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2007 DIGILAW 1362 (PNJ)

Jai Chand v. State Of Haryana

2007-07-23

A.N.JINDAL, MEHTAB S.GILL

body2007
Judgment A.N.Jindal, J. 1. Ram Samujh and his sons Jai Chand, Ram Chand and Siri Niwas were tried for the offences under Section 302/323 read with Section 34 for committing murder of Mukesh and causing injuries to Sunder, Rajesh and Manbir Singh on 3.10.1992 at about 7.30 p.m. in the area of NIT Faridabad. Consequently, learned Additional Sessions Judge (I), Faridabad, vide its judgment dated 7.8.1997 convicted the accused-appellant Jai Chand (hereinafter referred to as `the accused) under Section 302/323 IPC and sentenced him as under :- U/s. 302 IPC To undergo imprisonment for life and to pay fine of Rs. 2,000/-. In default of payment of fine to further undergo rigorous imprisonment for six months. U/s. 323 IPC To undergo rigorous imprisonment for six months. 2 Whereas, the remaining accused were convicted under Section 323 IPC and were released on probation. 3. The accused-Jai Chand, Ram Samujh, Ram Singh and Siri Niwas and also the complainant party are waste paper dealers (Kabari). The factual scenario of the case, as depicted during trial, is that about 10 days prior to the date of occurrence i.e. 3.10.1992, there was some altercation between Sunder Singh and Jai Chand over the purchase of the waste paper. Manbir Singh father of Sunder Singh while taking it lightly ignored the incident but made Jai Chand to realise that Sunder Singh was not at fault. However, the accused nursed a grudge against Sunder Singh, Jai Chand and Manbir Singh. 4. On 3.10.1992, at about 7.30 p.m., when Manbir Singh was on his way to his house and reached near the house of the accused Ram Samujh, then they (accused persons) waylaid him and started beating him. One Rajbir (PW-9), who had witnessed the occurrence, informed Sunder Singh about the incident. Sunder Singh, Rajbir, Rajesh and Mukesh arrived at the spot and interrupted to prevent the accused beating Manbir Singh. Then the accused persons after leaving Manbir Singh pounced upon Sunder etc. Ram Chand inflicted iron rod blow on Sunder Singh, Ram Chand and Siri Niwas caught hold of Mukesh and accused Jai Chand inflicted hammer blow on the head of Mukesh. Resultantly, Mukesh fell down. The accused also gave fist blows to Rajesh. The hue and cry raised by the injured attracted his family members Ami Chand and Paramjit. Thereafter all the accused ran away from the spot. Resultantly, Mukesh fell down. The accused also gave fist blows to Rajesh. The hue and cry raised by the injured attracted his family members Ami Chand and Paramjit. Thereafter all the accused ran away from the spot. Mukesh was shifted by his father Duli Chand to B.K. Hospital, Faridabad, where he was declared dead by the doctors at 8.30 p.m. 5. On receipt of the ruqa from the B.K. Hospital, Faridabad, SI Puran Chand (PW-11) came to the hospital, recorded statement of Sunder Singh (PW-7) Exh. PH at 9.00 a.m. which was sent to the police station, on the basis of which FIR Ex. PH/1 was registered on the same day at about 9.30 p.m. and it reached the Illaqa Magistrate on 4.10.1992 at 2.00 a.m. 6. Dr. A.K. Gupta (PW-2) examined Sunder Singh (PW-7) on 3.10.1992 at about 10.15 p.m. and found the following injury on his person :- 1. Lacerated wound measuring 0.5 c.m. x 0.3 cm on his right cheek. Dr. A.K. Gupta (PW-2), declared the said injury to be simple in nature vide his report Ex. PC. On the same day, at about 11.20 p.m., he also examined Manbir Singh (PW-8) and found the following injuries on his person :- 1. A reddish abrasion 0.3 cm on the front of left shoulder joint. 2. Complaint of pain on the left middle joint with no external mark of injury. 3. Complaint of pain on right ankle joint with no external mark of injury. 4. Complaint for pain on the back of chest with no external mark of injury. 5. Complaint of pain on left leg with no external mark of injury. 