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2005 DIGILAW 311 (AP)

Vinod Kumar v. State of Haryana

2005-03-31

MEHTAB S.GILL, SURYA KANT

body2005
JUDGMENT Surya Kant, J.—Vinod Kumar, the sole appellant, who along with his two brothers namely Rakesh Kumar and Subhash as well as one Purshottam alias Haathi son of Banwari Lal faced trial under Sections 302/34, IPC for causing death to Subhash son of Madan Lal in which the learned Additional Sessions Judge, Narnaul vide his judgment and order dated 22/24.2.1999 acquitted the above named co-accused but held the appellant guilty under Section 302, IPC and sentenced him to undergo RI for life and to pay a fine of Rs. 2000/- in default whereof to further undergo RI for one year, has assailed the aforementioned judgment and order in this appeal. 1. As per the case set up by the prosecution, the occurrence which led to the death of Subhash son of Madan Lal (hereinafter referred to as the deceased) took place during the intervening night of 7th and 8th May 1998 at about 11.30 O’clock in mohalla Dakotan, Narnaul, which led to the registration of FIR No. 289 dated 8.5.1998 (Exhibit PC/2) at about 12.45 a.m. in P.S. Narnaul and a special report of which was received by the Chief Judicial Magistrate, Narnaul at about 1.30 p.m. on 8.5.1998. 2. In its endeavour to bring the guilt home against the appellant and his co-accused, the prosecution examined as many as 13 witnesses including Dr. K.K. Yadav (P.W. 1), who conducted post-mortem of the body of the deceased, Smt. Gulabi Devi (P.W. 3) the mother of the deceased who witnessed the occurrence, and is also the complainant, Dinesh Kumar (P.W.4) who is a neighbour and an eye witness to the occurrence. Constable Dharam Pal (P.W.9) — the Draftsman who prepared the site plan (Exhibit PG), Raj Kumar, Photographer (P.W. 10), ASI Rajinder Singh—the Investigating Officer (P.W. 12) and Gopi Ram (P.W.13) who witnessed the recovery of weapon from the appellant, apart from some other formal witnesses. 3. According to Dr. K.K. Yadav, (P.W.1) while conducting autopsy on the dead body of the deceased, he found the following injury:– “1. A stab wound of size 1.7 cm. x. 0.5 cm. x cavity deep of an oval shape. Penetrating upto the left ventricle of the heart. On dissection, the wound had penetrated the left ventricle of heart after penetrating the pericardium and corresponding soft tissues below the skin. A stab wound of size 1.7 cm. x. 0.5 cm. x cavity deep of an oval shape. Penetrating upto the left ventricle of the heart. On dissection, the wound had penetrated the left ventricle of heart after penetrating the pericardium and corresponding soft tissues below the skin. Externally the wound was situated 4 cm to the left side of the middle-line on sternum and 6.5 cm. below the left nipple. Internally the thorasic cavity was full of blood. Wound was ante-mortem. Note: Corresponding to wound there were two cuts of 2 cm. in length on the left side of the vest (Banian).” 4. As per Dr. Yadav, in abdominal cavity of the deceased all the organs were pale and healthy and the “stomach contained semi-digested food, gastric juices ....” In the opinion of Dr. Yadav, “the cause of death in this case shock and haemorrhage as a result of injury No. 1 which was also an injury to the vital organ i.e. heart. The injury No. 1 was sufficient to cause death in normal course of nature and was ante-mortem” in his cross-examination Dr. Yadav, categorically stated that the injury which he had described in PMR Ex. PA/1 “could be caused by a weapon similar with Ex. P1....” while asserting that he had not mentioned in the PMR Ex. PA/1 that “the injury on the person of Subhash was caused in such a manner that its direction was upward, downward or straight, (emphasis supplied), Dr. Yadav further stated as follows:— “but keeping in view nature of wound described by me in PMR I can say that the wound was straight because its entrance was 6.5 cm below the left nipple and it was 4 cm to the left of middle line of the sternum and went upto the left ventricle of the heart.” 5. Yadav further stated as follows:— “but keeping in view nature of wound described by me in PMR I can say that the wound was straight because its entrance was 6.5 cm below the left nipple and it was 4 cm to the left of middle line of the sternum and went upto the left ventricle of the heart.” 