Rakesh Kumar vs State of Punjab

Kuldip Singh, J.—This judgment shall dispose of CRA No. D-807-DB of 2002, filed by accused/appellants Rakesh Kumar @ Babal and Ashok Kumar @ Dhammi, sons of Om Parkash against the judgment and order dated 25.9.2002 and 1.10.2002, passed by the learned Additional Sessions Judge (Adhoc), Patiala, vide which both the accused were convicted u/s 302 read with Section 34 IPC and sentenced to undergo imprisonment for life each and to pay fine of Rs. 2,000/- each, in default of payment of fine, to further undergo rigorous imprisonment for two months each.

The prosecution story, as coming out from the statement of Raj Kumar son of deceased Sohan Lal @ Dukhi (Ex. PW8/A), is that Raj Kumar is resident of Gandhi Nagar, Lahori Gate, Patiala. He alongwith his father Sohan Lal was running a tea and food shop in the name and style of Vijay Vaishnu Dhaba near Bus Stand, Patiala. On 23.5.1999, at about 3:00 AM, Raj Kumar and his father Sohan Lal opened their Dhaba as usual. Sohan Lal started dusting the shop, whereas Raj Kumar started settling the counter. In the meanwhile, Jiwan Dass son of Darshan Kumar, resident of Gandhi Nagar, Patiala, who was passing by the shop, was offered tea by Raj Kumar. It was about 3:15 AM, both of them were talking to each other. In the meanwhile, accused Rakesh Kumar @ Babal and Ashok Kumar @ Dhammi, sons of Om Parkash, resident of Gandhi Nagar, Patiala, who were holding knives in their hands, came at their Dhaba. Immediately, on entering the shop, accused Rakesh Kumar @ Babal gave a knife blow in the abdomen of Sohan Lal, which hit the right side of belly button of Sohan Lal. Sohan Lal, in order to defend himself, took turn to a side, on which Ashok Kumar @ Dhammi gave a knife blow on the backside of left shoulder of Sohan Lal. Accused Ashok Kumar @ Babal gave another knife blow on the bicep of left arm of Sohan Lal. Sohan Lal raised alarm ''Mar Ditta, Mar Ditta''. On this, Raj Kumar and Jiwan Dass came forward to save Sohan Lal. Accused Rakesh Kumar @ Babal tried to give a knife blow on the person of Sohan Lal, but the knife hit the table lying in the shop. Raj Kumar and Sohan Lal raised alarm, on which two employees (police officials) came running from Traffic Light Chowk near bus stand, Patiala. On seeing them, both the accused Rakesh Kumar and Ashok Kumar alongwith their weapons fled away from the spot, saying that they had been defamed in the Mohalla (locality), for which Sohan Lal has been taught a lesson. According to Raj Kumar, the motive for the crime is that both the accused, who are real brothers, are habitual of picking up quarrel in the Mohalla (locality). They are ill reputed in the Mohalla. His father Sohan Lal, being a respectable of the locality, used to restrain the accused from indulging in such evil acts. Both the accused took it as their insult and attacked Sohan Lal with the knives. As a result of the knife blows, Sohan Lal was seriously injured. Raj Kumar made arrangement for a vehicle and took him to Rajindra Hospital, Patiala, where during the treatment, Sohan Lal died.

SI Anil Kumar, on receiving the intimation about the death of Sohan Lal, visited Rajindra Hospital, Patiala, where Raj Kumar was found present and his statement (Ex. PW8/A) was recorded. SI Anil Kumar recorded the police proceedings and sent the same to the police station, where formal FIR (Ex. PW9/B) was registered. Police conducted the inquest proceedings (Ex. PC). Post mortem of the dead body was got conducted (Ex. PA). After the post mortem, blood stained clothes of Sohan Lal were taken into possession through recovery memo Ex. PE. Thereafter, police visited the spot and prepared rough site plan (Ex. PW9/F). The blood was lifted with the help of swab, and memo (Ex. PW9/D) in this regard was prepared.

During the course of investigation, on 27.5.1999, accused Rakesh Kumar @ Babal and Ashok Kumar @ Dhammi were arrested. One Bajaj Chetak scooter was recovered from them and the same was taken into possession through recovery memo Ex. PW9/G.

