Gurdev Singh vs The State of Haryana

Sham Sunder, J.—This appeal is directed against the judgment of conviction dated 17.12.1996, and the order of sentence dated 19.12.1996, rendered by the Court of Addl. Sessions Judge, Hisar, vide which it convicted accused/appellant Gurdev Singh, for the offence, punishable u/s 307 of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment for a period of 7 years, and to pay a fine of Rs. 10,000/-, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year. It was further directed that out of the amount of fine, if deposited, a sum of Rs. 5,000/- be paid, as compensation, to Shakuntala Rani, injured.

The facts, in brief, are that on 6.8.1994, at about 5.30 AM, while Shakuntala Rani alongwith her son Sher Singh proceeded towards their dairy, situated in the area of Patel Nagar, Hisar, Gurdev Singh, accused, met her. She asked him, as to why, he quarreled with her tenant, Virender Singh, on the previous night. Gurdev Singh, accused, instead of giving any answer, to the said query of Shakuntla, attacked her with a katar (small kirpan), being carried by him, and inflicted injuries therewith, on her chest and abdomen, as a result whereof, she fell down. Even after she had fallen, the accused inflicted injuries with katar on her back and flank. Sher Singh, her son, who was a few paces behind her, came forward and rescued her. Sher Singh, raised alarm, which attracted her another son Arjun Singh, to the spot. Thereafter, the accused ran away from the spot with the weapon. She was taken to Civil Hospital, Hisar, in a vehicle, where she was medico-legally examined. Thereafter, she became unconscious.

On receipt of Ruqa Ex.PQ, from the Hospital, Ramesh Chand, ASI, went there. He moved an application, seeking opinion of the Doctor, as to whether, Shakuntla was fit to make statement. The Doctor opined that she was unfit to make statement. Thereafter, he recorded the statement of Sher Singh, Ex.PF, which was signed by him, and endorsement Ex.PF/2, was made by him, on the same. He sent the statement of Sher Singh, to the Police Station, on the basis whereof, the FIR was registered. Thereafter, Ramesh Chand, ASI, visited the spot, in the presence of Sher Singh and Arjun Singh. He lifted the blood stained earth, from the spot, which was converted into parcel, duly sealed with the seal, bearing impression ''PL'', and taking into possession, vide memo Ex.PG. Photographs of the spot, were got taken through Mia Singh, photographer. Thereafter, Ramesh Chand, ASI, took into possession, from the house of the complainant, one piece of Takhat, one chadar, one cover of mattress and banian of Sher Singh. All were converted into a parcel, duly sealed and taken into possession. Rough site plan of the place of occurrence was prepared. Thereafter, he again went to Civil Hospital, Hisar, but Shakuntala was not fit to make statement, as per the opinion of the Doctor. Even on 7.8.1994, she was not fit for making statement, as per the opinion of the Doctor. On 6.8.1994, Gurdev Singh, accused, was arrested. Gurdev Singh, accused, who also having an injury on his person. He was got medico-legally examined. On 7.8.1994, when the accused was in custody, he was interrogated, in the presence of Sher Singh and Arjun Singh, who made a disclosure statement, to the effect that he and concealed the katar, in a room of his dwelling house, and could get the same recovered. His disclosure statement Ex.PJ, was reduced into writing, which was signed by him, and attested by Sher Singh and Arjun Singh. The accused, then got recovered one katar Ex.PF. Rough sketch Ex.PK, of katar was prepared. The katar was converted into a parcel and taken into possession. Site plan of the place of recovery, was prepared. On 9.8.1994, opinion of the Doctor was received, according to which Shakuntala was fit to make statement. Thereafter, the statement of Shakuntla was recorded. One parcel containing the clothes of Shakuntla, was handed over to Ramesh Chand, ASI, which was taken into possession. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. On This appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge u/s 307 of IPC, was framed against him, to which he pleaded not guilty and claimed judicial trial.

The prosecution, in support of its case, examined Dr. Pawan Jain, Radiologist, General Hospital, Hisar (PW-1), Shamsher Singh, Draftsman, Hansi (PW-2), Khazan Chand, Statistical Assistant, General Hospital, Hisar (PW-3), Virender Singh, Constable (PW-4), Shakuntala Rani, injured (PW-5), Sher Singh, her son (PW-6), Jagdish Chander, ASI (PW-7), Mia Singh, Constable (PW-8), Jai Kishan, HC (PC-9), Ramesh Chand, ASI (PW-10), Dr. B.L. Bagri, Medical Officer, Civil Hospital, Hissar (PW-11), Dr. R.S. Dalal, Medical Officer, Civil Hospital, Hissar (PW-12), and Dr. Suresh Kumar, Medical Officer, General Hospital, Hissar (PW-13). Thereafter, the Public Prosecutor for the State, closed the evidence.

The statement of the accused u/s 313 Cr.P.C., was recorded, and he was put all die incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication, due to political reason. It was stated by him that he had to take money from the complainant and when he demanded the same, false case was planted against him. In his defence, he examined Ramesh Chand, ASI, and thereafter, closed the defence evidence.

