Krishan vs State of Haryana

Harphul Singh Brar, J.

Criminal Appeal No. 592DB of 1995 filed by Krishan convictappellant against the judgment/order dated 14.11.1995 of the learned Additional Sessions Judge, Sonepat vide which he convicted the appellant Krishan under Section 302 IPC and awarded him death sentence and has imposed a fine of Rs. 1 lac or in default of payment of fine, to undergo further R.I. for a period of 3 years, which, according to the learned judge, had to be rendered redundant in the event of the execution of death sentence: as well as the Murder Reference No. 8 of 1995 titled State of Haryana v. Krishan son of Ram Dia (appellant in Cr. A. 592DB of 1995) forwarded by the Additional Sessions Judge, Sonepat for confirmation of death sentence awarded to the convictappellant Krishan under Section 366 Cr.P.C. shall be decided by this single judgment.

The prosecution story is given by Chander Singh son of Risal Singh (PW7) who gave his statement before SI Ami Singh, Incharge PolicePost, Gohana Road, Sonepat on 23.10.1994. Chander Singh stated that he was working as Warder in Jail at Sonepat. On 23.10.1994, he was on duty at 6.00 a.m. to 12.00 noon at the Chak Imdadi (Centre Place) in the Jail. At about 10.45 a.m., undertrial Ranbir Son of Singh Ram, Jat, resident of Banker P.S. Narela (Delhi) was getting himself shaved from Ram Phal son of Girdhari a prisoner near barrack No. 3 of the prisoners in the said jail. Krishan prisoner son of Ram Dia, Jat, resident of Chidana, was watering the garden of the Jail having a kassi (spade) in his hand. He at once reached near Ranbir having kassi in his hand and all of a sudden, inflicted two kassi blows on the head of Ranbir while he was getting himself shaved. Ram Phal got aside at once. He (Chander Singh) saw all this while standing by the side of Kotha near the centreplace of the jail. On seeing this, he gave a call to Havildar Som Nath, his incharge on duty at Centre Place. He (Chander Singh) ran towards the spot. Som Nath Havildar also followed him. Krishan started running towards the Northern side vacant place towards the barracks while having kassi in his hand; he was furious. He and Havildar Som Nath chased him and nabbed him with great difficulty. They snatched kassi from him and put him inside barrack No. 4. They handed over the kassi to the Assistant Superintendent of Jail and narrated the occurrence to him. After arranging a vehicle, the Said Assistant Superintendent of Jail shifted Ranbir to the General Hospital, Sonepat.

Ranbir was medicolegally examined in General Hospital, Sonepat on 23.10.1994 itself at 11.00 a.m. by Dr. R.R. Mittal (PW1) and the following two injuries were noticed by the said doctor on his person vide medicolegal report, a copy of which is Ex PA :

(1) Incised wound in front of the left pinna extending upto mid line of vault of skull which was 12 x 1 cms x bone deep. Fresh bleeding was present and brain matter was coming out of the injury.

(2) Incised wound on the skull from its middle to prietotemporal region measuring 10 x 1 cm x bone deep with fresh bleeding. Brain matter was coming out of the injury. XRay was advised in respect of skull and surgical opinion was sought.

According to this doctor, both the aforesaid injuries were found to have been caused by a sharpedged weapon within a probable duration of six hours and both these injuries could be caused by means of a kassi. This doctor further sent ruqa Ex. PB to Incharge, Police Post, General Hospital, Sonepat at 12.00 noon.

On receipt of a telephonic message from Police Station City, Sonepat, S.I. Ami Singh (PW8) who was then posted as Incharge Police Post, Gohana Road, Sonepat, first went to General Hospital Sonepat, where he came to learn that Ranbir Singh deceased had since been referred to Medical College and Hospital, Rohtak and thereafter, he came to District Jail, Sonepat, where Chander Singh (PW7) made statement Ex PG with regard to the said incident at about 4.00 p.m. He forwarded the said statement Ex. PG of Chander Singh for the registration of a case under his endorsement Ex. PG/1 through Head Constable Dhara Singh and First Information Report No. 546 accordingly came to be recorded at P.S. City, Sonepat on the same day at 4.25 p.m. under Section 307 IPC by M.H.C. Subhash Chander (PW6) and a copy thereof is Ex. PG/2. S.I. Ami Singh further recorded the statements of Ram Phal, Som Nath and Ashok Kumar PWs under Section 161 Cr.P.C. Ashok Kumar also produced kassi Ex. P.1 before him which was taken into possession vide memo Ex. PC. Bloodstained earth was lifted from the place of occurrence vide memo Ex. PH. He further prepared rough site plan Ex. PI depicting the place of incident.