5. P.W.3 (Gulabi Devi) deposed that she along with Smt. Santra, her sister-in-law (Devrani) was sitting in front of her house at about 11.30 O’clock during the night intervening 7th/8th of May, 1998 and her son Subhash (deceased) was sleeping on a cot nearby when the appellant came there abusing the deceased for standing as a surety for one Bharat Bhushan in a Court case and further said that he (the appellant) would teach a lesson to him (the deceased) and then the appellant went back to his house and came after two minutes along with his two brothers namely Rakesh Kumar and Subhash as well as one Purshottam alias Haathi and all of them caught hold of the deceased and dragged him to the well of the house of Hanuman whereupon she raised voice which attracted one Dinesh and Jatinder but meanwhile accused Rakesh caught hold of the right hand, accused Subhash caught hold of the left hand and Purshottam alias Haathi caught hold of the neck from the backside of the deceased while the appellant stabbed with the knife in his chest (deceased’s) on the left side. This witness further deposed that she along with her Devrani, (Santra), Dinesh and Jatinder tried to catch hold of the accused persons but they managed to run away. In her cross-examination P.W.3 (Gulabi Devi) admitted that the house of Jatinder and Dinesh, who are brothers, is in front of her house although there is one more house in between. There is nothing in her cross-examination to cause dent in the prosecution case and/or suspicion regarding her version, P.W.4 Dinesh Kumar has also narrated the occurrence in the same manner as has been deposed by Gulabi Devi (P.W.3). An attempt was made by suggesting in the cross-examination as if he was deposing against the appellant and his brothers on account of some old enmity between the families but this allegation was vehemently denied by P.W.4. An attempt was made by suggesting in the cross-examination as if he was deposing against the appellant and his brothers on account of some old enmity between the families but this allegation was vehemently denied by P.W.4. Constable Dharam Pal (P.W.9) came in the witness box and deposed that the scaled site plan (Ex.PG) was prepared by him after visiting the place of occurrence. There is nothing in his cross-examination to infer any doubt regarding his actual visit to the spot or preparation of the said site plan. P.W.12 (SI Rajinder Singh) deposed that on the statement of the complainant. (Ex.PC), the FIR Ex. PC/2 was registered and he immediately rushed to the place of occurrence and found the dead body of the deceased on the road straight with face upward: he carried out the proceedings under Section 174 Cr.P.C. and prepared the inquest report Ex. PC/4. Thereafter he despatched the dead body of Subhash along with application Ex. PA and the Inquest Report Ex. PC/4 with Constables Satbir Singh and Bhudev to General Hospital, Narnaul for autopsy; Photographer Raj Kumar (P.W.10) was called and thereafter he “lifted blood-stained earth from the place of occurrence in a plastic dibbi and converted the same into parcel which was sealed with seal RS and was taken into possession vide Ex. PD and this memo was duly attested by Dinesh and Jatinder. According to this witness the appellant and his brother Rakesh were arrested on 10-5-1998 and the appellant while in police custody, made a disclosure statement (Ex.PX) to the effect that he had kept the knife concealed in the house of his maternal uncle Dharam Pal at Village Singhana. The appellant, however, made yet another disclosure statement (Ex. P.PJ) in the presence of Hanuman and Gopi Ram in the Police Post according to which the weapon of offence (Knife) was actually kept concealed by him near the well of the old Court under the bushes and he could get the same recovered from the place of concealment because none else had the knowledge of that place. It was thereafter that the recovery of knife (Ex.P1) was effected. Thereafter, P.W.12 the Investigating Officer, obtained opinion of the Medical Officer from the Government Hospital, Narnaul vide memo Ex. It was thereafter that the recovery of knife (Ex.P1) was effected. Thereafter, P.W.12 the Investigating Officer, obtained opinion of the Medical Officer from the Government Hospital, Narnaul vide memo Ex. PB/1 to the effect that “the injury of Subhash could be caused by the knife,” P.W. 13 Gopi Ram has deposed that the disclosure statement (Ex.PJ) was made by the appellant in his presence as well as of one Hanuman and that the appellant led them and the police party to the place of concealment and recovered the knife. In his cross-examination this witness though has admitted that he was real uncle of the deceased but has categorically denied that he was making a false statement with regard to the disclosure statement made by the appellant and/or recovery of the knife. 6. It may be mentioned that Smt. Santra, who as per the prosecution case was also sitting with Gulabi Devi (P.W.8) and had witnessed the occurrence, could not be examined by the prosecution due to her death during the trial. 