Arun Kumar Alias Kalia vs State of H.P.

Bhawani Singh, J.—This appeal, by the accused, challenges the judgment of Additional Sessions Judge (2), Kangra in Sessions Case No. 6 of 1988 decided on August 30, 1988 thereby convicting the accused u/s 304 Part II, Indian Penal Code, and sentencing him to rigorous imprisonment for a period of four years and to pay a fine of rupees 5000/-. The fine, on realization, has been ordered to be paid to the legal heirs of the deceased.

The prosecution case is that on 23-2-1988 at about 10.00 or 10.30 P.M., the labourers of accused Arun Kumar were creating some noise. They were residing in the Jhugies of Arun Kumar situated behind the house of Nirmal Singh (PW-2). Nirmal Singh objected to their making the noise and had some quarrel with them. Next day, Arun Kumar came to the house of Nirmal Singh and when he was not found there, he went away after hurling abuses against him. In the evening, Nirmal Singh came to the house of the accused and asked him as to why he had abused him in his absence. On this, some quarrel took-place between them.

On 25-2-1988, at about 7.00 or 7.30 P.M., accused Arun Kumar and co-accused Bipan Kumar and Ashok Kumar came to the shop of Nirmal Singh. There Ashok Kumar stated that both Nirmal Singh and the accused were at fault and, in order to settle the differences, all of them should go to the shop of Dr. Roop Lal. Accordingly, Nirmal Singh (PW-2), Niranjan Singh (deceased), Shyam Lal (PW-4), Ashok Kumar, Bipan Kumar and the accused went to the shop of Dr. Roop Lal but he was not present in his shop. It was suggested by Ashok Kumar that they should go to the house of the accused for settling the dispute. While Ashok Kumar, Bipan Kumar, Niranjan Singh, Nirmal Singh, Shyam Lal and the accused were proceeding towards the house of the accused, the accused abused Nirmal Singh where upon quarrel flare-up between the parties. On this, the accused and Bipan Kumar said that Niranjan Singh and Nirmal Singh should be caught and killed and they should not be allowed to go. Accused Arun Kumar took out a ''Dang'' (Ext. Pl) from his house and inflicted a blow on the head of Niranjan Singh who fell down and became un-conscious. The accused ran away from the scene of occurrence thereafter.

Niranjan Singh was taken to the shop of Dr. Roop Lal at Damtal and then to Dr. Tilak at Pathankot in the same evening. However, the Doctors refused to admit him and, as a result thereof, Niranjan Singh was admitted in Dr. Sehgal''s Nursing Home at Pathankot at about 9.30 P.M. He was treated by Dr. Yash Paul Gandotra (PW-3) till 28-2-1988 who found a lacerated wound measuring 0.5 cm X 0.5 cm on the left parietal region of Niranjan Singh. Dr. Gandotra prepared the history sheet (Ex. PH). According to his observations, in addition to the treatment slip (Ex PI), on 28-2-1988, Niranjan Singh was referred to Post graduate Institute, Chandigarh, or Dayanand Medical College, Ludhiana for further treatment. According to Dr. Gandotra, the injury found on the head of Niranjan Singh could be caused by blunt object, like ''Dang'' (Ex PI) and could have been caused in four to five hours before the examination of Niranjan Singh at 9.30 P.M.

On 28-2-1988, Niranjan Singh was admitted at Christian Medical College, Ludhiana but he died there on 29-2-1988. Post Mortum examination was conducted by Dr. A.S. Sahni (PW-1) at Civil Dispensary, Ludhiana, on 1-3-1988 at about 3.00 P.M. and the report is (Ex. PA). According to Dr. A.S. Sahni, the cause of death of Niranjan Singh was due to shock and hemorrhage caused by injury to brain and skull and the injury was sufficient to cause his death in the ordinary course of nature. It was opined to be antimortem in nature and could have been caused 96 hours before the death of Naranjan Singh. Report (Ex PC) was lodged with the Police Post, Damtal, at about 10.45 P.M. by Nirmal Singh on 25-2-1988 after admitting Niranjan Singh in Sehgal''s Nursing Home at Pathankot. This report was recorded in Daily Diary at No. 22 by Head Constable Om Parkash (PW-8). After recording this report, Head Constable Om Parkash sent a copy of this report to Police Station, Indora, for the registration of a case. Accordingly, First Information Report (Ex PL) was registered u/s 307 read with Section 34 of the Indian Penal Code by A.S.I. Mehar Chand (PW-9) at about 11.30 P.M. A.S.I. Jagjivan Singh (PW-12) who was In charge of Police Post, Damtal, proceeded to the Nursing Home at Pathankot in the morning of 26-2-1988. Although the Police Officer wanted to record the statement of Niranjan Singh, but he could not do so since Dr. Gandotra said that Niranjan Singh was not fit to make the statement. It could not be recorded even on 27-2-1988 and thereafter he was shifted to Ludhiana. In such a situation, Jagjivan Singh (PW-12) visited the spot and prepared the site plan (Ex PN). Thereafter, the investigation was taken over by Inspector Mohinder Singh (PW-13) of Police Station, Indora. The statements of Nirmal Singh, Shyam Lal, Gopal Singh and Harjeet Singh were recorded. Accused was arrested on 28-2-1988 since, according to the prosecution, he was not traceable up to 27-2-1988. Other accused, namely, Ashok Kumar and Bipan Kumar were also arrested in this case. The police took into possession ''Dang'' (Ext. Pl) through memo (Ex PJ) witnessed by Harjit Singh (PW-5) and Gopal Singh (PW-11) who were stated to be present at the time of production and seizure of ''Dang'' (Ex. PI).

