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2004 DIGILAW 1126 (PNJ)

Surinder Mohan v. State Of Punjab

2004-10-04

K.S.GAREWAL, V.K.BALI

body2004
Judgment V.K.Bali, J. 1. For murder of one Pankaj Thapar, aged 20/21 years, appellants Surinder Mohan, said to be armed with a Chhuri, Ex. P-4 and his son Munish Kumar, said to be empty handed at the time of occurrence, after their trial, have since been held guilty under Section 302 of the Indian Penal Code and sentenced to undergo RI for life vide order of conviction and sentence dated 10.1.2002 passed by learned Additional Sessions Judge, Sangrur. Through present appeal filed by them, appellants herein challenge the said order of conviction and sentence. 2. The occurrence leading to the death of Pankaj Thapar, as per the prosecution version, took place at 8.15 P.M. on 11.12.1996 in City Ahmedgarh at Bhagat Singh Chowk situated at a distance of 700/800 yards from Bus Stand. The occurrence came to be reported on the statement, Ex. PC, made by Anil Thapar, who happens to be brother of deceased. It was recorded at 4.05 A.M. at 12.12.1996 at New DMC Hospital, Ludhiana by Inspector Sarup Singh, PW-1. Formal FIR, with regard to the incident, came to be recorded at 8.45 A.M. on 12.12.1996. The special report with regard to the incident reached the concerned Magistrate at Malerkotla, stated to be at a distance or 18/20 Kms. from the Police Station, at 9.30 A.M. on the same day. 3. While giving narration of the events, leading to the death of his brother Pankaj Thapar, he stated that he was residing near Bhagat Singh Chowk, Ahmedgarh and was doing the work of purchase and sale of sand and concrete at Ludhiana. They were two brothers and one sister and his brother Pankaj Thapar, who was younger to him, was also working with him at Ludhiana. On the night of 11.12.1996 he and his brother Pankaj Thapar had gone to Ahmedgarh to enquire about the well being of wife of his friend Avtar Singh @ Pintu son of Surjan Singh at his house. She was ill. After enquiring about her health, he along with his brother Pankaj Thapar and friend Avtar Singh alias Pintu was returning to his house together. She was ill. After enquiring about her health, he along with his brother Pankaj Thapar and friend Avtar Singh alias Pintu was returning to his house together. At about 8.15 P.M. when they reached Bhagat Singh Chowk near Branch of the State Bank of Patiala, where lights in front of the shops were glowing and shops were already closed, Surinder Mohan son of Ram Sarup and his son Munish Kumar, residents of near Bhagat Singh Chowk, Ahmedgarh were standing near the statue of Bhagat Singh. His brother Pankaj Thapar was going about 15/20 feet ahead of him and Avtar Singh alias Pintu. Munish Kumar raised a Lalkara that Pankaj Thapar should not be allowed to escape as he was creating hurdles in their work of contractorship and he posed himself as a leader. As he said so, Surinder Kumar, while running at once, thrust an iron knife (Chhuri) after taking it out from his Dub (fold) into the abdomen of his brother Pankaj Thapar towards left side. Due to this, his brother Pankaj Thapar fell down at the shop at once and raised noise of killed-killed (Marta-Marta), on which he and Avtar Singh alias Pintu came forward to save his brother Pankaj Thapar. Surinder Kumar along with Chhuri and his son Munish Kumar ran away from the spot. He and Avtar Singh while in hurry to save his brother Pankaj Thapar lifted him on a scooter and took him to Kundan Lal Private Hospital, Ahmedgarh, where the doctor said that he should be taken to some big hospital hurriedly. They hurriedly, after arranging for a car, got admitted Pankaj Thapar in new DMC, Ludhiana were after about one and half/two hours, his brother Pankaj Thapar succumbed to the injuries sustained by him. The reason for murder, he stated, was that Surinder Mohan and his son Munish Kumar used to get work of paving streets and drains in their Mohalla on contract. His brother Pankaj Thapar had stated that Surinder Mohan and his son Munish Kumar were using less cement on the drains. On this matter, Surinder Mohan and his son Munish Kumar had a dispute with his brother Pankaj Thapar and had stated not to think himself a big leader and some day they would finish his leadership. His brother Pankaj Thapar had stated that Surinder Mohan and his son Munish Kumar were using less cement on the drains. On this matter, Surinder Mohan and his son Munish Kumar had a dispute with his brother Pankaj Thapar and had stated not to think himself a big leader and some day they would finish his leadership. He further stated that due to this grudge, Surinder Mohan and his son Munish Kumar, after conniving with each other, had killed his brother Pankaj Thapar by giving him a Chhuri blow. After leaving Avtar Singh near the dead body of his brother, when he was going to police station to lodge the report, Inspector Sarup Singh met him, who recorded his statement. 