Ravinder Kumar vs State of Punjab

R.L. Anand, J.

This is a criminal appeal and has been been directed against the judgment and order dated 11.3.1987 passed by the Court of Sessions Judge, Jalandhar, who convicted the appellant Shri Ravinder Kumar under Section 304 Part II of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 2000/. In default of payment of fine, the appellant was directed to undergo rigorous imprisonment for one year. It may be mentioned here that alongwith Ravinder Kumar his brother Surinder Kumar was also chargesheeted for the offence but vide said judgment the said Surinder Kumar has since been acquitted.

The F.I.R. in this case was registered on the statement of Shanti Devi widow of the deceased. She appeared as prosecution witness in the trial Court and according to her version, her husband Sham Lal deceased had two sons by the name of Surinder Kumar and Joginder Pal PWs. Appellant Ravinder Kumar and his brother Surinder Kumar (since acquitted) used to reside in the same Mohalla. On 11.9.1986 at about 8.00 P.M. Ravinder Kumar appellant and Surinder Kumar son of the complainant quarrelled with each other and they exchanged abuses. The matter was, however, compromised on the intervention of the respectables of the Mohalla. On 12.9.1996 at about 6.45 P.M. Surinder Kumar PW came out from the house and he started proceeding towards the fields in response to the call of nature. She heard raula `Mar Ditta, Mar Ditta'' and thereupon she and her husband Sham Lal came from the house and left towards the place from which side the alarm came. When the complainant and her husband had hardly gone to a distance of 10/12 yards from their house, they saw Ravinder Kumar appellant, his brother Surinder Kumar and PW Surinder Kumar son of Shanti Devi grappling with each other. The accused had actually caught hold of Surinder Kumar from his arms. Her husband Sham Lal went forward in order to separate the accused and Surinder Kumar PW. However, at that time Ravinder Kumar, appellant, picked up a brick and gave a blow with the same on the head of Sham Lal. Then Surinder Kumar (since acquitted) hurled some small brickbats hitting Sham Lal in his flanks. As a result of these injuries, Sham Lal fell down on the ground. Shanti and her son Surinder Kumar PW raised alarm hearing which Ravinder Kumar appellant and his brother Surinder Kumar ran away from the place of occurrence. Thereafter Shanti Devi, her sons Surinder Kumar and Joginder Pal who also reached at the spot removed the injured Sham Lal to Civil Hospital, Jalandhar in a rickshaw and got him admitted there. The complainant also went to the hospital. Resultantly, she made her statement Ex.PF/34 which was read over and explained to her and she thumbmarked the same in token of correctness of the same. Sham Lal ultimately died as a result of the injury in the hospital on 13.9.1986.

The investigation in this case was taken up by S.I. Jaswinder Singh (PW.7) who partly investigated this case. He received information concerning death of Sham Lal in the Civil Hospital, Jalandhar on 13.9.1986 at 7.55 P.M. vide information chit Ex.PG. The offence was then converted into one under Section 304/34 of the Indian Penal Code and Daily Diary entry in this regard was made at Serial No. 17. Special Report of the conversion of the offence was sent to the higher authorities. This Investigating Officer went to the Civil Hospital, Jalandhar on 13.9.1986 and prepared Inquest Report Ex.PC/18 in the presence of Dharam Pal and Mohinder Pal. The dead body was handed over to Constables Jit Ram and Daulat Ram for post mortem examination. S.I. Jaswinder Singh inspected the spot and lifted bloodstained earth from near the spot and made sealed parcel and took into possession vide memo Ex.PK. He also prepared rough site plan of the place of the occurrence Ex.P.M. The clothes of the deceased were also taken into possession. The appellant and his companion Surinder Kumar were arrested on 18.9.1986 and on completion of the case, the report under Section 173 of the Code of Criminal Procedure was filed.

Doctor Santokh Singh (PW.1) firstly medically examined Shri Sham Lal on 12.9.1986 at 7.45 A.M. At that time pulse rate of the deceased was 66 per minute and his blood pressure was 100/70 mm Hg. The patient was semi conscious. This Doctor found the following injuries on the person of Sham Lal :

Lacerated wound 2cm x 1cm irregular on left cheek just below the left angle of eye. Blood clots were present. Sand was present in the wound. Blood oozing was present.