After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated herein before. Feeling aggrieved, against the judgment of conviction and the order of sentence, rendered by the Trial Court, the instant appeal, was filed by the accused/appellant.

I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully.

8-A. The counsel for the appellant, at the very out-set, submitted that no offence, punishable u/s 307 of the IPC, was committed by the accused. He further contended that Dr. Pawan Jain, Radiologist, in clear-cut terms, stated that no bony injury was found, on the person of the injured. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Dr. Suresh Kumar, Medical Officer, Hisar, medico-legally examined Shakuntala on 6.8.1994, and found the following injuries, on her person:

In incised wound present on the inferior outer quadrant of right breast clear well defined margins. Fresh bleeding was present. Size 7 cm x 2 cm x 3 cm deep. Advised x-ray.

One incised wound was present on inferior outer quadrent of the left breast size 6cm x 2cm x 3cm deep. Advised x-ray.

One incised wound was present in the mid line about 10 cm below the Xifystemal angle muscle deep 5 x 1 cm in size clear well define margin. Fresh bleeding was present. Advised x-ray.

1 incised wound present on the left side of the abdomen about 15 cm away from umblicus transversely placed onentum coming out of the wound size 5 x 2 cm peritoneal deep.

One incised wound was present on the back about 3 cm from the ilaic crest 20 cm away from the mid line size 5 x 1cm muscle deep. Advised X-ray.

One incised wound present on right inferior scapular area size 5 x 1 cm muscle deep.

40-A. The probable duration of the injuries was 6 hours. The injuries were caused by sharp weapon. Dr. Suresh Kumar, declared injury No. 4, on the person of the injured, as dangerous to life, and the remaining injuries, were kept under observations for X-ray examination. The principle of law, laid down, in State of Maharashtra Vs. Balram Bama Patil and Others, was that to convict u/s 307 IPC, it is not necessary to show that the bodily injury capable of causing death was inflicted, but what the Court has to see, whether the act irrespective of its result, was done with the intention or knowledge and, under such circumstances, mentioned in this section. Attempt need not be an ultimate act. It is sufficient, if there is an intent, coupled with some overt-act, in execution thereof. Keeping this principle of law, in view, now let us see, whether the prosecution has been able, to prove that the accused committed an offence, punishable u/s 307 IPC.

8-B. The injuries described above, were on the vital parts of the body, of the injured. Injuries No. 1 and 2 were on the breast of the injured, whereas, injury No. 4 was on abdomen, of the injured. As stated above, all the injuries were incised wounds caused by katar, a sharp edged weapon. Since, the condition of the injured was precarious, and the bleeding was not stopping, she was operated upon by Dr. R.S. Dalai, PW-12.There was definite intention, on the part of the accused, to cause injuries, on the vital parts of the body, of the injured, with a sharp edged weapon, which could prove dangerous to her life. Had it been not the intention of the accused, he would have caused injuries on non-vital parts of the body of the injured. The mere fact that the Doctor did not find any bony injury, did not mean that injury No. 4 was not dangerous to life. But for timely medical aid, the injuries on the vital parts of the body, of the injured, could certainly prove fatal to her life. Under these circumstances, it could be very well said that the offence, punishable u/s 307 of the IPC, was constituted. The trial Court was, thus, right in recording the conviction, and awarding sentence, for the said offence to the accused. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.

It was next contended by the Counsel for the appellant, that the injuries, on the person of Gurdev Singh, accused, where not explained, by the prosecution, and, as such, it could be said that it suppressed the very genesis of the occurrence. During the course of cross-examination of Shakuntala (PW-5), no question, was put to her that injuries in the same occurrence were caused on the person of Gurdev Singh, accused. Even, during the course of cross-examination of Sher Singh (PW-6), an eye-witness to the occurrence, no suggestion was put to him that during the same occurrence, Gurdev Singh, accused, was caused injuries, either by Shakuntala or by him. Even, in his statement u/s 313 Cr.P.C. the accused did not take up the plea, that, in fact, the injuries, on his persons, were caused by Shakuntala, or her son Sher Singh and in self-defence, he caused injuries on the person of Shakuntala. The injuries, on the person of the accused, were required to be explained, by the prosecution witnesses, only if it had been proved, that the same were caused, on his person during the course of the same occurrence. Since, it was not proved, nor it was the plea of the accused, during the course of cross-examination of the prosecution witness or in statement u/s 313 Cr.P.C, that injury on his person, was caused in the same occurrence by the prosecution witnesses, the question of explanation thereof, did not at all arise. Dr. B.L. Bagri, Medical Officer (PW-11), no doubt, medico legally examined Gurdev Singh, accused, on 6.8.1994, at about 8.10 PM, and found the following injury, on his person:

There was an incise wound 3 x 1cm on the right side of abaomen. 3cm away and above the umbilicus fat exposed and was painful. Fresh bleeding was present.

9-A. During the course of cross-examination, it was stated by him that the injury, on the person of Gurdev Singh, may be possible on 6.8.1994 at 12 noon or after that. This evidence of the Doctor also clearly proved that the injury, on the person of Gurdev Singh, was not caused at 5.30 A.M. on 6.8.1994, when the occurrence took place, in which the injuries on the person of Shakuntala were caused, by the accused, with katar. There was, therefore, no suppression of genesis of the occurrence, by the prosecution. The trial Court was also right in holding so. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.

