Dinesh Kumar vs State of Haryana

J. B. Garg, J.

Dinesh Kumar, resident of Gurukul School Colony Panchkula, District Ambala, has been convicted for offence under Section 302 of the Indian Penal Code by Shri M. S. Nagra, Sessions Judge, Ambala on 23.3.1992 and sentenced to undergo rigorous imprisonment for life and also required to pay a fine of Rs. 2,000/ and in default of payment of fine to further undergo rigorous imprisonment for a period of one year. Manohar Lal and Manju Sharma, the two companions of appellant who did not cause any injury were acquitted. The present appeal has been attempted by Dinesh Kumar.

Briefly the story of the prosecution is that Puran Chand and his sonin law, Chaman Lal, have installed a small ginning machine near Jinendra Gurukul, Old Panchkula, reside in its vicinity and they had been earning their livelihood by filling quilts. They also improvised a kind of bathroom by hanging a few gunny bags. This bathroom was disliked by Dinesh Kumar who used to sell the stitched quilts on rehri which was usually located on the road side near the premises of the complainant. At about 6 p.m. on 12.12.1990 Dinesh Kumar along with his father Manohar Lal and maternal uncle Manju Sharma started unfastening of gunny curtains of the aforesaid improvised bath room, Chaman Lal objected to it. Puran Chandcomplainant, the fatherinlaw of aforesaid Chaman Lal, his elder daughter Somi Rani and the younger one Bohti Devi and some passersby tried to pacify Dinesh Kumar and his companions but of no avail. Dinesh Kumar picked up a scissors from his rehri and gave a blow in the abdomen of Chaman Lal and as result thereof, bleeding started. Puran Chand, fatherinlaw, placed Manohar Lal in a rickshaw and started proceeding towards some hospital but his soninlaw, Chaman Lal, died on the way. Shri Anil Kumar, Inspector of Police Station Panchkula was patrolling in a Government vehicle and he recorded the statement of Puran Chand at 6.10 p.m. at Jinendra Gurukul, Old Panchkula. The special report reached the Ilaqa Magistrate, Ambala the same evening at 10.30 p.m. The inquest report was prepared by Anil Kumar, Inspector on 12.12.1990 itself. The postmortem examination was conducted on 13.12.1990 by Dr. R. S. Chauhan at Civil Hospital, Kalka. On 14.12.1990 Dinesh Kumar was arrested near the bus stand of Baldev Nagar, Ambala City. The scissors Exhibit P5 was recovered on 14.12.1990 at the instance of the accused by Shri Sagar Chand, Assistant Sub Inspector (PW6).

PW3 Dr. R. S. Chauhan, Medical Officer of Civil Hospital, Kalka conducted the postmortem on the dead body of Chaman Lal, aged 35 on 13.12.1990 and the injury found on his person was as under :

A transversely placed (as drawn in the postmortem report) shaped penitating wound of 5 cm x 2 cm x 6 cm was present on the emigastriun placed 4 cm perpendicularly above the upper end of the umbilicus. The margins of the wound were inverted and ragged. A loop of transverse colon along with the faecal matter was coming out through the wound, I along with the mesentry. The loop of transverse colon was punctured from two sides which were 4 cm. apart. The overlying peritonium was also pierced through the direction of the wound was from above downwards and slightly upwards.

He has also opined that this injury could be caused with scissors Exhibit P5. It is in the form of letter ''S'' in transverse manner. He has denied that this injury could be the result of fall on a broken glass bottle.

PW1 Bheem Sain, photographer of Panchkula, who took two photographs Exhibits P1 and P2 of the dead body.

PW2 Smt. Somi wife of Chaman Laldeceased, has described the entire occurrence and deposed that Manohar Lal and Manju, the two coaccused, caught hold of her husband Chaman Lal whereas Dinesh Kumar picked up a scissors from his nearby rehri and gave a thrusting blow in the abdomen of Chaman Lal. She has also described the motive that the accused had disliked improvised bath room which the complainant had set up with the help of gunny bags.

