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2005 DIGILAW 122 (JK)

Sanjay Arora v. State Of J. &K.

2005-05-02

NIRMAL SINGH, Y.P.NARGOTRA

body2005
Per Nirmal Singh-J 1. This appeal is directed against judgment dated 31.07.2002 and order of sentence dated 01.08.2002 passed by the learned Sessions Judge, Udhampur, by which the appellant, Sanjay Arora has been convicted under Section 302/334/34 RPC and 4/27 Arms Act. Learned Sessions Judge had sentenced appellant Sanjay Arora for life imprisonment and payment of fine of Rs.5000/- under Section 302 RPC and further sentenced him to Simple Imprisonment of two years and fine of Rs.1000/- under Section 324 RPC. In addition, learned Sessions Judge had directed that the appellant No.1 will undergo simple imprisonment for a period of two years and shall pay fine to the tune of Rs.1000/- under Section 4/27 Arms Act and appellant Bhushan alias Vijay has been convicted and sentenced under Section 302/324/34 RPC and sentenced to life imprisonment and payment of fine of Rs.5000/- under Section 302 RPC and simple imprisonment of two years and payment of fine of Rs.1000/- under Section 324 RPC. In default of payment of fine, both the accused shall under go four months more simple imprisonment. Out of fine if realized, ½ shall go to the legal representatives of deceased Sham Singh and 1/4th to Rattan Singh injured and remaining amount to the State. The sentences shall run concurrently. 2. The prosecution story in nutshell is that on 05.09.1997, PW-1,Rattan Singh along with Sham Singh deceased had gone to Tikri from Katra in search of kerosene oil because the depot of kerosene oil at Tikri was closed. They returned back in vehicle No.1015-JKU. In the same bus from Tikri, 8/10 persons were also boarded. The bus was overloaded and they alongwith accused and other persons sat on the roof of the bus and when the bus reached near Lahnu, the bus Conductor came to demand fare from passengers including the accused persons but the accused refused to pay fare. The deceased Sham Singh paid fare on behalf of the accused, which was resented by the accused. On this there was quarrel with them. Bhushan alias Vijay (appellant No.2) caught hold the deceased from legs and Sanjay Arora (appellant No.1) stabbed the deceased in his stomach with Kirch and then both the accused threw down the deceased from roof top of the bus. The complainant-Rattan Singh and passengers got scarred and accused tried to run away from the vehicle. Bhushan alias Vijay (appellant No.2) caught hold the deceased from legs and Sanjay Arora (appellant No.1) stabbed the deceased in his stomach with Kirch and then both the accused threw down the deceased from roof top of the bus. The complainant-Rattan Singh and passengers got scarred and accused tried to run away from the vehicle. When complainant-Rattan Singh was on the stairs of the vehicles, accused No.2 Bushan alias Vijay caught hold of his legs and accused No.1 Sanjay Arora gave kirch blow on his thighs ¾ times. PW-2 Ram Lal who was traveling in same bus, raised alarm as a result of which vehicle came to halt. The accused as well as other passengers came down from bus. Accused-Sanjay Arora threatened the passengers and complainant-Rattan Singh that, if any body came forward, he would stab all of them. The passengers remained in the bus and bus went ahead. When the bus reached Panthal Check Post, Rattan Singh came down and narrated the occurrence to the Police. Police carried Rattan Singh to Tikri Hospital for treatment. 3. PW-11 Dhian Singh ASI received telephonic message from Hospital Tirkri that one person was lying in an injured condition. He went to hospital and came to know that said person was Sham Singh who succumbed to the injuries. Rattan Singh complainant was also lying in an injured condition. ASI Dhian Singh moved an application before3 the Doctor to know whether Rattan Singh injured was fit to make the statement. The Doctor opined that he was fit to make the statement, as such his statement was recorded and on the basis of said statement FIR was registered. 4. PW-11 Dhian Singh arrested the accused from their houses at Batyal. When accused Sanjay Arora was interrogated he made the disclosure statement exhibit EXPWMS which was attested by PWs and on the basis of said disclosure statement, kirch exhibit as EXPW1 was recovered which was taken into possession. Site Plan was also prepared. Statements of PWs were recorded and after completion of the investigation challan was presented before the concerned Magistrate who committed the same to the court of Sessions. 5. Both the accused were charge sheeted under Section 302/324/34 RPC whereas Accused- Sanjay Arora was further charge sheeted under Sec.4/27 Arms Act, to which both the accused pleaded not guilty and claimed trial. 6. 5. Both the accused were charge sheeted under Section 302/324/34 RPC whereas Accused- Sanjay Arora was further charge sheeted under Sec.4/27 Arms Act, to which both the accused pleaded not guilty and claimed trial. 