CRIMINAL APPEAL None on 19 September 2005

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Case No. : Crl. Appeal No. 835-DB of 2005Date of Decision : January 08, 2009

Ram ChanderVs.State of Punjab

Vs.

....Appellant ....Respondent

CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL

HON'BLE MR. JUSTICE L. N. MITTAL

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Present :Mr. R. A. Yadav, Advocateand Mr. J. B. S. Gill, Advocatefor the appellant.

Mr. S. S. Bhinder, Addl. A. G., Punjab.

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L. N. MITTAL, J. :

By this common judgment, we are disposing of two Criminalappeals i.e. Crl. Appeal No. 835-DB of 2005 instituted by Ram Chander andCrl. Appeal No. 104-DB of 2006 instituted by Amresh Jha @ Bhola andRakesh Kumar @ Rakesh, as both these appeals have been preferred againstjudgment of conviction dated 19.09.2005 and order of sentence dated21.09.2005 passed by learned Sessions Judge, Jalandhar thereby convictingAmresh Jha under Section 302 of the Indian Penal Code (in short – IPC) andsentencing him to undergo life imprisonment and to pay fine of Rs.5,000/-and in default of payment of fine, to undergo further rigorous imprisonment for one year and also convicting the other two appellants Rakesh Kumar andRam Chander under Section 302 read with Section 34 IPC and sentencingthem to undergo rigorous imprisonment for life and to pay fine of Rs.2,000/-and in default of payment of fine, to undergo further rigorous imprisonmentfor six months.

Prosecution version is as under :-

Himmat Lal-complainant along with his son Dwarka Nath @Dwarka Dass (since deceased) was running a tea stall near Rackman FanFactory on Nakodar Road, Jalandhar. On 29.12.2002, at about 08:00 A.M.,they opened their shop. Himmat Lal went to the nearby Saw Mill ofRamesh Kumar for purchasing fuel wood for use at tea stall. RameshKumar was not present in the Saw Mill. His employees i.e. appellants werepresent there. Rakesh Kumar-appellant asked Himmat Lal to take the wood.When Himmat Lal asked Rakesh Kumar for taking money for the wood,Rakesh Kumar replied that the money be adjusted against amount due fromhim on account of tea taken from the shop of the complainant. ThereafterHimmat Lal moved towards the gate along with wood. Amresh Jha caughthold of the complainant from back side and started beating him. His noiseattracted his son Dwarka Nath to the spot. All the three appellants tookDwarka Nath inside and gave him beating near the kitchen. Amresh Jhainflicted injury with sharp edged iron object on the right eye of DwarkaNath with intention to kill him. The occurrence was also witnessed byGurmeet Lal standing near the gate. When the complainant raised alarm,all the three appellants fled away from the spot along with weapon ofoffence. Himmat Lal and Gurmeet Lal removed Dwarka Nath to CivilHospital, where after medico-legal examination, first aid was given to him.However, since Dwarka Nath was serious, he was taken to Satyam Hospitalfor treatment and was admitted there. The complainant made statementEx.P-H at 02:30 P.M. in Police Post Bhargo Camp of Police Station Division No.6, Jalandhar to SI Ravi Kumar, Incharge of the Police Post,narrating the aforesaid occurrence and stating that all the three appellantshad caused injuries to Dwarka Nath with intention to kill him. Prior to it,Ruqa was received from Civil Hospital, whereupon ASI Mohinder Singhand HC Arjan Singh went there, but were told that the injured Dwarka Nathhad been taken to some other hospital for treatment. After inquiry, thepolice officials went to Satyam Hospital, where Dwarka Nath was opined tobe unfit to make statement. SI Ravi Kumar made endorsement Ex.P-H/1 onstatement Ex.P-H and sent the same to the Police Station, where FIREx.P-H/2 was registered under Section 307/34 IPC. Dwarka Nath died on02.01.2003. SI Ravi Kumar prepared inquest report Ex.P-L and sent thedead body for autopsy with request Ex.P-B. Dr. Balbir Singh conductedpost mortem examination on the dead body on 03.01.2003. Right eye wasprotruded. Following injury was found :-

“A penetrated wound 1.5 cm x .75 cmpresent near medial canthus of right eye. Goingupwards and slightly medially, towards rightbrow, over right eye lid. On dissection of theinjury, it was communicating with Cranial Cavity.There was Haemotoma, bilateral and Hamatomain Subarachnolid spacas, and brain matter andcisterns contained blood. There was laceration ofbrain matter. Heart was empty.”