6. Since Mukesh had died within half an hour, therefore, Dr. Suresh Arora (PW-4) conducted his postmortem examination on 4.10.1992 at about 10.00 a.m. and found that there was a one contusion measuring 1.2" x 1" on the left occipital parietal region with a lacerated wound measuring 1/2" x .25" on it. On dissection of this injury fracture was noticed with heamotoma all around. He opined that cause of death in this case could be the result of hammer blow. The Investigating Officer collected the post-mortem report as well as medico- legal reports of the injured; he arrested the accused on 5.10.1992; recovered hammer from the accused Jai Chand in pursuance of his disclosure statement Ex. He opined that cause of death in this case could be the result of hammer blow. The Investigating Officer collected the post-mortem report as well as medico- legal reports of the injured; he arrested the accused on 5.10.1992; recovered hammer from the accused Jai Chand in pursuance of his disclosure statement Ex. PJ made by him; recorded statements of the witnesses, collected report Ex. PN and Ex. PN/2 from the Forensic Science Laboratory whereby hammer was found to be stained with human blood and on completion of the investigation report under Section 173 Cr.P.C. was presented in the Court. 7. Formal charge under Section 302/323 read with Section 34 IPC was framed against the accused to which they pleaded not guilty and claimed trial. 8. During trial, the prosecution examined Dr. P.S. Dalal (PW-1), Dr. A.K. Gupta (PW-2), Sohan Lal Draftsman (PW-3), Dr. Suresh Arora (PW-4), S.R. Raghbir Singh (PW-5), Inspector Abhey Singh (PW-6), Sunder Singh (PW-7), Manbir (PW-8), Rajbir (PW-9), ASI Charan Singh (PW-10), Puran Chand (PW-11) and Rajesh (PW-12). After tendering into evidence affidavit Ex. PF of C. Subhash Chand, reports of the Forensic Science Laboratory Ex. PN and Ex. PN/1, affidavit Ex. PO of MHC Raghbir Singh, and further after giving up Paramjit, Gopal, Megh Sham and Napel PWs, the prosecution closed its evidence. 9. In their statements under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case on account of the altercation between them and Sunder Singh (PW-7) prior to the occurrence regarding purchase and payment of the waste papers and books. No evidence was led in defence. 10. Ultimately, the trial ended in conviction, hence this appeal. 11. We have heard Mr. R.S. Sihota, Sr. Advocate, Mr. Kulvir Narwal, Additional Advocate General, Haryana and perused the records of this case with their able assistance. 12. Multi-pronged contentions were raised by the learned counsel for the appellant, inter alia that in the medico-legal report Ex. PB, in respect of Mukesh, some tempering has been made and the time of 7.45 p.m. was altered to 8.45 p.m., which goes to the root of the case. 12. Multi-pronged contentions were raised by the learned counsel for the appellant, inter alia that in the medico-legal report Ex. PB, in respect of Mukesh, some tempering has been made and the time of 7.45 p.m. was altered to 8.45 p.m., which goes to the root of the case. Hammer used by the accused Jai Chand, for causing fatal injury to Mukesh, was not be shown to the witnesses during the trial; blood-stained earth was never lifted from the spot, as such the place of occurrence could not be determined; the witnesses examined by the prosecution are interested as such no reliance could be placed on the testimony of these witnesses. 13. Having scrutinized the evidence on record, we see no reason to be persuaded by the said arguments advanced by the learned counsel for the appellant. No doubt, some alteration had been made by the doctors examining Mukesh deceased but this alteration does not make any difference, because the same is quite immaterial as the FIR in this case was recorded within two hours and on perusal of the statements of Sunder Singh (PW-7), Mahabir Singh (PW-8) and Rajesh (PW-12), it comes out that they (the accused) admit the occurrence and also their presence at the spot. Suggestion was given to them that "they along with deceased had come to the house of the accused with a view to quarrel with them and at that time they were under the influence of liquor. In the process of quarrel, Mukesh received head injury by striking against the electric pole". But these allegations do not stand proved by the accused persons and the trial Court has rightly not believed the story of receiving of injury by Mukesh by striking with the electric pole. 14. We also do not believe the story set up by the accused that Sunder Singh, Rajbir and Manbir had come to beat the accused at their house. Had they gone to the house of the accused, then certainly some injuries would have been suffered by them in the said quarrel, but nothing has come on record to establish if accused persons suffered any injuries. Equally, it does not weigh with our mind that fact with regard to showing of hammer to the doctor goes to the root of the case. All the injured eye-witnesses are consistent regarding time, place and manner in which the occurrence took place. Equally, it does not weigh with our mind that fact with regard to showing of hammer to the doctor goes to the root of the case. All the injured eye-witnesses are consistent regarding time, place and manner in which the occurrence took place. All the three witnesses have categorically testified that Mukesh was caused injuries by means of hammer by Jai Chand. The hammer was subsequently recovered at the instance of the accused Jai Chand on 8.10.1992. The corroboration to this fact stands attained from the report made by the Forensic Science Laboratory Ex. PN, which establishes that the hammer was found stained with blood. 