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Himachal Pradesh High Court · body

2010 DIGILAW 1038 (HP)

State of H. P. v. Narender Kumar

2010-08-13

DEEPAK GUPTA, RAJIV SHARMA

body2010
JUDGMENT: Per Deepak Gupta, J. 1. This appeal by the State is directed against the judgement dated 12.04.1995 delivered by the learned Sessions Judge, Kangra at Dharmshala in Sessions Trial No. 1 of 1995 whereby the accused was acquitted of having committed an offence punishable under Section 302 of the Indian Penal Code. 2. The deceased Kuldip Chand as well as accused Narender Kumar were neighbours residing in village Harsar falling within the jurisdiction of Police Station, Jawali. The prosecution story is that on 27.7.1994 the accused pelted stones at a mango tree. The deceased took objection to the action of the accused on the ground that the mango tree belongs to him (the deceased) and that even if mangos have to be plucked they should be plucked in a proper manner and not by throwing stones. The dispute continued for the whole day. At about 9/9.15 p.m the accused and the deceased quarrelled again with each other with regard to this mango tree. On hearing these arguments PW-4 Narain Dass, who is a neighbour, PW-5 Rajinder Kumar, brother of the deceased and some other persons gathered and pacified both sides. The accused went to his house. The deceased Kuldip Kumar, Narain Dass, Ram Kumar and Rajinder Kumar kept sitting in the verandah of the house of the deceased. They had hardly talked for about 10-15 minutes when the accused came there and started abusing the deceased. The deceased on hearing the abuses went to the courtyard and they both started quarrelling with each other. Before the others could intervene the accused inflicted a blow with a knife in the abdomen of the deceased. PW-4 caught hold of the accused from behind and PW-5 Rajinder managed to snatch the knife from the hand of the accused. During this process the accused fled away from the spot. Thereafter, a doctor was called, on whose advice the deceased was taken to the hospital at Jawali where he was medically examined. After giving first aid the Medical Officer at Jawali advised that the deceased be taken to the hospital at Nurpur. PW-5 brother of the deceased and some other villagers went to Nurpur Hospital. At Nurpur Hospital, the deceased was found to have been brought dead. Report had been lodged in the meantime with the police. After giving first aid the Medical Officer at Jawali advised that the deceased be taken to the hospital at Nurpur. PW-5 brother of the deceased and some other villagers went to Nurpur Hospital. At Nurpur Hospital, the deceased was found to have been brought dead. Report had been lodged in the meantime with the police. The police came to the spot and knife Ext.P-1 which was used to stab the victim was handed over to the police by PW-5. Thereafter, the police carried out other investigation. The earth and knife collected from the spot were sent for chemical examination. After completion of investigation report under Section 173 was filed against the accused. The case was committed to the Court of Sessions and thereafter the accused charged with having committed the murder of the deceased. The accused pleaded not guilty and claimed trial. After trial he has been acquitted. Hence, the present appeal by the State. 3. We have heard Shri Vivek Singh Thakur, learned Additional Advocate General for the State and Shri Rajiv Sood, learned counsel for the accused. 4. Shri Vivek Singh Thakur submits that the judgement of the learned trial Court is based on a fanciful theory set up by the accused. He submits that the learned trial Court gravely erred in only relying upon the version put up by the accused which is not in consonance with any other material on record. He submits that the prosecution has proved beyond reasonable doubt that it was the accused who killed the deceased. On the other hand Shri Rajiv Sood, Advocate, has supported the judgement of the learned trial Court. He further submits where two views are possible the version in favour of the accused should be accepted. He also submits that Appellate Court in a case like the present one should not interfere in the judgement of the learned trial Court. 5. At the outset we may note that the accused does not deny that he inflicted the stab wound. In fact there is no specific denial to the quarrel having taken place. The version of the accused as set out in his answer to question No.23 put to him in statement under Section 313 Cr.P.C., reads as follows:- “Q. 23. Do you want to say anything else? In fact there is no specific denial to the quarrel having taken place. The version of the accused as set out in his answer to question No.23 put to him in statement under Section 313 Cr.P.C., reads as follows:- “Q. 23. Do you want to say anything else? On the date of occurrence, when I alongwith my family members was witnessing a television serial, Kuldeep, his wife and his brother Rajinder with their Jija came to our place. I found that Kuldeep was all abusing and he broke our television. To prevent quarrel my mother had sent me in a room. She alongwith my sister in all probabilities went to the place of the complainant to settle the dispute. They started beating them with danda. When I heard their cries, I forced open the door and ran towards the place where they were being beaten. I apprehended that the complainant party would kill them. I rushed to save them. The moment I reached there, they caught hold of me. In that grappling Kuldeep suffered injury with knife on his abdomen. I had no intention to injure him. I escape from there so as to save my life. I am innocent.” 