4. Before we might proceed any further, we would like to mention that appellant Munish Kumar, after investigation, was put in column No. 2 having been found innocent by the police. It is on the application made before the concerned trial Judge that he was summoned and has been convicted in the manner, as indicated above. 5. The prosecution, with a view to secure conviction of the appellants, examined Dr. R.P. Singhal, Prop. of Kundan Hospital, Ahmedgarh, as PW-2, who stated that on 11.12.1996, Rai Chand, Ajit Malhotra and Inderjit had brought Pankaj to his hospital for treatment, who was having a stab injury. He had given the first aid and thereafter the patient was referred to DMC, Ludhiana immediately on the same day. In his cross-examination, he stated that if timely expert medical aid was given to the injured, he could have survived. Anil Thapar was not accompanying Pankaj. He stated that he knew Avtar Singh and Pintu but did not see Avtar Singh and Pintu when the injured was brought to him. Dr. R.K. Sharma, who was examined as PW-3, stated that on 12.12.1996 he had performed post-mortem examination on the dead body of Pankaj Thapar on the application, Ex. PB, moved by the police. The body of the deceased was brought by Dilawar Khan Constable from Daya Nand Medical College and Hospital, Ludhiana and the same was identified by Rai Chand and Sandeep Kumar. The death of Pankaj Thapar occurred at DMC, Ludhiana at 10.35 P.M. on 11.12.1996. The cause of death, furnished by the police, was stab injury. The doctor found following injury on the dead body of Pankaj Thapar :- "1. The death of Pankaj Thapar occurred at DMC, Ludhiana at 10.35 P.M. on 11.12.1996. The cause of death, furnished by the police, was stab injury. The doctor found following injury on the dead body of Pankaj Thapar :- "1. One and 1/4" incised wound, gaping exphistarnum the lower end in epigastrium. There was blood oozing from the wound which was on the right side of the body. 2. There was no other mark of injury on the surface of the body". 6. He further stated that on exploration of the abdomen, an incised wound was found over the ante-abdomenal wall with perforation which was full of blood. There was perforation of the peritoneum at the site of the injury. There was an incised wound over the superior and anterior surface of the right lobe of liver. There was perforation of the diaphragm with blood pouring out. Remaining body parts were normal. The cause of death, in the opinion of the doctor, was due to haemorrhage and shock on account of injury. The injury was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem in nature. In his cross-examination, he stated that he could say definitely that in case timely medical aid would have been given to the injured, he would have definitely survived. He, however, immediately thereafter stated that he could have survived. Dr. Pankaj Arora, Medical Officer, DMC, Ludhiana, who was examined as PW-4, stated that he had brought the injury report register relating to Pankaj Thapar. He was brought by Ajit Malhotra and Pintu Cheema, friends of the injured. On examination, the patient was found unconscious. Nature of injury, the Doctor said, was declared dangerous to life and the weapon used was sharp. In his cross-examination, he stated that from his view point, an injury dengerous to life and endangering life is one and the same thing. 7. Anil Thapar, who was examined as PW-1, deposed in tune with the FIR lodged by him. In his cross-examination, he stated that his signatures were not obtained in Kundan Hospital, Mandi Ahmedgarh even though, he narrated the occurrence to the Doctor at the said hospital. At DMC, Doctors enquired from him about the injury and he told them that the deceased had received knife blow. His signatures were, however, not obtained on any register. In his cross-examination, he stated that his signatures were not obtained in Kundan Hospital, Mandi Ahmedgarh even though, he narrated the occurrence to the Doctor at the said hospital. At DMC, Doctors enquired from him about the injury and he told them that the deceased had received knife blow. His signatures were, however, not obtained on any register. He also stated that their place of business was at Habobal at Ludhiana, where they obtained orders from the shops and lateron supplied sand and concrete. He denied the suggestion that it is only after receipt of information at Ludhiana that he had reached DMC. He, however, admitted that money was deposited at DMC by