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2013 DIGILAW 1245 (PNJ)

Harinder Yadav v. State of U. T. Chandigarh

2013-09-17

Mehinder Singh Sullar

body2013
JUDGMENT Mr. Mehinder Singh Sullar, J. (Oral):- The epitome of the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant appeal and emanating from the record, as claimed by the prosecution, is that appellant-convict Harinder Yadav son of Ram Partap Yadav(for brevity “the appellant) used to deal in selling sugarcane juice on his Hand-cart(Rehri), whereas complainant-Rajinder Kumar son of Raghu Parshad(for short “the complainant”) was dealing in selling Jalzeera on his Hand-cart(Rehri) in Sector 29, Chandigarh. On 26.04.2000 at about 10.00 PM, the complainant was going to sleep near the Hand-cart(Rehri) in his house in Sector 30, appellant Harinder Yadav came there. The complainant demanded Rs.10/- as sale price of ice from him. He(appellant) replied that he will return the money on the next day. Both of them exchanged hot words and then the appellant went away from the spot. 2. The case of the prosecution further proceeds that during the night at about 12.45 AM, as soon as the complainant was sleeping, in the meantime, the appellant came there armed with an axe(kulhari), awakened the complainant and told that he will teach him a lesson for demanding(Rs.10/-) the price of ice. The complainant asked him to leave the place and pay him Rs.10/- in the morning. At this, the appellant gave an axe(kulhari) blow, which landed on his forehead. He tried to give another blow, which struck on the wrist of his(PW4) right hand. The blood oozed out from the injuries. He raised the noise, which attracted his brother Rakesh Kumar(PW5). He reached the spot and rescued him from the clutches of the appellant. The appellant was stated to have threatened the complainant with dire consequences and decamped from the place of occurrence with his weapon. In all, according to the prosecution, the appellant attempted to commit murder of the complainant and caused injury on his forehead and wrist of his right hand with his axe(kulhari). In the background of these allegations and in the wake of statement(Ex.PH) of the complainant, the present criminal case was registered against the appellant, vide FIR No.86 dated 26.04.2000 (Ex.PK/1), on accusation of having committed the offences punishable under Sections 324, 307 and 506 IPC, by the police of Police Station Industrial Area, Chandigarh, in the manner depicted here-in-above. 3. In the background of these allegations and in the wake of statement(Ex.PH) of the complainant, the present criminal case was registered against the appellant, vide FIR No.86 dated 26.04.2000 (Ex.PK/1), on accusation of having committed the offences punishable under Sections 324, 307 and 506 IPC, by the police of Police Station Industrial Area, Chandigarh, in the manner depicted here-in-above. 3. After completion of the investigation, final police report (challan) was submitted by the police against the appellant to face the trial for the pointed offences. 4. Having completed all the codal formalities, the appellant was charge-sheeted for the commission of indicated offences by the trial Court. As, he did not plead guilty and claimed trial, therefore, the case was listed for evidence of the prosecution. 5. Sequelly, the prosecution in order to substantiate the commission of crime against the appellant, examined injured complainant PW4-Rajinder Kumar, who has deposed in the following terms:- “ On 26.4.2K, I used to install a rehri of Jaljira. On that day, at 9.00 PM, I have returned home along with my rehri. I parked my rehri near my house. I put up my folding cot near the rehri and after taking meals I went to bed, at around 10.00 PM. Thereafter, at about 12.45 AM, Harinder Yadav, accused present in court came near my cot. He awakened me. He was to pay me Rs.10/- for the price of ice. After he woke me up told me should he pay me Rs.10/-. I told him to leave the matter there and to pay me the money in the morning when I take my rehri. The accused also used to install a rehri of sugarcane juice. He also requires ice and he used to take it from me promising to pay the money later on. The cost of the ice taken by him a day before the incident was to be paid by him, which was Rs.10/-. The accused insisted to me that he will pay right now. I told him to pay in the morning or to pay to the ice-vendor. On this the accused took out an axe and gave a blow with it on my forehead. My entire face was covered with blood. He tried to give a second blow which I stopped with my right hand and the blow struck on my wrist. I told him to pay in the morning or to pay to the ice-vendor. On this the accused took out an axe and gave a blow with it on my forehead. My entire face was covered with blood. He tried to give a second blow which I stopped with my right hand and the blow struck on my wrist. I raised shouts hearing which my younger brother Rakesh Kumar came at the spot. The accused then ran away from the spot taking the axe with him. My brother then took me to Gen.Hospital Sector 16, for treatment. From there I was referred to PGI. The accused had a grievance on my asking him to pay the price of ice taken by him. The police recorded my statement in the morning which is Ex.PH and bears my thumb impression.” 