Lacerated wound 5cm x 5cm on mid vertex starting 1cm to the right and extending obliquely to left scalp deep, underlying bone was intact. Blood clots were present. Wound was littered with sand. Xray was advised. Injury was kept under observation.

Abrasion irregular 2 x 2cm on left thumb littered with sand.

Complaint of pain left upper arm.

Nature of injuries No. 1, 3 and 4 was simple while injury No. 2 was kept under observation for Surgical Specialist''s opinion. The probable duration of injuries was within six hours. Kind of weapon used was blunt. Ex.PA is the correct carbon copy of the Medico Legal Report. Ex.PA/A is the pictorial diagram showing the seats of injuries. It has been opined by Dr. Santokh Singh that all the injuries could be caused by brickbats.

Doctor Ajay Sahni Medical Officer (PW.2) conducted post mortem examination on the dead body of Sham Lal on 14.9.1986 and found the following injuries on his person :

Contusion 3cm x 2cm on the left hip joint.

Stitched wound 2cm on the left cheek.

Contusion 4cm x 2cm on the left lower back.

Contusion 5cm x 1cm on the back of right shoulder.

Stitched wound 5cm with 5 stitches on the wound at the centre and top of skull. On dissection underlying bone was fractured. On further exploration underlying brain was congested with clotted blood present and cranial cavity was full of blood.

In the opinion of this Doctor death was due to head injury No. 5 and this injury was sufficient to cause death in the ordinary course of nature. All the injuries were antemortem in nature. Probable time elapsed between injuries and death could not be ascertained. The time that elapsed between death and post mortem was within 48 hours. Ex.PB/18 is the correct carbon copy of the post mortem report which was issued by this Doctor. This Doctor further certified that Sham Lal died in Civil Hospital, Jalandhar on 13.9.1986 at 7.15 P.M.

The learned Magistrate supplied copies of the documents to the accused and vide commitment order dated 7.1.1987 committed the appellant and his brother to the Court of Sessions in order to face trial under Section 302 read with Section 34 of the Indian Penal Code. Vide order dated 30.1.1987 learned Sessions Judge framed charge under Section 302/34 of the Indian Penal Code against the appellant and his companion. The charge was read over and explained to the accused to which they pleaded not guilty and claimed trial.

In order to prove the charges the prosecution examined Doctor Santokh Singh (PW.1), Doctor Ajay Sahni (PW.2), Smt. Shanti Devi complainant and eye witness PW.3, Surinder Kumar her son another eye witness PW.4, Dalip Singh, Draftsman PW.5, Head Constable Ashok Kumar who partly investigated the case as PW.6, and Sub Inspector Jaswinder Singh the other Investigating Officer as PW.7. Some witnesses Joginder Pal and Jagtar Singh were given up being unnecessary. Prosecution also tendered into evidence report of the Chemical Examiner Ex.PO and that of the Serologist Ex.PQ. Statements of the formal witnesses were tendered by way of affidavits.

On closure of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to them. Accused denied those circumstances. The stand taken by Ravinder Kumar appellant was as under :

"On 12.9.1986 in the morning Sham Lal deceased came in front of our house and started abusing. My mother Shanti went out and asked him to behave properly on which he started hurling brickbats on my mother which hit her. In order to defend my mother, I also hurled brickbats at Sham Lal. My mother Shanti was taken by the police on the day of occurrence and was detained in the police station for about a week without getting her medically examined. Deceased Sham Lal was aggressor. Both the PWs i.e. Shanti and Surinder Kumar as well as my brother Surinder Kumar accused were not present, at the spot."

The stand taken by Surinder Kumar accused need not be mentioned as there is no appeal by the State against him.

When called upon to enter into their defence, the accused did not lead any evidence.

The learned Sessions Judge vide impugned judgment and order came to the conclusion that participation of Surinder Kumar brother of the present appellant was doubtful and he was extended the benefit of doubt. The Trial Court further held that Ravinder Kumar appellant committed an offence under Section 304 Part II of the Indian Penal Code and he was convicted and sentenced in the manner indicated above. Aggrieved by his conviction and sentence, the present appeal.

