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2008 DIGILAW 413 (PNJ)

Neeraj Kumar v. State of Punjab

2008-02-14

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J.:-This appeal is directed against the judgment of conviction and the order of sentence dated 24.01.1997, rendered by the Court of Addl. Sessions Judge, Gurdaspur, vide which it convicted the accused/appellant Neeraj Kumar, for the offences punishable under Sections 307 and 324 of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment, for a period of 4 years, and to pay a fine of Rs.500/-, and in default of payment of the same, to undergo rigorous imprisonment for another period of 2 months under Section 307 I.P.C. He was further sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 324 IPC. The substantive sentences were ordered to run concurrently. 2. The facts, in brief, are that on 12.07.1995, Nasib Masih, brother of Munir Masih, his mother Nathi, his wife Anwar Kumari, and his brother Munir Masih, who is Constable in Punjab Armed Police, at Fort Bahadurgarh, were holding conversation with each other, in their house. At about 8.30 PM on that night, Raman son of Sambhar Masih, came to their courtyard and told that Munir Masih was being called by Neeraj Dutta @ Happy. Upon this, Munir Masih went out, in the street. Nasib Masih and his mother Nathi, also came out, in the street. The accused remarked that he would teach Munir Masih, a lesson, for preventing him, from calling bad names in the marriage. Upon this, the accused gave 4/5 blows with datar, which he was carrying, on the person of Munir Masih, which landed on his right flank, underneath the left arm pit, left side of the neck, and right shoulder. Nasib Masih and Nathi raised alarm, as a result whereof, accused ran away from the spot, along-with his weapon. Nasib Masih, arranged conveyance, and took Munir Masih, to the hospital, where he was medico-legally examined. On the following morning, Munir Masih, was referred to Guru Nanak Dev Hospital, Amritsar. On receipt of the information regarding the admission of Munir Masih, the police went to the said hospital. Munir Masih was found unfit to make statement. On the basis of the statement of Nasib Masih, FIR Ex.PE/2, was recorded. 3. On the following morning, Munir Masih, was referred to Guru Nanak Dev Hospital, Amritsar. On receipt of the information regarding the admission of Munir Masih, the police went to the said hospital. Munir Masih was found unfit to make statement. On the basis of the statement of Nasib Masih, FIR Ex.PE/2, was recorded. 3. The motive for causing injuries was that on 17.4.1995, there was marriage of the son of Nasib Masih and the accused was also attending the same, in which he had consumed liquor and was disturbing the function of marriage. Munir Masih forbade him from doing so. On account of that grudge, the accused caused injuries on his person. 4. On 14.07.1995, the doctor declared Munir Masih fit to make statement, and, accordingly, his statement was recorded. Nasib Masih, produced one blood stained chhader ( Ex.P1) of Munir Masih, which was sealed with seal, bearing impression ‘KK’, and the same was taken into possession, vide recovery memo Ex.PG. The Investigating Officer went to the place of occurrence, and prepared the rough site plan Ex. PJ. Blood stained earth was lifted from the place of occurrence, which was converted into a separate parcel, and the same was taken into possession, vide recovery memo Ex.PF, attested by Mohinder Singh, HC, and Nasib Singh. The statements of the witnesses were recorded. 5. The accused was arrested on 20.07.1995. He was interrogated by the Investigating Officer in the presence of Mohinder Singh, Head Constable and Mukhtiar Singh, Constable. He disclosed that he had concealed a datar, underneath the iron box, in the store, of his house, of which he only knew and could get the same recovered. His statement Ex.PK, to this effect was recorded, which was signed by him and attested by Mohinder Singh, Head Constable and Mukhtiar Singh. Thereafter, the accused led the police party, to the predisclosed place, and got recovered datar P2, which was blood stained, the same was converted into a sealed parcel, and taken into possession, vide recovery memo Ex.PL, attested by the witnesses. Rough sketch Ex.PM of datar was prepared. Rough site plan of the place of recovery of datar, Ex.PN, was also prepared. Parcels of blood stained earth, datar and chadder, were sent to the Forensic Science Laboratory , Chandigarh, which opined that the same were stained with human blood. After the completion of investigation, the accused was challaned. 