6. Likewise, PW5- Rakesh Kumar son of Raghu Parshad has also corroborated the prosecution version. Instead of reproducing his entire statement and in order to avoid the repetition, suffice it to say that he has attempted to corroborate the statement of his brother Rajinder Kumar(PW4) and version contained in his initial statement(Ex.PH) on all vital counts. 7. Now adverting to the medical evidence, PW3-Dr.Om Parkash Parshad, Neuro Surgeon, PGI, has stated that on 26.04.2000, the complainant, was brought in the hospital by his brother Rakesh Kumar, in an injured condition. He was referred by Chandigarh Medical College & Hospital, Sector 32 to PGI, Chandigarh, for further treatment. As per record/report(Ex.PG), he had sustained head injury. The nature of injury was grievous. He has also proved the treatment notes(Ex.PG/1). PW6- Dr.Shivika Malhotra on police request(Ex.PI), opined vide her opinion (Ex.PJ) that the injured was fit to make the statement. PW10-Dr.Rajesh Biswas, Junior Scientific Officer, CFSL, Chandigarh, has found human blood on the clothes of injured and weapon of offence(axe) by way of his report(Ex.PL). 8. Similarly, PW11-ASI Ranjit Singh, the main investigating officer has stated that on 26.04.2000, on receipt of information from the police post, PGI, he reached to the Emergency Ward of PGI, where the injured was admitted. On his request(Ex.PI), the doctor on duty by means of his opinion(Ex.PJ) opined that the patient was fit to make the statement. 8. Similarly, PW11-ASI Ranjit Singh, the main investigating officer has stated that on 26.04.2000, on receipt of information from the police post, PGI, he reached to the Emergency Ward of PGI, where the injured was admitted. On his request(Ex.PI), the doctor on duty by means of his opinion(Ex.PJ) opined that the patient was fit to make the statement. Thereafter, he recorded the statement(Ex.PH) of the injured, made endorsement(Ex.PK) and sent it to the police station for registration of the case, on the basis of which, formal FIR(Ex.PK/1) was recorded by ASI Karnail Singh. Then he took into possession blood-stained Baniyan of the injured vide recovery memo(Ex.PA). He recorded the supplementary statement of the injured. Then he inspected the place of occurrence and prepared the rough site plan(Ex.PM) with its correct marginal notes. He collected the blood-stained earth from the spot, by virtue of recovery memo(Ex.PB). He also took into possession the quilt and folding-bed of the injured by way of recovery memos(Exs.PC and PD), respectively. He made an inquiry and arrested the appellant. He was interrogated. He produced the axe(kulhari), which was lying behind the door of his house. He prepared its sketch(Ex.PE) and it was taken into possession vide recovery memo(Ex.PF). He has further testified his entire investigation. 9. In the same sequence, PW1-C.Vijender Singh has also corroborated the investigation and statement of the investigating officer (PW11) on all vital aspects. PW2-C.Vinod Kumar has snapped the photographs(Exs.P1 to P4) of the place of occurrence through the medium of negatives(Exs.P5 to P8). PW7-HC Baldev Singh is a formal witness, who has tendered into evidence his affidavit(Ex.PK) to complete the chain of link evidence. PW8-C.Yash Pal prepared the site plans (Ex.PL) of the place of occurrence and (Ex.PL/1) of the place of recovery. PW9-Karnail Singh recorded the formal FIR(Ex.PK/1) on receipt of ruqa(Ex.PK) from ASI Ranjit Singh, by means of DDR No.16 dated 26.04.2000 at 11.05 AM. This is the total evidence brought on record by the prosecution. 10. After close of the prosecution evidence, statement of the appellant was recorded. The entire incriminating material/evidence was put to enable him to explain any circumstance appearing against him therein, as envisaged under Section 313 Cr.PC. Although, he has stoutly denied the prosecution evidence in its entirety and pleaded false implication, but he did not prefer to produce any evidence in defence, despite adequate opportunities. 11. The entire incriminating material/evidence was put to enable him to explain any circumstance appearing against him therein, as envisaged under Section 313 Cr.PC. Although, he has stoutly denied the prosecution evidence in its entirety and pleaded false implication, but he did not prefer to produce any evidence in defence, despite adequate opportunities. 11. Taking into consideration the entire evidence brought on record by the prosecution, the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of five years, to pay a fine of Rs.3,000/- and in default of payment thereof, to further undergo rigorous imprisonment for a period of one year, for the commission of offence punishable under Section 307 IPC, by virtue of impugned judgment of conviction dated 07.02.2002 and order of sentence dated 08.02.2002 by the trial Judge. 12. Aggrieved thereby, the appellant has preferred the instant appeal. That is how, I am seized of the matter. 13. Assailing the impugned judgment of conviction and order of sentence, learned counsel for the appellant has contended with some amount of vehemence that the evidence brought on record by the prosecution is not reliable and trustworthy. Even no offence punishable under Section 307 IPC is made out and the trial Court has committed a legal mistake to convict the appellant for the pointed offence. Thus, he prayed for acceptance of the appeal. 