Hari Kishan vs State of Haryana

V.K. Bali, J.—Appellant Hari Kishan was tried with his wife Bhagwanti and son-in-law Pappu for having intentionally caused death of Dharminder Kumar, whereas his wife Bhagwanti was given the benefit of doubt and acquitted, his son-in-law was convicted u/s 302, IPC and sentenced to undergo imprisonment for life. Appellant was convicted u/s 34, IPC and also sentenced to undergo imprisonment for life. Learned counsel for the parties have informed us that Pappu, son-in-law of the appellant has not filed any appeal. Appellant has, however, filed the present appeal against the order of conviction and sentence dated September 4/13, 1995 recorded by Shri V. M. Jain, Sessions Judge Ambala.

The prosecution story was unfolded by Brijesh Kumar, PW 3 who got his statement recorded to ASI Om Parkash, PW 9 on February 26, 1994 at 9.45 p.m. The first informant stated that he was residing in House No. 804, Dina Ki Mand, Ambala Cantt and was earning his livelihood by selling eggs on a hand-cart at Tonga Stand, Ambala Cantt. House of appellant Hari Kishan was opposite to his house and house of his grandmother Lila Devi was on the back side of the house of appellant. On that day at about 8 p.m. he was talking with his cousin brother Dharmender Kumar son of Ramesh Kumar, resident of Housing Board Colony, Ambala Cantt. while standing at the door of his house. In the meanwhile, appellant, while under the influence of liquor came there and started hurling abuses in filthy language at them. At that, they both asked him to desist from hurling abuses because he was under the influence of liquor and that he should go to his house and sleep. In the meantime, Bhagwanti wife of the appellant and Pappu, son-in-law of the appellant also came to the spot and on their arrival, appellant started hurling more filthy abuses. On that, they had an altercation with him. Pappu, son-in-law of the appellant took out a knife from his pocket and inflicted two blows on his cousin brother, out of which first blow hit on the left side of his chest and the second blow fell on the left side of his mouth. As a result of these blows, his cousin brother Dharmender fell on the ground. He raised an alarm which attracted Smt. Sona Devi wife of Charan Dass, Mukesh Kumar son of Lalita Parshad and many other persons came to the spot and separated them. After that, Pappu along with the knife, Hari Kishan and his wife left the place of occurrence. The first informant along with Sat Pal took Dharmender to Civil Hospital, Ambala Cantt in a rickshaw where the doctor referred him to PGI, Chandigarh. When he was going to arrange for a vehicle to take the injured to PGI, Chandigarh, ASI Om Parkash met him at the gate of Civil Hospital.

The prosecution, with a view to bring home the offence against the appellant and his co-accused examined Dr. Shashi Tripathi, Medical Officer, Civil Hospital, Ambala Cantt. The witness stated that on February 26, 1994 when she was posted as Medical Officer, Civil Hospital, Ambala, she examined Dharmender Kumar at about 8 pm who had come in the hospital in an injured condition. She had sent information, Ex. PA to the SHO Police Post Regiment Bazar, Ambala Cantt. at 8.05 p.m. to do the needful and also informed that the patient had been referred to PGI, Chandigarh. On medical examination, she observed following injuries on his person :

"1. There was an incised wound present on the space between fourth and fifth rib about 2" to the left of the mid line, the depth of which could not be assessed. The injury was 2 x 1 cm in length. Eleptical in shape. Margins were fresh and clear cut.

There was an incised wound in the front of the left pinna 2 x 1 cm. It was muscle deep with little bleeding present.

She also deposed with regard to going through the post-mortem report pertaining to death of Dharmender Kumar. P.W. 8 Dr. K. S. Rana, Medical Officer, General Hospital, Chandigarh, stated that on February 28, 1994 at about 12.35 p.m. dead body of Dharmender Kumar was brought by Head Constable Sham Lal for post-mortem. He conducted post-mortem on the dead body at 2.10 p.m. and found following injuries :-

"External injuries :

1.9" horizontal stitched wound on left side of the chest extending from mid line to posterior axillary line.

2.3" horizontal stitched wound just below the nipple starting from mid line.

3.1" stitched wound on the left side of the chest.

4.1" stitched wound on left side of the chest, below injury No. 1.

5.1" stitched wound each in right and left upper arm.

one and half inches stitched wound on left angle of mandible.

