Anil Kumar vs The State of Punjab

Mehinder Singh Sullar, J.—The matrix of the facts and 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 on 6.10.2000 at about 5.30 P.M., complainant Ashwani Kumar (PW 6) (for brevity "the complainant") and his son Yogesh Kumar (deceased) were going on their scooter, whereas Ashok Kumar (PW 7) and Prem Kumar were also going on their separate scooter, towards Aliwal canal. As soon as, they reached near the clinic of Dr. Anil Agnihotri, in the meantime, their scooter rammed into a cycle and another scooter parked outside his clinic. Suddenly, appellant-convict Anil Kumar (for short "the appellant") and his brother Arun Kumar (acquitted accused) came out of the shop and started abusing them. Arun Kumar exhorted, to teach them a lesson. Thereafter, the appellant brought an iron rod from his shop and Arun Kumar also brought a wooden rod. It was alleged that Arun Kumar then caught hold Yogesh Kumar by his neck and dragged him from his scooter towards the shop. Ashok Kumar (PW 7) desisted him, but in vain. Meanwhile, the appellant gave blows with iron rod on the head and other parts of the body of Yogesh Kumar, whereas Arun Kumar had also inflicted blows with the wooden rod to Ashok Kumar. As luck would have been, Yogesh Kumar succumbed to his injuries at the spot. Then, the complainant raised hue & cry and Amit Kumar came there, after the occurrence was over. He removed Ashok Kumar in an injured condition to Civil Hospital, Batala. The complainant was going to lodge the report, whereas SI Paramjit Singh (PW 8) met him on the Dera road near Railway Crossing and he made his statement (Ex. PA). He signed the same in token of its correctness. PW 8 made his endorsement (Ex. PA/2) and sent it to the police station for registration of the case. Narrating the sequence of events, in all, the complainant claimed that the appellant and his brother Arun Kumar with their common intention have caused the murder of his son Yogesh Kumar and caused injuries to Ashok Kumar (PW 7) as well with their respective weapons. In the background of these allegations and in the wake of statement (Ex. PA) of the complainant, the present criminal case was registered against the appellant and his brother Arun Kumar (acquitted accused), by virtue of FIR No. 410 dated 6.10.2000 (Ex. PA/3), on accusation of having committed an offence punishable u/s 302 read with section 34 IPC by the police of Police Station Sadar Batala, District Gurdaspur in the manner depicted here-in-above.

During the course of investigation, the police found Arun Kumar as innocent and exonerated him. However, after completion of the investigation, the final police report (challan) was submitted by the police only against the appellant. Subsequently, in pursuance of the application u/s. 319 Cr. PC filed on behalf of the prosecution, Arun Kumar was also summoned as an additional accused to face the trial for the commission of the indicated offence, vide order dated 8.6.2001 by the trial Court.

Having completed all the codal formalities, the appellant and acquitted accused were accordingly charge-sheeted for the commission of the offences punishable u/s. 302 and 323 read with section 34 IPC. As they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Judge.

Sequelly, the prosecution, in order to prove the crime against the appellant and acquitted accused, examined PW 6 complainant Ashwani Kumar, who has deposed in the following terms:-