Cause of death, in the opinion of the doctor, was cardiac arrestas a complication of aforesaid head injury, which was ante mortem andsufficient to cause death in the ordinary course of nature. On 29.12.2002,SI Ravi Kumar lifted blood stained earth from the spot and prepared roughsite plan Ex.P-N of the place of occurrence. Blood stained clothes ofDwarka Nath were also seized vide Memo Ex.P-G. All the three accused were arrested on 02.01.2003. On 06.01.2003, Amresh Jha, after makingdisclosure statement Ex.P-M, got recovered a screw driver (weapon ofoffence) vide Memo Ex.P-M/2, with sketch Ex.P-M/1. Statements ofwitnesses were recorded during investigation. After completion ofinvestigation, all the three accused were sent for trial.

Charge under Section 302 IPC against Amresh Jha and underSection 302 read with Section 34 IPC against the remaining two accused forcommission of murder of Dwarka Nath and also charge under Section 323IPC against all the three accused for causing hurt to complainant HimmatLal was framed. They pleaded not guilty to charge and claimed trial.

In support of its case, the prosecution examined eightwitnesses. Dr. Balbir Singh PW-1 stated about post mortem examinationconducted by him on the dead body of the deceased. Dr. Joginder SinghPW-2 from Satyam Hospital stated that Dwarka Nath was admitted in hishospital on 29.12.2002 and intimation Ex.P-C was sent to the police.Dwarka Nath expired on 02.01.2003 and certificate Ex.P-D was issuedregarding his death along with history sheet Ex. P-E. Dr. Gurpal SinghPW-3 stated that on 29.12.2002, at 08:50 A.M., he medico-legally examinedDwarka Nath and observed as under :- “The condition of the patient :- at the timeof admission the patient was unconscious, pulsewas 60 per minute, feeble, B.P. 90/unrecordable,respiration was 22 per minute. Right eye wasprotruded and blesh bleeding was present. Lefteye pupil slightly constructed and condition of thepatient was serious. Following injuries werenoted :- Penetrating injury 0.75 cms x 0.5 cmpresent on the medial side of right eye. Eye protruded. It was presentnear the medial canthus of right eye.Swelling was present on the whole ofeye. Fresh bleeding was present.Probing not done due to bleeding toknow the depth. Referred for surgicaland eye specialist expert opinion.

Injury No.1 was kept for surgical and eyespecialist expert opinion.”

The injury was caused with sharp weapon. ComplainantHimmat Lal PW-4 and eye-witness Gurmeet Lal PW-5 broadly stated aboutthe prosecution version narrated above. Dalip Singh, Draftsman PW-6stated that he prepared scale site plan Ex.P-J after visiting the spot. HCJarnail Singh PW-7 tendered his affidavit Ex.P-K affirming that the screwdriver deposited with him was not tampered with. SI Ravi Kumar PW-8stated about the investigation of the case conducted by him. Otherprosecution witnesses were given as unnecessary.

On conclusion of prosecution evidence, the accused wereexamined under Section 313 of the Code of Criminal Procedure (in short –Cr.P.C.). In their statements, the accused denied all the incriminatingcircumstances appearing against them in the prosecution evidence andclaimed to be innocent. Accused Ram Chander and Rakesh Kumar statedthat they were not present in the Saw Mill and have been falsely implicated.Accused Amresh Jha stated that he used to work at the Saw Mill. DwarkaNath had come to the Saw Mill and wanted to take fire wood, but was notpaying the price for the same. Dwarka Nath pushed this accused, who alsopushed him. Dwarka Nath fell down on the tumbler and sustained injury onhis eye.

In defence, the accused examined two witnesses. Sham Kumar DW-1 stated that all the three accused were working in the Saw Mill ofRamesh Kumar on 29.12.2002. This witness also used to reside in thepremises of the Saw Mill. On 29.12.2002, at about 08:00 A.M., DwarkaNath came to the Saw Mill for purchasing fuel wood. Small cut pieces ofwood were lying in a heap in the Saw Mill. Dwarka Nath purchased firewood from Amresh Jha, who was working in the Saw Mill. When AmreshJha demanded price of the wood from Dwarka Nath, there was exchange ofhot words between them resulting in a scuffle. In the scuffle, Dwarka Nathslipped and fell on the heap of cut pieces of wood and one splinter enteredhis eye and thereafter Dwarka Nath went away. It was also stated thatDwarka Nath alone had come to the Saw Mill to purchase wood and none ofthe accused caused any injury to him. Somewhat similar statement has beenmade by Shatrughan Sahu DW-2. Both these witnesses as well as all thethree accused were employed in the Saw Mill and were residing in thepremises thereof at the relevant time.

Learned Sessions Judge, Jalandhar, vide judgment dated19.09.2005 and vide order dated 21.09.2005, convicted and sentenced theaccused as already noticed in the opening part of this judgment. Feelingaggrieved, these appeals have been instituted by the convicts.

We have heard learned counsel for the parties and perused the case file.

