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2010 DIGILAW 699 (HP)

RAJ KUMAR v. STATE OF H. P.

2010-04-07

RAJIV SHARMA, SURJIT SINGH

body2010
JUDGMENT Surjit Singh, J.(Oral)-By this common judgment, we are disposing of two appeals, one filed by the State and the other by the accused, who have been convicted of offence, under Section 325, read with Section 34 of the Indian Penal code, and sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.5,000/-, each, by the trial Court. 2. Prosecution case, as per evidence on record, may be stated. Deceased Amrik Singh was a young boy of 17 years of age. He happened to tease the wife of one of the accused, namely Raj Kumar. So, accused Raj Kumar wanted to teach him a lesson for the same. On 16th July, 1997, deceased Amrik Singh, who was employed as a cleaner on a truck, went to the office of Truck Operators’ Union. Two of the accused, namely Raj Kumar and Jitender Singh, made him to sit on a scooter and on that scooter both of them took him towards village side. After some time, they returned to Truck Operators’ Union office alongwith the deceased. They threw the deceased from the scooter in front of the Union Office. Accused Salakhan Singh and Raj Pal were also there. All the four accused then started giving fist and kick blows to deceased Amrik Singh. 3. Ajmer Singh (PW-4), Daulat Ram (PW-12), Lajja Ram (PW-13) and some other persons intervened to rescue the deceased. After the deceased had been rescued by the abovenamed three witnesses, accused again overpowered him and took him to the backyard of Union office, where they again fisticuffed and kicked him, in the abdomen. Abovenamed witnesses went to the backyard and again rescued the deceased. Deceased then walked to his house, which is situated at a distance of 2½ furlong from the place of occurrence. 4. On reaching home, the deceased lied on a cot. His younger brother, PW-14 Sarvjeet, on seeing him inactive and somewhat sluggish, asked as to what had happened. He told that he had been beaten up by accused Raj Kumar, Salakhan Singh, Raj Pal and Jitender Singh. He also told that he was having pain in the abdomen and the chest. PW-14 Sarvjeet applied MOOV on the chest and the abdomen of the deceased. However, there was no improvement in his condition, as the pain persisted. One Bhupinder Singh was informed. He also told that he was having pain in the abdomen and the chest. PW-14 Sarvjeet applied MOOV on the chest and the abdomen of the deceased. However, there was no improvement in his condition, as the pain persisted. One Bhupinder Singh was informed. PW-2 Balbir Singh, a maternal uncle of the deceased was also informed. A truck was arranged and in that truck the deceased was taken to Civil Hospital, Ropar. As soon as the deceased reached the hospital, he succumbed to the injuries/ abdominal pain. 5. Doctors at Civil Hospital, Ropar informed the police of Ropar, who, in turn, informed the Nalagarh police by flashing a wireless message. ASI Guler Chand (PW-17) from Police Station Nalagarh was deputed to Civil Hospital, Ropar, where he recorded statement Ex. PW-14/A of PW-14 Sarvjeet, younger brother of the deceased, under Section 154 of the Code of Criminal Procedure. That statement was sent to Police Station Nalagarh, where case was formally registered. 6. Postmortem was conducted by PW-7 Dr. Neeraj Gupta, who, on opening the abdomen, found that spleen was ruptured and blood had clotted around the spleen. He opined that the cause of death was rupture of spleen. According to him, the death had taken place within few hours of the rupture of the spleen. 7. On completion of investigation, report, under Section 173 of the Code of Criminal Procedure, alongwith relevant papers was presented in the Court of concerned Judicial Magistrate, who, after complying with the requirement of Section 207 of the Code of Criminal Procedure, committed the case to the Sessions Court. 8. All the four accused were charged with offence, under Section 302, read with Section 34 of the Indian Penal Code. They pleaded not guilty to the charge and were, therefore, put on trial. 9. Prosecution mainly relied upon the testimony of eye-witnesses, namely PW-4 Ajmer Singh, PW-12 Daulat Ram and PW-13 Lajja Ram, and the dying declaration allegedly made by the deceased to his brother PW-14 Sarvjeet and his Mama PW-2 Balbir Singh. 10. Trial Court concluded that the accused had given kick and fist blows to the deceased, resulting in his death. 11. However, it concluded that the accused did not have the mens rea to cause death and that their act of giving kick and fist blows to the deceased amounted to an offence, under Section 325 of the Indian Penal Code. Trial Court concluded that the accused had given kick and fist blows to the deceased, resulting in his death. 11. However, it concluded that the accused did not have the mens rea to cause death and that their act of giving kick and fist blows to the deceased amounted to an offence, under Section 325 of the Indian Penal Code. Consequently, all the accused were convicted of the said offence, with the aid of Section 34 of the Indian Penal Code, and sentenced, as aforesaid. 12. One appeal has been filed by the State, seeking conviction of the accused, under Section 302, read with Section 34 of the Indian Penal Code. The other appeal has been filed by the accused seeking their acquittal. 13. We have heard the learned counsel for the parties and gone through the evidence. 