I have two sons namely Yogesh Kumar and Hem Shekhar. On 6.10.2000 at about 5.30 P.M. I and my son Yogesh Kumar were going on scooter to immerse Khetri in Aliwal canal and Ashok Kumar and Prem Kumar were also going on scooter along with us. When our scooter reached near clinic of Dr. Anil Agnihotri, my scooter struck against the cycle and scooter which were parked outside the clinic. Yogesh Kumar was driving the scooter whereas I was on its pillion rider. Anil Agnihotri accused present in the court came out of the shop. His brother Arun Kumar also came out of the shop who is also accused present in the Court. Anil Kumar then started abusing us and asked as to why we were driving the scooter when we did not know the driving. I pacified him by telling that our scooter struck accidentally .Arun Kumar then exhorted to teach a lesson to us. Anil Kumar then brought an iron rod from his shop. Arun Kumar also brought wooden piece of Kehi. Arun Kumar then caught hold of Yogesh Kumar by his neck from his scooter and dragged him towards the shop. Ashok Kumar desisted him. Anil Kumar gave a blow with iron rod on the head of Yogesh Kumar and many other blows were also given. Arun Kumar had also given the blows with wooden piece of Kehi to Ashok Kumar. Yogesh Kumar then succumbed to the injuries at the spot. I raised hue and cry and then Amit Kumar came after the occurrence was over. I sent Ashok Kumar to civil hospital, Batala, with Amit Kumar. Then myself went to lodge the report to the police. The police officials met me on the Dera Road near Railway Crossing and I made statement Ex. PA to the police which was signed by me in token of its correctness. The police inspected the spot and prepared the inquest report Ex. PC in the presence of Adarsh Kumar and myself, prepared the rough site plan. On the next day, Yogesh Kumar was subjected to post mortem examination.

Likewise, PW 7 Ashok Kumar, another eye witness of the occurrence, has also supported the prosecution version. Instead of reproducing his entire evidence and in order to avoid the repetition, suffice it to say that he has fully corroborated the statement of complainant (PW 6) on all vital counts.

Now adverting to the medical evidence, PW 1 Dr. K.K. Singh, Medical Officer, Civil Hospital, Batala, has medico legally examined Ashok Kumar injured (PW 7) on 6.10.2000, by means of MLR (Ex. PD) and found the following injuries on his person:-

3 reddish abrasion 4 x 1/2 cm, 3 1/2 x 1 cm, 1 x 1 cm on the back right side lumbar region.

Reddish abrasion 4 x 1/4 cm in the middle and going to the left side obliquely in back lumbar region.

Reddish abrasion 5 1/2 x 3 1/2 cm on the middle in the back in sacral region.

Reddish abrasion 12 x 2 1/2 cms on the right side of abdomen 3 cm from umbilicus surrounded by swelling 12 x 6 cm. Kept under observation and x-ray examination.

Two lacerated wound 1/2 x 1/2, 1/2 x 1/4 cm on the hip and dorsum of left hand thumb surrounded by swelling of hand. Advised x-ray. Bleeding was present.

Reddish contusion 10 x 3 1/2 cm on the left shoulder joint surrounded by swelling 10 x 6 cm. Advised x-ray.

Bite mark 5 cm circular in the right shoulder joint surrounded by swelling 10 x 8 cm. Advised x-ray.

Reddish abrasion 1 1/2 x 1/2 cm on the nose surrounded by swelling of whole nose. Advised x-ray.

Complain of pain in the left side of head. Advised x-ray.

The injuries No. 4 to 9 were kept under observation and x-ray examination was advised, while rest injuries were declared as simple.

Similarly, PW 1, on police request (Ex. PB) accompanied by inquest report (Ex. PC), has also conducted the post mortem examination on the dead body of Yogesh Kumar on 7.10.2000, by way of post mortem report (Ex. PA) and found the following injuries on his person:-

Lacerated wound 4 1/2 x 1 cm on the right parietal region of head. 8 cm from right ear pinna 7 cm from the anterior hair line (parallel to the mid line) Bone deep. Clotted blood was present. On dissection, underlying skull bone was fractured. Membrain were ruptured. Brain was ruptured and skull cavity was full of blood.

Brownish contusion 9 x 10 cm on the right ear.

Brownish contusion 4 1/2 x 2 1/2 cm on the outer side of right eye.

Brownish contusion 16 x 2 1/2 cms on the front and lower part of chest. In the middle obliquely placed.

Brownish contusion on the back of right shoulder joint 10 x 3 cm.

Brownish contusion 16 x 4 cm on the back and lower part of right upper arm.

