Mukesh Busse vs State of Haryana

Sat Pal, J.

This appeal is directed against the judgment dated 10.4.1995 passed by the learned Sessions Judge, Rohtak. Vide this judgment learned Sessions Judge convicted the appellant for the offences Under section 302/307 of Indian Penal Code and under section 25 of the Arms Act. Under section 302 of Indian Penal Code, appellant has been sentenced to undergo RI for life and a fine of Rs. 250/. Under section 307 Indian Penal Code, the appellant has been sentenced to undergo RI for ten years and fine of Rs. 250/ and under section 25 of the Arms Act, he has been sentenced to undergo RI for six months. In default of payment of fine, the appellant has been ordered to undergo further RI for three months each. The learned Sessions Judge has also ordered that all the sentences shall run concurrently.

A case under section 302/324/148/149 Indian Penal Code was registered at Police Station Berri on 16.3.1992 on the basis of the statement of Ashok Kumar (PW9). On 16.3.1992 at about 1.20 a.m. PW9 Ashok Kumar (injured) and Mahinder Singh who had succumbed to the injuries on the way, were brought to Medical College Hospital, Rohtak. PW9 Ashok Kumar was declared fit to make a statement on 16.3.1992 at 12.55 p.m. by PW3 Dr. Rajnesh. The statement Ex. PG of Ashok Kumar was recorded at 2.00 p.m. on 16.3.1992 in the Medical College Hospital, Rohtak by SI Ashok Kumar SHO, Police Station, Berri (PW14). The special report reached Illaqa Magistrate at 5.45 p.m. on 16.3.1992.

In his statement recorded before the Police, Ashok Kumar (PW9) stated that he was resident of village Majra Dubaldhan and he was studying in 10th class. He further stated that on 15.3.1992 at about 9.00 p.m., he along with Mahinder Singh (deceased) and Manoj resident of the same village, had gone to the Ghair of Dharminder @ Kala to watch the video show which was being run there. He stated that about 30/35 children of his village and some boys of other village were also sitting there and the show finished at about 10.30/11.00 p.m. Thereafter, the film viewers started going for their respective houses. He stated that Sat Pal, Manoj residents of his village were little ahead of them and he and Mahinder were following them. At that time 6/7 boys of other village who were following them reached near the shop of Chiman and those boys called them bad names. At this, he and Mahinder stopped and they asked those boys that it was not better to use filthy language in the village. At this those boys felt agitated and said "Are you Thekedar (contractor) of the village." Then those boys exchanged blows with them and one of them took out a knife and gave a blow with it to Mahinder Singh. On receiving the knife blow, Mahinder Singh cried and he (Ashok Kumar) caught hold of the assailant boy. Then that boy gave him a knife blow on his left flank. Then they raised alarm saying "Mardia" (killed). Manoj and Satpal who were walking ahead returned and saved them from the assailants. Then the assailants fled away. He further stated that they had seen the assailants in the moonlit night and though he did not know their names and addresses, he could identify them if they were brought before him. He also stated that all those boys were of his age group. He further stated that Manoj informed at their houses and thereafter Narinder Singh, Master Raghbir Singh and other members of the family carried them to the Medical College and Hospital, Rohtak in Maruti Van for treatment. He further stated that his companion Mahinder Singh had succumbed to the injuries on the way and he was admitted in Ward No. 5 for treatment. He also stated that he was in senses and till then his check up and xray had been done. SI Ashok Kumar (PW14) made the endorsement and sent the ruqqa to the police station for registration of the case.

PW14 SI Ashok Kumar prepared the inquest report Ex. PL of the dead body of Mahinder Singh. Thereafter, the dead body was entrusted to HC Mahinder Singh and Constable Mukesh for post mortem examination. PW14 SI Ashok Kumar then went to the place of occurrence and prepared rough site plan Ex. PV with marginal notes. He lifted bloodstained earth from the place of occurrence with was taken into possession vide memo Ex. PQ. Thereafter, he recorded the statements of the PWs.