On the night intervening 26/27th of October, 1994, a V.T. Message was received from Medical College and Hospital, Rohtak vide Ex. PJ intimating that Ranbir Singh deceased had since died. On receipt of this message, S.I. Ami Singh reached there along with H.C. Dhara Singh and Constable Suresh Kumar and conducted inquest proceedings vide Ex. PK. He further sent the dead body for postmortem examination along with application Ex. PL.

Postmortem examination on the deadbody of Ranbir deceased was conducted by Dr. A.P. Sharma (PW10) in Civil Hospital, Rohtak and he noted two stitched wounds on his person corresponding to the medicolegal report. Cause of death, according to the doctor, was coma as a result of these injuries which were found to be antemortem and sufficient to cause death in the ordinary course. The duration between these injuries and the death, according to the doctor could be 3 to 7 days and between death and the postmortem examination, it could be 6 to 36 hours. Ex. PO is the correct copy of the postmortem report in this regard.

After conducting postmortem examination, the deadbody was handed over to the police along with a copy of the postmortem report, inquest papers duly signed and a vial containing the blood of the deceased with seal thereon. The packet containing the wearings of the deceased was produced before S.I. Ami Singh by H.C. Jaswant Singh and the same was taken into possession vide memo Ex. PM on 28.10.1994.

Accused Krishan, who was already lodged in District Jail, Sonepat as a convict in some other murdercase, was put under arrest by S.I. Ami Singh on 29.10.1994 S.I. Ami Singh further recorded statements of Neelam, Poonam and Vinod Kumar etc. PWs on 17.11.1994. On 20.11.1994, he got prepared the scaled site plan depicting the place of incident vide Ex. PD from the Draftsman Constable Rajesh Kumar P.W. 5. On 23.10.1994, S.I. Ami Singh had deposited the kassi Ex. P.1 duly sealed in a packet and another packet containing bloodstained earth with the Moharrir Malkhana Randhir Singh and on 16.11.1994 the said Head Constable Randhir Singh handed over the same duly intact to the said Constable Vinod Kumar for being delivered at the Forensic Science Laboratory and the said constable delivered the same there duly intact on the same day. Subsequently, report from FSL Madhuban vide Ex.PP was received to the effect that there was human blood on the kassi Ex. P.1 and the bloodstained earth lifted from the spot.

The appellant was tried by the Court of Sessions under section 302 IPC and was convicted and sentenced, as stated above. The accused did not plead guilty to the charge and claimed trial.

The prosecution in order to prove their case, examined as many as 10 witnesses. Affidavits Ex. PE of M.H.C. Randhir Singh, Ex. PF of Constable Vinod Kumar were tendered into evidence. The report Ex. PP of the FSL was also tendered into evidence. The prosecution further tendered into evidence Ex. PQ, the certified copy of the judgment dated 21.5.1987 rendered by Shri O.P. Gupta, the then Sessions Judge, Sonepat in Sessions Case No. 14 of 1986 arising out of FIR No. 44 dated 2.2.1996 P.S. Gohana vide which the accused was held guilty regarding some other murder incident and sentenced to undergo imprisonment for life, and Ex. PR, the certified copy of the judgment dated 3.2.1993 rendered by Shri V.P. Chaudhary, the then Additional Sessions Judge, Sonepat in Sessions Case No. 60 of 1992 arising out of FIR No. 153 dated 17.5.1991 P.S. Ganaur vide which the accused was convicted under section 302 IPC and was sentenced to undergo life imprisonment.