7. The learned Additional Sessions Judge vide his judgment dated 22-2-1999 held that the prosecution has failed to prove the charge under Sections 302/34, IPC against accused Rakesh Kumar, Subhash sons of Siri Ram and Purshottam alias Haathi son of Banwari Lal, and accordingly acquitted them. The learned Additional Sessions Judge, however, held the appellant guilty of committing the murder of Subhash by stabbing in the chest of the deceased with a knife and consequently, convicted him. 8. For discarding and accepting the prosecution case partly, the learned Additional Sessions Judge gave more than one reasons some of which are summarised as follows:– (i)The part of the statement of P.W.3 (Gulabi Devi) pertaining to the involvement of three co-accused of the appellant or witnessing of the occurrence by P.W.4 Dinesh Kumar and his brother and/or the dragging of the deceased from Point A to Point B in the site plan Ex. PG by the accused persons as well as stabbing by the appellant at Point B, is not believable; (ii)There has been a considerable delay of 14 hours in the reaching of the FIR in the hands of Magistrate which was utilized by the prosecution to give colour to the facts of the case thereby implicating Rakesh, Subhash and Purshottam alias Haathi as accused and introducing Dinesh and Jatinder as eye-witnesses; (iii)The place of occurrence was also changed from the front of the house of P.W.3 (Gulabi Devi) to point B in the rough site plan Ex.PC/6 (on the basis of which the scaled site plan Ex. PG was prepared); (iv)P.W.4 Dinesh Kumar and his brother Jatinder did not witness the occurrence; (v)P.W.12 Rajinder Singh, the Investigating Officer, is responsible for changing the place of occurrence, adding the names of three persons as accused and planting two eye- witnesses as well as for causing unnecessary delay in the registration of the case. (vi)The Investigating Officer was also responsible for not going to Village Singhana to recover the alleged knife as per the first disclosure statement suffered by the appellant, and instead made the appellant to suffer another disclosure statement and thereafter tried to connect the knife Ex.P1 with the accused; and (vii)The nature of injury found on the person of the deceased was such which could not have been caused to a standing person and could be caused only while he was asleep, therefore, also the prosecution story that the deceased was dragged from Point A to Point B, before the knife blow was inflicted upon him by the appellant, could not be believed. 9. While assailing his conviction and sentence under Section 302, IPC, the main plank of arguments of Sh. Gorakh Nath, learned counsel for the appellant hinges around various fallacies and infirmities noticed in the prosecution case by the learned Additional Sessions Judge a brief reference to which has already been made by us. According to him, the foundation of the prosecution case having been laid on some false and fabricated facts, it will be highly unsafe to hold the appellant guilty by relying upon the statements of P.W.3 (Gulabi Devi), P.W. 12 (ASI Rajinder Singh), who have been disbelieved and/or the statement of P.W.4 (Dinesh Kumar), whose presence at the time of occurrence has been doubted, Sh. Gorakh Nath further contended that when recovery by the weapon i.e. knife, Ex. P1 stands disbelieved and the injury found on the body of the deceased does not appear to have been caused by the knife (Ex.P1), the case set up by the prosecution is liable to fall flat even against the appellant and also further contended that if the appellant was pre-meditated to commit the murder of Subhash, he would have given the knife blow quietly when Subhash was lying asleep on the cot, therefore, the version of P.W.3 (Gulabi Devi) that the appellant first came and called the deceased names and then went inside his house and came out along with his co-accused, is totally unnatural, tutored and concocted. Alternatively, Sh. Gorakh Nath argued that the Prosecution having failed to prove any motive to commit the murder and there being only a single blow caused by the appellant, no case under Section 302, IPC was made out and at the best the appellant could be held guilty under Section 304, Part I, IPC. 10. We have given our thoughtful consideration to the submissions made on behalf of the appellant and have also gone through the entire record. We have also minutely examined the reasons which found favour with the learned Additional Sessions Judge, to partly accept and reject the prosecution case. 11. According to the prosecution, the occurrence took place at about 11.30 p.m. on the intervening night of 7th and 8th May, 1998. P.W.12 SI Rajinder Singh, received the intimation at about 12.15 midnight and by 12.30 a.m. of 8th of May, 1998, the inquest report (Ex. PC/4) was prepared whereas the formal FIR was registered at 12.45 a.m. on the same day. During this period, the statement given by the complainant (Ex.PC) was recorded and sent to the police station for registration