Avtar Singh and not by him. He denied knowledge if Surinder Mohan had got some licence for doing the work of contractor. Work of drains is done under the supervision of Municipal Committee. He denied the knowledge that Municipal Committee gives the contract work only to the licenced contractors. He denied the suggestion that Surinder Mohan was a contractor nor he had undertaken any work of making the drains pucca. He also denied the suggestion that in order to allege false motive, said story had been fabricated. He admitted that it was a co-incident that Avtar Singh accompanied them on their return. When they went to the house of Avtar Singh, they did not see the accused on the way. There was no other dispute with Surinder Mohan except for the event of dispute regarding material used by him, regarding which complaint was raised. While going from Bhagat Singh Chowk to the house of Avtar Singh, there was one turn and one curved road. He could not say that if the straight road measures about one thousand yards. He did not know if there was a fried fish vendor on a rehri at Bhagat Singh Chowk. He further stated that they did not fix time 8.15 P.M. to pass Bhagar Singh Chowk and it was a mere chance that they were on the said road. Sarup Singh, DSP, who was examined as PW-5, deposed with regard to the steps taken by him during investigation. In his cross-examination, he stated that it was correct that Munish Kumar was not challaned as he was found innocent. 8. Sarup Singh, DSP, who was examined as PW-5, deposed with regard to the steps taken by him during investigation. In his cross-examination, he stated that it was correct that Munish Kumar was not challaned as he was found innocent. 8. There is no need to give further details of the prosecution case and the evidence examined by it or for that matter, statements of the accused made under Section 313 of Code of Criminal Procedure as also the defence sought to be projected by the accused in examining DW-1 Ajit Malhotra, nephew of the accused, DW-2 Harinder Singh, DW-3 Jaspal Singh and DW-4 Avtar Singh in the context of the arguments that have been raised in support of this appeal. 9. Mr. Cheema, learned Senior Advocate, who appears on behalf of the appellants, contends that Anil Thapar, brother of the deceased, had not seen the occurrence at all and that the prosecution has not been able to prove the motive that is said to have actuated the appellants to commit the crime as also that origin and genesis of occurrence is in dark. He also contends that appellant Munish Kumar cannot be pinned down for the murder of Pankaj Thapar with the aid of Section 34 of the Indian Penal Code and insofar as appellant Surinder Mohan is concerned, if the Court might find him guilty, the offence committed by him would not go beyond Section 304 Part II of Indian Penal Code. 10. We have given our anxious thoughts to the contentions raised by learned counsel representing the appellants but, in the facts and circumstances of this case, whereas, we find no substance in the point pertaining to Anil Thapar having not seen the occurrence and that the prosecution had not proved the motive that had actuated the appellants to commit crime or that the origin and genesis of the occurrence is in dark, we find considerable merit in the contention raised by learned counsel insofar as involvement of Munish Kumar with the aid of Section 34 of the Indian Penal Code is concerned. We also find some merit in the last contention of learned counsel but are of the view that if the offence committed by Surinder Mohan may not fall under Section 302 of Indian Penal Code, it would fall under Section 304 Part I of Indian Penal Code. 11. We also find some merit in the last contention of learned counsel but are of the view that if the offence committed by Surinder Mohan may not fall under Section 302 of Indian Penal Code, it would fall under Section 304 Part I of Indian Penal Code. 11. In support of the contention that Anil Thapar had not seen the occurrence, all that has been urged is that the Doctors, be it from Kundan Hospital, Ahmedgarh or DMC, Ludhiana, stated that the injured was accompanied by the others, named above. They did not name Anil Thapar having accompanied the injured and further that the signatures of Anil Thapar or any paper were not obtained at either of the two hospitals. If Anil Thakar would have been present at the scene of occurrence, there was no question that he would not have taken the injured to various hospitals. 