It was farther contended by the counsel for the appellant, that according to Dr. Suresh Kumar, Medical Officer, General Hospital, Hisar (PW-13), who medico-legally examined the injured, there were 6 injuries, on her person. He further contended that, under these circumstances, the medical evidence was not in consonance with the ocular evidence, and, as such, a doubt was cast on the prosecution story. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Shakuntala (PW-5), in the first instance, stated that the injuries, on her chest, and abdomen were caused by the accused, with his katar. Thereafter, she fell down. The accused then gave two more injuries, with katar, on her back, and her flank, after she had fallen. It may be stated here, that when a person, is attacked by an accused, armed with a deadly weapon, it is not possible for him/her to count the number of injuries, and the parts of the body, on which the same were caused by him. His or her first concern, in such circumstances, is always to save him/her.

In these circumstances, if, Shakuntala, could not correctly count the number of injuries, caused on her person, by the accused, that did not mean that her evidence was not trustworthy. Since, the injuries were caused, on the vital parts of her body, by the accused, her condition must have become very precarious, as a result whereof, it was not possible for her, to count the number of injuries. The mere fact that Shakuntala stated that she was given 4 injuries by the accused, whereas, the evidence of Dr. Suresh Kumar, proved that 6 injuries were found, on the person of Shakuntala, did not make the case of the prosecution, in any way doubtful. All the injuries were found during the medical examination immediately after the occurrence. Immediately after die occurrence, she was removed to the hospital, and there was, therefore, no time with anybody to create or fabricate injuries on her person. Due to this reason, the case of the prosecution, did not become doubtful. The submission of the Counsel for the Counsel for the appellant, being without merit, must fail, and the same stands rejected.

It was next contended by the Counsel for the appellant, that Arjan Singh, another son of the injured, who allegedly saw the occurrence, was not examined. He further contended that non-examination of this witness, clearly cast a doubt on the prosecution story. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Sher Singh, one of the sons of the injured, who also witnessed the occurrence, was examined by die prosecution as PW-6. It was for the public prosecutor to decide, as to how many witnesses, he wanted to examine to prove his case. It was not necessary, on the part of the Public Prosecutor, to examine each and every witnesses, cited in the list of witnesses. It was also not necessary for the Public Prosecutor, to multiply the number of witnesses, for proving a particular fact. Since, the Public Prosecutor for the State, thought that the evidence of the injured, and her son Sher Singh, who witnessed the occurrence, duly corroborated by the medical evidence, and circumstantial evidence, regarding the recovery of weapon of offence, was sufficient to prove the case of the prosecution the Public Prosecute did not examine Arjun Singh. Non-examination of this witness, therefore, did not cause any dent, in the prosecution story. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.

It was also contended by the Counsel for the appellant, that Virender Singh, tenant of the injured, with whom Gurdev Singh, accused, allegedly fought on the previous night of the occurrence, could be said to be a very material witness, but he was not examined by the prosecution, for the reasons best known to it, as a result whereof, its case became doubtful. It is, no doubt, true that, as per the statement of Shakuntala, she asked Gurdev Sing accused, as to why, he fought with her tenant Virender Singh, on the previous night, as a result whereof, he (Gurdev Singh), attacked her, with katar and caused injuries on her person. Virender Singh, therefore, could be said to be a material witness. However, he sided with the accused, during the course of the trial of the case. It was, under these circumstances, that the public Prosecutor, gave him up as won over, vide his statement dated 6.9.1997. It was, under these circumstances, that Virender Singh, prosecution witness, was not examined by the Public Prosecutor. The Public Prosecutor, is the master of the case. It is for him to decide, as to which witness he wanted to examine to prove his case. Since, Virender Singh, had been won over by the accused, the Public Prosecutor for the State, took a wise decision, to given him up, as he very well knew, that, in case, he was examined, he would instead of supporting the case of the prosecution, damage the same. In Roop Singh v. State of Punjab 1996(1) R.C.R. 146, it was held that no adverse inference, can be drawn, when the only independent witness, was given up by the prosecution, as won over, by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements, and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. Keeping in view the ratio of law, laid down in Roop Singh''s case (supra) no adverse inference, could be drawn, against the prosecution, on account of giving up of Virender Singh, as having been won over by die accused. Non-examination of Virender Singh, in view of the facts and circumstances of this case, referred to above, did not cast any doubt, on the prosecution story, in any manner. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.

Some other grounds, in the appeal, no doubt, were taken by the Counsel for the appellant, but the same were not pressed, at the time of arguments.

In view of the above discussion, it is held that the judgment of conviction, and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld.

For the reasons recorded, herein before, the appeal is dismissed. The judgment of conviction dated 17.12.1996, and the order of sentence dated 19.12.1996, are upheld. The bail bonds of the appellant are cancelled. The Chief Judicial Magistrate shall take necessary steps to comply with the judgment, with due promptitude.