3 Brownish contusion 1 x 1/2 cm, 3 1/2 x 1/2 cm, 2 x 1 cm on the left elbow joint back side.

He (PW 1) opined that the cause of death was due to shock and hemorrhage on account of multiple injuries. All the injuries were ante mortem in nature and were sufficient to cause death in the ordinary course of nature.

Now coming to the evidence of police officers, PW 2 C. Kashmir Singh, PW 3 C. Paramjit Singh, PW 4 MHC Kuljit Singh and PW 5 HC Ajit Singh are the formal witnesses, who have tendered their respective affidavits (Ex. PE, Ex. PF, Ex. PG and Ex. PH) to complete the chain of link evidence. PW 10 Darshan Singh retired ASI, has maintained that on 6.10.2000 on receipt of ruqqa (Ex. PA), MHC Kuljit Singh recorded the formal FIR (Ex. PA/3) on his dictation. He signed the same. He has further maintained that the special reports of this case were sent to the Illaqa Magistrate and SSP etc. through C. Kashmir Singh. PW 9 Jaswinder Singh, Criminal Ahlmad of the Court of SDJM Batala, has stated that there was no entry for receiving the special report in this case. If the Illaqa Magistrate is not present, then, the special report goes to the duty Magistrate, who forwarded the same to the Illaqa Magistrate.

The last to note is the testimony of PW 8 SHO Paramjit Singh, the main Investigating Officer, who has deposed that on 6.10.2000, he recorded the statement (Ex. PA) of the complainant. It was read over and explained and he signed the same in token of its correctness. He (PW 8) made his endorsement (Ex. PA/2) and sent it to the police station for registration of the case, on the basis of which, the formal FIR (Ex. PA/3) was recorded by ASI Darshan Singh. Thereafter, he prepared the inquest report (Ex. PC) in the presence of Ashwani Kumar and Adarsh Kumar. The dead body was sent to Civil Hospital, Batala for post mortem examination along with request (Ex. PB). Thereafter, he visited, inspected and prepared the rough site plan (Ex. PW8/A) of the spot with its correct marginal notes. He has taken into possession the blood from the place of occurrence with a piece of cotton, vide recovery memo (Ex. PW8/B) attested by SI Surjit Singh and ASI Mohinder Singh. On return to the police station, he deposited the case property with the MHC.

On 11.10.2000, PW 8 arrested both the accused. During the course of interrogation, Anil Kumar accused suffered the disclosure statement and in pursuance thereof, he got recovered the iron rod (Ex. P1) from the disclosed place, which was taken into possession, vide recovery memo (Ex. PW8/C). He has correctly prepared the rough site plan (Ex. PW8/D) of place of recovery of iron rod. In the same sequence, the weapon of offence was also got recovered as per disclosure statement (Ex. PE) of Arun Kumar and it was taken into possession, by way of recovery memo (Ex. PW8/E). He has also prepared the rough site plan (Ex. PW8/G) of place of recovery of wooden rod. He has also recorded the statements of witnesses and testified his entire investigation. The prosecution has also tendered into evidence the report (Ex. PW8/J) of chemical examiner.

After the close of the prosecution evidence, the 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 contemplated u/s 313 Cr.P.C. However, he has denied the prosecution evidence in its entirety and pleaded false implication in the following manner:-

The allegations against me are false. The road in front of my shop always have a thick traffic. It leads to many villages and townships. There used to remain rush of villagers etc. on this road. On the day of occurrence, Yogesh Kumar deceased and Ashok Kumar PW were coming following two girls. I came to know later on about the names of Ashok Kumar and Yogesh Kumar. Near my shop, they misbehaved by touching the bodies of the girls. The verbal altercation started when the girls protested. Many persons gathered there and objected to the behaviour of Ashok Kumar and Yogesh Kumar and others. I also came out of my shop. Yogesh and Ashok angerily asked the people that they were arguing as if the girls are their sisters. Someone among the public stated ''Yes they were like our sisters''. Ashok Kumar replied that then take us as your brothers-in-law (Behnoi). Ashok Kumar and Yogesh also started abusing. Grappling started between Ashok and persons from the public. Yogesh started proclaiming that he was having a revolver and would shot dead everyone. They received injuries at the hands of people who acted under provocation and right of private defence. Later on police came. Next day a false case was registered against us. Many persons appeared before police during investigation to plead our innocence. Though police agreed about our innocence but showed helplessness to get the case cancelled as the complainant party was very influential.