6. To prove the case, prosecution has examined PW- 1 Rattan Singh injured witness and PW-2 Ram Lal eye witness of the occurrence. PW-3 Kewal Singh,PW-4 Ganesh Dass, PW-5 Mohan Singh, PW-7, Krishan Lal Patwari who has prepared the site plan EXPWKL, PW-8 Gandharab Singh, Naib Tehsildar, PW-9 Chanker Singh, PW-10, Dr.Naridner Kumar Gupta who has conducted the autopsy on the dead body of Sham Singh and found the following injuries : 1. perforating injury on upper part of abdomen on right side size 4 cm x 4 cm, cavity deep sharp edges, abdominal fat protruding out, injury directed towards left side. 2. One incised wound on left side of chest size 9 cmx.5� x 5�. Margins sharp and gapped. 3. perforating injury of large intestine 5cm x 3 cm. 4. Perforating injury of omentum in the abdomen size 5 cm x 3 cm. 5. a perforating injury of spleen on inner side, size 5 cm x 2 cm x 3 cm. Spleen was collapsed. Profuse bleeding has taken place from injured spleen into the abdominal cavity. 7. The Doctor had opinioned that the injury on the person of deceased can be caused with kirch which is exhibited as EXPW-P1. He also pointed out that these injuries on the person of Sham Singh were sufficient in the ordinary course of nature to cause his death. Doctor had also examined Rattan Singh-complainant and found the following injuries on his person. 1. One incised wound on inner side of right thigh on upper part size 5 cmx2cmx3cm. Bleeding was present. 2. One incised wound on inner aspect of right thigh size 3cmx3mx2cm. 3. one incised would on back side of right thigh size 7cmx4cmx4cm. Bleeding was present. 4. One incised wound on upper part of right thigh size 7 cmx1cmx2cm. Bleeding was present. 8. In the opinion of Doctor, injuries on the person of complainant-Rattan Singh were simple in nature and caused by sharp object within 24 hours from the time the Doctor examined the injuries. 9. When appellants were examined under Section 342 Cr.P.C to explain the incriminating circumstances appearing in the prosecution evidence, they denied Simplicitor and false implications. 8. In the opinion of Doctor, injuries on the person of complainant-Rattan Singh were simple in nature and caused by sharp object within 24 hours from the time the Doctor examined the injuries. 9. When appellants were examined under Section 342 Cr.P.C to explain the incriminating circumstances appearing in the prosecution evidence, they denied Simplicitor and false implications. The accused were called to lead evidence in their defence. They have not examined any witnesses in defence. 10. Learned trial court after appreciating the evidence of prosecution found guilty the accused and convicted and sentenced them as stated in paragraph No.1 of the judgment, aggrieved of which the present appeal has been preferred. Whereas learned Sessions judge has referred the case for confirmation of sentence as required under Section 374 Cr.P.C. 11. Ms. Seema Anand, learned counsel for the appellant assailed the judgment of the learned trial court on the ground that the learned Sessions Judge, has not appreciated the evidence of prosecution in its right prospective rather convicted and sentenced the appellants on surmises and conjectures. She submitted that there was a delay in lodging FIR. The occurrence has occurred on 05.09.1997 at 8.30 p.m. whereas FIR was registered on 06.09.1997 at 3.30 p.m. She further contended that Rattan Singh PW-1 with connivance of the Investigator has concocted a false story that he alongwith with Sham Singh deceased had gone to Tikri for search of kerosene oil. She contended that there is no evidence on record to prove that they actually had gone to Tikri for search of kerosene oil by traveling in Bus No.JKU-1015. She contended that if the accused had traveled by bus then the driver and conductor were the best witnesses to depose that Sham Singh-deceased and Rattan Singh-complainant had sustained injuries but the prosecution has not examined them for the reasons best known to it. She further contended that to make the case probable, simple injuries on the person of Rattan Singh have been fabricated. She further contended that there was no motive on the part of the appellants to give injury. She pointed out that as per prosecution version, Sham Singh deceased had paid the fare on behalf of the accused. If the fare has been paid by the deceased then there would have been no grudge for making the payment by the accused. She further contended that there was no motive on the part of the appellants to give injury. She pointed out that as per prosecution version, Sham Singh deceased had paid the fare on behalf of the accused. If the fare has been paid by the deceased then there would have been no grudge for making the payment by the accused. She further contended that PW-1Rattan Singh and PW-2 Ram Lal are interested witnesses, as both belong to village of deceased. She contended that there are contradictions between the statement of both these witnesses. These contradictions prove that they were not present at the time of alleged occurrence. She also pointed that medical evidence and ocular version is contradictory to each other. In support of her submissions, she relied upon 2002 Cri.L.J. 1481,Chander Pal Vs. State of Haryana, 2002 Cri.L.J.3538, Mathura Yadav alias Mathura Mahato and others Vs. State of Bihar and 2001 Cri.L.J.1176, State of Rajasthan Vs. Teja Singh and others. 