12. It is significant to note that as per the deposition made by this witness, Avtar Singh was left near the dead body of his brother when he had gone to lodge a report to the Police Station. Anil Thapar, who was examined as PW-1, stated that he had taken Pankaj Thapar to the hospital of Dr. Kundan Lal at Ahmedgarh along with Avtar Singh. Avtar Singh accompanied him even at DMC, Ludhiana. The mere fact that the Doctors from Kundan Hospital, Ahmedgarh and DMC, Ludhiana, stated that the injured was accompanied by the others, named above or for that matter, Anil Thapar did not sign any document, is not enough to rule out the presence of this witness at the scene of occurrence. It is possible that Anil Thapar was busy in informing his parents and making other arrangements, like bringing medicines etc., thus, necessitating others, who were accompanying the injured to sign the necessary documents. No clarification was obtained from the Doctors with regard to non-presence of this witness throughout the time when injured was in the hospitals. It is, thus, possible that at the time when the injured might have been admitted in the hospitals, Anil Thapar may not be there, as mentioned above, being busy in doing other necessary jobs but that alone would not justify a finding that he had not seen the occurrence as such. It is, thus, possible that at the time when the injured might have been admitted in the hospitals, Anil Thapar may not be there, as mentioned above, being busy in doing other necessary jobs but that alone would not justify a finding that he had not seen the occurrence as such. There is nothing to dis-believe the sworn testimony of Anil Thapar, who being brother of the deceased, would naturally be anxious that real culprits are punished and not that the innocent persons are framed and the real culprits let go free. Insofar as, contention of learned counsel with regard to motive is concerned, it may be mentioned that it has been the consistent case of the prosecution from the very inception when FIR was lodged that the deceased was creating hurdles in the work of the appellants of contractorship. Things as such cannot be proved by documentary evidence. That apart, lack of motive can never be fatal to the prosecution case. Nothing at all has been urged in support of the plea that origin and genesis of the occurrence is in dark. 13. Insofar as, however, contention of learned counsel as regards non- applicability of Section 34 of the Indian Penal Code is concerned, we find considerable merit in the same. It is proved on the records of the case that the appellants had no inkling whatsoever that the deceased and his brother Anil Thapar, on the night of 11.12.1996 would go to Ahmedgarh to enquire about the well being of wife of his friend Avtar Singh and would be returning back on the same night and would pass through Bhagat Singh Chowk near Branch of the State Bank of Patiala. It is admitted by Anil Thapar in his cross-examination that it was a mere chance. No doubt, common intention can develop at the spur of moment and during the course of occurrence as well. Lalkara alone, however, would not point towards developing of common intention at the time of occurrence, inasmuch as, appellant Surinder Mohan had a knife, which he had taken out from his dub (concealed in his clothes). The knife was, thus, not even visible to appellant Munish Kumar. He would have no knowledge that his co-accused is having knife folded in the clothes worn by him. Munish Kumar was admittedly empty handed. The knife was, thus, not even visible to appellant Munish Kumar. He would have no knowledge that his co-accused is having knife folded in the clothes worn by him. Munish Kumar was admittedly empty handed. It being a matter of chance meeting of the appellants with the deceased, Munish Kumar having no knowledge that his co-accused Surinder Mohan had a knife with him would certainly exculpate Munish Kumar with the common intention, which he is stated to have shared with his co- accused Surinder Mohan in causing injury to Pankaj Thapar. 14. Learned counsel for his contention that the offence committed by Surinder Mohan would not go beyond Section 304 Part-II of Indian Penal Code relies upon three decisions of Honble Supreme Court in Kulwant Rai v. State of Punjab, AIR 1982 SC 126; Jagrup Singh v. The State of Haryana, 1982 Chandigarh Law Reporter 302 and Om Parkash v. State of Haryana, 1981 Criminal Law Journal 30. In the context of the facts of this case, we are, however, of the view that the judgments relied upon by learned counsel would not be applicable in the facts and circumstances of this case. In Kulwant Rais case (supra), preceding attack, there was a quarrel. The accused had given the deceased one blow with a dagger. There was complete absence of prior enmity and a finding has been recorded that there was no intention on the part of the accused to cause the injury in question. In Jagrup Singhs case (supra), the facts