When examined under section 313 Cr.P.C after the closure of the prosecution evidence, the accused stated that the case against him was false and fabricated. He took the stand that on the date of the accident, he was on duty at the Sabzi Panja in Jail and came to the barrack on hearing the alarm of whistles issued by the Lambardar on duty and then came to know that Ranbir was lying injured. He further stated that on seeing him injured, he started dressing him and while he was still dressing him, he himself turned unconscious and regained consciousness in the hospital.

Learned counsel for the appellant submits that in fact, the occurrence has not been witnessed by the prosecution witnesses, P.W. 7 Chander Singh and P.W. 3 Ram Phal. The learned counsel has drawn our attention towards the statement of P.W. 7 Chander Singh wherein he has stated that he had made statement Ex. PG with regard to the incident before the police on the same day at about 12.30 p.m. But according to the prosecution, Chander Singh P.W. made a statement at 4.00 p.m. This statement of Chander according to the learned counsel, renders the entire prosecution version doubtful. To our mind, this discrepancy in the statement of Chander Singh is not fatal to the prosecution case. He has given the time at about 12.30 p.m. He has not stated that he saw it from his watch that the time was 12.30 p.m. It was just an approximate time which he gave just from his memory. There is no denying the fact that P.W. 7 Chander Singh had witnessed the occurrence with his own eyes. He has deposed at the trial that he was on duty from 6.00 a.m. to 12.00 p.m. in District Jail, Sonepat in the Chakkar. On that date at about 10.45 a.m., Ranbir was getting himself shaved from one Ram Phal undertrial, and he had seen the accused Krishan inflicting a kassi blow on the head of Ranbir deceased and he watched this occurrence from the roof of the room of the chakkar. So, this contradiction about the timings of reporting the matter to the police is not of much significance when Chander Singh P.W. has seen the accused inflicting the injuries on the head of the deceased himself.

Learned counsel for the appellant further contends that much credence should not be given to the evidence of Ram Phal (PW3) who himself was a convict undergoing life imprisonment and that several criminal cases were going against the deceased. In that case, might be that somebody else had caused injuries to the deceased. We are unable to agree with this contention of the learned counsel. Presence of Ram Phal (PW3) at the time of occurrence is not unnatural in any manner.

P.W. 3 Ram Phal has deposed at the trial that on 23.10.1994 at about 10.45 a.m., he was present in District Jail, Sonepat. He was a barber, and deceased Ranbir who was also lodged in the same jail, was getting himself shaved from him by sitting on the ground. He further deposed that the accused Krishan who was also undergoing life imprisonment, suddenly came with a kassi and without murmuring, he suddenly gave a kassi blow on the head of Ranbir. He (Ram Phal) was stunned when another kassi blow was also given by Krishan on his head, as a result of which Ranbir fell down and started bleeding profusely. It has never been contested by anyone at the trial that Ram Phal was a barber and it has also been established on the record that the deceased was being shaved by Ram Phal (PW3) at the time of occurrence and he saw the occurrence with his own eyes. His sworn testimony at the trial cannot be brushed aside merely because he was also a convict undergoing life imprisonment. Rather his presence in the jail at the time of occurrence is but natural. If the deceased was facing some other criminal trial, that does not mean that Ram Phal (PW3) did not see the occurrence with his own eyes. It is not shown to us from the evidence on record that Ram Phal had any inimical relations with the accused. Why then Ram Phal shall implicate the accused falsely ?