15. As regards the element of common intention of all the accused in committing the murder of Mukesh and causing injuries to Rajesh, Manbir and Sunder Singh is missing. Only one injury was found on the body of the deceased Mukesh that too with the hammer which has been attributed to the accused Jai Chand, whereas none of the accused caused injuries to Mukesh. Even Mukesh deceased was not their target and he reached the place of occurrence per- chance. In this manner, the accused-respondents Ram Chand, Siri Niwas and Ram Samujh were rightly not convicted under Section 302 with the aid of Section 34 IPC. Further Jai Chand accused was rightly convicted under Section 323 also in addition to Section 302 IPC for causing simple hurt to Sunder Singh, Manbir and Rajesh. 16. Faced with the situation, learned counsel for the appellant, has made a submission that it is a case of single injury caused in heat of the moment on account of sudden quarrel, therefore, the offence, if any, committed by the accused, in the given circumstances of the case, falls within the purview of Section 304 Part-II IPC. 17. Before we determine the offence, we reiterate to examine the following facts and circumstances emanating from the evidence on record :- "1. the accused with an intention to have vengeance against Manbir Singh were present near their house armed with deadly weapons i.e. hammer and iron rods etc. whereas the complainant party were unarmed; 2. on the evening of 3.10.1992, at about 7.45 p.m., they waylaid Manbir Singh and gave beatings to him. They took ill of the interference made by Sunder Singh, Rajesh and Mukesh while leaving Manbir Singh, they attacked them. whereas the complainant party were unarmed; 2. on the evening of 3.10.1992, at about 7.45 p.m., they waylaid Manbir Singh and gave beatings to him. They took ill of the interference made by Sunder Singh, Rajesh and Mukesh while leaving Manbir Singh, they attacked them. Jai Chand accused who was armed with hammer badly damaged the head of Mukesh. Dr. Suresh Arora (PW-4) who conducted the autopsy on the dead body of Mukesh observed the following injuries on his person : 1. Contusion 1.2 x 1" over left occipital parietal region with 1/2" x .25" lacerated wound on it. Infiltration of blood was seen in subscutaneous tissue. 2. Multiple abrasion in front of both knees. 3. though Sunder Singh had intervened, yet, the deceased did not utter a word and the accused took ill of interference made by the injured and the deceased and exhorted to teach them a lesson. Secondly, Jai Chand accused inflicted a hammer blow on the vital part of the body of the deceased Mukesh with such a force that he fell down and collapsed within 50 minutes; 4. the accused had no regret or remorse but fled away; 5. there was no grave or sudden provocation on the part of the deceased, rather the accused took undue advantage of the fact, situation and caused head injury to the deceased; and 6. he made disadvantage of the situation, while expressing their anger and muscle power. 18. It is now to be determined, if, in the aforesaid circumstances of the case, whether offence falls under Section 302 IPC or 304 Part II IPC. The Apex Court while determining regarding intention of the accused, whether the act falls under Section 304 Part II IPC recommended to take into consideration various factors which have been enumerated in case Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P., 2006(4) RCR(Criminal) 95 : 2006(3) Apex Criminal 103 : 2007(1) Supreme Court Cases 500, while observing as under :- "29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part-II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed; jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may." 19. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may." 19. From the aforesaid observations of the Apex Court, we are persuaded to hold that causing of single blow may be one of the circumstances to take out the offence from the purview of Section 302 IPC but the only blow given by the accused by itself would not mitigate to one culpable homicide not amounting to murder. We have following cases, where the single blow inflicted by the accused resulting in death, have been founded to be sufficient for conviction of the accused under Section 302 IPC :- 1. Virsa Singh v. State of Punjab, AIR 1958 SC 465; 2. Gudar Dusadh v. State of Bihar, 1972 SCC(Crl.) 438; 3. Vasanta v. State of Maharashtra, 1983 SCC(Crl.) 535; and 4. Jai Parkash v. State (Delhi Administration), 1991(1) R.C.R.(Criminal) 439 : 1991 SCC(Crl.) 299. 20. While elaborating the legal position regarding single blow injury, the Apex Court in case Jagrup Singh v. State of Haryana, AIR 1981 SC 1552 observed as under :- "6. There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304 Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause firstly or clause thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death." 21. The whole thing depends upon the intention to cause death, and the case may be covered by either clause firstly or clause thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death." 21. While discussing the judgments as referred to above, the Apex Court in Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P., 2007(1) Supreme Court Cases 500 case (supra) observed that the single blow having been given with great force, causing injury on the vital part of the body, was sufficient to bring out the case of the Exception fourth of Section 300 and the accused could be convicted under Section 302 IPC. In the instant case also, the accused attacked the deceased when he had not caused any provocation and he was unarmed. He had not invited the quarrel but had gone just in the aid of Sunder Singh to come at the rescue of Sunder Singhs father. Mukesh died within 50 minutes and the doctor who conducted the autopsy on his dead body also opined that the injury on his body was sufficient to cause death in the ordinary course of nature. 22. Having considered the medical evidence and while analyzing the facts on the parameters as laid down by the Apex Court in Pulicherla Nagaraju alias Nagaraja Reddys case (supra), we could not convince our mind to hold that the single blow given by the accused, in the given circumstances of the case, particularly keeping in view the nature, size of weapon i.e. hammer, used by the accused, the force with which the weapon was used, part of the body over which the injury was caused i.e. on the head, a vital part of the body, the nature of the injury resulted in an instantaneous collapse leading to death, leaves no room to doubt that the intention of the accused was to cause death or to cause such bodily injury which was sufficient, in the ordinary course of nature, to cause death. Thus, irresistible conclusion in this case, which could be drawn, is that provisions of Section 304-II certainly could not be attracted and the accused Jai Chand could safely be held to have committed an offence under Section 302 IPC. Thus, irresistible conclusion in this case, which could be drawn, is that provisions of Section 304-II certainly could not be attracted and the accused Jai Chand could safely be held to have committed an offence under Section 302 IPC. Consequently, the observations made by the trial Court do not deserve any interference regarding conviction of the accused Jai Chand and as such criminal appeal preferred by the accused-appellant Jai Chand stands dismissed. Now coming to the criminal appeal preferred by the State, for the reasons recorded in the preceding paras, we refrain from holding that the accused Ram Chand, Siri Niwas and Ram Samujh shared the common intention with Jai Chand in committing the murder of Mukesh but certainly they are guilty of the injuries which they caused to the injured. Much stress has been laid by the learned Additional Advocate General, Haryana that releasing of the respondents on probation was too inadequate and deserves to be rectified. Having examined the matter in depth and keeping in view the nature of the injuries caused by them and the sentence which they have already undergone, as referred to in para No. 6 of the judgment of sentence, we do not want to interfere in the discretion exercised by the trial Court while awarding sentence to them. Consequently, appeal preferred by the State against the respondents also stands dismissed.