6. Rough sketch Ex.PM of datar was prepared. Rough site plan of the place of recovery of datar, Ex.PN, was also prepared. Parcels of blood stained earth, datar and chadder, were sent to the Forensic Science Laboratory , Chandigarh, which opined that the same were stained with human blood. After the completion of investigation, the accused was challaned. 6. On his appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Sections 307 and 324 of the IPC, was framed against him, to which he pleaded not guilty and claimed trial. 7. The prosecution, in support of its case, examined Dr. Raj Kumar Attri, PW1, Dr. Sanjiv Aggarwal, PW2, Dr. Sandip Singh, PW3, Janak Singh, Draftsman, PW4, Nasib Masih, PW5, Munir Masih, injured, PW6, and Krishan Kumar, ASI, PW7. Report Ex.PO of the Deputy Director Forensic Science Laboratory was tendered into evidence, by the Additional Public Prosecutor, and, thereafter, he closed the same. 8. The statement of the accused, under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, produced Shahi Bhushan, DW1, in his defence. Thereafter, he closed the defence evidence. 9. After hearing the Addl. Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 10. Feeling aggrieved, against the judgment of conviction and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 11. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 12. The Counsel for the appellant, at the very out set contended that no offence punishable under Section 307 IPC was constituted, from the facts, circumstances, and the evidence produced on record. He further contended that the trial Court, fell into a grave error, in recording conviction and awarding sentence, for the offence, punishable under Section 307 IPC. The submission of the Counsel for the appellant, in this regard, does not appear to be correct, as would be discussed hereinafter. He further contended that the trial Court, fell into a grave error, in recording conviction and awarding sentence, for the offence, punishable under Section 307 IPC. The submission of the Counsel for the appellant, in this regard, does not appear to be correct, as would be discussed hereinafter. The principle of law, laid down, in State of Maharashtra vs. Balram Vama Patil ( AIR 1983 SC 305) was to the effect, that to convict under Section 307 IPC, it is not necessary to show that the bodily injury capable of causing death was inflicted, but what the Court has to see ,is whether the act irrespective of its result, was done with the intention or knowledge, and, under such circumstances, mentioned in the Section. Keeping in view the principle of law, laid down, in the aforesaid authority, it is to be seen, as to whether, the trial Court was right in coming to the conclusion, that the accused committed the offence punishable under Section 307 IPC. Dr. Raj Kumar Attri (PW1) medico-legally examined Munir Masih, on 12.7.1995, and found the following injuries, on his person:- “1. An incised wound, on the right axillary region and scapular region size 18 cm x 8 cm x under lying bone cut. Kept for surgical opinion. Clotted blood present. 2. An incised wound on the left side of front of chest 5 cm below the left nipple 18 cm x 2 cm x depth not proceed. Kept for surgical opinion. 3. An incised wound on the left side of the neck 4 cm x 1- ½ cm skin deep. 4. An incised wound on the left shoulder region 2-1/2 cm x ½ cm . Pulse 90 per minute, BP 80". Injuries No. 1 and 2 were kept for surgical opinion. Injuries nos. 3 and 4 were simple. The injuries were caused by sharp weapon. The duration of injuries, was within 12 hours. After getting the surgical notes, injuries no. 1 and 2, were declared dangerous to life. This witness also explained that, in fact, injury No.4 was on the left side of the shoulder, but on account of inadvertance he wrote it to be on the right shoulder, in the carbon copy of the MLR. After getting the surgical notes, injuries no. 1 and 2, were declared dangerous to life. This witness also explained that, in fact, injury No.4 was on the left side of the shoulder, but on account of inadvertance he wrote it to be on the right shoulder, in the carbon copy of the MLR. He specifically stated that if timely medical aid had not been given, injuries No. 1 and 2 would have been said to be sufficient to cause death of Munir Masih. 