PW1 Dr. Mahavir Singh medicolegally examined Ashok Kumar on 16.3.1992 at 1.20 a.m. and he found the following injuries :

"There was one stab wound of size 3 x 1 cm on back of left infra scapular region i.e. 8 cm lateral to mid line. Fresh bleeding and air was coming through the wound with respiration. I advised surgeon''s opinion, xray chest and xray abdomen."

In the opinion of PW1 Dr. Mahavir Singh, the injury on the person of Ashok Kumar could be caused by the knife Ex. P1. On receipt of the report of the surgeon PW1 Dr. Mahavir Singh opined that the injury on the person of Ashok Kumar was dangerous to life.

PW7 Dr. R.K. Chaudhary conducted post mortem examination on the dead body of Mahinder Singh and found the following injuries :

"3.75 cm x 1.75 cm eliptical obliquely placed sharp wound over back of lower part of left side chest, 7 cm on left to the mid line and 13 cm below inferior angle of scapula. Right end of wound was higher placed and clean cut while left end of the wound was lower placed and wide and blunt.

3 cm x 1 cm abrasion over back of right elbow.

2 cm x 1.5 cm abrasion lateral aspect of right hip 1.50 cm below and behind right anterior superior illiac spine. There was cut in the shirt, T shirt and banian corresponding to injury No. 1. On dissection of injury No. 1, the track was cutting through paraspinal muscles, then cutting through lower part of 9th rib and 9th I.C.S. The track was going horizontally, medially and anteriorly cutting the lower border of left lung and then peneterating the posterior mediastinum just anterior to vertebral column causing small cutting of descending aorta leading on to massive haematoma of posterior mediastinum and haemothorax left side."

In the opinion of Doctor R.K. Chaudhary, cause of death of deceased Mahinder Singh was shock and haemorrhage, due to injuries mentioned herein above. He further opined that the injuries were ante mortem and were sufficient to cause death in the ordinary course of nature. He also opined that injury No. 1 was fatal individually.

On 5.4.1992 PW11 Manphul Singh Sarpanch alongwith Ghasi Ram, Patwari produced appellant Mukesh before PW14 SI Ashok Kumar. Manphul Singh told SI Ashok Kumar that at 5.30 a.m. on 5.4.1992 itself, appellant Mukesh had approached him at his residence when he was enjoying huqqa with Ghasi Ram and told him that he had committed a mistake as he had given knife blow on deceased Mahinder Singh and since he was the Sarpanch, he should get the matter patched up with the parents of the deceased or he should produce him (Mukesh) before the police. Thereafter PW14 arrested appellant Mukesh after interrogating him. He also arrested six other accused on 5.4.1992 itself from village of appellantaccused namely Siwana. On 5.4.1992 itself, the police produced application Ex. PC before Sh. D.S. Sheoran, SDJM, Gohana (PW2) along with accused Mukesh for getting the test identification parade and for remanding him to judicial custody. PW2 recorded the statement Ex. PC/1 of accused Mukesh. In this statement accused Mukesh refused to join the test identification parade, though he did not give any reason for refusing to participate in test identification parade. Thereafter at the request of the police, PW2 granted police remand of the accused.

On 7.4.1992 PW14 further interrogated appellant Mukesh and in the presence of PW13 Satbir Singh and Shish Ram, appellant made disclosure statement Ex. PT and pursuant to the said disclosure statement, the appellant got recovered knife Ex. P1 which was taken into possession vide memo Ex. PT/2. On return to the police station, PW14 deposited the case property with the MHC. After completion of the investigation the appellant was challaned.

