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2010 DIGILAW 2870 (PNJ)

Radhey Sham v. State Of Punjab

2010-10-08

MOHINDER PAL, SATISH KUMAR MITTAL

body2010
Judgment Mohinder Pal, J. 1. Appellant Radhey Sham, his brother appellant Nanku Parsad and his nephew appellant Akhlesh Kumar were tried by the Additional Sessions Judge, Jalandhar, under Section 302 and Section 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as the Code). Vide judgment of conviction dated 11.12.2001 passed by the learned trial Judge, appellant Radhey Sham was convicted under Section 302 of the Code whereas appellants Nanku Parsad and Akhlesh Kumar were convicted under Section 302 read with Section 34 of the Code. As per sentence order of the even date, all the three appellants were sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000/-, each, in default whereof to undergo further rigorous imprisonment for six months for the aforesaid offence. 2. The instant case was registered on the basis of statement (Exhibit P.H) made by complainant Chandrika Parshad before the police. 3. Complainant Chandrika Parshad, his wife Depawali and cousin brother Lal Bahadur Mishra (deceased) were residing on rent in the factory premises of Jagdish Bhatara. The accused- appellants were also residing in the same complex near the house of the complainant. 4. About four-five months prior to the present occurrence, which took place on 12.6.1999, the wife of accused-appellant Radhey Sham and the wife of the complainant had quarrelled with each other. However, the matter was compromised with the intervention of Jagdish Bhatara. Again, two days prior to the occurrence, there was a quarrel between the wives of the complainant and accused-appellant Radhey Sham and the matter was again got compromised by Jagdish Bhatara. 5. On 12.6.1999 at about 8 P.M, the complainant along with his wife Depawali and cousin brother Lai Bahadur Mishra were present in the house. At that time, accused appellant Radhey Sham, while armed with a Churi (knife), accused- appellant Nanku Parsad, while armed with a Dang and accused-appellant Akhlesh Kumar, empty handed, entered the house of the complainant. Appellant Radhey Sham raised an alarm that he would teach the complainant party a lesson for the daily quarrels. Thereafter, appellant Radhey Sham gave a blow with Churl (knife) to Lal Bahadur Mishra. In order to save himself, Lal Bahadur Mishra raised his left hand and the blow fell on the left wrist. Appellant Radhey Sham raised an alarm that he would teach the complainant party a lesson for the daily quarrels. Thereafter, appellant Radhey Sham gave a blow with Churl (knife) to Lal Bahadur Mishra. In order to save himself, Lal Bahadur Mishra raised his left hand and the blow fell on the left wrist. Accused- appellant Akhlesh Kumar then caught hold of Lal Bahaduir Mishra from his hand and accused-appellant Radhey Sham inflicted a blow with Churi on the left side of the neck of Lal Bahadur Mishra. At that time, accused-appellant Nanku Parsad was raising a Lalkara that in case anybody intervened, he would be killed. Lal Bahadur Mishra, in order to save himself, ran away from the spot. The accused followed Lal Bahadur Mishra.- The complainant and his wife raised an alarm and ran after the accused. However, the accused ran away from the spot. Lal Bahadur Mishra fell down on the pucca road near Saini Industries and died at the spot. 6. Leaving his wife Depawali to guard the dead body of Lal Bahadur Mishra, complainant Chandrika Parshad went to lodge report with the police. Sub Inspector Gurvinder Singh met the complainant near Saini Industries and recorded statement (Exhibit P.H) of the complainant, leading to the registration of the instant F.I.R (Exhibit P.H/2). 7. Thereafter, Sub Inspector Gurvinder Singh, along with other police officials went to the spot, prepared inquest report (Exhibit P.C) upon the dead body of Lal Bahadur Mishra and sent the dead body through Head Constable Jasbir Singh and Constable Ramesh Kumar for post mortem examination. 8. Dr. Shashi Chopra of Civil Hospital, Jalandhar, had conducted autopsy on the dead body of Lal Bahadur Mishra on 13.6.1999 at 12.30 P.M. She observed the following injuries on the dead body: "1. Incised wound of 2 cm x 1 cm spindle shape/oblique in position just below the middle end of the left clavicular line going deep below and posteriorly and medially. On further dissection and exploration it was found that left lung was cut at its upper part. ,A cut was also found on the medial part both communicating with each other. Branch and great vessels found cut. Chest cavity was full of clotted blood. 