I have heard Shri G.S. Punia, learned counsel appearing on behalf of the appellant and Shri Randhir Singh, learned D.A.G. appearing on behalf of the State and with their assistance have gone through the record of this case.

Learned counsel for the appellant submitted and drew my attention to para 8 of the judgment by stating that the trial Court had held that the motive in this case is not proved and in these circumstances the main occurrence dated 12.8.1986 is also doubtful. I do not subscribe to the arguments raised by the learned counsel. The motive is not the end or beginning in a case of direct eye witness. If the prosecution relies upon a particular motive and it proves the same it is an additional circumstance in favour of the prosecution but nonproving of the motive by cogent or reliable evidence is itself no ground to throw away the story of the prosecution as a whole. Even this aspect of the case, in view of this Court, has not been rightly appreciated by the learned Sessions Judge. According to the case of the prosecution Surinder Kumar PW had a quarrel with the accused and they exchanged abuses. In these circumstances, it was very natural on the part of Surinder Kumar to inform about the dispute to his parents. It is common case of the parties that family of the deceased and that of the accused reside in the same Mohalla. In these circumstances, even otherwise Sham Lal and Shanti Devi would came to know very easily that their son Surinder Kumar PW had quarrelled with the accused. Though the matter has been compromised even then the smoke can be there. Motive is always hidden in the heart of a person who commits the crime. Even if it is assumed for the sake of arguments that on 11.9.1986 the complainant party and the accused party had compromised over the dispute, the same could simmer in the hearts of the assailants on the morning of 12.9.1986. Surinder Kumar PW came out of the house in order to respond to the call of nature and if he happened to see the appellant and his brother, again there was every possibility of another dispute on seeing the two enemies. In this regard there is direct statement of Shri Surinder Kumar PW.4 who categorically stated that on 11.9.1986 at about 7 or 8 P.M. both Ravinder Kumar and Surinder Kumar quarrelled with him and at that time both these persons were drunk and they caught hold of him and abused him when he returned to his house after doing the work. The testimony of Surinder Kumar on the question of motive is corroborated by the statement of another witness Smt. Shanti Devi who would always be interested to know as to why her son had quarrelled with the appellant. Inspite of sufficient evidence I fail to understand as to under what circumstances the trial Court disbelieved the story with regard to the motive. When there is dispute between the two neighbourers or the persons residing in the same locality, the independent witnesses always feel shy in coming forward to take stand in favour of one person. The nonproduction of the person who intervened in the matter regarding dispute dated 11.9.1986 is no ground to disbelieve the story of the prosecution with regard to the motive. Be that as it may be, even if I endorse the reasons given by the Trial Court in para 8 of the judgment that prosecution has not been able to prove motive aspect of the case, still I am inclined to hold that nonproving of the motive will not create a reasonable dent in the story of the prosecution with regard to the actual occurrence.