of the formal FIR and proceedings under Section 174 Cr.P.C. were also carried out. We are, therefore, of the view that there has been absolutely no delay much less a delay which requires explanation in registration of the FIR. There appears to be some delay in sending and/or receipt of the special report by the Chief Judicial Magistrate, which by itself is no circumstance to hold that there was a considerable delay in reporting of the occurrence or registration of the FIR. There appears to be some delay in sending and/or receipt of the special report by the Chief Judicial Magistrate, which by itself is no circumstance to hold that there was a considerable delay in reporting of the occurrence or registration of the FIR. According to the medical evidence on record, the stomach of the deceased contained semi-digested food which fact also supports the prosecution version that the occurrence took place at 11.30 p.m. in the night. 12. P.W.1 Dr. K.K. Yadav while conducting the autopsy found one injury upon the body of the deceased which he opined was sufficient to cause death in the normal course of nature as it was caused to the vital organ, namely, the heart of the deceased and was ante mortem. The medical evidence referred to above, fully corroborates the version of eyewitnesses namely P.W.3 Gulabi Devi and P.W.4 Dinesh Kumar, who have deposed that the appellant caused single knife blow on the left side of the chest of the deceased. 13. We are unable to find out any material on record on the basis of which the learned Additional Sessions Judge could form a definite opinion that “the nature of injury found on the person of the deceased was also such which could not be caused to a standing person. It could be caused to a sleeping person.” Firstly, there is no reason that a neutral and independent witness like Dr. K.K. Yadav (P.W.1) would help out SI Rajinder Singh (P.W.12) for projecting a false prosecution case. Secondly Dr. Yadav has emphatically stated that keeping in view the nature of the wound described by him in the PMR, he could say that the wound was straight because its entrance was 6.5 cm below the left nipple and it was 4 cm to the left of middle line of sternum and went upto the left ventricle of the heart. Dr. Yadav has also stated that he had nowhere mentioned in the PMR Ex. PA/1 that the injury was suffered by the deceased in such a manner that its direction was upward, downward or straight. On the basis of the medical evidence on record, it thus appears to us that there is nothing improbable in the case set up by the prosecution that the deceased was taken to point B in the scaled site plan Ex. On the basis of the medical evidence on record, it thus appears to us that there is nothing improbable in the case set up by the prosecution that the deceased was taken to point B in the scaled site plan Ex. PG and the knife blow was caused to him by the appellant at Point B only. 14. Equally strange are the observations made by the learned Additional Sessions Judge that “Ex.P1 was not the actual knife which was used by the accused Vinod Kumar in the crime. Otherwise also, the shape and size of the injury of the deceased Subhash did not tally with the shape and size of the knife Ex.P.1” True it is that Judges are said to be “Experts” of Experts. However, it is always prudent to leave the specialised fields for the Experts of such fields. Occasion to differ with an expert’s opinion normally arises when such an opinion is wholly perverse, tainted or seems contrary to the consistent view point of men of eminence in that field. Coming to the case in hand, Dr. Yadav (P.W.1) has categorically denied that “knife Ex.P1 is sharp from one side and blunt on the other side.” He thereafter volunteered to say that “the tip of the blade of Ex.P1 is sharp on both the sides”. Dr. Yadav admitted that a stab wound can be caused except than a knife also and explained further that the same can be caused with a dagger, ice breaking instrument or any other sharp pointed weapon also. It was thereafter that Dr. Yadav deposed that “the injury as described in the PMR Ex. PA/1 “could be caused by a weapon similar with Ex.P1...” Be that as it may even if it is assumed that the appellant succeeded in destroying the weapon with which he attacked the deceased and/or the police failed to recover the same, there is overwhelming evidence on record which establishes beyond any doubt that it was the appellant who caused a knife blow to the deceased “on the left side of his chest” and it was that blow which pierced the heart of the deceased and was sufficient enough to cause his death. 15. In our view, the occurrence having taken place at about 11.30 p.m. in the night, there can be no reason to doubt the presence of P.W.3 (Gulabi Devi) alongwith her Devrani Smt. Santra. 