In support of its case, the prosecution examined 14 witnesses. PW1 Dr. Mahavir Singh, medicolegally examined Ashok Kumar on 16.3.1992 at 1.20 a.m. PW2 Sh. D.S. Sheoran, SDJM, Jhajjar recorded the statement of appellant Mukesh with regard to his refusal to participate in the identification parade. PW3 Dr. Rajnesh gave the opinion on 16.3.1992 to the effect that injured Ashok Kumar (PW9) was in a fit condition to give the statement. PW4 Dr. A.V. Shaunik operated upon PW9 Ashok Kumar on 17.3.1992 at 2.15 a.m. According to findings of PW4, the injury on the person of Ashok Kumar was dangerous to life. PW5 Chander Parkash prepared the scaled site plan on 12.5.1992. PW6 ASI Banwari Lal recorded the FIR. PW7 Dr. R.K. Chaudhary conducted post mortem examination on the dead body of Mahinder Singh on 16.3.1992. PW8 Dr. Sanjeev Kaushal radiologically examined PW9 Ashok Kumar on the night intervening 15/16.3.1992. PW9 Ashok Kumar is injured eye witness. PW10 Sat Pal is the other eye witness. PW11 Manphul Singh was the Sarpanch of village Majra Dubaldhan before whom appellant Mukesh had made extra judicial confession on 5.4.1992 and he along with Ghasi Ram Patwari had produced appellant before the police. PW12 Manoj is the other eye witness. PW13 Satbir Singh is the person who accompanied Manoj to village Siwana on 3.4.1992 and on the way PW12 recognized appellant Mukesh. PW14 SI Ashok Kumar is the Investigating Officer.

In his statement recorded under section 313 Criminal Procedure Code, the appellant pleaded innocence. In reply to question No. 13, he stated that he and other accused were illegally detained by the police prior to 3.4.1992 and, thereafter they were shown to the witnesses. It was in these circumstances that he had refused to join the identification parade and the recovery of knife had also been planted upon him.

Relying on the evidence of the prosecution, the appellant was convicted and sentenced as stated earlier.

Mrs. Vandana Malhotra, learned counsel appearing on behalf of the appellant submitted that the case of the prosecution was based on refusal of the appellant to participate in the identification parade, alleged extra judicial confession made by the appellant before PW Manphul Singh and Ghasi Ram and alleged recovery of the weapon at the instance of the appellant.

With regard to refusal of appellant to participate in the identification parade, the learned counsel submitted that the appellant had in fact been illegally detained by the police prior to 3.4.1992 and was shown to the witnesses before making his formal arrest on 5.4.1992. She submitted that it was in these circumstances that the appellant refused to participate in the identification parade. In support of this submission, the learned counsel placed reliance on a Single Bench judgment of this Court in Jaswinder Singh v. State of Punjab, 1996(3) RCR 824 and a Division Bench judgment of Delhi High Court in Lila Ram v. State, 1990(3) RCR 620.

As regards the alleged extra judicial confession made by the appellant, the learned counsel submitted that PW11 Manphul Singh, at the relevant time was Sarpanch of village Majra Dubaldhan where the parents of the deceased and of the injured were residing and he was not connected with village Siwana where the appellant and other coaccused were residing. She submitted that the question of making extra judicial confession by the appellant before PW11 Manphul Singh did not arise as PW11 was not even known to the appellant. She, therefore, contended that the alleged extra judicial confession made by the appellant could not be relied upon for convicting the appellant. In support of her submission learned counsel placed reliance on a judgment of the Supreme Court in Balbir Singh v. State of Punjab, 1996(3) RCR 515 and two Division Bench judgments of this Court in State of Haryana v. Jagbir Singh, 1996(1) RCR 735 and Yakub and another v. State of Haryana, 1996(3) RCR 474.