The occurrence stands admitted by the accused, although in adifferent manner. The prosecution version is that all the three accused hadbeaten the deceased and also Amresh Jha inflicted injury on the eye of thedeceased with some sharp iron object – a screw driver, recovered later on atthe instance of Amresh Jha. The defence version, however, is that in thescuffle between the deceased and the accused Amresh Jha, the former fellon the heap of wood and some pointed wooden piece penetrated his eye.Accused Rakesh Kumar and Ram Chand have taken plea of alibi.

The prosecution version is proved by the statements of HimmatLal complainant and Gurmeet Lal, eye witnesses. They have broadly statedaccording to the prosecution version that all the three accused had beatenthe deceased and that Amresh Jha had also caused injury with some sharpedged iron object on the eye of the deceased. Gurmeet Lal, in fact, statedthat the weapon used was like a screw driver. The nature of injury found onmedico-legal examination as well as on post mortem examination alsocorroborates the prosecution version in this regard. The weapon of offencecaused deep penetrating injury inasmuch as the penetrating wound wasgoing from right eye, upwards and slightly medially and even lacerated thebrain matter. It means that the weapon of offence penetrated through theskull and caused laceration to the brain matter. Such deep penetratingwound could be caused by a weapon like screw driver and not by a woodensplinter. In a case of narrow thin wooden splinter, the same would getbroken and could not penetrate so deep, whereas in the case of a thicksplinter, the width would increase and the same would also not be so sharpas to penetrate through the skull so as to cause laceration of the brainmatter. Thus, notwithstanding the fact that all the three doctors have notruled out the possibility of the injury being caused by sharp pointed wood, itwas quite unlikely that such an injury could have been caused by a woodenpiece. On the other hand, there is ocular version that it was caused withiron object like a screw driver. The doctors have not ruled out the causingof injury with screw driver or any such other object. Thus, medicalevidence is not, in any manner, in conflict with the ocular version. It iscorrect that opinion of the doctors as to whether the injury could be causedwith screw driver or not, was not obtained by the prosecution. However,even a layman can say that such an injury is quite possible with a screwdriver. Moreover, opinion of doctor cannot override the statements of eye-witnesses, unless the ocular version is completely ruled out by medical evidence or expert opinion. In the instant case, however, medical evidenceis supportive of the ocular version and there is no expert evidence inconflict with the ocular version.

As noticed herein above, the occurrence stands admitted,although in a different manner. However, the prosecution evidence is creditworthy to prove that the injury was caused in the manner alleged by theprosecution. On the other hand, there is conflicting defence versionbecause Amresh Jha in his statement under Section 313 Cr.P.C. stated thatDwarka Nath had fallen on a tumbler in the scuffle. The other two accusedpleaded that they were not even present on the spot at the time ofoccurrence. However, not only Himmat Lal complainant and Gurmeet Lal,prosecution witnesses have stated about presence of and participation by allthe three accused in the occurrence, but also the defence witnesses havestated that all the three accused were present there. The defence witnessesalso stated that injury was caused by fall on heap of cut pieces of wood andnot by fall on tumbler as stated by Amresh Jha in his statement underSection 313 Cr.P.C. Thus, the defence version is completely unreliable.

Arguments

In addition to the aforesaid, it has also to be noticed that ifDwarka Nath and Amresh Jha were scuffling and pushing each other asalleged by Amresh Jha, then both of them would have been facing towardseach other and on being pushed by Amresh Jha, Dwarka Nath would havefallen on the heap of wood with his back thereon and not with his eye orface towards the heap of wood. Moreover, if there were sharp woodenpieces of wood lying in a heap, Dwarka Nath would not have suffered thesolitary fatal injury on the eye but would have suffered some other injuriesas well. However, no such other injury caused by wood pieces was foundon the person of the deceased. Thus, the defence version is not probable.

Learned counsel for the appellants contended that since theinjury was going upward, it was possible by fall on pointed wooden piece and not in the manner alleged by the prosecution. The contention cannot beaccepted because if Amresh Jha inflicted injury with screw driver at thelevel of eye of the deceased, the eye-level being above the shoulder level ofAmresh Jha, the screw driver would penetrate upwards. The medicalevidence is thus rather supportive and corroborative of the prosecutioncase.

Learned counsel for the appellants also submitted that heap ofwood has been depicted in the site plan and thus it probablises the defenceversion. The submission is devoid of substance because it is also theprosecution version that the complainant had taken fuel wood from the SawMill.

Learned counsel for the appellants also referred to intimationEx.P-C sent from Satyam Hospital to the police mentioning that there wasalleged history of quarrel between two parties. However, this circumstancedoes not militate against the prosecution version in any manner,particularly because the occurrence stands admitted and even presence of allthe three accused at the spot is established even from the defence evidence.