6. It would be pertinent to mention that the deceased after the occurrence had surrendered in the Court of the learned Sessions Judge, Dharamshala on 27.9.1994 and made a statement before the learned CJM, which is on the similar lines to his stand in Court. It is apparent that the accused does not deny that he inflicted the stab wound. His version is that the deceased and his family members including PW-5 Rajinder and their brother-in-law (Jija) came inside his house and broke the television. Thereafter his mother sent him to a separate room and she and his sister went to settle the dispute with the complainant. He heard their cries and then he ran towards the place where they were being beaten since he wanted to save them and during this melee the deceased suffered an injury with the knife in his abdomen. The learned trial Court has accepted the version of the accused on the following ground:- “In the present case, the accused has been able to give a reasonable explanation as to the occurrence. Such explanation has to be accepted even if the accused might not have been able to prove his version of the case. The learned trial Court has accepted the version of the accused on the following ground:- “In the present case, the accused has been able to give a reasonable explanation as to the occurrence. Such explanation has to be accepted even if the accused might not have been able to prove his version of the case. The version of the accused also finds support from PW4 and PW-5.” 7. We are of the considered view that this finding of the learned trial Court is totally perverse. We are aware of the law, which needs no repetition, that when two views are possible in a criminal case then the view in favour of the accused should be accepted. We are also not oblivious to the law laid down by the Apex Court that presumption of innocence which is attached to an accused gets strengthened when the accused is acquitted by the trial Court. The Appellate Court should normally not interfere in the findings of the learned trial Court unless the findings are perverse and the trial Court has ignored the basic principle of law. In this behalf reference may be made to the judgement of the Apex Court in K.Gopal Reddy vs. State of Andhra Pradesh (1979) 1 SCC 355, Bhagwan Singh and others vs. State of M.P. (2002) 4 SCC 85, Mahendra Pratap Singh vs. State of Uttar Pradesh (2009) SCC 334. 8. We are dealing with an appeal against acquittal. We may note the principles relating to the powers of the Appellate Court while dealing with an appeal against acquittal which have been enumerated by the Apex court in Chandrappa and Others Vs State of Karnataka(2007) 4 SCC 415. The apex Court held as follows: “15. Bare reading of Section 378 of the present code (Appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the Legislature on the powers of the appellate Court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and law are open to determination by the High court in an appeal against an order of acquittal. 16. Both questions of fact and law are open to determination by the High court in an appeal against an order of acquittal. 16. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.” 9. Thereafter the Apex Court culled out the following principles:- “42. From the above decisions, in our considered view, the following general principles regarding powers of appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law’ (3) Various expressions, such as, ‘substantial and compelling reasons’, good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusion’, ’glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 10. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 10. The learned trial Court held that the explanation of the accused finds support from the statement of PW-4 and PW5. This is totally incorrect. According to PW-4 at about 9/9-15 p.m he heard the sound of a quarrel going on between the deceased and the accused. He came out of his house and saw the deceased and the accused quarrelling with each other in the courtyard of the accused. The two persons were separated. The deceased and the accused went to their respective houses. Thereafter this witness, PW-5 brother of the deceased, and one Krishan Chand sat-down in the verandah of the house of the deceased. One Ram Kumar on hearing the quarrel also arrived at the spot. They were all talking in the verandah of the deceased when within 10-15 minutes the accused came again to the house of the deceased and started abusing him. Then a scuffle took place in which the accused inflicted a stab wound in the abdomen of the deceased. The suggestion put to this witness that the deceased and his brother Som Nath and their wives damaged the television of the accused by entering into his room. He denied such suggestion and stated that when the police visited the house of the accused during the course of investigation no damaged television was found. 11. Surprisingly, the other suggestion put to this witness was that an altercation did take place at the spot between the accused and the deceased and that the mother and sister of the accused sent the accused home and then went to the courtyard of the deceased to have a talk with him. There the persons present gave beatings to the mother and sister of the accused and on hearing their cries the accused came to the courtyard of the deceased in order to save them and then the occurrence took place. The witness denied all these suggestions and stuck to the version given in his examination-in-chief. 