reveal that in totality of the evidence, it was held that it would not be possible to come to the conclusion that when the accused struck the deceased with the blunt side of the Gandhala, he intended to cause such bodily injury as was sufficient in ordinary course of nature to cause death. A Gandhala is a common agricultural implement consisting of a flat, rectangular iron strip, three sides of which are blunt, embedded in a wooden handle. The length of the iron strip is in continuation of the wooden handle and the end portion is sharp, which is used to dig holes in the earth to set up fencing on embankments in the field. If a man is hit with the blunt side on the head with sufficient force, it is bound to cause death. The length of the iron strip is in continuation of the wooden handle and the end portion is sharp, which is used to dig holes in the earth to set up fencing on embankments in the field. If a man is hit with the blunt side on the head with sufficient force, it is bound to cause death. It was further held that there could not be any doubt that the weapon was used with certain amount of force because there was compression. But that by itself was not sufficient to raise an inference that the appellant intended to cause such bodily injury as was sufficient to cause death. He could only be attributed with the knowledge that it was likely to cause an injury, which was likely to cause the death. In Om Parkashs case (supra), preceding an attack on the victim, there was a quarrel. The accused incensed by situation had given blow on vulnerable part of the victims body resulting in his death. The facts of the judicial precedents relied upon by learned counsel have no parity with the facts of the present case. 15. Whereas, it may be true that offence committed by appellant Surinder Mohan does not fall under Section 304 Part-II of Indian Penal Code, the same, in the facts and circumstances of this case, in considered view of this Court would fall under Section 304 Part-I of Indian Penal Code. It is too well settled and reference in his connection be made to the judgment of Honble Supreme Court in Virsa Singh v. State of Punjab, AIR 1958 SC 465, that the prosecution must establish the following things before it brings its case under Section 300 of Indian Penal Code :- "(1) It must establish, quite objectively, that a bodily injury is present; (2) The nature of the injury must be proved, these are purely objective investigations; (3) It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was not intended; (4) It must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." 16. Facts of the present case would show that the weapon of offence has been described to be an iron Chhuri. Appellant Surinder Mohan had caused one injury to the size of 1"x1/4". Even though, it was on the vital part of the body, both the Doctors, who were examined, clearly stated that if timely help was given, the patient could survive and further that first opinion of the Doctor with regard to the nature of injury, as stated by Dr. Pankaj Arora, PW-4, who had brought the original bed head ticket of the deceased, was that the same was dangerous to life and not the one, which may be sufficient to cause death in ordinary course of nature. It is significant to mention that Dr. Pankaj Arora had brought injury report register wherein, brief case history had been mentioned. Nature of injury was declared dangerous to life even though, it is true that Dr. R.K. Sharma, PW-3, who had conducted post- mortem examination on the dead body of Pankaj Thapar, had described the injury as sufficient to cause death in ordinary course of nature but that does not appear to be the first opinion of the Doctor on the issue. This Doctor has, however, also candidly admitted in his cross-examination and that also definitely that in case timely medical aid would have been given to the injured, he would have definitely survived, lateron, of course, he stated that he could survive. 17. Learned counsel in support of this contention has relied upon a judgment of Honble Supreme Court in Jayaraj v. State of Tamil Nadu, AIR 1976 SC 1519. Facts of the case aforesaid reveal that in the occurrence, PW-3 had received injuries, whereas one person had died in a busy locality of Tuticorin town. It had been the prosecution case that on the eve of general elections to the State Assembly, election fever was raging and workers of the rival parties were busy canvassing for their respective candidates, who were contesting from the constituency. At about 2.30 P.M., PW-3 and the deceased were standing on Davispuram Road in front of the office of the DMK Party and were canvassing with each other. The accused came there armed in a body. At about 