14. Out of the three eye-witnesses, one, namely PW-4 Ajmer Singh, did not support the prosecution story, fully. Though he did state that the deceased was beaten up by all the four accused and he was amongst the rescuers, yet he stated that only slaps on the face and the neck of the deceased were given by the accused. He was cross-examined by the prosecution, with the leave of the Court and confronted with his statement, Ex. PW-4/A, under Section 161 of the Code of Criminal Procedure, in which he categorically stated that the deceased was kicked and fisticuffed, initially in front of the Union Office and thereafter in the backyard of that office. 15. The other two eye-witnesses, namely PW-12 Daulat Ram and PW-13 Lajja Ram, fully supported the prosecution version. Suggestions were thrown to these witnesses that the deceased belonged to their community, which they did not deny. However, simply for the reason that the witnesses are from the community of the deceased, their testimony cannot be disbelieved, especially when it is corroborated, to some extent, even by the hostile witness PW-4 Ajmer Singh and also the medical evidence. 16. As regards evidence of dying declaration, PW-14 Sarvjeet, a brother of the deceased, very categorically stated that when he enquired from the deceased as to why he was lying on the cot and looking unwell, he told that he had been beaten up by accused Raj Kumar, Raj Pal, Jitender and Salakhan Singh. 16. As regards evidence of dying declaration, PW-14 Sarvjeet, a brother of the deceased, very categorically stated that when he enquired from the deceased as to why he was lying on the cot and looking unwell, he told that he had been beaten up by accused Raj Kumar, Raj Pal, Jitender and Salakhan Singh. Only suggestion that was put to the witness, in the cross-examination, was that the deceased was unable to speak as he was unconscious. He denied the suggestion. Evidence on record, which has not been challenged by the accused, shows that the deceased went walking to his house, around 6.30 p.m. PW-14 Sarvjeet also says that the deceased came home at 6.30 p.m. He also says that the dying declaration was made by the deceased at 6.30 p.m., immediately, on his reaching home. Now, when the deceased had walked to his house, it cannot be said that he was unconscious. And, the dying declaration was made by him immediately on reaching home, on being asked by PW-14 Sarvjeet as to what had gone wrong with him. It is submitted by the learned counsel for the accused that there is unexplained delay in lodging the FIR. We do not agree with the submission. Brother of the deceased, who reported the matter to the police, namely PW-14 Sarvjeet, has stated that on the death of his brother he got confused and also remained busy in informing the relatives and, therefore, he did not go to Police Station, Nalagarh to lodge report and it was only when a police Officer came to Civil Hospital Ropar, where the death took place, that he made statement Ex. PW-14/A. There is no reason to disbelieve this explanation, especially when PW14 Sarvjeet was only a young lad of 15 years at the time when the incident took place. It appears from the evidence that the parents of the deceased and PW-14 Sarvjeet are dead and that is why PW-14 Sarvjeet informed his Mama PW-2 Balbir Singh, when the condition of the deceased deteriorated. 17. Further submission of the learned counsel for the accused is that the prosecution version is concocted. He says that the version was given to the police after the postmortem examination. There is no merit in the submission. Statement of PW-14 Sarvjeet, under Section 154 of the Code of Criminal Procedure, was recorded at 1 p.m. at Ropar. 17. Further submission of the learned counsel for the accused is that the prosecution version is concocted. He says that the version was given to the police after the postmortem examination. There is no merit in the submission. Statement of PW-14 Sarvjeet, under Section 154 of the Code of Criminal Procedure, was recorded at 1 p.m. at Ropar. On the basis of that statement, case was formally registered at 2.20 p.m. at Police Station Nalagarh, vide FIR Ex. PW-16/B and copy of the FIR reached the concerned Judicial Magistrate at 3 p.m., per endorsement made by the Magistrate on the copy of FIR. Postmortem was conducted at 3.50 p.m. at Ropar or say much after, even receipt of the FIR by the concerned Magistrate. 18. In view of the abovestated position, we see no reason to disagree with the finding of the trial Court that all the four accused gave beating to the deceased, resulting in his death. Hence, the appeal filed by the accused, i.e. Criminal Appeal No.98 of 1998, is dismissed. 19. Coming to the appeal filed by the State, facts of the case show that all the four accused kicked and gave fist blows to the deceased in his abdomen. Deceased was a young boy of only 17. Accused, numbering four, were supposed to be knowing that their kicking a young boy in the abdomen and that too repeatedly could have proved fatal as that could have hurt some vital organs, like spleen, liver and kidneys. So, we are of the considered view that the accused can legitimately be presumed to be knowing, while giving kick and fist blows to the deceased in the abdomen, that their act was so dangerous that it could cause death of their victim. This knowledge of the accused makes them liable for culpable homicide not amounting to murder, punishable under Section 304 (second part). Consequently, we allot the State appeal partly and hold all the accused guilty of offence, under Section 304 (second part), read with Section 34 of the Indian Penal Code. They have already been sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.5,000/-, each. We feel that this very sentence should be enough even for offence, under Section 304 (second part) of the Indian Penal Code. We order accordingly. 20. Both the appeals stand disposed of accordingly.