14. Hailing the impugned judgment, on the contrary, learned counsel for UT Chandigarh, has urged that the prosecution has produced sufficient acceptable evidence. The ocular version finds support from the medical evidence and no interference is warranted in this regard. 15. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the present appeal deserves to be partly accepted in this respect. 16. As is evident from the record that, PW4-complainant Rajinder Kumar has categorically, inter alia, maintained that on the fateful day, as usual, he returned and parked his Hand-cart(Rehri) near his house, he put his folding-bed and after taking meals went to sleep at 10.00 PM. Thereafter, at about 12.45 AM, the appellant came there and the complainant asked him to pay Rs.10/-. He told him to leave the matter there and pay the amount in the morning. Thereafter, at about 12.45 AM, the appellant came there and the complainant asked him to pay Rs.10/-. He told him to leave the matter there and pay the amount in the morning. Then the appellant took out and gave an axe(kulhari) blow, which landed on his forehead. He tried to give second blow, which struck on the wrist of his(PW4) right hand. He raised the noise, which attracted his brother Rakesh Kumar at the spot, who rescued him. Thereafter, the appellant decamped from the spot with his axe(kulhari). The statement of PW4 finds corroboration from the statement of his brother Rakesh Kumar. 17. Not only that, the ocular evidence of the prosecution finds further corroboration from the medical evidence, in the manner indicated hereinabove. Both PW4 and PW5 gave natural narration of the sequence of events. The appellant was arrested from his house on the same day and he produced the weapon of offence, which was taken into possession by the investigating officer vide recovery memo(Ex.PF). Human blood was detected on the clothes and weapon of offence, which further testified and lends credence to the prosecution version. The investigating officer has also testified his investigation. 18. Possibly, it cannot be denied that the complainant in his initial statement(Ex.PH) has mentioned that on 26.04.2000, some altercation had taken place at 10.00 PM on his demand of Rs.10/- being the price of ice from the appellant, but during his statement in the Court, he did not so state with regard to the first incident at 10.00 PM. He while appearing as PW4 has maintained that on 26.04.2000 at about 12.45 AM, the appellant came there, raised a dispute with regard to the payment of Rs.10/-. He took out and gave an axe(kulhari) blow on his forehead and wrist of right hand. The argument of the learned counsel for the appellant that this omission is fatal to the prosecution case, is not only devoid of merit but misplaced as well. 19. As is apparent, this according to me, is a minor variation in the evidence, which has got no direct adverse bearing on the prosecution case, as regards the actual incident of inflicting injuries at 12.45 AM, is concerned. As mentioned here-in-above, PW4 has categorically deposed that the appellant caused an injury with his axe(kulhari) on his forehead and then second blow hit on his wrist of right hand. As mentioned here-in-above, PW4 has categorically deposed that the appellant caused an injury with his axe(kulhari) on his forehead and then second blow hit on his wrist of right hand. The mere pointed variation relatable to motive and altercation with regard to the payment of Rs.10/- either at 10.00 PM or 12.45 AM on the fateful day, is meaningless, as regards the real participation of the appellant in the commission of actual crime is concerned. It is a matter of common knowledge that a person reacts in a different manner in narration to explain the same thing repeatedly at different times and places. It has got no adverse effect on the prosecution story. 20. Similarly, the further celebrated contention of the learned counsel that the story of the prosecution is highly improbable in so far as that, if the appellant had actually intended to cause injury, then he would not have awakened the complainant and straightway would have very easily caused injury, when he(complainant) was asleep, lacks merit as well. It is indeed an individual state of mind of a particular person, at a particular time & place that how and in what manner, to react in a particular situation to cause injury to wreak vengeance. From the circumstances oozing out from the record, it is clear that the appellant wanted to teach him a lesson after awakening him within his special means of knowledge and then he caused the injury to take the revenge. In these circumstances, the question of any improbability in the prosecution version did not arise, as contrary urged on behalf of the appellant, particularly when PW4 and PW5 gave the narration of incident in the court in a very natural manner, as regards, the participation of the appellant in the crime, in question, is concerned. 