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Himachal Pradesh High Court · body

2014 DIGILAW 813 (HP)

Vinod Kumar v. State Of H. P.

2014-06-30

SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. This appeal, is, directed against the judgment rendered on 31.8.2005, by the learned Additional Sessions Judge, Fast Track Court, Una, District Una, H.P. in Sessions trial No. 9/2002 RBT No. 7/2004, whereby the appellants/convicts have been convicted and sentenced, to, undergo rigorous imprisonment for seven years, and, to, pay a fine of Rs. 10,000, each, for the commission of offence, punishable u/s 307 of the Indian Penal Code, read with Section 34 of the Indian penal code, and, in default of payment of fine, they have further been sentenced to undergo rigorous imprisonment for one year. 2. At the outset, it is mentioned that accused No. 2, Sukh Ram, died, during the pendency of the appeal, and, hence, the appeal has already abated, qua, him. 3. The brief facts of the case are, that, on, a telephonic message, having been received, at Police Post, Haroli, on, 18.8.1999, from CHC, Haroli, and, its conveying the admission of injured, in, the hospital, that the said information, was, incorporated in the daily diary, and, the police proceeded, to, the hospital, where the Medical Officer, opined that the injured, is, unable, to, make a statement. Consequently, statement u/s 154 Cr.P.C., of, one Shri Satpal S/o Ram Rakha, was recorded. A disclosure was made, in, the Statement of Satpal, recorded u/s 154 Cr.P.C., that, he is working as mason, in, the house of Balwant Singh S/o Bamberia, in, Village Samnal, and, on the same day, i.e. on 18.8.1999, at about 7 p.m., when, he went to the shop of Bihari Lal, in, the village, he noticed that Balwant Singh, was, already there, and, in, the meantime at about 7.30 p.m. Vinod Kumar S/o Sukh Ram asked Balwant Singh, to, accompany him as his father Sukh Ram, is, calling him. Accordingly Balwant Singh accompanied Vinod Kumar, and, was followed by this witness, and, at a short distance, Sukh Ram was found standing, who, confronted Balwant Singh, qua the fact of, his brother Gurdial Singh having appeared, as, a witness against him. Vinod Kumar is disclosed, in, the statement u/s 154 Cr.P.C. recorded, by, Satpal, to, have brought out a dagger from his pocket and delivered with it a blow in the stomach of Balwant Singh. Balwant Singh fell down and the accused persons fled towards their house. Vinod Kumar is disclosed, in, the statement u/s 154 Cr.P.C. recorded, by, Satpal, to, have brought out a dagger from his pocket and delivered with it a blow in the stomach of Balwant Singh. Balwant Singh fell down and the accused persons fled towards their house. On a hue and cry having been raised by Satpal, one Bihari Lal and Mohinder Singh and others arrived there, and, lifted Balwant Singh, and, brought him, to, the hospital. Statement of Satpal u/s 154 Cr.P.C., was, sent to the police Station for registration of an FIR. Accordingly, FIR was registered against the accused persons, for, commission of offence punishable u/s 307 IPC read with Section 34 IPC. After registration of FIR, during investigation, medical opinion was solicited from the Medical Officer, concerned, qua the nature of injuries, on, the person of the injured, who, returned an opinion, that, given the nature of injury it was dangerous to life. Consequently, the police registered an, offence u/s 307 IPC, read with 34 IPC, against the accused persons. During the course of investigation, the accused persons were arrested, and, knife Ex. P-1, was, also recovered, at, the instance of the accused persons. Police had also prepared the spot map. 4. After recording the statement of the witnesses, and, on completion of the investigation, into, the offence, allegedly committed, by, the accused persons, challan, under, Section 307 & 326 IPC, read with Section 34 IPC, was, presented against the accused before learned Additional Chief Judicial Magistrate, Una, who, committed, the case for trial to the Court of learned Sessions Judge, Una, who assigned it, to, the Court of learned Additional Sessions Judge, Una, for the trial, of the accused for offences punishable under Sections 326, 307 IPC read with Section 34 IPC. 5. The Court of learned Additional Sessions Judge charged the accused for theirs having committed offence punishable u/s 307 IPC read with Section 34 IPC. The accused did not plead guilty, to, the charge, and, claimed to be tried. 6. In proof of the prosecution case, the prosecution examined, as, many, as, 9 witnesses. On closure of the prosecution evidence, the statement of the accused persons u/s 313 of the Code of Criminal Procedure, was, recorded by the Court, in, which they claimed innocence and pleaded false implication. 7. 6. In proof of the prosecution case, the prosecution examined, as, many, as, 9 witnesses. On closure of the prosecution evidence, the statement of the accused persons u/s 313 of the Code of Criminal Procedure, was, recorded by the Court, in, which they claimed innocence and pleaded false implication. 7. On closure, of, proceedings u/s 313 of the Code of Criminal Procedure, the accused persons were given, an, opportunity, to, adduce evidence in defence, and, they chose to adduce evidence in defence. 