In our view, there is no delay in lodging the First Information also. The occurrence took place at 10.45 a.m. on 23.10.1994 in the jail premises and the FIR was lodged at about 4.00 p.m. on the same day. Some time must have been taken in securing the accused and then in getting the injured admitted to the hospital. It has come in the statement of P.W. 4 Ashok Kumar, Assistant Superintendent District Jail, Sonepat that a vehicle was arranged and then the injured was sent to the hospital. Later on, on receipt of a ruqa Ex.PP from General Hospital, Sonepat which was despatched at about 12.00 noon by Dr. R.R. Mittal (PW1), the I.O., S.I. Ami Singh (PW8) reached the hospital and came to know that Ranbir injured (now deceased) had since been referred to Medical College/Hospital, Rohtak. From the hospital, then S.I. Ami Singh came to the jail premises. So the time taken in getting the FIR registered is quite explainable. Moreover, it is not such a delay on the basis of which we can dislodge the sworn testimony of the eyewitnesses who had themselves seen the occurrence with their own eyes. It stands proved from the sworn testimony of Ram Phal (PW3) and Chander Singh (PW7), eye witnesses that the accused Krishan had dealt two kassi blows on the head of Ranbir on 23.10.1994 when he was getting himself shaved near barrack No. 3 of the District Jail, Sonepat by Ram Phal (PW3). Their evidence is further corroborated by the bloodstained kassi which was taken into possession vide memo Ex.PC. The medical evidence also corroborates the oral testimony of the eyewitnesses. Dr. R.R. Mittal (PW1) who had medico legally examined Ranbir, had found the one incised wound in front of the left pinna extending upto midline of vault of skull which was 12 x 1 cms. x bone deep. Fresh bleeding was present and brain matter was coming out of the injury. Another incised wound was found on the skull from its middle to peritotemporal region measuring 10 x 1 cms. x bone deep with fresh bleeding. The doctor opined that these injuries were found to have been caused by a sharpedged weapon within a probable duration of six hours and the same could be caused with kassi Ex P.1.

P.W. 10 Dr. A.P. Sharma who conducted the postmortem on the deadbody of Ranbir who expired on 26.10.1994, at 10.00 p.m. also found the same type of injuries on the head of the deceased, as described by Dr. R.R. Mittal (P.W. 1). In his opinion, the cause of death was coma as a result of head injuries which were antemortem in nature and were sufficient to cause death in the ordinary course of nature. Duration between these injuries and the death according to the doctor could be 3 to 7 days and between death and post mortem, it could be 6 to 36 hours.

Though to prove motive to kill the deceased is not necessary when the eyewitness account is available but still we find that there was motive on the part of the accused to kill the deceased. P.W. 2 Balwan has deposed at the trial that Ranbir was his real elder brother. Sister of Krishan accused present in the Court was married with Ranbir deceased. Smt. Beero was the said sister of the accused. Another sister of the accused namely Savitri was married to him. There was some land in the names of Smt. Beero and Smt. Savitri and the accused used to threaten that the same should be transferred to him. Thus, we find some evidence of motive on the part of the accused to kill the deceased also. Though as we have stated above, the motive pales into insignificance when eyewitness account is available.

In view of our discussion made above, we do not find any substance in any of the contentions raised by the learned senior counsel for the appellant. The appeal of the convict appellant Krishan is thus, dismissed.

On the question of sentence, the learned counsel for the appellant contends that extreme penalty of death should not be awarded to the convict appellant, as according to him, it was not one of those cases of brutal murder wherein an extreme penalty of death is called for. He has pleaded for a lenient view, as according to him, the convictappellant was a young man of about 30 years at the time of occurrence and he has a wife and two children to support.

The second contention of the learned counsel for the appellant is that the case be remanded back to the trial court for determining the quantum of sentence, as according to him, the trial court has not afforded an opportunity to the appellant of being heard on the question of sentence as envisaged under Section 235(2) of Criminal Procedure Code, 1973 (hereinafter called ''the Code'').

On the other hand, learned counsel for the State submits that the convictappellant does not deserve any leniency on the quantum of sentence awarded to him and that the learned Additional Sessions Judge has awarded death sentence to the appellant rightly in accordance with law and the factual position available on the record. The convictappellant, according to the State counsel has no respect for life of human being insofar as he has murdered his real brotherinlaw who was also lodged in the same jail as an undertrial. The learned State counsel has relied upon Exs. PQ and PR which are certified copies of judgments/orders dated 21.5.1987 and 2.2.1993/3.2.1993 passed by Shri O.P. Gupta, learned Sessions Judge, Sonepat and Shri V.P. Chaudhary, learned Additional Sessiosn Judge, Sonepat respectively, produced by the prosecution at the trial vide which Krishan, this very appellant, was convicted and sentenced to life imprisonment separately. The learned counsel contends vehemently that the case of the appellant falls under the category of one of those rarest of rare cases which attract death penalty. He thus submits that the death sentence awarded to the convictappellant by the learned Additional Sessions Judge, Sonepat vide his judgment/order dated 14.11.1995 be confirmed by this Hon''ble Court.