In the same sequence, accused Arun Kumar has also adopted the same line of defence. In order to prove the defence, they have examined DW 1 Harbeant Singh S/o. Ajit Singh, who has tried to support the defence version and inter-alia maintained that when he reached near the place of occurrence, more than 100 persons were gathered there. The crowd was beating the two persons with sticks (sottis), dandas and different weapons, who were stated to have molested the girls. He had not seen the appellant and acquitted accused at the spot. One of the persons was brought to the clinic of the appellant, whereas other person had died due to beating by the crowd. This is the total oral as well as documentary evidence brought on record by the parties.

Taking into consideration the entire evidence on record, the appellant and Arun Kumar accused were acquitted of the charges u/s. 302 and 323 read with Section 34 IPC. The State of Punjab did not file any appeal to challenge their acquittal. At the same time, appellant Anil Kumar was convicted and sentenced to undergo rigorous imprisonment (in short "RI") for a period of six years, to pay a fine of Rs. 5000/- and in default thereof, to further undergo RI for a period of one year for the commission of an offence punishable u/s. 304 Part II, IPC, by virtue of impugned judgment of conviction and order of sentence dated 4.4.2003 by the trial Judge.

Aggrieved thereby, the appellant has preferred the instant appeal. That is how I am seized of the matter.

After hearing the learned counsel for the parties, going through the evidence on record with their valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the present appeal as regards the conviction of the appellant is concerned.

Ex facie, the cosmetic arguments of learned counsel for appellant that the story of the prosecution is highly improbable and the evidence brought on record by it falls short as is required to prove the criminal charge, lack merit.

As is evident from the record that on 6.10.2000, the complainant & his son Yogesh Kumar (deceased) were going on their scooter, whereas Ashok Kumar (PW 7) and Prem Kumar were going on their separate scooter towards Aliwal canal. As soon as, they reached near the clinic of the appellant, in the meantime, their scooter struck against a cycle and another scooter parked outside his clinic. Some altercation had taken place between them. Thereafter, the appellant brought an iron rod from his shop, Arun Kumar also brought a wooden rod and caused injuries to Yogesh Kumar and Ashok Kumar with their respective weapons in the manner described here-in-above. Immediately, Yogesh Kumar succumbed to his injuries at the spot. That means, the story of prosecution is very much probable and natural. The complainant is father of the deceased, whereas PW 7 is an injured/stamped eye witness of the incident. Their presence at the spot cannot possibly be doubted in any manner. The complainant put the police machinery into motion. He has duly corroborated the prosecution story consistent with the initial version contained in his statement (Ex. PA), which formed the basis of FIR (Ex. PA/3).

Not only that, Ashok Kumar (PW 7) is the injured/stamped eye witness and has supported the statement of the complainant on all vital aspects. They gave the vivid version as regards the actual participation of the appellant in the commission of crime is concerned. PW 6 and PW 7 unequivocally have deposed that the appellant gave blows, which landed on the head and other parts of the body of the deceased, in the same manner as narrated here-in-above. The next contention of learned counsel for the appellant that the prosecution has not examined Prem Kumar and Amit Kumar (PWs), which creates a doubt on its story, sans merit as well. According to the complainant, Amit Kumar (PW) came to the spot after the occurrence and he had removed Ashok Kumar in an injured condition to the Civil Hospital. He was not an eye witness of the incident. Moreover, the prosecution is not legally required to produce each and every witness of the occurrence in the Court, in view of Section 134 of the Indian Evidence Act, which postulates that no particular number of witnesses shall in any case be required for the proof of any fact in issue, specially when the prosecution has examined sufficient evidence on record to prove the guilt of the appellant. It is well known principle of law that reliance can be placed on the solitary statement of a witness if the court comes to the conclusion that the said statement is true and the version of the prosecution is correct. The Courts are required to consider the merit of the statement of a particular witness. They are not concerned with the number of witnesses examined by the prosecution. At the same time, it is the quality and not the quantity of the evidence, which is to be judged by the Court to place credence on the statement. Thus, the non-examination of Prem Kumar & Amit Kumar (PWs) has got no adverse bearing on the prosecution version, which is otherwise proved on the record by the indicated acceptable evidence.