8. On hearing the learned Public Prosecutor, as well, as, the learned defence counsel, the learned trial Court, on, the strength of the material laid before it, convicted and sentenced the accused persons, for theirs having committed, an, offence u/s 307 I.P.C., read, with Section 34 I.P.C. 9. Learned Senior counsel for accused/appellant, has, with immense fervor at his command, canvassed before this Court, that, findings of conviction returned against the convicts/appellants, are, infirm, as, they, are anvilled, upon, discrepant evidence, in, as much, as, the evidence of one of the eye witnesses, to, the occurrence, PW-2, is, rife with dire improvements and embellishments, which render, his version, to, be unbelievable. Consequently, reliance, on, his version, qua, the incident, by the learned court below, was, misplaced. Also, the learned Court below having not accorded or imputed any relevance to the non-explanation, of, injuries on the person of accused persons, when, construed in conjunction with a cross case having been lodged against the victim, at, the instance of the accused, was, a factor which conveyed that the incident occurred, in, a manner, not, as, disclosed by PW-2 Satpal, the informer, rather its genesis was attributable to even provocative acts, at, the instance of victim, as such, the reliance by the Court, upon, slanted and prevaricated version, non-uninterestedly, and, un-dispassionately investigated by the police, ought, not, to, have held, sway with the learned Court below. 10. On the other hand, the learned Deputy Advocate General, has, with equal fervor and emphasis, urged before this Court, that, the findings affirmed, by the learned Court below, in, convicting the accused/appellants, are embedded, on, a balanced appreciation of the evidence, on, record, and, the findings do not warrant interference, by this Court. 11. The learned counsel, on, either side, have been heard, and, the records of the case, have been perused. 12. 11. The learned counsel, on, either side, have been heard, and, the records of the case, have been perused. 12. The factum of the victim, Balwant Singh, having sustained injuries, in, the incident, has come to be deposed by PW-1, Dr. G.S. Dhidhra, who, examined the victim, on, 18.8.1999 at about 8.15 p.m.. In his deposition, he has deposed that, on, examination of the body of the injured, he, noticed the following injuries:- 1. Clean incised wound over left parasternal area 6th intercostal space 2 cm/bleeding arrested of its own. Deep bleeding was arrested with pressure bandage. 13. He further deposed, that, on 19.8.1999, on, the police requisitioning, a, further opinion, qua, the nature of the injury, he, opined, that, the wound was near, to, the heart, and, hence, he rendered, in, his opinion, comprised, in, Ex. PW-1/B, of the injury, being dangerous to life. However, he has deposed, that, he omitted, to, measure the depth of the injuries and underlying damage, to, the organs, as, his intervention, could have been done further damage, to, the vital organs, of the patient, and, could conceal the expert opinion, by the surgeon. Knife, Ex. P-1, has been deposed, by this witness, to, be the weapon, with, which the injury, as, divulged, in, the MLC, could possibly be caused. Moreover, he has deposed that the injury, was, sufficient, in, the ordinary course of nature, to, cause death, on, the score that the injured, was, profusely bleeding. 14. PW-2 Satpal, is, the eye witness, to, the occurrence. He has deposed, in, tandem, with the statement recorded by him u/s 154 Cr.P.C., substratum whereof has been extracted hereinabove. A perusal of his lengthy cross-examination by learned defence counsel unravels the fact, that, this witness had come, to, improve his statement, previously recorded, however, there is no dire, open and blatant improvement, in the recorded deposition, of this witness, in, so far, as, substratum of his previously recorded statement of his having seen the accused delivered a stab blow with knife Ex. P-1, in, the stomach of the victim, is concerned. Obviously, then, with his deposition in Court being in tandem with the previously recorded statement, hence, has probative worth it having remained un-eroded by any open or dire embellishments or improvements. P-1, in, the stomach of the victim, is concerned. Obviously, then, with his deposition in Court being in tandem with the previously recorded statement, hence, has probative worth it having remained un-eroded by any open or dire embellishments or improvements. With the testimony of this witness, hence, remained, unblemished, qua, this vital aspect, nor also, when, it has not been, conclusively established, by convincing admissions, elicited from this witness, during the course of his inexorable cross-examination, that, he was not present, at the site of occurrence, or, hence, his ocular deposition, is, incredible. As a sequel, then a conclusion which is to be reaffirmingly formed, is, that PW-2, was, an eye witness to the occurrence, hence, when in his recorded deposition, there are no material, stark or blatant, inconsistencies, nor any improvements and embellishments, qua his previously recorded statement, so, as, to, erode or shear the substratum of the prosecution case, of, this ocular witness, having, seen the accused while delivering a stab blow with a knife on the abdomen of the victim. Consequently, his deposition, being of an eye witness, is, to be believed. As, a concomitant, while attributing truth, to his deposition, it has to be concluded, that, the accused, as, a matter of fact, as, deposed by PW-2, had delivered a stab blow with a knife, on the abdomen of the victim. 