21. Thus, it would be seen that complainant-Rajinder Kumar (PW4) has, inter alia, categorically maintained that on the fateful day, the appellant caused one injury on his forehead and second on the wrist of his right hand with his axe(kulhari), in the manner described here-in-above. His evidence finds corroboration by the statement of his brother Rakesh Kumar(PW5). Both PW4 and PW5 have fully supported the prosecution version on all vital aspects, as regards, the participation of the appellant in the commission of actual crime in question is concerned. There evidence is reliable and natural. His evidence finds corroboration by the statement of his brother Rakesh Kumar(PW5). Both PW4 and PW5 have fully supported the prosecution version on all vital aspects, as regards, the participation of the appellant in the commission of actual crime in question is concerned. There evidence is reliable and natural. Their presence at the place of occurrence cannot possibly be disputed as they were sleeping in their respective premises. They were cross-examined at length, but no substantial material could be elicited in their searching cross-examination to dislodge their testimony and impeach their credibility. They gave a vivid and consistent version to support the prosecution story. No motive could possibly be attributed to the injured/eye witnesses as to why they would falsely implicate the appellant in this case. 22. Not only that, the ocular version of the prosecution further finds corroboration from the medical evidence of Dr.Om Parkash Parshad (PW3), Dr.Shivika Malhotra(PW6) and Dr.Rajesh Biswas(PW10). However, the vague and contradictory defence plea of false implication and mere denial by the appellant outrightly deserves to be rejected in the absence of any cogent material/evidence on record in this context, particularly, when his participation in the commission of the crime and the prosecution story is duly proved by reliable, ocular, medical and documentary evidence on record, as discussed here-in-above. 23. Therefore, if the entire oral as well as medical and documentary evidence brought on record by the prosecution is put together, then, to my mind, the conclusion is inescapable and irresistible that it stands proved on record that the appellant has caused and inflicted injury on the person of PW4, in the same manner as projected by the prosecution. Thus, the contrary submissions of the learned counsel for appellant “stricto sensu” deserve to be and are hereby repelled under the present set of acceptable evidence and circumstances. 24. Faced with the situation, learned counsel has fairly acknowledged that in view of the cogent evidence on record, he will not be in a position to contest the conviction of the appellant any more. He has no other argument/material/ground, much less cogent, to assail the prosecution version. 25. 24. Faced with the situation, learned counsel has fairly acknowledged that in view of the cogent evidence on record, he will not be in a position to contest the conviction of the appellant any more. He has no other argument/material/ground, much less cogent, to assail the prosecution version. 25. Be that as it may, ex facie, the next submission of learned counsel that if the evidence brought on record by the prosecution is believed to be true as such in its totality and in the absence of definite opinion with regard to (dangerous) nature of injury, even then, no offence punishable u/s 307 IPC is made out against the appellant, has considerable force. 26. What cannot possibly be disputed here is that the appellant was convicted for the commission of offence punishable under Section 307 IPC, which postulates that “whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished as mentioned therein. Section 300 IPC enumerates that except in the cases hereinafter expected, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 27. A plain and meaningful reading of these provisions would reveal that in order to invoke the penal provision of Section 307 IPC, the intention or the requisite knowledge to cause death are the essential ingredients of this section. An attempt for purpose of Section 307 IPC should stem from a specific intention to commit murder. 27. A plain and meaningful reading of these provisions would reveal that in order to invoke the penal provision of Section 307 IPC, the intention or the requisite knowledge to cause death are the essential ingredients of this section. An attempt for purpose of Section 307 IPC should stem from a specific intention to commit murder. That means, an act though sufficient in the ordinary course of nature to cause death, would not always constitute an offence under this Section, if the necessary intention or knowledge on the part of the accused is lacking. Thus, for the purpose of this offence, what is material, is the intention or knowledge and not the consequence of the actual act done for the purpose of carrying out that intention. In the present case, keeping the ocular, medical and documentary evidence into focus, to me, no offence punishable u/s 307 IPC is made out against the appellant, for the reasons mentioned here-in-below. 28. In the instant case, as per prosecution version/evidence, the appellant came to the spot, where the complainant was sleeping. At the first instance, he awakened the complainant. Again, some altercation took place between them. Thereafter, the appellant gave an axe(kulhari) blow on his(PW4) forehead. He did not repeat the injury on his forehead. The second axe(kulhari) blow landed on his wrist of right hand(non-vital part). Had the appellant requisite intention or knowledge to commit murder at the relevant time, then there was no occasion or necessity for him to awake the complainant, at the first instance and then to cause injury. Not only that, if he had the requisite intention, then he would have repeated the injury on his forehead(on vital part). He caused only a solitary injury on the forehead of PW4. Even he did not repeat the injury on any vital part. Therefore, under these compelling circumstances, it cannot possibly be saith that he had the requisite intention or knowledge to commit his(PW4) murder. 