hishead along with 4 kgs of sugar, Shankar Dass accused started abusinghim. Shankar Dass was havinga sickle in his hand, he gave a sickle blowwhich struck on his face under the left eye. He further deposed that hesnatched the sickle from Shanker Dass at which Shanker Dass ran away.Romesh Chander PW also sustained injuries which have been proved by

(11) |

Dr Anju Bala, who medically examined him. These injuries are as under:-_

“IT. An incised wound on left cheek below left eye 2 cms x 5 cmswhich was bleeding.

2. Stab wound on the left side ofback of chest below left scapula 2cms x 0.5 cms x I “2” deep obliquely placed.”

Shanker Dass has given no explanation how Romesh Chander|received above injuries on his person. Taking into consideration the seatof injury and its nature, it cannot be said that these are the result offriendly hand. The defence taken by Shanker Dass 1s, thus, notbelievable.

Dr TR Gupta, conducted the post mortem examination of)deceased Vijay Kumar along with the Board of doctors and followinginjuries were found on his person:- “IT. An incised wound on the left side the mid axillary line on the [th]

rib 11/2” x “” cutting the muscle rib and puncturing — the spleen,omentum coming out ofthe wound. The wound was iliac crest.

2. An incised wound on the left side the chest 4° below the left|nipple muscle deep 1 2” x 12”.

3. Two bruises over the right shoulder.”

(12) |

In the opinion of doctor the cause of death was haemorrhage and|Shock due to spleenic rupture and duration of death was within 24 hours.Injuries No. 1 and 2 were the fatal injuries.

The case of Shanker Dass accused was that Vijay Kumar came|with a Darat. He handed over the same to Romesh Chander who tried togave a blow to him but instead of hitting him, it landed on the person ofVijay Kumar. This defence taken by Shanker Dass can not be believedbecause as noticed above, Vijay Kumar was having three injuries on hisperson as per the post mortem examination. If the version given byShanker Dass would have been true, then there would have been only oneinjury on the person of deceased Vijay Kumar because Ramesh Chanderwould not have given repeated blow to his brother Vijay Kumar. RameshChander,PW , has also sustained injuries on his person but no explanationhas been given by Shanker Dass or Jeevan Lal whereas theappellants/accused have admitted presence of Ramesh Chander and VijayKumar at the place of occurrence.

Learned counsel for the appellant also tried to make the case of|prosecution doubtful by making a submission that the occurrence hastaken place in the locality but no independent witness has been examinedand only related witnesses have been examined. This submission raisedby the learned counsel for appellant 1s also without any force. There is no

(13) |

Arguments

law that evidence of a related and interested witness cannot be reliedupon. When the case is based on testimony of related and interestedwitnesses it puts the court on its own guard to scrutinize their evidencewith great care and caution. The case of prosecution hinges on theStatement of Ramesh Chander, Sanjokta, Babli and Rani and Sheela Devi.PW Romesh Chander 1s the stamped witness . He has received injuries 1n-the occurrence and has given minute detail of the occurrences with regardto time, place and the manner in which these have taken place and theweapon used by the accused appellants. His version has been fullycorroborated by PW Sheela Devi, Babli, Sanjokta and Rani who are theeye witnesses. Presence of these related eye witnesses is the most naturalas the time of occurrence 1s 8 pm and it has taken place in the compoundof the house of the complainant. So their presence at the place ofoccurrence cannot be doubted. These eye witnesses-Romesh Chander,Sheela Devi, Sanjokta, Babli and Rani have been cross-examined atlength but nothing favourable came to the defence. The evidence ofrelated and interested witnesses can be discarded only where the evidencegiven by these witnesses smack of partisionship and 1s tainted but whenthe evidence 1s convincing, reliable and trustworthy, then such anevidence is not to be discarded simply on the ground that they are relatedto the deceased or injured. The evidence of Romesh Chander, Babli,Sanjokta and Rani has been further corroborated by medical evidencegiven by Dr TR Gupta who has conducted the post mortem examination

(14) |

on the dead body of deceased Vijay Kumar and Dr Anju Bala who hasconducted medical examination on the person of Romesh Chander.

The learned counsel for the appellant further tried to make out the|case of the prosecution doubtful by pointing out that the prosecution hassuppressed the genesis of the occurrence. He pointed out that ShankarDass accused now deceased, had also sustained injuries but these injuries”have not been explained by the prosecution. ©

We have considered this aspect of the case also. The prosecution1s |not supposed to explain each and every injury on the person of accusedand is to explain only those injuries which the accused has sustained inthe occurrence and are fatal in nature, as has been laid down in the caseof Baba Nanda vy. State of Assam, AIR 1977 SC 2252. The injuries onthe person of Shanker Dass were not only simple in nature but they werealso on non vital parts. Such like injuries can be self suffered to make outa counter case which seems to have been done in this case. Therefore,the submission made in this regard by the learned counsel for theappellants is without any force.