The learned State Counsel has further submitted that the trial Court had given adequate opportunity of being heard to the convictappellant on the question of sentence and thus, it was not necessary to remand the case to the learned trial Court to hear the convictappellant afresh on the question of sentence.

We have heard the learned counsel for the convictappellant as well as the State counsel.

Let us first deal with the contention of the learned counsel for the appellant that the appellant was not given an adequate opportunity of being heard on the question of sentence as contemplated under section 235(2) of the Code.

It has been specifically stated in the order of the learned Additional Sessions Judge, Sonepat dated 14.11.1995, while awarding the sentence of death to the convictappellant, that the accused krishan had made a statement before him to the effect that he did not wish to lead any evidence on the quantum of sentence. We would like to reproduce the relevant portion of the order of the learned Additional Sessions Judge to this effect, which reads as under :

"The accused made statement to the effect that he did not wish to lead any evidence on the quantum of sentence. He otherwise pleaded for a lenient view having regard to his young age of about 30 years and the fact that he had a family having his wife and two children to support. On being specifically questioned he admitted that he had been awarded life imprisonment twice in two separate murder cases by the Courts of Shri O.P. Gupta then Sessions Judge, Sonepat and Shri V.P. Chaudhary, then Additional Sessions Judge, Sonepat.

Hon''ble Supreme Court in Tarlok singh v. State of Punjab, 1977 Supreme Court Cases (Cri) 490, has held as under :

"It may well be that in many cases sending the case back to the Sessions Court may lead to more expense, delay and prejudice to the cause of justice. In such cases it may be more appropriate for the appellate Court to give an opportunity to the parties in terms of Section 235(2) to produce the materials they wish to adduce instead of going through the exercise of sending the case back to the trial Court. This may, in many cases, save time and help produce prompt justice."

Even at the stage of appeal after hearing the learned counsel for the parties, we had asked the learned counsel for the appellant as to whether he wanted an adjournment in order to adduce any evidence on the question of quantum of sentence to be awarded to the convictappellant " but the learned counsel for the appellant replied in the negative". The definite reply of the learned counsel for the appellant was that he did not want any adjournment on the question of quantum of sentence and that the Court may pronounce the sentence on the basis of the record already available in this case.

In these circumstances, we feel that an adequate opportunity of being heard on the question of sentence has been given to the appellant and, thus, it is not necessary to remand the case to the trial Court.

Now, the question remains as to whether the appellant be awarded the extreme penalty of death sentence in this case or not ?

Perusal of judgment/order dated 21.5.1987, Ex PQ, shows that Shri O.P. Gupta, the then learned Sessions Judge, Sonepat convicted Krishan, this very appellant, for the murder of Ramesh his cobrother''s brother and sentenced him to life imprisonment. Vide judgment/order dated 2.2.1993/3.2.1993, Ex. PR, this very appellant Krishan was convicted by Shri V.P. Chaudhary, the then learned Additional Sessions Judge, Sonepat, for the murder of Prem his co brother and he was sentenced to undergo life imprisonment. Perusal of judgment Ex. PR also reveals that the accused obtained parole while serving life imprisonment in the case adjudicated against him by Shri O.P. Gupta, the then learned Sessions Judge, Sonepat vide his judgment Ex. PQ, and during this parole period Krishan appellant committed the murder of his cobrother Prem aforesaid and now he has committed the murder of his brotherinlaw, Ranbir deceased, without any rhyme or reason. It clearly shows that the convictappellant has scant respect for human life and can be a source of danger to any human being inside or outside the jail. He gave two kassi blows one after the other on the head of the deceased, without any warning, who was emptyhanded and was busy in getting himself shaved.

Thus, we do not find any mitigating circumstances in awarding lesser sentence to the appellant. We, therefore confirm the death sentence awarded to him by the trial Court. However, the fine imposed by the trial Court is on a very higher side. We reduce it from rupees one lac to Rs. 5,000/. Consequently, this appeal fails and the murder reference stands accepted.