On completion of investigation, the accused were challaned for committing offence u/s 302 read with Section 34 of the Indian Penal Code, for committing the murder of Niranjan Singh by inflicting head injury with Dang (Ex. Pl) with intention to cause his death at the instance of co-accused Ashok and Bipan Kumar. Thus forming common intention with the accused.

In their explanation u/s 313 of the Code of Criminal Procedure, all the accused have denied the prosecution case. They have denied the quarrel between Nirmal Singh and the labourer of the accused as well as the one between Arun Kumar and Nirmal Singh. It has also been denied that in order to settle the same, they had gone to the house of Arun Kumar accused and that any blow was inflicted on the head of the deceased with the ''Dang'' by accused Arun Kumar. According to them, they came to know on 26-2-1988 that the deceased had sustained hurt by fall and that he was taking the treatment at Pathankot and Ludhiana. It is also their case that they were called to the Police Station, Indora, by Inspector Mohinder Singh on 27-2-1988 where they were told that they were being involved in a case for causing hurt. Accordingly, they were implicated falsely due to political rivalry at the instance of the group opposing accused Ashok Kumar who was Pradhan of the Gram Panchayat.

The trial ended in the aforesaid conviction and sentence of the accused Arun Kumar and the other two accused, namely, Bipan Kumar and Ashok Kumar were acquitted.

Sh. M.G. Chitkara, learned Counsel appearing for the accused had strenuously assailed the conviction of the accused, He contends that the prosecution has miserably failed to substantiate the charge against the accused and, despite complete lack of legal evidence on the record of this case, the trial Judge has drawn erroneous inferences against the accused in this case. It is pertinent to review the essential aspects of the prosecution case to examine these contentions of the learned Counsel for the accused. It is a fact that the deceased died of head injury, but the question is whether it was caused by the accused. In order to examine the truthfulness of the prosecution case, it is essential to notice that the accused is not at all known to the deceased. As a matter of fact, Niramal Singh (PW-2) is carrying on a motor-mechanic shop at Damtal near the shop of the deceased. Besides this, Shyam Lal (PW-4) had also been working with the deceased. It may be reasonable to accept that there was some quarrel between the labourer of the accused and Nirmal Singh, but difficult to comprehend that there was quarrel between Nirmal Singh and the accused and, that too, at the instance of the accused since it was Nirmal Singh who was aggrieved due to the noise by the labourer. So instead of the accused going to him, Nirmal Singh should have come and complained to the accused the behavior of his labor. This part of the prosecution version is thoroughly unusual and un-acceptable. Similarly, when no quarrel could take place between the accused and Nirmal Singh, there was no reason for them to have gone to the house of Dr. Roop Lal for settling the dispute when there was no dispute between them. Again, the most improbable part of the case comes when the prosecution has sought to prove that they agreed to come to the house of accused to settle the quarrel and before they could reach there, the quarrel again flare-up between them whereupon the accused Ashok Kumar and Bipan Kumar exhorted that the deceased and Nirmal Singh should be caught and killed and not allowed to go and that Arun Kumar took a '' Dang'' (Ex. P.-l) from his house and inflicted a blow on the head of the deceased. When they had not reached the house of the accused and the quarrel had started, it was not possible for the accused to have first come to his house, then picked up the Dang (Ex. P-l) and gone back to the place to hit the deceased with the same. it is not possible to appreciate this kind of prosecution case. It is rather impossible to conceive and receive this kind of situation. It makes the prosecution case doubtful and the version of the witnesses unworthy of credence.

There is no evidence pointing out the motive for hitting the deceased by the accused. They are not known to each other. There is no past enmity nor there any apparent cause for quarrel or hostility between them. It is not the case of the prosecution that the accused intended to hit Nirmal Singh but the blow fell on the deceased. In this view of the matter, it is hardly possible to attribute the infliction of blow to the accused. How the quarrel erupted and who were the parties to the same and how the Dang was procured and who inflicted it. It is not possible to believe all this in the absence of reliable evidence in this case. It is not necessary in view of the evidence on record and the circumstances of this case that the injury could only be caused by this Dang (Ex. P-l) and not by any other blunt weapon or by fall.

The prosecution has, in my opinion, miserably failed to investigate the real cause of the crime and in the absence of proper and convincing evidence, it is hazardous to conclude that the accused is responsible for the same. Moreso, the essential features of the prosecution case that the accused gave the blow at the exhortation and instigation of co-accused Bipan Kumar and Ashok Kumar has failed since they have been acquitted by the trial court and no appeal against their acquittal has been preferred by the State.

In view of my aforesaid assessment of evidence, it is unnecessary to enumerate the material contradictions which have appeared in the versions of the prosecution witnesses in this case. The examination of the trial court judgment discloses that the learned Judge has not correctly appreciated the prosecution case and its evidence. Conjectural inferences have been drawn even after noticing that there was no evidence on the record to show why the accused should have struck the blow on the head of the deceased nor there was evidence to show neither any previous quarrel between them nor any motive for the infliction of the head injury.

In view of the aforesaid examination of the matter, I am -A/ of the opinion that infliction of the injury, in the circumstances of the case, cannot be attributed to the accused and his conviction is quite erroneous and is liable to be set-aside. Accordingly, this appeal is allowed and the order of the trial Judge in convicting and sentencing the accused in this case is set-aside. He is acquitted of the charge. His bail bond and surety bond is hereby cancelled.