INTERNAL INJURIES

Thoracotomy wound was present in 4th and 5th contal area.

Stitched wound one inch long was present in left ventricle."

In the opinion of the doctor, cause of death was shock and haemorrhage due to injury to left ventricle which was sufficient to cause death in natural course of events. All the injuries were ante-mortem in nature. The time that elapsed between injuries and death was within 48 hours and between death and post-mortem within 24 hours.

P.W. 2 Udey Bhan, Draftsman, District Courts, Ambala stated that on March 15, 1994 he prepared the scaled site plan Ex. PD at the pointing out of Brijesh Kumar. The first informant, Brijesh Kumar, who appeared as PW 3, deposed in tune with the FIR lodged by him. He, however, made a significant improvement when he stated before the Court that when there was exchange of hot words between the appellant and his co-accused and then appellant Hari Kihan had also his son-in-law Pappu to take out the knife from his pocket and to give knife blows to Dharmender and kill him. On hearing so, Pappu took out the knife from the pocket of his pant and inflicted a knife blow on the person of Dharmender Kumar on the left side of his chest and another blow which landed on the face of Dharmender Kumar. On receipt of the injuries, Dharmender fell down. He was confronted with his statement made before the police, i.e., FIR wherein he had not so stated. P.W. 4 Constable Sukhi Ram only stated that DDR No. 20 Ex. PJ was prepared by him on February 26, 1994. Sona Devi wife of Charan Dass was examined as PW 5. She supported the prosecution version and in tune with the statement made by PW 3 deposed that the appellant had asked Pappu to take out the knife and kill Dharmender Kumar. On bearing so, Pappu gave two knife blows within her sight on the left side of chest and left side of jaw in the face of Dharmender. Inasmuch as she also did not state so before the police when her statement was recorded u/s 161, Cr.P.C. she was confronted with her statement made before the police wherein it was not recorded that the appellant had asked his co-accused Pappu to take out the knife and cause injuries to Dharmender. P.W. 6 Anaro Devi stated that nine months prior, she came out from her house to take water at the water tap. Bhagwanti accused, since acquitted, came out from her house giving abuses to her that her pigs were creating nuisance in her house and that she should keep them in proper custody. Thereupon, she told her that she was not the only person who had kept the pigs and that if the pigs were creating problems in her house, she might better close her house. There upon she told the witness that she would come to know the result after five six days. After 5-6 days of the said talks, her nephew Dharmender was murdered. P.W. 7 Kesar Pahalwan only deposed with regard to arrest of accused Pappu. ASI Om Parkash, P.W. 9 detailed the steps that he had taken while investigating the case.

When examined under-section 313, Cr.P.C., appellant, besides denying the incriminating material put to him, stated that he was innocent. In his defence, he examined D.W. 1 Ram Swaroop Sharma, Assistant Garrison Engineer. He stated that he had brought the summoned record, i.e., the attendance register and the log sheet. One Hari Kishan was working as Master Helper to the Lineman on Shift duty in their office in the month of February, 1994. As per the attendance register, he was present on February 25, 1994 on his shift duty from 4 pm to 12 mid night and thereafter his presence was marked for February 26, 1994 from 12 mid night to 8 am. Thereafter, his duty was over on that day. He was to come for duty on February 27, 1994 on shift duty from 4 pm to 12 mid night but he did not report for duty on that day.

On the evidence that has been detailed above, learned counsel for the appellant, Mr. B. R. Gupta, Advocate, vehemently contends that even if the prosecution version, as given in the FIR is believed in toto, the appellant cannot be pinned down for having committed any offence whatsoever. Inasmuch as no offence was disclosed against the appellant from reading of the FIR, the prosecution, intentionally and deliberately improved upon its version at the time of trial and the same, being an after thought simply with a view to involve the appellant, should be rejected, further contends the learned counsel.

Mr. Varinder Singh, learned Deputy Advocate General, Haryana, initially endeavoured to support the order of conviction and sentence rendered by the learned Sessions Judge but during the course of arguments and in the impressive array of facts, as shall be discussed in the later part of the judgment, had to admit that if the involvement of the appellant, as sought to be established by improving the case at the time of trial, is considered to be an after thought, then the appellant cannot possibly be held guilty for committing any crime.