PW4 Puran Chand is the complainant/eye witness and has deposed that his daughter Bohti was married to Chaman Lal who had also been working along with him in filling the quilts and has specifically deposed that on the evening in question, Manohar Lal and Manju caught hold of Chaman Lal whereas Dinesh Kumar picked up a scissors and gave a blow in the abdomen of Chaman Lal. It was, thereafter, that when he was proceeding with Chaman Lalinjured breathed his last when he had started towards hospital and his statement Exhibit PF was recorded by the Police Inspector who met him on the way.

PW5 Uday Bhan, Draftsman, prepared the site plan Exhibit PE. PW6 is Sagar Chand, Assistant Sub Inspector, who was able to arrest Dinesh Kumar and Manohar Lal from Baldev Nagar, Ambala City, on 14.12.1990 and as a consequence of interrogation of Dinesh Kumar, the scissors Exhibit P5 was recovered and memo Exhibit PJ was prepared.

PW7 Anil Kumar, Inspector, Station House Officer of Panchkula, has described that at about 6 p.m. he came across Puran Chand and recorded his statement Exhibit PF and also made endorsement Exhibit PF/1 and it ultimately took the shape of the First Information Report Exhibit PF/2. He also prepared the inquest report Exhibit PA and dispatched the dead body for the purpose of postmortem examination. He also prepared the rough site plan Exhibit PN. He could not locate the accused soon after the occurrence despite his efforts.

The relevant part of the statement recorded under Section 313 of the Code of Criminal Procedure is reproduced as under :

"Chaman Lal and Somi Devi assured me that they will remove the gunny bag of the alleged new bathrooms, and installed at a separate place, but they did not comply with the assurance for twothree days then I started removing the gunny bags by removing the tied rops to my shed. On seeing this Chaman Lal was standing nearby came to me running, but there was brick in the way and he fell down after striking against the brick. There was a broken glass bottle on which his abdomen was struck down and in this manner his abdomen was pierced by the broken glass bottle. On seeing this I got frightened and ran away to my house along with my rehri."

DW1 Deep Chand has deposed that he had been running a tea stall near Jinendra Gurukul, Old Panchkula, and at about 5 or 6 p.m. on 12.12.1990 he noticed that Chaman Lal stumbled over a stone and lost balance and fell on a broken glass bottle resulting in the injury in the abdomen region. However, he never informed or reported to the police that Chaman Laldeceased received injury resulting in his death on account of a fall on a broken glass bottle.

The evidence of PW2 Smt. Somi wife of the deceased and PW4 Puran Chand, fatherinlaw of the deceased, who also lodged the First Information Report is consistent that in the afternoon in question the accused had ultimately disliked the improvised bathroom set up by the complainant adjacent to their residence though it was set up for the limited purpose of taking bath by the womenfolk because the distance between this improvised bathroom and the shed of the accused was scarcely one feet. However, there is nothing to show that it was premeditated or that Dinesh Kumarappellant was already armed. It appears that in the heat of the moment, the appellant picked up a scissors from his own rehri on which he had been selling quilts in the month of December and caused the injury which proved fatal. The learned counsel for the appellant has referred to Kulwant Singh v. The State of Punjab, All India Criminal Law Reporter 102 wherein a case of single spring knife blow it was held that it came in the ambit of Section 304 Part II of the Indian Penal Code. Besides this, attention has been invited to Hari Ram v. State of Haryana, All India Reporter 1983 Supreme Court 185, where the accused thrushed a blow of the jaili into the chest of the victim and when the jaili was withdrawn, he fell on the ground and died later.

Thus, after perusal of the oral as well as documentary evidence as a whole, we set aside the order of conviction passed by the trial Court under Section 302 of the Indian Penal Code and instead convict the appellant under Part II of Section 304 of the Indian Penal Code. The appellant shall undergo rigorous imprisonment for a period of seven years and quantum of fine of Rs. 2,000 imposed by the trial Court is hereby affirmed. In default of payment of fine, he shall undergo rigorous imprisonment for further period of six months. With these modifications, the appeal stands disposed of.