As regards the recovery of weapon, the learned counsel submitted that as per report of the Serologist, the said weapon (knife Ex, P1) was not found stained with human blood. She further submitted that both the attesting witnesses with regard to the recovery of knife Ex. P1 were closely related to the deceased and were interested witnesses. She, therefore, contended that the alleged recovery of knife at the instance of the appellant could not be relied upon. The learned counsel further submitted that the wound of 3 cms found on the dead body of deceased Mahinder Singh could not be caused by the knife. She also submitted that keeping in view the injuries found on deceased Mahinder Singh and on injured Ashok Kumar, the possibility of two assailants could not be ruled out. In support of this submission, she referred to page 256 of Modi''s Medical Jurisprudence 21st Edition. She contended that in view of these facts, reasonable doubt is created in the story of the prosecution and as such the appellant should be given the benefit of doubt. In support of this submission, the learned counsel placed reliance on a judgment of the Supreme Court in Divakar Neel Kantha Hegde v. State of Karnataka, 1996(3) RCR 418.

Lastly in the alternative, the learned counsel submitted that in any case the conviction of the appellant under section 302 Indian Penal Code was not sustainable and at the most the appellant could be convicted for the offence Under Section 304 PartI as there was no enmity between the appellant and the deceased and the injured nor it has been proved that there was any intention on the part of the appellant to kill deceased Mahinder Singh. In support of this submission, the learned counsel placed reliance on two Division Bench judgment of this Court in Bhambar v. State of Punjab, 1995(3) RCR 420, Buta Singh v. State of Punjab, 1996(1) RCR 261 and a Single Bench judgment of this Court in Sadhu Singh v. State of Punjab, 1996(1) RCR 444.

Mr. Sanghi, learned Deputy Advocate General appearing on behalf of the State submitted that in his statement recorded by PW2 Sh. D.S. Sheoran, SDJM, Gohana, the appellant had not given any reason for his refusal to participate in the identification parade and he did not contend before the learned Magistrate that he was shown to the witnesses earlier. He further submitted that it cannot be disputed that the occurrence happened on a full moonlit night and the injured PW9 Ashok Kumar in his statement before the police had clearly stated that he could recognize the assailants as he had seen them in the full moonlit night. Learned Deputy Advocate General contended that keeping in view the refusal of the appellant to participate in the identification parade, coupled with the recovery of the knife Ex. P1 at his instance, the conviction of the appellant could not be assailed. The learned counsel also submitted that PW9 Ashok Kumar who was himself injured, would not involve wrong persons as no enmity is alleged between PW9 and the accused. In support of this submission, the learned counsel placed reliance on a judgment of the Supreme Court in Mohinder Singh v. State of Haryana, 1996(3) RCR 670 and a Single Bench judgment of Delhi High Court in Adesh Kumar and others v. The State, 1986(1) RCR 344.

As regards the extra judicial confession made by the appellant, the learned counsel admitted that this was weak piece of evidence. He, however, contended that since in the present case, the extra judicial confession has been made before the Sarpanch, it can be relied upon.

With regard to the recovery of knife, the learned counsel submitted that the recovery of knife Ex. P1 at the instance of the appellant had been proved by the investigating officer as well as by one of the attesting witnesses and as such this evidence could not be discarded. He also submitted that PW1 Dr. Mahavir Singh and PW7 Dr. R.K. Chaudhary both had opined that the injuries inflicted on deceased Mahinder Singh and PW9 Ashok Kumar could have been caused by knife Ex. P1.

As regards the opinion contained in Modi''s book with regard to the injuries by knife, the learned Deputy Advocate General submitted that opinion of the said author was not put to the doctors concerned, who were examined by the prosecution and as such this opinion could not be relied upon. In support of this submission, the learned counsel placed reliance on a judgment of the Supreme Court in Kusa and others v. State of Orissa, AIR 1980 SC 559.

With regard to the argument of the learned counsel of the appellant that the appellant at the most could be convicted under section 304 Part I and not under section 302 Indian Penal Code, the learned Deputy Advocate General submitted that a person could be convicted under section 302 Indian Penal Code, even if he had inflicted a single injury on the vital part of the body. In support of this submission the learned counsel placed reliance on a Division Bench judgment of this Court in Crl. A. 412 DB of 1994, Mahinder Singh v. State of Haryana, decided on 23.5.1997.