Learned counsel for the appellants also contended that HimmatLal PW-4 has made some improvements in his statement in the Courtregarding payment for fuel wood. He stated in the Court that he had madepayment of the fuel wood. However, in statement Ex.P-H to the police, hehad stated that Rakesh Kumar-accused told him to adjust the amount againstthe amount of tea due from Rakesh Kumar. However, this minorcircumstance has no adverse bearing on the prosecution case because it iseven the defence version that there was dispute over the payment of price offuel wood.

Learned counsel for the appellants also argued that there hasbeen delay in lodging the FIR and also in sending the special report to theMagistrate. It was contended that the FIR was concluded at 03:45 P.M., but

was received by the Magistrate at 03:30 A.M. the next day and even theConstable, who had taken the special report, has not been examined. Thisargument also does not come to the rescue of the appellants. Initially thecase was registered under Section 307/34 IPC only and it was later on, afterfour days, that it was converted into a case under Section 302/34 IPC on thedeath of Dwarka Nath. The occurrence took place sometime after 08:00A.M. After the occurrence, the injured was removed to Civil Hospital,Jalandhar. After medico-legal examination and first-aid there, the injuredwas removed to a private hospital namely Satyam Hospital. Dwarka Nathwas unfit to make statement when the police reached the hospital.Thereafter, Himmat Lal went to the Police Post and lodged report bymaking statement Ex.P-H, which along with police endorsement, concludedat 02:30 P.M. Keeping in view this sequence, it cannot be said that therehas been any undue delay in lodging the FIR. As regards delay in sendingthe special report to Magistrate, the same is not very significant because theoffence at that time was under Section 307/34 IPC only. In addition to it,the question of gaining time for fabricating the prosecution version did notarise in the instant case because presence of all the three accused at the spotat the time of occurrence is stated even by the defence witnesses, apart fromthe prosecution witnesses. Suffering of injury by the deceased at the placeof occurrence is also admitted. In this view of the matter, alleged delay insending the special report to Magistrate pales into insignificance.

Learned counsel for the appellants also vehemently contendedthat Rakesh Kumar and Ram Chander did not cause any injury andtherefore, they deserve acquittal. The contention cannot be accepted. Thereis specific allegation from the inception, as also stated by the eye-witnessesin the witness-box that all the three accused had beaten Dwarka Nath. It iscorrect that except the injury caused with sharp pointed weapon, no othervisible injury was found on the person of Dwarka Nath. However, beating may not have resulted into any visible injury. In addition to it, all the threeaccused had taken Dwarka Nath from near the gate to inside the Saw Millnear the kitchen, where all of them gave beating to him. Thesecircumstances point to common intention of all the three accused andtherefore, Ram Chander and Rakesh Kumar cannot be acquitted. They arealso vicariously liable with the aid of Section 34 IPC for the act of appellantAmresh Jha, who caused the fatal injury.

Learned counsel for the appellants lastly contended that even ifthe prosecution version is accepted, the case would not fall under Section302 IPC and would at best fall within the mischief of Section 304-II IPC. Itwas pointed out that it is a case of single fatal injury and there was noprevious enmity. The occurrence took place as a result of sudden quarreland Amresh Jha could not have any intention to cause death or to cause fatalinjury and at best, he could have knowledge that the injury being caused byhim was likely to cause death. Reference was also made to exception-4 toSection 300 IPC. There is considerable merit in the contention. In additionto the beating by the three accused, which did not result in any apparent orvisible injury, there was only single injury caused by Amresh Jha. Therewas no previous enmity between the parties nor there was any other motiveto cause death of the deceased. There was sudden quarrel between theparties. The death also occurred after four days of the occurrence. It is thusapparent that Amresh Jha had no intention to cause death or to cause fatalinjury to the deceased, although he had knowledge that the injury was likelyto prove fatal. The case thus clearly falls within the purview of Section304-II IPC and not under Section 302 IPC. The appellants deserve tosucceed to this extent.

For the reasons recorded herein above, both these appeals areallowed partly and conviction of Amresh Jha-appellant is converted to thatunder Section 304-II IPC instead of Section 302 IPC, whereas conviction of the remaining two appellants is converted to Section 304-II read withSection 34 IPC instead of that under Section 302 read with Section 34 IPC.

As regards sentence, learned counsel for the appellants statedthat all the three appellants are in custody since 02.01.2003, the date of theirarrest till date i.e. for a little over six years. Ram Chander and RakeshKumar have been convicted only with the aid of Section 34 IPC andtherefore, in our considered opinion, ends of justice would be met if theyare sentenced to undergo imprisonment for the period, for which they havealready remained in custody in this case. We order accordingly. As regardsAmresh Jha, who caused the fatal injury, we sentence him to undergorigorous imprisonment for ten years.

The appeals stand disposed of accordingly.

( L. N. MITTAL )JUDGE

January 08, 2009monika

( MEHTAB SINGH GILL )JUDGE