So far as the main occurrence is concerned, Surinder Kumar (PW.4) has stated on oath that on 12.9.1986 at about 6.45 A.M. when the left his house in order to ease himself and he had gone ahead and reached the door way of his adjoining house Ravinder Kumar and Surinder Kumar came out of their house and caught hold of him. He raised alarm hearing which his father Sham Lal and mother Shanti Devi came there. His father came forward in order to save him (Surinder Kumar PW) and at that time Ravinder Kumar appellant picked up a brickbat and gave a blow with the same to his father on his head. Then Surinder Kumar (since acquitted) caused injuries with small brickbats to his father in his flanks. His father fell down on receipt of those injuries. He and his mother Shanti Devi raised alarm hearing which both the accused ran way from the spot. After some time his brother Joginder Pal came there. Both of them removed Sham Lal to Civil Hospital, Jalandhar and got him admitted there. Thus there is direct statement of Surinder Kumar from which it stands proved that it was Ravinder Kumar appellant who picked up brickbat and gave blow with the same hitting upon head of Sham Lal. The entire occurrence revolves round Shri Surinder Kumar. In these circumstances his presence is very probable. The houses of the deceased and of the accused were not at distance. When Surinder Kumar will definitely raise alarm on his seeing two opponents, the parents would always come forward in order to rescue the life of their son. The conduct of Shanti Devi and Sham Lal was very natural when they came out of their house on hearing alarm raised by their son Surinder Kumar. Even otherwise, the presence of Joginder Pal is very natural. A reading of the Medico Legal Report Ex.PA shows that when Sham Lal was brought to the hospital his presence is recorded there. Thus the presence of Shri Joginder Pal lends corroboration to the testimony of Surinder Kumar and Shanti Devi when they deposed on oath that Joginder Pal came at the spot and he accompanied Surinder Kumar to remove the injured to the hospital. Otherwise also it was very natural on the part of the sons to take the injured father to the hospital so that his life can be saved. Learned counsel appearing on behalf of the appellant submitted that the genesis of the occurrence has been withheld by the prosecution rather Surinder Kumar and his father Sham Lal acted as an aggressor and they wanted to attack Smt. Shanti Devi mother of the accused and gave brickbats to her. In order to defend his mother the appellant Ravinder Kumar picked up a brickbats and three (threw ?) brickbat upon Sham Lal. I am not totally convinced with this submsision nor the defence which has been taken by the accused before the trial Court. Shanti Devi did not appear in defence. There was no criminal complaint against the prosecution witnesses to the effect that the deceased and Surinder Kumar PW tried to attack Smt. Shanti Devi. There is no medical examination of Smt. Shanti Devi. The explanation is false that Shanti Devi was detained in the Police Station for days together. Even after her release, Shanti Devi could file criminal complaint in the Court of competent jurisdiction. Defence has been taken just to make out a case of defence. The defence is neither probable nor proved. In this view of the matter, I am unable to believe the testimony of Shanti Devi and her son Surinder Kumar. So far as participation of Ravinder Kumar is concerned, it stands proved that he picked up brickbat and gave the same on the head of Sham Lal. The participation of Surinder Kumar has also been held doubtful by the trial Court. Since there is no State appeal, this Court cannot disturb the acquittal of Surinder Kumar. However, it stands proved on record that Ravinder Kumar was the person responsible for the death of Sham Lal.

Ocular account in this case is further proved by the medical evidence furnished by Doctor Santokh Singh (PW.1) and Doctor Ajay Sahni (DW.2). The injuries on the person of Sham Lal have already been described above. Doctor Santokh Singh has categorically stated that these injuries could be caused by brickbats. The medical evidence on the record furnishes full corroboration to the oral testimony of Shanti Devi (PW.3) and Surinder Kumar (PW.4).

Lastly, it was submitted by the learned counsel for the appellant that during the pendency of appeal, there is compromise between the complainant and Ravinder Kumar accused. Accused submitted a separate Criminal Miscellaneous with a prayer that in view of the compromise effected between him and Shanti Devi, the High Court should exercise inherent powers to set aside his conviction. I have rejected that request by passing a separate order. No doubt Shanti Devi is widow of Shri Sham Lal but the offence has also been committed qua society and to the family of Sham Lal. Shanti Devi alone cannot compound the offence especially when the offence is not compoundable. It is not the case that the High Court should exercise inherent powers to allow compensation of the noncompoundable offence. The compromise effected between Shanti Devi and the present appellant can, however, be looked into for the purpose of quantum of sentence. Learned counsel for the appellant, however, submitted that the appellant is suffering the agony of the criminal proceedings since 1986 and he has paid Rs. 22,000/ to Shanti Devi by way of compensation and Shanti Devi has also furnished an affidavit on oath stating that she has no objection if the appellant is acquitted. Keeping in view the fact that Shanti Devi has received Rs. 22,000/ by way of compensation from the appellant and she has furnished an affidavit, perhaps not under duress, that both the parties reside in the same locality and that they are neighbourers, I am of the opinion that the ends of justice would be meet if the substantive sentence of the appellant is reduced to three years from five years under Section 304 Part II, I.P.C. and I order accordingly. Except with the modification of reducing the sentence from five years to three years, the appeal of Ravinder Kumar appellant is hereby dismissed. Let intimation about disposal of this appeal be sent to the Chief Judicial Magistrate, Jalandhar so that the appellant may be taken into custody in order to serve the remaining part of the sentence. The sentence of fine is maintained. The appeal stands disposed of in the above terms.