13. Dr. Sanjiv Aggarwal, who medico-legally examined Munir Masih on 13.7.1995, in Guru Nanak Dev Hospital, Amritsar, where he was referred to, found the following injuries on his person:- “1. Sucking wound of about 12 cm in length on left lower side of chest. 2. Sucking wound of about 22 cm in length on middle part of right chest. 3. An incised wound of about 6 cm in length was present on the upper part of left lateral side of neck. 4. An incised wound of about 3 cm in length was present on the medial side of left shoulder. 5. Another wound of V shape of about 8 cm in length was present on the left shoulder lateral to wound no.4. 6. An incised wound of about 5 cm in length was present on the lateral side of left shoulder.” The underlying ribs were found cut and parietal pleura was pleura cavity was found open. Blood was found, in the pleural cavity. The doctor also opined that if timely medical aid had not been provided, injuries No. 1 and 2, were sufficient to cause death of Munir Masih. 14. Injuries no. 1, 2 and 4 as found by Dr. Raj Kumar, PW1, on the person of Munir Masih, were on vital parts of the body. The size of injury nos. 1 and 2 on the person of Munir Masih, described by Dr. Raj Kumar, PW1, was very big. As stated above, even Dr. Raj Kumar, PW1, declared injury Nos. 1 and 2, on the person of Munir Masih, as dangerous to life, and sufficient to cause death in the ordinary course of nature. PW5, Nasib Masih, an eye witness to the occurrence, also deposed, in terms of the prosecution version, as stated above. He also deposed about the motive, for which the injuries were caused, on the person of Munir Masih, by the accused. PW5, Nasib Masih, an eye witness to the occurrence, also deposed, in terms of the prosecution version, as stated above. He also deposed about the motive, for which the injuries were caused, on the person of Munir Masih, by the accused. Munir Masih, injured, while appearing in the witness box as, PW6, also made a consistent statement with regard to the date, time and place of occurrence, the weapon used by the accused, for causing injuries on his person. The injuries described by Nasib Masih, PW5 and Munir Masih, PW6, were duly corroborated by the medical evidence, referred to above. Keeping in view the nature of injuries no. 1 and 2 on the vital parts of the body of Munir Masih, caused by the accused, which were declared dangerous to life, and sufficient to cause death, in the ordinary course of nature, coupled with the motive, which the accused was having, for causing such injuries, in my considered opinion, the trial Court was right in coming to the conclusion, that the accused committed an offence punishable under Section 307 of IPC. Since the findings of the trial Court, are based on the cogent, convincing and credible evidence, produced by the prosecution, there is no warrant to interfere with the same. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and same stands rejected. 15. It was next contended by the Counsel for the appellant, that there was considerable delay, in lodging the First Information Report, which was utilized by the complainant, to falsely implicate the accused, introduce false witnesses and concoct a false story. The occurrence, in this case, took place on 12.7.1995, at about 8.30 PM, in the area of village Talabpur Pandori, whereas the statement PE of Nasib Masih, brother of Munir Masih, injured, and an eye witness was recorded on 13.7.1995, by Krishan Kumar, ASI, P.S. Shala at 4.45 PM, in Guru Nanak Dev Hospital, Amritsar, and the FIR was registered at 7.45 PM. The place of occurrence is 12 KM, from Police Station Shala, whereas, Amritsar is at a distance of about 100 KMs from Talabpur Pandori. In the first instance, Munir Masih, was taken to Civil Hospital Gurdaspur, at about 11.40 PM, on 12.7.1995 and he was medico-legally examined. The place of occurrence is 12 KM, from Police Station Shala, whereas, Amritsar is at a distance of about 100 KMs from Talabpur Pandori. In the first instance, Munir Masih, was taken to Civil Hospital Gurdaspur, at about 11.40 PM, on 12.7.1995 and he was medico-legally examined. It must have taken some time for the family members of Munir Masih to arrange vehicle, and money, for the purpose of purchase of medicines, for the medical treatment of Munir Masih, injured. The first and foremost concern of the kith and kin was to take him to the hospital, so as to provide him the