12. On the other hand, Shri Ajit Singh Dogra, learned Dy. A.G appearing for the State has submitted that prosecution has proved its case beyond any shadow of reasonable doubt. He contended that discrepancies pointed out by learned counsel for the appellants are very minor in nature and these discrepancies are not fatal to the case of the prosecution. He pointed out that in the occurrence Rattan Singh-complainant had also sustained injuries which have been proved by Dr.N.K.Gupta. He further contended that injuries on the person of complainant-Rattan Singh and deceased-Sham Singh are result of one weapon i.e. kirch. He also supported judgment of learned trial court. 13. We have given our thoughtful consideration to the submissions made by learned counsel for the appellants, but find the same without any substance. 14. The delay in lodging the FIR ipso-facto is not fatal to the prosecution case. It would be only fatal if prosecution has introduced false witnesses who have not witnessed the occurrence and implicated the innocent person as an accused. From the facts and circumstance of the case there is no delay in lodging the FIR rather it is established that FIR was lodged promptly. 15. Rattan Singh-complainant, deposed that he alongwith deceased boarded the bus from Udhampur and were sitting on the roof top of the bus. From Tikri about 8/10 persons boarded the same bus. From the facts and circumstance of the case there is no delay in lodging the FIR rather it is established that FIR was lodged promptly. 15. Rattan Singh-complainant, deposed that he alongwith deceased boarded the bus from Udhampur and were sitting on the roof top of the bus. From Tikri about 8/10 persons boarded the same bus. On seeing the complainant and deceased Sham Singh the accused Bhushan and Sanjay also boarded the same bus and sat on the roof-top. As per this witness, when the bus reached near Lahnu the conductor of the bus came on the roof of the bus for charging the fare. When the conductor demanded the fare from the accused persons they started quarrelling with him on which the deceased Sham Singh paid the fare of the accused persons to the conductor of the bus at which the accused started grappling with deceased Sham Singh as to why he has paid the fare on their behalf. Accused Bhushan caught hold of legs of deceased Sham Singh whereas accused Sanjay gave a kirch blow in his abdomen and threw the deceased from the running bus. He further deposed that due to fear he tried to came down from the running bus but accused Bhushan caught him from his right leg and accused Sanjay stabbed on his legs and thighs 3-4 times. He also deposed that PW2- Ram Lal who was also traveling in the same bus raised an alarm. When the bus reached near Panthal the witness came down and reported the matter to the policed who carried him to Tikri in a truck for his treatment where from he was referred to the hospital and he remained admitted in hospital for six days. 16. On receipt of telephonic message from the hospital, ASI Dhian Singh, PW-11, reached the hospital and moved an application before the Doctor to know as to whether the injured Rattan Singh was fit to make the statement. The doctor opined that he was fit to make the statement, on the basis of which statement of injured was recorded and FIR was registered on the same day. 17. PW-1, Rattan Singh has given minute details of the occurrence as to how the occurrence has taken place and the description of the weapon used by the accused. The doctor opined that he was fit to make the statement, on the basis of which statement of injured was recorded and FIR was registered on the same day. 17. PW-1, Rattan Singh has given minute details of the occurrence as to how the occurrence has taken place and the description of the weapon used by the accused. There is no evidence on record from which it can be gathered that FIR is result of deliberations and consultations. When here is direct evidence which is trustworthy, even if there is any delay in lodging the FIR, same is immaterial and on the ground of delay of few hours the case of the prosecution cannot be thrown out. 18. Learned counsel for the appellant tried to make out a case that Rattan Singh PW-1, was not present at the time of occurrence and the injuries on his person have been fabricated as the blood group on the Kirch EXPW1 do not match with the blood group of PW Rattan Singh. 