15. The deposition of PW-2, Satpal, stands corroborated by the testimony of PW-3, Balwant Singh, the victim. He, too, has rendered a candid, straight forward and unequivocal, account of the incident. He has corroborated the testimony, of, the informer, in, all material particulars, qua, the substratum of the prosecution version, of the accused, having stabbed him with, knife Ex. P-1. 16. PW-4 Gurdial Singh, corroborates the factum of motive attributable, to, the accused, in, stabbing PW-3, with knife Ex. P-1, in as much, as, he has deposed that, he, has appeared, as, a witness, against the accused. Hence, though, the motive, was, not required, to, be proved, however, when, it, stands proved, by a conclusive and unequivocal deposition of PW-4, the progenitor of the motive, consequently, proof of motive, by the prosecution, through, the unflinching testimony of PW-4, also, comes, to, secure a conclusion, that, the incident, was, premeditated, hence, that, the accused, while, stabbing the victim, with, knife Ex. P-1, had, a mens rea, in, his mind. 17. P-1, had, a mens rea, in, his mind. 17. PW-5 Gian Singh has deposed, to, be an eye witness to the occurrence. He has deposed, in, tandem and, in, corroboration, to, the testimony, qua, the incident, as, deposed by PW-2, the ocular witness of the occurrence, and, PW-3, the victim. He has denied the defence version, of the victim, having indulged, in, a scuffle with the accused. He has, also come to deny the suggestion, that, Bihari Lal gave a barsha blow, from the back side, on, the head of Sukh Ram, whereas, Gurdial Singh tried, to, give barsha blow, to, Sukh Ram, which was averted, and, it struck Balwant Singh. He denied that Sukh Ram, also, received danda blows. 18. PW-6 H.C. Mangat Ram, has deposed, that, on 18.8.1999, a telephonic message, was received from, CHC, Haroli, conveying the admission of the injured, in, the hospital. The said information, was, incorporated, in, the daily dairy, by him. He has also deposed, to, have prepared the spot map Ex. PW-6/C. Thereafter, he handed over the file to Inspector Kishan Singh, for, further investigation. 19. PW-7 Krishan Singh, has deposed that he was working, as, SHO, Una, in, the year 1999. The investigation of the case, was, handed over, to, him by HC Mangat Ram, on, 19.8.1999. He has deposed, that, he recorded the statement of the witnesses, and, also arrested the accused. On, disclosure statement made by them, u/s 27, of, the Evidence Act, comprised, in, Ex. PW-7/A, disclosing therein, that, the weapon of offence i.e. knife had been concealed, in, the store of their house behind the kitchen, that knife Ex. P-1, was, taken into possession, vide Memo Ex. PW-7/B. He also prepared the spot map comprised in Ex. PW-7/E, whereunder, recovery of knife Ex. P-1, was, effected. Thereafter, he handed over the file, to, ASI Akshay Kumar, for, further investigation. He further deposed that he also, registered the, FIR Ex. PW-7/F, and, also prepared the final report, after, completion, of, the investigation. Despite, cross examination by learned defence counsel, nothing material could be elicited from this witness. 20. PW-8 S.I. Akshay Kumar has deposed, that, he remained posted, as, Incharge P.P. Haroli, in, the year 1999, and, on 2.9.1999, investigation, was, handed over, to, him. He further deposed, that, he took, into, possession blood stained clothes of the victim, vide memo Ex. Despite, cross examination by learned defence counsel, nothing material could be elicited from this witness. 20. PW-8 S.I. Akshay Kumar has deposed, that, he remained posted, as, Incharge P.P. Haroli, in, the year 1999, and, on 2.9.1999, investigation, was, handed over, to, him. He further deposed, that, he took, into, possession blood stained clothes of the victim, vide memo Ex. PW-3/A. He further deposed, that, he recorded the statements, of, the witnesses, as well, as, Gurdial Singh, Gian Singh, and, Balwant Singh, and, on completion of the investigation, he handed over the file to SHO. In his cross-examination, he has deposed that he investigated the cross case FIR No. 473/99, comprised in Mark-2, and, also recorded statements of the witnesses. He further deposed, that, in cross-case, he does not remember the nature of the injury to the injured. 21. PW-9 Dr. R.S. Dhaliwal has deposed, that, Ex. PW-9/A, which comprised a legal case summary, has been issued by Dr. Rattan Dass, Senior Resident, working under this witness. He deposed that injury was near, to, the heart. He has conclusively deposed, that, injury, was, sufficient, to, cause death, in, the ordinary course of nature, if, it remained un-treated. He has also admitted the suggestion, in, his cross-examination, that, the nature of the injury, in, Ex. PW-9/A, has been mentioned, to be grievous, and, not dangerous to life. He has also admitted the suggestion put, to, him by learned defence counsel, that, it is not mentioned in the case history, that any vital organ in the chest of the victim was affected by the injury. 