We have heard learned counsel for the parties and gone through the records of the case. We are of the clear view that the contentions raised by learned counsel for the appellant have considerable merit and, therefore, this appeal deserves to be allowed. An important aspect of the prosecution case that the appellant had exhorted his co-accused Pappu to take the knife out of his pocket and give blows with it, we are convinced, could not possibly be missed out by the first informant while lodging the FIR. It may be recalled that the occurrence had taken place on February 26, 1994 at 8 p.m. whereas the FIR came to be lodged on the same day at 9.45 p.m. In an hour and forty five minutes perhaps, the first informant had hardly any time for consultations and, thus, came up with a true version wherein no role was ascribed to the appellant like that he had exhorted his co-accused Pappu to take out the knife from his pocket and inflict injuries with the same. Realising later that even if the FIR is believed in toto, the appellant and his wife cannot possibly be convicted, he improved upon the prosecution version in its material details. That apart, there is an intrinsic fallacy in the statement made by the first informant before the Court with regard to involvement of the appellant, i.e., in exhorting his co-accused Pappu to take out the knife from his pocket and inflict injuries with the same inasmuch as, as per the prosecution version itself, the appellant had come from out side and had not even entered his house when the wordy dual had started between him, first informant and his cousin Dharmender. He was under the influence of liquor and abuses were hurled by him to the first informant and his wife and son-in-law were later attracted at the place of occurrence. Concededly, they had emerged from the house. Immediately before the occurrence, therefore, the appellant was not in the company of his co-accused, i.e., his wife and son-in-law Pappu. How could the appellant know that Pappu was keeping a kinfe in his pocket ? In our view, he had no occasion to come to know that his son-in-law was keeping a knife in his pocket and if that be so, there was no question for the appellant to exhort his co-accused to take out the knife from his pocket and give injuries to Dharmender Kumar. A crude attempt has certainly been made in this case to involve the appellant in commission of crime. In so far as deposition made by P.W. 5 Sona Devi is concerned, as per the first information report, she was attracted at the scene of occurrence after Dharmender had fallen on the ground. On an alarm raised by the first informant. Sona Devi and Mukesh Kumar were attracted at the scene of occurrence. If that be so, when Sona Devi reached the place of occurrence, Pappu had already inflicted knife blows to Dharmender. As per the first information report, thus, she could not have seen the appellant exhorting his co-accused Pappu to take out the knife from his pocket and cause injuries to Dharmender. Sona Devi was related to the deceased. Dharmender deceased was son of younger brother of her husband. She is an interested witness and it appears to us only because of relationship with the deceased, she had deposed with regard to the occurrence which she had not actually witnessed. Further, it will be seen from her statement that she deposed as if she was present at the scene of occurrence from the very beginning. As per her deposition, she had seen accused Bhagwanti and the appellant grappling with complainant Brijesh Kumar. In the meantime, accused Pappu came on the scene and on seeing Pappu, Hari Kishan told him to take out the knife from his pocket and kill Dharmender. This statement made by her is certainly not in tune with the statement made by the first information while lodging the FIR. Even in the statement made before the Court, P.W. 3 Brijesh Kumar clearly stated that Bhagwanti and Pappu had come together after hearing a noise whereas, as per statement made by P.W. 5 Sona Devi, Bhagwanti had come first and Pappu had come later in point of time. Even this witness was duly confronted with her statement recorded u/s 161, Cr.P.C. wherein she had not stated that the appellant had asked his co-accused Pappu to take out the knife from his pocket and cause injuries to Dharmender Kumar. Mukesh, an independent witness in this case has not been examined.

In totality of the facts and circumstances of the case, this Court is of the view that the prosecution, in its endeavour to bring home the offence against the appellant, changed its version and attributed a crucial part to the appellant at the time when evidence was recorded as an afterthought simply with a view to involve him in the crime. As mentioned above, there was no occasion for the appellant to come to know that his son-in-law Pappu had a knife in his pocket. There was no previous background between the parties. They had not come together and in fact, as referred to above, appellant in a drunken condition, had come from out side and while going to his house, an altercation had taken place between him, the first informant and his cousin brother Dharmender. In so far as Pappu and Bhagwanti are concerned, they were attracted at the scene of occurrence on hearing the noise.

In view of what has been said above, we allow this appeal. Consequently, the order of conviction and sentence recorded against the appellant by learned Sessions Judge, Ambala, is set aside.

Appeal allowed