On 27.5.1999, accused Rakesh Kumar @ Babal suffered a disclosure statement (Ex. PW9/H), in which he disclosed that the knife used by him in the crime has been kept concealed by him towards Southern side of the river towards Jujhar Nagar side and he can get the same recovered. On the same day, accused Ashok Kumar @ Dhammi also suffered a disclosure statement (Ex. PW9/J), wherein he stated that the knife used in the crime has been concealed by him on the Northern side of the canal towards Jujhar Nagar side and he can get the same recovered. Accordingly, both of them got recovered the knives, which were taken into possession through recovery memos Ex. PW9/L and Ex. PW9/N. Rough sketches of the knives were prepared. Site plans of place of recoveries were also prepared.

After the completion of the investigation, the challan was presented in Court against the accused.

Accused Ashok Kumar @ Dhammi was chargesheeted u/s 302 IPC, whereas accused Rakesh Kumar @ Babal was chargesheeted u/s 302 read with Section 34 IPC. On recording plea, accused did not plead guilty and claimed trial.

In support of its case, prosecution examined Dr. Harish Tulli, Head of Department, Forensic Medicines, Medical College, Patiala (PW1), Head Constable Piarey Lal (PW2), Head Constable Bhupinder Singh (PW3), Constable Bahadur Singh (PW4), Head Constable Amarpreet Singh (PW5), Chanan Singh, Draftsman (PW6), Constable Lal Singh (PW7), Raj Kumar, complainant (PW8), SI Anil Kumar (PW9) and closed the evidence.

When examined u/s 313 Cr.P.C., accused Rakesh Kumar @ Babal denied as incorrect the evidence led against him and took the plea that he was the President of Union formed by Rehri Walas and owners of Khokas. The rehri wala used to park rehri in front of Dhaba of Sohan Lal. On 29.1.1999, in the capacity of President of the Union, he moved a complaint to SSP, Patiala, that the police of Division No. 4 was harassing rehri walas and demanding monthly money from them. Sohan Lal and others felt offended against him. He had also made complaints against the police of Division no. 4. Therefore, police involved him in few false cases, in which he has already been acquitted. He has been falsely implicated on account of enmity and party faction. Similarly, his brother Ashok Kumar @ Dhammi has been falsely implicated.

Accused Ashok Kumar @ Dhammi adopted the plea of accused Rakesh Kumar @ Babal.

In defence, accused examined Navdeep Gupta, Handwriting and Fingerprint Expert (DW1), who has stated that the time in the statement of Raj Kumar has been altered from 3:15 AM to 3:00 AM. Accused also produced the copy of judgments (Ex. PJ and Ex. PK) and closed the defence evidence.

After hearing the learned Additional Public Prosecutor for the State, learned counsel for the accused and going through the evidence, the learned Additional Sessions Judge, Patiala, convicted and sentenced both the accused, as detailed above.

Aggrieved by the said judgment and order of sentence, accused have come up in appeal.

We have heard learned counsel for the accused/appellants, learned Additional Advocate General for the State and have also carefully gone through the file.

The medical evidence shows that deceased had received three injuries. Dr. Harish Tulli (PW1) described the injuries as under :-

3 cm x 1/2 cm incised stab wound on outer and middle of left upper arm. It was muscle deep only.

2.5 cm x 1/2 cm incised stab wound on right side of abdomen at level of umbilicus, 2 cm away from mid line. Large intestines underneath were damaged.

3 cm x 2 cm incised stab wound on back of left axilla. Lung and heart underneath were damaged. 60 c.c. of blood was present in left thoracic cavity. The corresponding cuts in shirt were present.

Stomach was found empty. The time elapsed between injury and death was 15 minutes. The doctor further opined that injury No. 3 was individually sufficient to cause death in the ordinary course of nature.

Raj Kumar, complainant (PW8) recounted the occurrence. He stated that he alongwith his father Sohan Lal Dukhi is running a Dhaba in front of bus stand by the name of Vijay Vaishno Dhaba. On 23.5.1999, as usual, they opened the Dhaba at 3:00 AM. His father was cleaning the shop and he was arranging the counter. In the meantime, Jiwan Dass son of Darshan Kumar passed by the Dhaba. He stopped him and offer him tea. It was about 3:15 AM. When he was talking to Jiwan Dass, accused Rakesh Kumar @ Babal and Ashok Kumar @ Dhammi sons of Om Parkash, residents of Gandhi Nagar, Patiala came there. Both of them were armed with knives. After entering the shop, Rakesh Kumar @ Babal gave a knife blow in the abdomen of Sohan Lal. When his father turned to save himself, accused Ashok Kumar @ Dhammi gave a knife blow on the left shoulder of his father. Accused Ashok Kumar @ Dhammi gave another knife blow on the upper part of the left arm of deceased. He (Sohan Lal) raised alarm. Then, Rakesh Kumar @ Babal gave another knife blow and when his father turned to a side, the knife hit the table lying in the shop. They raised alarm, on which two police officials came running from the Traffic Light Crossing. Both the accused ran away from the spot. Stating about the motive, he stated that both the accused were indulging in anti social activities and his father was educating them not to indulge in loose talk. Raj Kumar further stated that he arranged for a car and removed his father to Rajindra Hospital, Patiala. His father died in the hospital.