We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record. It is not disputed that the case of the prosecution is based on extra judicial confession made by the appellant before PW11 Manphul Singh and Ghasi Ram, refusal of the appellant to participate in the identification parade and recovery of knife Ex. P1 at the instance of the appellant.

As regard the extra judicial confession, the case of the prosecution is that on 5.4.1992 at about 5.30 a.m., the appellant came to the residence of PW11 Manphul Singh where he was enjoying huqqa with Ghasi Ram Patwari. PW11 in his statement has stated that the appellant told him that he had committed a mistake having given a knife blow on deceased Mahinder Singh and since he (Manphul Singh) was the Sarpanch, having influence in the area, he should produce him (Mukesh appellant) before the police or to get the matter patched up with the parents of the deceased. PW11 has not stated anywhere that the appellant was having any special relation with him. From the statement of PW11, it appears that the appellant was not even known to him earlier. On the contrary PW11 Manphul Singh belongs to the community of the deceased Mahinder Singh and injured Ashok Kumar and was not having any relation with the appellant. After going through the evidence of PW11 Manphul Singh, it is difficult to accept that the appellant could have made extra judicial confession before him. Accordingly, we are of the opinion that the extra judicial confession allegedly made by the appellant, cannot be relied upon for convicting the appellant. The view we have taken finds full support from the judgment of the Supreme Court in the case of Balbir Singh (supra).

PW14 SI Ashok Kumar in his statement has stated that on 5.4.1992, the appellant was arrested and he produced him before SDJM, Jhajjar on the same date. He has further stated that he had made an application Ex. PC before the Court for test identification parade of accused Mukesh who was produced by him in the court in muffled face but accused Mukesh refused to join test identification parade. Sh. D.S. Sheoran, the then SDJM, Jhajjar (PW2) has also been examined by the prosecution. In his statement PW2 has stated that accused Mukesh was produced before him by the police with muffled face on 5.4.1992. He has further stated that he recorded the statement of accused Mukesh which is Ex. PC/1 and at that time accused had refused to join the test identification parade. PW2 has further stated that accused Mukesh had not given any reason for refusing to participate in test identification parade. The above mentioned facts have been corroborated by PW9 Ashok Kumar in his statement before the Court. Since the appellant refused to join identification parade without assigning any reason, adverse inference has to be drawn against him, and the said refusal is a relevant factor for his conviction. It may be relevant to point out here that PW9 Ashok Kumar who himself received knife injuries from the appellant in his statement before the police had clearly stated that he could identify the assailant as he had seen him in the full moonlit night when he inflicted knife injury on the deceased Mahinder Singh and thereafter on him. We may also note here that before the appellant inflicted the knife injury, the appellant and his companions had used filthy language and blows were exchanged between both the parties. Thus there was ample time for PW9 Ashok Kumar to see the appellant and to identify him later on.

In view of the facts stated herein above we do not find any merit in the contention of the learned counsel of the appellant that the appellant had refused to join the identification parade because he was shown to the witnesses before his formal arrest was made on 5.4.1992. As stated earlier appellant did not give any reason before SDJM, Jhajjar for his refusal to participate in test identification parade. The judgment in the case of Lila Ram relied upon by the learned counsel of the appellant is distinguishable and is of no assistance to the appellant as in that case the learned Magistrate had not recorded any finding that the accused was produced in muffled face. Similarly the judgment in the case of Jaswinder Singh is also not of any assistance to the appellant as in that case the prosecutrix had herself admitted that she had seen the accused in the Police Station on 5th October, 1993 whereas the accused was produced before the Magistrate on 9.10.1993 when he refused to take part in the test identification parade.