2.30 P.M., PW-3 and the deceased were standing on Davispuram Road in front of the office of the DMK Party and were canvassing with each other. The accused came there armed in a body. One of the accused exhorted his own companions to assault PW-3. Thereupon, two accused gave stick blows to injured witness, felling him on the ground. The deceased ran away towards the south and then turned east into Rama Nadar Villai Street. Three accused chased him, followed by rest of the accused. Three accused overtook the deceased, when one accused stabbed the deceased with the Bichchua in abdomen, as a result of which, liver, stomach and inesentery of the victim were injured and his intestines came out. Simultaneously, two accused gave stick blows on his head. The Doctor, who conducted the post-mortem examination on the dead body of deceased, whereas, stated in his examination-in-chief that the injury was sufficient to cause death in ordinary course of nature, he, in his cross-examination, stated that the injury was likely to cause death. The weapon of offence was a Bichchua, which was described as small dagger, like knife. In the facts aforesaid, it was held by Honble Supreme Court that "in the case before us, the 4th element has not been objectively and clearly established. Although in the examination-in-chief, Dr. Poovalingam, who conducted the autopsy stated that the external injury on the abdomen which was linked with the internal grievous injury, was necessarily fatal, yet in cross-examination, he stated in unmistakable terms that this abdominal injury found on the deceased was only likely to cause death. No attempt was made in re-examination to get this apparent conflict reconciled. As a matter of fact, it was incumbent on the prosecution to question the medical witness specifically as to whether all or any of the injuries found on the deceased was sufficient to cause death in the ordinary course of nature. But this was not done." 18. In the present case, the very nature of weapon Chhuri, which in this part of the country is taken as a small knife more often if not always, is used as an instrument, for cutting vegetables. Dimensions of the injury on the person of deceased also clearly reveals that it was a small knife. But this was not done." 18. In the present case, the very nature of weapon Chhuri, which in this part of the country is taken as a small knife more often if not always, is used as an instrument, for cutting vegetables. Dimensions of the injury on the person of deceased also clearly reveals that it was a small knife. First opinion of the Doctor with regard to the injury is that the same was dangerous to life and the Doctors, who were examined, stated that in case timely medical aid would have been given to the injured, he would have definitely survived. Surinder Mohan caused one injury and did not repeat the attack. It appears to this Court that even though not caused with force, the weapon of offence some how touched the liver, on account of which, the injured unfortunately expired. 19. In totality of the facts and circumstances of this case, we are of the view that Surinder Mohan can only be convicted under Section 304 Part I of the Indian Penal Code. Considering, however, the fact that even though one blow given by Chhuri has ultimately caused death of Pankaj Thapar, it can a yet be said that Surinder Mohan had knowledge that his act is likely to cause death. In the matter of sentence, we are of the view that interest of justice would be served if Surinder Mohan is sentenced to undergo rigorous imprisonment for a period of eight years as also to pay fine of Rs. 1,00,000/- and in default thereof, to undergo rigorous imprisonment for a period of two years more. In case, fine is paid, same would be given to the parents of deceased, if he was not married. He was only 21 years of age. In case, however, he was married, the fine shall be paid to his widow. So ordered. 20. Insofar as, appeal filed on behalf of Munish Kumar is concerned, same deserves to be allowed, inasmuch as, he cannot be said to have shared the common intention of his co-accused to cause death of Pankaj Thapar. He, however, did share common intention to cause simple injury under Section 323 read with Section 34 of Indian Penal Code. He is, thus, convicted accordingly and sentenced to undergo rigorous imprisonment for a period of three months. He, however, did share common intention to cause simple injury under Section 323 read with Section 34 of Indian Penal Code. He is, thus, convicted accordingly and sentenced to undergo rigorous imprisonment for a period of three months. If he might have, however, already undergone sentence for a period of three months, he would not be sent to jail again.