15. In our view, the occurrence having taken place at about 11.30 p.m. in the night, there can be no reason to doubt the presence of P.W.3 (Gulabi Devi) alongwith her Devrani Smt. Santra. It also appears to be just natural that when the deceased was attacked, P.W.3 and Smt. Santra raised hue and cry which attracted P.W.4 (Dinesh Kumar) and his brother Jatinder, whose house adjoins the house which is in front of the house of P.W.3 and the deceased. The learned Additional Sessions Judge appears to have doubted the presence of P.W.4 (Dinesh Kumar) and his brother Jatinder Kumar as witness to the crime mainly for the reason that when the inquest report (Ex. PC/4) was prepared the dead body of Subhash was identified by one Dharma son of Babu Lal and Kailash Chand son of Ram Kumar instead of P.W.4 (Dinesh Kumar) or his brother. However, the learned Additional Sessions Judge ought to have appreciated the site plan Ex. PG which depicts that Dharma is none else than the brother of Hanuman whose house is exactly in front of the house of the deceased. It is a matter of common knowledge that when a tragic happening like murder takes place in a Mohalla/Street, the neighbourhood people would gather immediately at the spot. Some of them would volunteer different types of assistance also. We are, therefore, of the view that merely because for the purpose of inquest report the dead body was identified by two persons who were other than P.W.4 (Dinesh Kumar) and his brother, is no ground to scorn the prosecution version in relation to the presence of P.W.4 or his brother at the time of occurrence. We accordingly hold that the prosecution case is proved to the hilt not only by the statement of P.W. 3 (Gulabi Devi) but it also stands strengthened by the deposition of P.W.4 (Dinesh Kumar). 16. The contention of Sh. Gorakh Nath that the murder having taken place in late hours of the night, neither P.W.3 nor anyone else could have seen the appellant causing the alleged injury too has no factual or legal basis. As per the rough sketch plan Ex.PC/6 read with the site plan Ex.PG, the total distance from Point A to Point B is hardly 16 feet. As per the rough sketch plan Ex.PC/6 read with the site plan Ex.PG, the total distance from Point A to Point B is hardly 16 feet. In the summers of May the nights are not so much dark that a person cannot be seen or identified. Moreover, the appellant is an immediate neighbour of P.W. 3 (Gulabi Devi) and the deceased. He thus, being not a stranger, could very well have been identified by P.W.3 (Gulabi Devi) and P.W.4 (Dinesh Kumar) and seen while giving knife blow to the deceased. 17. The submission of Sh. Gorakh Nath that no motive to commit murder by the appellant has been established, is also devoid of any merit, P.W.3 (Gulabi Devi) in her complaint (Ex.PC) as well as in her deposition has categorically stated that the appellant was nursing a grudge against the deceased as the later had stood surety for one Bharat Bhushan in some case to the disliking of the appellant. Not only this the appellant abused the deceased on that count a few minutes before the occurrence. 18. We are also not impressed by the contention of Sh. Gorakh Nath that in the absence of any pre-meditation to kill the deceased, the appellant can at the best be guilty of an offence under Section 304, Part I IPC. The appellant had an axe to grind against the deceased. The appellant after abusing the deceased went inside his house and came after two minutes with a knife in hand which was sharp edged from both the sides. The appellant attacked the deceased on the left side of his chest apparently with an intent to cause injury to the most vital organ of the body, namely, the heart. The knife blow was given by the appellant with such an intensity that it pierced through the heart of the deceased. The appellant cannot plead ignorance of the fact that the injury which he intended and actually inflicted upon the deceased was sufficient to cause death in the ordinary course of nature and was caused when there was no sudden provocation also. The appellant thus, cannot be permitted to take shelter behind Exception-4 to Section 300, IPC, as he does not satisfy all the four pre-requisite ingredients as laid down by the Apex Court in the case of Surinder Kumar v. U.T. Chandigarh1 for claiming such protection. The appellant thus, cannot be permitted to take shelter behind Exception-4 to Section 300, IPC, as he does not satisfy all the four pre-requisite ingredients as laid down by the Apex Court in the case of Surinder Kumar v. U.T. Chandigarh1 for claiming such protection. Consequently, while concurring with the concluding part of the judgment and order dated 22/24-2-1999 passed by the learned Additional Sessions Judge, Narnaul, we do not find any merit in this appeal which is accordingly dismissed. Appeal dismissed.