Out of the two police officials, who had come running at the spot, one of them, namely, Constable Lal Singh was examined as PW7. Constable Lal Singh stated that on the night of 22/23.5.1999, he alongwith PHG Rajinder Singh was on duty at Bus Stand Patiala from 10:00 PM to 6:00 AM. At about 3:15 AM, he heard noise of ''Mar Ditta, Mar Ditta'' from Vijay Vaishno Dhaba, which is in front of the Traffic Light Chowk. They ran towards Dhaba and saw that two Hindu gentlemen came running from the side of Dhaba and going towards the backside of Dhaba. They followed them, but they succeeded in running away due to darkness and also due to narrow lanes. They were Rakesh @ Babal and Ashok Kumar @ Dhammi, who were earlier known to him. When they returned to Dhaba, Sohan Lal Dukhi was lying in the injured condition. Raj Kumar son of the injured and one Jiwan Dass were also present there. They removed the injured to the Rajindra Hospital in the car.

The Investigating Officer SI Anil Kumar appeared as PW9 and proved the recording of complaint of Raj Kumar. He also proved the arrest of the accused and disclosure statements made by the accused and recovery of knives from them. He also proved the other formalities of the investigation including the inquest report.

As per the report of Chemical Examiner (Ex. PX), the sample, which was lifted from the spot with the help of swab, was found to be blood.

The learned counsel for the accused/appellants has vehemently argued that in this case, Raj Kumar is a planted witness. He was not present at the spot. He was later on called and made witness. He has further argued that other witness Jiwan Dass was not examined and was given up as won over by the accused. Raj Kumar is none else than the son of the deceased. Therefore, his statement cannot be relied upon. He has further argued that the name of the accused was not mentioned in the inquest report. He has also relied upon the statement of Navdeep Gupta, Handwriting and Fingerprint Expert (DW1), who has stated that in the statement (Ex. PW8/A), the time has been changed from 3:15 AM to 3:00 AM.

We are of the view that the report of fingerprint expert does not help the accused. He talks about the time when the shop was opened, which is immaterial. In the subsequent part of the statement, the time of crime is mentioned in words and not in digits. The time of opening of Dhaba is mentioned as 3:00 AM in words, whereas it is mentioned in digit in the subsequent line, which has been disputed by the accused. However, the time of opening Dhaba as 3:00 AM is in words is not stated to be overwritten. The Court is to see the time of occurrence, which is sometime after the opening of the Dhaba.

In this case, the spot was inspected and mark of knife blow was found on the table lying in the Dhaba. The photographs of the place of occurrence were also taken, which shows that the blood spilled inside the Dhaba, which establishes the place of occurrence. We are of the view that Raj Kumar is a natural witness. He alongwith his father was running a Dhaba, which used to serve tea and meals. The mere fact that Jiwan Dass was won over by the accused either due to their influence or fear hardly affects the merits of the case. Raj Kumar has clearly stated about the injuries given by accused Rakesh Kumar @ Babal and Ashok Kumar @ Dhammi. Ashok Kumar gave two injuries and Rakesh Kumar @ Babal gave one injury, whereas the fourth blow hit the table. It has been specifically stated by Raj Kumar that ''Mulazims'' (which refers to the police officials) came running from Traffic Light Chowk near bus stand and on seeing them, both the accused ran with their weapons. It is to be noted that the occurrence took place at 3:15 AM. The injured was removed to the hospital. As per the inquest report (Ex. PC), police came to know about the occurrence at 5:50 AM. The recording of the statement of Raj Kumar alongwith police proceedings was completed at 7:35 AM. In this way, there is a prompt reporting. According to the doctor, Sohan Lal died within 15 minutes of the injuries. It appears that Sohan Lal died most probably either on the way to the hospital or immediately on reaching the hospital. The doctor might have tried to revive him before making any formalities and thereafter, Sohan Lal was declared dead. Therefore, admission record of the dead body was not prepared and the police was immediately intimated about the death of Sohan Lal Dukhi. Therefore, if the hospital authorities did not prepare the admission record of the deceased, as pointed out by the learned counsel for the accused/appellants, it hardly affects the merits of the case.