12. Statement of PW-5 is very similar. The witness denied all these suggestions and stuck to the version given in his examination-in-chief. 12. Statement of PW-5 is very similar. This witness also denied the suggestion that the deceased alongwith the witness Rajinder Kumar and other members of the family had entered the house of the accused and caused damage to the television. The suggestion put to this witness later is that the mother and the sister of the accused took the accused to their house, left him home and returned to the spot to discuss the matter and they were given a beating and thereafter the accused came to save them when the scuffle took place. He denied this version of the story. 13. The accused has set up a plea that he acted in self-defence to protect his mother and sister. No doubt, an accused is not supposed to prove his plea but this plea should be a plausible one and should be supported by some material on record. The accused has set up two different versions. The first version is that the deceased and his family members entered the house of the accused and broke his television. Even with regard to this version there are different pleas. In the statement made before the Magistrate under Section 164 Cr.P.C. which the accused admits to be correct, the accused has stated that on 27th July at about 9.30 p.m the deceased Kuldip Chand, his brother Rajinder Kumar and his brother-in-law (Jija), whose name he does not know, wife of Kuldip Chand, mother of Kuldip Chand and the wife of Som Nath came to their house and they abused them and broke his television. His mother locked him up and then went to settle the matter with the deceased. The deceased and the other persons beat his mother and his wife. In the statement under Section 313 Cr.P.C. the accused only named the deceased, his wife, PW5 Rajinder Kumar and brother-in-law as the person who came into his house. Here he did not name the mother or the wife of Som Nath. 14. The suggestion put to PW-4 is different. In this suggestion it is stated that the deceased and his brother Som Nath and their wives went to the house of the accused and damaged the television. Here Rajinder is not named and Som Nath has been introduced. When PW-5 appeared another suggestion was put. 14. The suggestion put to PW-4 is different. In this suggestion it is stated that the deceased and his brother Som Nath and their wives went to the house of the accused and damaged the television. Here Rajinder is not named and Som Nath has been introduced. When PW-5 appeared another suggestion was put. The suggestion put to him was that he (Rajinder Kumar) the deceased and other members of the family had entered into the house. Thus it is apparent that the accused has come up with different versions at different stages. This version of the accused also does not tally with the other suggestion given to the witnesses, according to which the first altercation took place in the courtyard and thereafter the mother and sister of the accused locked him in his house and came back to settle the matter. If this suggestion is to be accepted then the story that the deceased and his family members entered the house of the accused and broke his television would be totally incorrect. It would also be pertinent to mention that that the Investigating Officer, PW-18, Hari Ram Pathania has stated in cross-examination that during investigation he came to know that the television of the accused had broken but when he actually inspected the television he found that the same was not broken and was lying intact. This totally demolishes the version of the accused. 15. PW-4 is a neighbour of both sides. He is not closely related to the deceased and there is no reason to disbelieve his version which is totally corroborated by the other material on record. From the aforesaid facts, it is apparent that after first altercation took place the accused went back to his house and came back armed with a knife. This itself shows that his intention was to cause some serious injury to the deceased. 16. We now came to the question as to what offence the accused has committed. There is only one stab wound on the person of the deceased. The doctors have opined that this injury was sufficient in the ordinary course of nature to cause the death but we cannot lose site of the fact that the injury was only a 3 cm x 1 cm incised wound. The depth unfortunately has not been given by the doctor. The doctors have opined that this injury was sufficient in the ordinary course of nature to cause the death but we cannot lose site of the fact that the injury was only a 3 cm x 1 cm incised wound. The depth unfortunately has not been given by the doctor. From the material on record it does not appear that the intention of the accused was to kill the deceased. His intention appears to be to settle scores with the deceased and to teach him a lesson. However, the fact is that he came back armed with a deadly weapon i.e. a knife, blade of which itself was a 7½ inch of length and therefore, he should have been aware that if he stabs the deceased he may be acting in such a manner that the injury he causes is likely to cause death. He would have had the knowledge that if he stabs the deceased he would cause his death even if the intention may not have been to cause the death. Therefore, we do not find the accused guilty of having committed an offence punishable under Section 302 IPC. He is, however, convicted of having committed an offence punishable under Section 304-II. Since we have convicted the accused, we have to hear him on the quantum of sentence. For this purpose, the matter be listed before us on 30th August, 2010 at 4.00 p.m.