2. Incised wound 1/2 x 1/4 cm was present on the sternal area 11 cms from each nipple. Bone deep. 3. ,A cut was also found on the medial part both communicating with each other. Branch and great vessels found cut. Chest cavity was full of clotted blood. 2. Incised wound 1/2 x 1/4 cm was present on the sternal area 11 cms from each nipple. Bone deep. 3. U shape incised wound having vertical limb of 1.5 cm in length horizontal limb measuring 1 cm was present on lateral aspect of left wrist. 4. Multiple abrasions of different size and shape were present on posterior side of left elbow. 9. As per the opinion of Dr. Shashi Chopra, the cause of death of Lal Bahadur Mishra was shock and haemorrhage due to the injuries mentioned above, which were sufficient to cause death in the ordinary course of nature. All the injuries were opined to be ante mortem in nature. 10. After completion of investigation and due formalities, challan against the accused was presented in Court. 11. Charge under Sections 302 of the Code was framed against appellant Radhey Sham and under Section 302 read with Section 34 of the Code against appellants Nanku Parsad and Akhlesh Kumar. They did not plead guilty to the charge and claimed a trial. 12. At the trial, the prosecution examined Dr. Shashi Chopra (P.W.1), Draftsman Dalip Singh (P.W.2), Head Constable Mukhtiar Singh (P.W.3), Assistant Sub Inspector Sukhbir Singh (P.W.4), Head Constable Jasbir Singh (P.W.S), complainant Chandrika Parshad (P.W.6), Depawali (P.W.7), Head Constable Surinder Kumar (P.W.8), Sub Inspector Gurvinder Singh (P.W.9) and Sub Inspector Darshan Singh (P.W.10). 13. After the closure of the prosecution evidence, statements of the accused were recorded under Section 313 of the Code of Criminal Procedure. In his such statement, appellant Radhey Sham, Inter alia, stated that the complainant was inimical towards him; that some unidentified persons had killed Lal Bahadur Mishra in front of the gate of Saini Industries; that no occurrence, as alleged, ever took place; that in order to wreak vengeance, the complainant had falsely implicated him in this case; that on the day of occurrence, he was present in the house of Barjinder Kumar Pandey where Pooja was going on in connection with birthday of Rohit Kumar son of Barjinder Kumar Pandey; and that Pandit Krishan Chander Pathak was conducting the Pooja. 14. 14. Similar stand, as taken by accused-appellant Radhey Sham, was taken by appellants Nanku Parsad and Akhlesh Kumar in their statements recorded under Section 313 of the Code of Criminal Procedure. 15. Barjinder Kumar Pandey (D.W.1) and Dr. Krishan Chander Pathak (D.W.2) were examined by the accused in their defence. They stated that, at the relevant time, all the accused were present at the house of Barjinder Kumar Pandey in connection with the celebration of birthday of Rohit Kumar son of Barjinder Kumar Pandey (D.W.1). Dr. Krishan Chander Pathak (D.W.2) further stated that on 12.6.1999, he had gone to the house of Barjinder Kumar Pandey at about 8.30 P.M on account of the birthday celebration of his son; that he performed Katha of Sri Satya Narain and Hawan in the house of Barjinder Kumar Pandey; and that he stayed in the house of Barjinder Kumar Pandey from 8.30 P.M to 10.30 P.M. 16. We have heard Mr. H.S. Gill, Senior Advocate, assisted by Mr.Vivek Goel, Advocate, appearing for the appellants and Ms. Gurveen H. Singh, Additional Advocate General,Punjab, appearing for the State and have gone through the records of the case. 17. At the outset, (it may be mentioned here that the prosecution has not been able to prove its case against appellants Nanku Parsad and Akhlesh Kumar beyond reasonable doubt. It appears that the complainant party roped in as many members of the family of the accused party as possible. Accused-appellant Nanku Parsad is the real brother of accused-appellant Radhey Sham whereas accused-appellant Akhlesh Kumar is the son of accused-appellant Nanku Parsad. Depawli (P.W.7), wife of complainant Chandrika Parshad (P.W.6), in her cross- examination, stated that appellants Nanku Parsad and Akhlesh Kumar did not give injuries to the deceased. In view of this statement of Depawali (P.W.7), who is an eye-witness of the occurrence, participation of appellants Nanku Parsad and Akhlesh Kumar in the commission of the crime is highly doubtful. Accordingly, appellants Nanku Parsad and Akhlesh Kumar deserve to be extended the benefit of doubt and acquitted of the charge framed against them. However, so far as the commission of crime by appellant Radhey Sham is concerned, the same stands proved on record by the overwhelming evidence led by the prosecution. Accordingly, appellants Nanku Parsad and Akhlesh Kumar deserve to be extended