The statement of Raj Kumar is supported by the statement of Constable Lal Singh, who alongwith PHG Rajinder Singh was on night duty at Traffic Light Chowk near bus stand. Constable Lal Singh testified that on hearing the noise of ''Mar Ditta, Mar Ditta'', from the Dhaba, he alongwith his co-employee PHG Rajinder Singh had rushed to the spot and he had seen both the accused running away from the spot. The copy of DDR (Ex. PW7/X) shows that both Constable Lal Singh and PHG Rajinder Singh were deputed for duty at Traffic Light Chowk and left the police station at 9:45 PM on 22.5.1999. Constable Lal Singh was extensively cross-examined about the identification of the accused. Constable Lal Singh stated that he had also chased accused Rakesh Kumar @ Babal and Ashok Kumar @ Dhammi, but they succeeded in running away due to darkness and narrow lanes. When he came back, he found Sohan Lal Dukhi in injured condition. In the Dhaba, Raj Kumar son of Sohan Lal Dukhi and one Jiwan Dass were also found present there. They took the injured to the Rajindra Hospital, Patiala. During cross examination, the witness stated that he remained in Police Post Division No. 4 for about 6 months after the occurrence. Even during investigation, he had affirmed the identity of the accused. He stated that while running, accused first came towards them and then they fled to the backside of the Dhaba. There was light in the Dhaba and in the said light, he identified the accused. The statement of Constable Lal Singh makes it clear that he was present near the place of occurrence in the discharge of his official duties. He saw both the accused carrying knives, while trying to run away from the spot. He alongwith his colleague had even chased the accused to some distance. In this way, Constable Lal Singh not only corroborated the statement of Raj Kumar (complainant), but also proved that Raj Kumar and Jiwan Dass were found present at the spot immediately after the accused were seen running away from the spot with their knives. The presence of Constable Lal Singh at the place of occurrence is natural and is to be believed.

The learned counsel for the accused/appellants has further argued that deceased Sohan Lal Dukhi was money lender. He had a dispute with one Vidya Devi, who had sold the house and then took it on rent. Therefore, Sohan Lal Dukhi had several enemies and some unknown person might have committed the crime. We are of the view that mere fact that Sohan Lal Dukhi was doing some other job also, does not mean that some unknown person has committed the crime. In this case, the identity of the accused has been established beyond all reasonable doubts. Therefore, merely on the basis of suggestion of the learned counsel for the accused/appellants, it cannot be assumed that crime was committed by some unknown person.

The learned counsel for the accused/appellants has further argued that there was no motive on the part of the accused to commit the crime. The learned Additional Advocate General for the State has argued that accused were bad character of the locality and the deceased, who was around 70 years of age, used to advise the accused not to indulge in evil activities.

The learned State counsel has referred to the copies of FIRs, registered against the accused Rakesh Kumar @ Babal and Ashok Kumar @ Dhammi on 1.8.1996 u/s 324 IPC and 19.7.1998 under Sections 376/511/452/506 IPC (Ex. PW9/R and Ex. PW9/S respectively).

The learned defence counsel has produced copies of judgments (Ex. DJ and Ex. DK) to press that they were acquitted in the said cases. The perusal of the judgments shows that in the said cases, the witnesses turned hostile, on account of which, the present accused were acquitted. In any case, it shows that the accused had the criminal background. Accused came at the Dhaba in the early hours of the morning at 3:15 AM and committed the crime, which shows that they had come prepared to teach a lesson to Sohan Lal Dukhi. They had also got recovered blood stained weapons. The mere fact that the blood stained knives were not sent to chemical examiner can be treated as lapse on the part of the investigating officer, bua it does not, in any way, help the accused.

From the foregoing discussion, we come to the conclusion that guilt of accused/appellants u/s 302 read with Section 34 IPC has been proved beyond all reasonable doubts. Accordingly, we do not find any force in the appeal and the same is accordingly dismissed, The accused, who are on bail, are ordered to be immediately arrested and committed to jail to undergo the remaining part of the sentence.