Moreover, the ocular version of the prosecution finds further corroboration from the medical evidence of doctor (PW 1), who found the corresponding injuries on the dead body of the deceased. The defence version and the statement of DW 1 that a crowd of people caused injuries to the deceased and Ashok Kumar (PW 7) as they had molested the girls, does not seem to be plausible, is ridiculous and deserves to be outrightly rejected. The nature & seat of injuries and cause of death depicted in the statement of doctor (PW 1) and post mortem report (Ex. PA) are the clear indications to reveal that the appellant caused injuries with iron rod to the deceased in the manner as projected by the prosecution and not otherwise as claimed by the appellant. Not only that, PW 6 and PW 7 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. No motive could possibly be attributed to them as to why they would falsely implicate the appellant in this case. The learned counsel for appellant did not point out any legal infirmity in the prosecution evidence except certain minor discrepancies with regard to taking into possession of scooter and Khetri at the spot by the police and regarding entry in the DDR about the delivery of special report by C. Kashmir Singh (PW 2) and also the factum of non-recording of his statement, which, to me, are not sufficient to doubt the substratum of its case in so far as the criminal liability of principal culprit in causing the death of Yogesh Kumar is concerned, specially when the prosecution case is otherwise duly proved by the pointed ocular and medical evidence. Therefore, the contrary submissions of learned counsel for appellant "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances. Thus, the trial Court has rightly convicted the appellant and the impugned judgment of conviction and order of sentence of fine are liable to be maintained in the obtaining circumstances of the case.

Be that as it may, the last submissions of learned counsel that the occurrence suddenly originated on a trivial matter and the offence u/s. 304 Part-II, IPC is punishable with imprisonment of either description for a term which may extend to ten years, or with fine, or with both and since the appellant is a respectable doctor by profession and is a first offender, so, there are sufficient grounds and large scope of reduction in the matter of his sentence of imprisonment, have considerable force. It is not a matter of dispute that as per custody certificate, he (appellant) has already undergone the period of his substantive sentence of imprisonment of 2 years & 7 months out of the total awarded sentence of imprisonment of six years u/s. 304 Part-II, IPC. This factual position is acknowledged by the learned State counsel.

What cannot possibly be disputed here is that the appellant has already suffered the pangs and faced the agony of protracted trial & appeal for the last more than 13 years, he is a respectable doctor by profession and not a previous convict. He was a young person of 34 years of age at the time of incident. He is having a family of minor children to maintain. There is no history of his previous involvement in any other criminal case. The occurrence suddenly originated at the spur of the moment. He has already undergone the period of his substantive sentence of imprisonment of two years and seven months out of the total awarded sentence of imprisonment of six years. Therefore, keeping the indicated factors into focus, to my mind, it would be in the interest and justice would be sub-served if the sentence of imprisonment imposed on the appellant by the trial Court is reduced to 2 years and 7 months (already undergone by him). In the light of aforesaid reasons, the instant appeal is hereby dismissed on merit. The impugned judgment of conviction and order of sentence of fine are maintained. At the same time, the order of sentence of imprisonment is modified to the extent and in the manner depicted here-in-above.

Needless to mention, the necessary compliance and procedural consequences would naturally follow.