Mr BS Manhas, learned counsel for the appellants submitted that asper the version given by Romesh Chander, Babli, Rani and Sanjokta,accused Shankar Dass and Jeewan Lal stabbed Vijay Kumar with a|

(15) |

dagger in his abdomen due to which his intestines came out and he diedat spot. He submitted that the prosecution has failed to ascertain who was.the author of fatal injury, therefore, appellants could not be convictedunder Section 302. He placed reliance on a judgment of the SupremeCourt reported in 1973 (Vol.1) C.L.R. 14, Ram Lal v. DelhiAdministration and 1976(VoLIV) C.L.R. 204,Tarsem Lal v. TheState of Punjab.

We have given our thoughtful consideration to the submission|made by the learned counsel for the appellants and find force in the same.Dr TR Gupta, who had conducted post mortem examination had deposedthat injury No.1 noted in the post mortem examination, was in hisopinion, the cause for the death but the learned Sessions Judge haserroneously recorded that Dr TR Gupta has pointed out that injuries No.1and 2 are the fatal injuries. The prosecution has not proved who is theauthor of injury No.1. When it is not proved who ts the author of fatalinjury which has resulted into death of deceased Vijay Kumar, then theaccused cannot be convicted for the offence under Section 302 RPC. InRam Lal’s case (supra), the Apex Court has held as under:- “No attempt was made to identify the internal injury with either orboth the external injuries found on the head. It is quite possible on thatevidence to infer that only one of these two injuries may have beenresponsiblefor death or both. The difficulty then arises which was the

(16) |

injury caused by the appellant. Thefinding ofthe High Court was that theappellant Ram Lal had given only one blow with the stick on the head andnot more than one. In that case it will be very difficult to say whether theblow given by him was the one which ultimately proved to be fatal. MrKhanna, appearing on behalf of the Dethi Administration, contended thatsince the High Court came to the definite conclusion that the otherassailants had not given any blow on the head of the deceased it must beassumed that both these blow had been given by Ram Lal, appellant. Butthat would be contrary to the finding of the High Court which hasspecifically come to the conclusion that only one blow with the stick hadbeen given by the appellant on the head of the deceased. It was essentialin this case, in order to bring home the offence ofmurder to the appellant,that the lathi blow given by him on the head had proved fatal. Since theevidence clearly disclosed that two lathi blows had been given on thehead and there is no evidence which of these two was given by theappellant, the benefit of doubt must go to him. He may have given thefatal blow or he may have given the blow which did not prove fatal. Inthese circumstances, the appellant’s conviction under Section 302 IndianPenal Code was plainly incorrect. He and his companions had_ thecommon intention to cause grievous hurt and hence he can be convictedonly under Section 325 r/w Section 34. Since in pursuance ofthe commonintention he had given a blow with a lathi on the head which is a vitalpart of the body he is not entitled to the same consideration as the othersin the matter ofsentence because the other had given blows on non vital parts. Therefore, we set aside the conviction under Section 302 IndianPenal Code and convict the appellant under Section 325 r/w 34 andsentence him to 5 years rigorous imprisonment in respect of the offencecommitted with regard to deceased Har Lal....

A Division Bench of Punjab and Haryana High Court in Tarsem|Lal’s case (supra) held that when three persons alleged to have assaultedthe deceased, the author of fatal injury not ascertained, then anyone of theassailant could not be convicted under Section 302. Similar view wastaken by a Division Bench of Punjab & Haryana High Court in the case of1977 (Vol.V) C.L.R. 95, Ajit Singh & Ors v. The State of Punjab.

In the case in hand, injury No.1 resulting in the death of deceased|Vijay Kumar has not been attributed to either of the accused 1.e. JeewanLal or Shanker Dass since deceased. Therefore, both of them can claimbenefit to the extent that they have caused individually the non fatalinjury. Hence both the accused cannot be convicted under Section 302RPC. However, both the accused have participated in the attack on thedeceased Vijay Kumar, therefore, they had the knowledge that the injurygiven in the abdomen would likely cause death, therefore, the act of boththe accused will fall under Section 304 Part-I-culpable homicide notamounting to murder. Therefore, Jeewan Lal is convicted under Section304 Part -1 RPC and taking into consideration the facts and circumstances

of the case, appellant Jeewan Lal is sentenced to undergo ten yearsrigorous imprisonment with a fine of Rs.10,000/-. In default of paymentof fine, the appellant/accused shall further undergo rigorous imprisonmentfor a period of six months. For offence under Sec. 307, appellant Jeewan_lal 1s further sentenced to undergo rigorous imprisonment for a period offive years and shall also be liable to pay a fine of Rs. 5000/-. In default ofpayment of fine, the appellant shall undergo rigorous imprisonment for aperiod of three months. In case, fine 1s paid, the same would be payable tothe wife of deceased Vijay Kumar. The conviction and sentence recordedunder Section 448 is maintained. All the sentences shall run concurrently. |

In view of the above, both the appeals are dismissed with the abovemodification. Reference sent by the Sessions Judge 1s also rejected.