As regards the recovery of knife Ex. P1, the prosecution has examined PW13 Satbir Singh and PW14 SI Ashok Kumar who is the Investigating Officer. PW14 in his statement has statement has stated that on 7.4.1992 he interrogated accused Mukesh in the presence of Satbir Singh (PW13) and Sis Ram and the accused made disclosure statement Ex. PT to the effect that he had kept concealed a knife by the side of Bitoras in his house under manure. The said statement was attested by PW13 Satbir Singh and Sis Ram (who has not been examined by the prosecution). PW14 further stated that thereafter the accused led them to the disclosed place and got recovered knife Ex. P1 from that place. The aforesaid facts have been fully corroborated by PW13 Satbir Singh. We have gone through the evidence of these witnesses carefully and we find that except giving a suggestion that the knife was not recovered at the instance of the appellant, no further material could be brought out during the corssexamination. In our considered opinion, the evidence of these witnesses cannot be disbelieved. The view we have taken finds support from a judgment of the Supreme Court in Mst. Dalbir Kaur and others v. State of Punjab, AIR 1977 SC 472. It is true that the Serologist in his report Ex. PS has stated that blood could not be detected on the knife but we cannot ignore the fact that the said weapon was used on 15.3.1992 whereas its recovery was made on 7.4.1992, i.e. after the lapse of about 22 days. It will also be relevant to note here that PW1 Dr. Mahavir Parsad and PW7 Dr. R.K. Chaudhary, both had opined that the injuries inflicted on deceased Mahinder Singh and PW9 Ashok Kumar could have been caused by said knife Ex. P1.

As regards the contention of the learned counsel for the appellant that the wound of 3 cms. found on the dead body of deceased Mahinder Singh could not be caused by the knife Ex. P1 on the basis of opinion given at page 256 of Modi''s Medical Jurisprudence, we do not find any merit in this contention as the said opinion was not put to the doctors who have been examined before the learned trial Court.

In view of the facts stated herein above, we have no hesitation to come to the conclusion that the appellant had caused injuries with the knife Ex. P1 to deceased Mahinder Singh and PW9 Ashok Kumar. The view we have taken finds support from the judgment of the Supreme Court in the case of Mahinder Singh (supra).

The only question now remains is with regard to the nature of offence for the injuries caused to deceased Mahinder Singh. In the present case, the case of the prosecution is that the incident was provoked when the appellant and his companions used abusive language which was objected to by the deceased and his companions. Thereafter blows were exchanged between the both sides. It was then that the appellant took out a knife and gave one blow with it to Mahinder Singh which resulted in his death. When PW9 Ashok Kumar caught hold of the appellant, he gave a knife blow on the left flank of Ashok Kumar.

From the facts mentioned herein above, it is clear that there was no cause of animosity between the appellant and the deceased Mahinder Singh or the injured Ashok Kumar (PW9). Admittedly fist blows were exchanged between the parties and the deceased received the injury in the course of scuffle. It has further been established by evidence that the whole incident was a sudden development and the appellant had acted at the spur of the moment and without any premeditation, though having knowledge that such act was likely to cause death of the deceased. In such circumstances, the act of the appellant shall fall under exception 4 to section 300 Indian Penal Code and thus the appellant is liable to be convicted under section 304 Part II IPC and not under section 302 IPC, for causing injury to Mahinder Singh. The view we have taken finds support from a judgment of the Supreme Court in Khanjan Pal v. State of U.P., 1990(3) RCR 535.

For the reasons recorded herein above, we alter the conviction of the appellant from Section 302 IPC to Section 304 Part II IPC for causing injury to deceased Mahinder Singh and sentence him to suffer Rigorous Imprisonment for ten years and to pay a fine of Rs. 5,000/. We also direct that the amount of fine, if realised, shall be paid to the legal heirs of deceased Mahinder Singh. In case of default in payment of fine, the appellant shall undergo further imprisonment for six months. We, however, confirm the conviction and sentence awarded to the appellant under section 307 IPC for causing injury to PW9 Ashok Kumar and under section 25 of the Arms Act. We further direct that all the substantive sentences shall run concurrently.