22. On the evaluation of the above evidence, on, record, it is obvious that the ocular evidence, qua, the occurrence, as, deposed by PW-2, and, corroborated by PW-3, as, also convincing deposition, of the other ocular witness PW-4, renders, open a conclusion, that the accused while rearing a mens rea, in, his mind, stabbed the victim PW-3 with knife Ex. P-1. With Satpal, the informer, having deposed, that the injuries, as, were received on the person of the accused persons, were a sequel to theirs fleeing from the place of occurrence in as much, as, in that process, their bodies having got entangled with a barbed wire, consequently, then a conclusion, is, rendered open that, hence, explanation for the injuries on the persons of the accused, has come to be afforded. With an explanation, having come to be afforded by the deposition of PW-5, to the injuries sustained by the accused, repulses the contention of the learned counsel for the accused/appellant, that, on account of non-explanation of the injuries sustained by the accused, the genesis of the occurrence, as, projected by the prosecution, is, prevaricated and untruthful. Hence, no reliance can be placed on it. Further more, it has not been established, on, record that the right of private defence, was, available, to, the accused, as, no cogent and convincing evidence has been brought, on, record, to, convey that the injured victim Balwant Singh, was, the aggressor and, to, repulse his aggression, the accused along with others delivered a stab blow, on, his abdomen with knife Ex. P-1. Even the defence of the accused/appellants, as, apparent from the perusal of the suggestions put to PW-5 Gian Singh of Gurdial Singh having given barsha blow, to, Sukh Ram, having averted it and it having struck Balwant Singh, who, sustained injury remains un-probabilised, as, also un-established, especially, in view of cogent evidence, having been adduced, of, victim/injured Balwant Singh, having been inflicted with injuries, in, a manner none other, than his person having come to be unflinchingly established to be stabbed with knife Ex. P-1 by the accused. 23. Lastly, learned counsel for the accused/appellant has canvassed before this Court, that, the accused had not committed an offence u/s 307 read with Section 34 IPC, rather have committed an offence u/s 326 read with Section 34 IPC. The said argument, is, founded upon the testimonies of PW-1 and PW-9. Both PW-1 and PW-9 omitted to depose that they had measured the depth of the injury. PW-1 deposed that he had opined that the injury was sufficient, in, the ordinary course of nature, to, cause death, in, the face of copious bleeding oozing from the injury. PW-9 has deposed that Ex. PW-9/A, articulates that the injury is grievous and not dangerous, to, life, as, also when he further deposed that he has omitted to mention in Ex. PW-9/A that the vital organ, in, the chest of the victim, was, affected by the injury. In sequel thereto, Court is constrained to draw the following inferences:- a. Opinion Ex. PW-1/A, being not founded upon measurement of depth of the injury, rather, it is prima-facie founded on the factum of profuse bleeding, hence, not carrying overwhelming weight. PW-9/A that the vital organ, in, the chest of the victim, was, affected by the injury. In sequel thereto, Court is constrained to draw the following inferences:- a. Opinion Ex. PW-1/A, being not founded upon measurement of depth of the injury, rather, it is prima-facie founded on the factum of profuse bleeding, hence, not carrying overwhelming weight. b. The opinion of PW-9 who, is, head of the department of surgery underscores the fact that Ex. PW-9/A conveys the factum of the injury being grievous and not dangerous, to, life, as, also omission of reflection in Ex. PW-9/A, of no vital organ, in, the chest of the victim, being, affected by the injury, renders, open a conclusion that injury was grievous, and, not dangerous to life. Besides, in the examination in chief of PW-9 spells out that the injury, is, sufficient in the ordinary course of nature, to, cause death, if, remained untreated, is, to be construed to be a mere cursory deposition, in, as much, as, it omits to countervail as well as repulse the recorded factum, in, Ex. PW-9/A, of, the injury being grievous and not dangerous to life. 24. This court, is, of the opinion, that, given the aforesaid revelation, in, the opinion, rendered by PW-1 and PW-9, the injury, as, delivered, on, the person of the victim PW-3, by the accused, with knife Ex. P-1, is, construed, to, be grievous and not sufficient, in, the ordinary course of nature, to, cause death. In sequel, the appeal, is, partly allowed and accused/appellant, is, held guilty of offence punishable u/s 326 IPC. Be heard on quantum of sentence on 11.7.2014, on which date, accused be produced before this Court.