29. There is yet another aspect of the matter, which can be viewed entirely from a different angle. PW3-Dr.Om Parkash Parshad, who has proved the treatment summary(Ex.PG), has very vaguely stated that the nature of injury on the person of PW4 was grievous. Even in his cross-examination, he has categorically admitted that the injuries on his person were not dangerous to life, as also noticed by the trial Court. PW3-Dr.Om Parkash Parshad, who has proved the treatment summary(Ex.PG), has very vaguely stated that the nature of injury on the person of PW4 was grievous. Even in his cross-examination, he has categorically admitted that the injuries on his person were not dangerous to life, as also noticed by the trial Court. Meaning thereby, there is not an iota of medical evidence on record, even to suggest remotely that the injury on the forehead of the injured was dangerous to life. To me, in order to invoke the penal provision of Section 307 IPC, the prosecution was required to and ought to have obtained the clear opinion from the Neuro Surgeon. In any case, the medical opinion should be definite and specific that if the injury on the forehead of the injured was not timely treated or but for timely medicalaid, this injury was sufficient in ordinary course of nature to cause death and hence dangerous to life. In the present case, no opinion is available on record. In the absence of such opinion, the appellant cannot possibly be convicted under Section 307 IPC, particularly when the special opinion of the doctor is that the injury is grievous in nature. Such grievous injury is squarely covered within the ambit of clause Eighthly of Section 320 IPC, which is punishable under Section 326 IPC. This matter is no more res integra and is now well-settled. 30. An identical question came to be decided by this Court in case Bawa Singh and others Versus State of Punjab, [2013(3) Law Herald (P&H) 2533] : 2013(3) RCR (Criminal) 1027, wherein it was ruled that under these circumstances, no offence punishable under Section 307 IPC is made out and such offence is covered by the provision of Section 326 IPC. The ratio of law laid down in the aforesaid judgment “mutatis-mutandis” is applicable to the facts of this case and is the complete answer to the problem in hand. Therefore, it is held that the appellant did not attempt to commit murder of PW4-Rajinder Kumar. But he only intended to and caused the grievous injury in order to teach him a lesson of previous altercation. He cannot possibly be held guilty of attempting to commit murder within the meaning of offence prescribed under Section 307 IPC. Likewise, the indicated act of the appellant squarely falls within the domain, punishable under Section 326 IPC. But he only intended to and caused the grievous injury in order to teach him a lesson of previous altercation. He cannot possibly be held guilty of attempting to commit murder within the meaning of offence prescribed under Section 307 IPC. Likewise, the indicated act of the appellant squarely falls within the domain, punishable under Section 326 IPC. To this extent, the trial Court appears to have gone legally wrong in this relevant connection. Consequently, the appellant deserves to be and is acquitted, for the commission of offence punishable under Section 307 IPC. At the same time, he is held guilty and is hereby convicted under Section 326 IPC. 31. Now adverting to the matter of sentence, as per custody certificate(Annexure “PX”), the appellant has already undergone the substantive portion of his sentence of imprisonment for a period of more than two years, eight months and twelve days. He has already suffered the pangs and agony of protracted trial and appeal for the last about 13 years and five months. There is no history of his previous involvement in any other criminal case. He was a young person of 19 years of age, at the relevant time of the commission of offence. He is the sole bread-earner and there is no other person to look after his young wife and old parents, who are dependent upon him. Therefore, to my mind, ends of justice would squarely be met and sub-served, if the appellant is sentenced to the period(i.e. two years, eight months and twelve days) already undergone by him. However, sentence of fine is maintained. 32. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 33. In the light of aforesaid reasons, the instant appeal is partly accepted. The conviction of the appellant under Section 307 IPC is set aside. At the same time, he is convicted and sentenced to the period already undergone by him for the commission of offence punishable under Section 326 IPC. Consequently, the impugned judgment of conviction and order of sentence are accordingly modified to the extent and in the manner depicted here-in-above. Needless to mention that the necessary compliance and procedural consequences would naturally follow. --------0.B.S.0------------