the benefit of doubt and acquitted of the charge framed against them. However, so far as the commission of crime by appellant Radhey Sham is concerned, the same stands proved on record by the overwhelming evidence led by the prosecution. In fact, during the course of arguments, learned Senior Counsel representing the appellants, could not lay any serious challenge to the veracity of the prosecution version against appellant Radhey Sham. 18. Sub Inspector Gurvinder Singh (P.W.3) had arrested appellant Radhey Sham on 13.6.1999. On 15.6.1999, upon interrogation by the police, appellant Radhey Sham made a disclosure statement (Exhibit P.M) to the effect that he had kept concealed Churi (knife) in the wild growth outside the wall of the factory of Jagdish Bhatara_ and offered to get the same recovered. In consequence of the said disclosure statement, appellant Radhey Sham led the police party and got recovered Churi from the disclosed place. The Churi (Exhibit P.5) was blood-stained. Accused-appellant Radhey Sham had caused the incised wounds i.e 2 cm x 1 cm spindle shape/oblique in position just below the middle end of the left clavicular line going deep below and posteriorly and medially, 1/2 x 1/4 cm on the sternal area 11 cms from each nipple and on the lateral aspect of left wrist of Lal Bahadur Mishra with the said weapon i.e Churl. The ocular version furnished by complainant Chandrika Parshad (P.W.6) and his wife Depawali (P.W.7) that the injuries with knife to Lal Bahadur Mishra (deceased) were given by appellant Radhey Sham is trustworthy and there is no reason to disbelieve the same. No doubt, there is no independent corroboration to the statements of complainant Chandrika Parshad (P.W.6) and Depawali (P.W.7), but it cannot be a ground to discard their statements, which otherwise inspire confidence. Accused-appellant Radhey Sham was residing in the same vicinity where the deceased and the eye witnesses resided. There was no question of the eye-witnesses not identifying appellant Radhey Sham while causing injuries to Lal Bahadur Mishara leading to his death instantaneously. In the presence of impeccable evidence led by the prosecution, the defence version given by Barjinder Kumar Pandey (D.W.1) and Dr. Krishan Chander Pathak (D.W.2), described in the earlier part of this judgment, pales into insignificance. There was no question of the eye-witnesses not identifying appellant Radhey Sham while causing injuries to Lal Bahadur Mishara leading to his death instantaneously. In the presence of impeccable evidence led by the prosecution, the defence version given by Barjinder Kumar Pandey (D.W.1) and Dr. Krishan Chander Pathak (D.W.2), described in the earlier part of this judgment, pales into insignificance. Such witnesses can be easily procured by the accused involved in such a heinous crime as the present one to save himself. Both Barjinder Kumar Pandey (D.W.1) and Dr. Krishan Chander Pathak (D.W.2) were examined in Court on 22.10.2001. The instant crime was committed by the accused on 12.6.1999. (These witnesses kept their mum for such a long time and did not come forward with the defence version by making any representation to the police.. The defence version was introduced, for the first time, on 28.8.2001 when statement of accused-appellant Radhey Sham was recorded by the trial Court under Section 313 of the Code of Criminal Procedure and both Barjinder Kumar Pandey (D.W.1) and Dr. Krishan Chander Pathak (D.W.2) came forward to corroborate the defence version while making their depositions in Court on 22.10.2001. Under the circumstances, the defence version appears to be an afterthought and deserves to be rejected outrightly so far as participation of accused-appellant Radhey Sham in the commission of the instant crime is concerned. 19. In view of the above discussion, there Is no escape from the conclusion that the prosecution has been able to prove its case against appellant Radhey Sham. He has been rightly convicted and sentenced by the trial Court, This appeal qua appellant Radhey Sham is accordingly dismissed. However, as observed above, the prosecution has not been able, to prove its case against appellants(Nanku Parsad and Akhlesh Kumar. They are, accordingly, acquitted c5f the charge framed against them by giving them the benefit of doubt by accepting this appeal and setting aside the impugned judgment of conviction and the sentence order qua them (appellants Nanku Parsad and Akhlesh Kumar). 20. As the appellant Radhey Sham is on bail, his bail bonds are cancelled. He is directed to surrender himself before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against the said appellant in accordance with law.