19. We have considered this submission but find the same without any substance. As per the report of FSL, the Kirch was stained with human blood group ˜A™. The pent of PW Rattan Singh was also seized which was stained with blood but the report suggested that the blood group stained with pent cannot be ascertained. 20. It is settled proposition of law that when the ocular version is unimpeachable, if there is variance in the medical evidence and the ocular version, the later will prevail. So if the blood group on the pent of PW rattan Singh do not tally with the blood group on the kirch on that score the case of the prosecution cannot be thrown out. The prosecution case does not become doubtful as the evidence of PW Rattan Singh is straightforward, truthful and the defence has failed to make any dent in his version, though he was subjected to searching cross-examination. 21. The next contention raised by the learned counsel for the appellants is that as there was no motive on the part of appellants for causing injuries to deceased Sham Singh and complainant-Rattan Singh, therefore, the case of the prosecution should be rejected. 22. We have considered this submission of learned counsel for the appellants but find the same without any merit. The motive is immaterial. 22. We have considered this submission of learned counsel for the appellants but find the same without any merit. The motive is immaterial. In criminal case, some times offences are committed without any motive on trifle matter. But when case is based on eye witnesses account then motive looses its importance. In case of Molu and others Vs. State of Harayana and ors. reported in AIR 1976 SC 2499, the Apex Court in paragraph No.11 has observed as under : Finally it was argued by the appellants, following the reasons given by the Sessions Judge, that there was no adequate motive for the accused to commit murder of two persons and to cause injuries to others. It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eye-witnesses is credit-worthy and is believed by the court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant. For these reasons, therefore, we agree with high Court that the prosecution has been able to prove the case against the appellants beyond reasonable doubt.� In S.G.Gundegowda alias Moganna Vs. State by Yealur Police, Hassan District (Karnataka) (1996 Criminal Law Journal 852), the Court said that :- 14. When the case of the prosecution is based on the evidence of eye witnesses, the existence or non-existence of motive sufficiency, or insufficiency of motive will not play such a major role as in the case which is based on merely circumstantial evidence. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive, that will not be a ground to thrown overhead the prosecution case because in a case where there are eye witnesses the prosecution case will have to be decided on the basis of the merits of the evidence of such witnesses.� 23. In the instant case there is direct evidence. PW1-Rattan Singh is the complainant and a stamped witness. He has received four injuries on his person. In the instant case there is direct evidence. PW1-Rattan Singh is the complainant and a stamped witness. He has received four injuries on his person. He has given minute details with regard to the date , time, place, manner and the weapon used by the accused. His version has been fully corroborated by PWs, Ram Lal, Kewal Singh and Ganesh Dass. The version given by these witnesses is consistent. Learned counselfor the appellants has failed to point out any discrepancy worth name on the basis of which their evidence can be discarded. Further more there is no enmity either alleged or proved against these witnesses for deposing against the accused persons. When their evidence is scanned it strikes nothing but truth. The ocular version given by PWs, Rattan Singh, Kewal Singh, Ram Lal and Ganesh Dass has been fully corroborated by medical evidence, by which the injuries on the person of PW Rattan Singh and deceased Sham Singh have been proved. It has been established by medical evidence that injuries on the person of injured and deceased were result of one weapon i.e. Kirch. The contention raised by the learned counsel for the appellants that the conductor and the driver, who were the best witnesses to depose with regard to the traveling of the PW Rattan Singh and deceased Sham Singh in the bus and subsequent occurrence, but they have not been examined. This contention is devoid of any force and do not make the case of the prosecution doubtful as it is the quality of evidence which is to be appreciated and not the quantity. Therefore, the prosecution has proved its case beyond any reasonable doubt, as such, the learned Sessions Judge has not committed any legal error in appreciating the evidence and consequently convicting the accused persons. 24. For the above reasons, we affirm the findings recorded by the learned Sessions Judge, dismiss the appeal filed by the appellants and accept the reference and confirm the sentence.