best medical aid to save his life. After arranging the vehicle, and money, for his medical treatment, he was taken to the Civil Hospital, Gurdaspur within the shortest possible time. Since his condition was precarious, he was referred to Guru Teg Bahadur Hospital, Amritsar, on the following morning. On receipt of information, Krishan Kumar, ASI along with other police officials, went to Guru Nanak Dev Hospital, on 13.7.1995 and moved an application Ex.PD, before the doctor, as to whether, he was fit to make statement. The doctor vide his endorsement Ex.PD/1 found him not fit to make statement at about 3.45 PM. He was, ultimately, found fit to make statement on 14.7.1995 at 2.00 PM vide endorsement Ex.PD/2. It was thereafter when Munir Masih was declared unfit to make statement, on 13.7.1995, at about 3.45 PM, that ASI Krishan Kumar recorded the statement of Nasib Masih , brother of the injured, who was also present in Guru Nank Dev Hospital, at 4.45 PM. It was on account of the aforesaid reason that delay had occurred in lodging the First Information Report. Since Nasib Masih, brother of injured Munir Masih, remained busy, in arranging vehicle as well as to provide medical aid to his brother (injured Munir Masih) throughout, there was no time to concoct the story, and falsely implicate the accused. It was held in Ravinder Kumar & Anr. vs. State of Punjab 2002(1) CCC, 41 (SC) that there can be so many factors, leading to delay in lodging the First Information Report. It was held in Ravinder Kumar & Anr. vs. State of Punjab 2002(1) CCC, 41 (SC) that there can be so many factors, leading to delay in lodging the First Information Report. It was further held, in the said authority, that rural people might be ignorant of the need for informing the police of a crime, without any lapse of time, and it is also not too uncommon among the urban people; lack of adequate transport facilities, for them, to reach the Police Station; kith and kin of the deceased, might take some appreciable time to regain a certain level of tranquility of mind or sadativeness of temper, for moving to the police station; persons who are supposed to give such information, themselves, could be so physically impaired that the police had to reach them on getting nebulous information, about the incident, and there can be no exhaustive catalogue of instances, which could cause delay, in lodging the First Information Report. In the instant case, the delay in lodging the First Information Report stood duly explained. The delay did not cause any dent, in the prosecution story. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail and same stands rejected. 16. It was next contended by the Counsel for the appellant-accused, that the ocular and the medical evidence were contradictory, in nature, and as such the case of the prosecution, became doubtful. According to Nasib Masih, PW5, the accused gave datar blow to Munir Masih on the left flank, near the chest, and the second blow with datar on the right flank near the chest. He further stated that the third blow was given with datar on the left side of the neck. PW5 Nasib Masih further stated that 4th and 5th blows with datar were given, by the accused, on the left shoulder of Munir Masih. Dr. Raj Kumar Attari, PW1, stated that there were four injuries on the person of Munir Masih. In my opinion, there was no contradiction between the ocular and medical evidence. According to Nasib Masih, PW5, accused caused injuries on the person of Munir Masih with datar blow on his right flank. Dr. Raj Kumar Attri, while appearing in the witness box as PW1, stated that an incised wound on the right axillary region and scapular region was found. According to Nasib Masih, PW5, accused caused injuries on the person of Munir Masih with datar blow on his right flank. Dr. Raj Kumar Attri, while appearing in the witness box as PW1, stated that an incised wound on the right axillary region and scapular region was found. Nasib Masih, PW5 and Munir Masih, PW6 described these injuries in the capacity of laymen. They could not be said to be well- versed with the medical terminology of the injuries. Dr. Raj Kumar Attri, PW1 stated that an incised wound on the right axillary region and scapular region was found. In the medico-legal report, injury No.4 on the person of Munir Masih was shown to be on right shoulder but when Dr. Raj Kumar Attri, appeared in the witness box as, PW1, he stated that on account of inadvertance, he mentioned this injury, on right shoulder, although it was on left shoulder. He, thus, corrected himself. Injury Nos. 1 and 2, as explained by Dr. Sanjiv Aggarwal, PW2, were on the left lower side of the chest and on the middle part of the right chest. Nasib Masih, PW5, and Munir Masih, PW6, stated that the accused gave datar blow on the right side of the flank near chest and another datar blow on the left side, in the flank near the chest. These injuries, therefore, matched with the injuries, as described in the medico-legal reports. Therefore, there was no contradiction between the ocular and medical evidence. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and same stands rejected. 17. It was next contended by the Counsel for the appellant that from the evidence of Dr. Raj Kumar Attari, PW1, it was proved that no occurrence took place at about 8.30 PM on 12.7.1995. Dr. Raj Kumar Attri, MO, when appeared, in the witness box as, PW1, stated that he medico-legally examined injured Munir Masih at 11.55 PM on 12.07.1995. He, however, stated inexamination in chief that duration of the injuries was within 12 hours. Since as per the ocular evidence, the injuries were caused on the person of Munir Masih at 8.30 PM, and he was medico-legally examined at 11.55 PM, the statement of Dr. Raj Kumar Attri, PW1, that the duration of the injuries was within 12 hours, cannot be said to be completely correct. Since as per the ocular evidence, the injuries were caused on the person of Munir Masih at 8.30 PM, and he was medico-legally examined at 11.55 PM, the statement of Dr. Raj Kumar Attri, PW1, that the duration of the injuries was within 12 hours, cannot be said to be completely correct. It appears that such a statement was made by Dr. Raj Kumar Attri, PW1, in a hasty manner, as he appears to be performing his duties negligently. In the medico-legal report Ex.PA, prepared by Dr. Raj Kumar Attri, PW1, in respect of the injuries, on the person of Munir Masih, he gave the probable duration of the injuris within six hours. He made his statement, while appearing in the witness box as, PW1, against the document Ex.PA. Even, he in the MLR, described injury No.4 on the person of Munir Masih, on the right shoulder, though, in fact, it was on the left shoulder and he corrected the same while appearing in the witness box as PW1. If, on account of negligence, this doctor described the duration of injuries,on the person of Munir Masih within 12 hours, that does not mean that no occurrence took place at 8.30PM. One mistake, on the part of doctor, Raj Kumar Attri, PW1, cannot make the whole story false. It is settled principle of law, that when there is contradiction between the ocular and medical evidence, then the former will prevail over the latter. The statements of Nasib Masih PW5 and Munir Masih, PW6 are consistent with regard to the date, time and place of occurrence. They specifically stated that the occurrence took place at 8.30 PM which fact is corroborated by the medicolegal report Ex.PA, of Munir Masih. No help, therefore, can be drawn by the Counsel for the appellant, from the statement of Dr. Raj Kumar Attri, PW1. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail and same stands rejected. 18. It was next contended by the Counsel for the appellant, that the motive set up by the prosecution, was not proved by it and, as such, it can be said that the case of the prosecution, was false. Munir Masih, injured, when appeared in the witness box as,PW6, in his examination-in-chief , stated that there was marriage of his nephew. It was next contended by the Counsel for the appellant, that the motive set up by the prosecution, was not proved by it and, as such, it can be said that the case of the prosecution, was false. Munir Masih, injured, when appeared in the witness box as,PW6, in his examination-in-chief , stated that there was marriage of his nephew. At that time, accused had called bad names to them while he was under the influence of liquor. However, during the course of cross-examination, it was stated by him that the accused did not call the bad names in the marriage, of his nephew, to him. He further stated that he had no enmity with the accused. When the statement of Munir Masih, PW6, made by him in his examination-in-chief, and his cross-examination, on this aspect of the matter, is scrutinized, then it cannot be said that the motive was not proved. In his examination-inchief, he did not state that the bad names were called to him specifically. He stated that the bad names were called to them. In his cross-examination, he stated that the bad names were not called to him, in the marriage of his nephew. The accused might have called bad names to the brothers, sisters and mother of Munir Masih, in the marriage of his nephew, and not to him specifically. Shahi Bhushan, DW1, stated that he was invited in the marriage of the nephew of Munir Masih, and, in that marriage, Munir Masih was not present. He further stated that Nasib Masih and Munir Masih did not lodge any complaint with him against the accused. Shahi Bhushan, DW1, is the Sarpanch of the village. In case, the accused had been falsely implicated, in the present case, and there was no motive with him, to cause injuries on the person of Munir Masih, he ( DW1 ) could appear before the Investigating Officer, during the course of investigation. He, however, did not appear before the Investigating Officer, nor he moved an application before the higher police officers, regarding his false implication, in the present case. The mere fact that DW1 Shahi Bhushan remained silent, for a period of about 1 year and 5 months, in itself, is sufficient to disbelieve his statement. The defence version, therefore, can be said to be an after thought. The trial Court rightly disbelieved the same. The mere fact that DW1 Shahi Bhushan remained silent, for a period of about 1 year and 5 months, in itself, is sufficient to disbelieve his statement. The defence version, therefore, can be said to be an after thought. The trial Court rightly disbelieved the same. There was definitely a motive, for causing the injuries. However, it may be clarified that when there is cogent, convincing and trustworthy, ocular evidence, duly corroborated by the medical evidence, then the proof or non-proof of motive loses significance . In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and same stands rejected. 19. It was next contended by the Counsel for the appellant, that the occurrence took place on 12.07.1995 and he (appellant) was ordered to be released on bail, by this Court, on 01.04.1997, and, as such, he has been undergoing the agony of protracted criminal proceedings, for the last more than 12 years. He further contended that, under these circumstances, the sentence awarded to the appellant, be reduced to the period, already undergone. He placed reliance on Garib Singh and another v. The State of Punjab, AIR 2001(1) 96 , Balbir Singh and others v. State of Haryana 2004(2) RCR (Criminal) 786, Bishna Ram etc. v. State of Haryana 2006(3) RCR (Criminal ) 772 and Chhota Singh vs. State of Punjab 1998(1) RCR (Criminal) 467. The reduction of sentence, in the aforesaid cases, was ordered, in view of the peculiar facts and circumstances, prevailing therein. Each case is required to be decided, on its own facts and circumstances. In the instant case, the appellant made an attempt to cause the death of Munir Masih. As stated above, two injuries on the person of Munir Masih on vital parts, were found to be dangerous to life. No doubt, the purpose of criminal law, is to bring discipline, in the society, and promote peace and harmony, besides giving an opportunity to a criminal to reform himself, yet it is not a fit case, in which, the sentence should be reduced to the period of a few months already undergone. If such like convicts, are let loose in the society by awarding them the sentence only of a few months, then there will be total lawlessness. If such like convicts, are let loose in the society by awarding them the sentence only of a few months, then there will be total lawlessness. In that event, the life and liberty of the people, will be jeopardized as they will always be afraid of being attacked by such criminals. In this view of this matter, no help can be drawn, by the Counsel for the appellant, from the aforesaid authorities. The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. 19. No other point, was urged, by the Counsel for the parties. 20. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference. The same are liable to be upheld. 21. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence dated 24.01.1997, are upheld. The accused/appellant is directed to surrender to his bail bonds, for undergoing the remaining part of his sentence. The Chief Judicial Magistrate, Gurdaspur shall comply with the judgment, with due promptitude. ——————————