Subhash vs State of Haryana

V.S. Aggarwal, J.

By this common judgment, I propose to dispose of two appeals i.e. Criminal Appeal No. 410SB of 1992 ''Subhash v. State of Haryana'' and Criminal Appeal No. 45SB of 1993 ''Sudhir v. State of Haryana. Both these appeals are directed against the common judgment and the order of sentence passed by the learned Sessions Judge, Kurukshetra dated 30th April, 1992 and 7th May, 1992 respectively. By virtue of the impugned judgment and the order of sentence, the learned trial Court held the appellant guilty of the offence punishable under Section 304, PartII of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1000/ each. In default of payment of fine, to further undergo rigorous imprisonment for a period of three months. Needless to say that there were four other accused namely Dalip, Ramesh, Surinder and Rajan, they were held not guilty and acquitted of the charges framed against them.

Joginder deceased alongwith his brother Rajinder and his wife Kanchan were living at Gandhi Nagar, Kurukshetra. They were all working as labourer alongwith certain other persons which included Kamleshwari and others. The work for construction was going on at Akashwani, Kurukshetra. There were two contractors namely Khosla and Billa. Rajinder, Joginder, Kamleshwari and Kanchan worked with contractor Khosla. The appellant and other worked with contractor Billa. On 15th January, 1990, at about 2.00 P.M. Kanchan alongwith her husband, deceased Joginder, Raghbir, Prem Kumar and Lachhmi were having their lunch. Deceased Joginder went to the water tap for drinking the water and also to fetch some water for others. Dalip stopped Joginder from taking water on the pretext as they were using the water to make the walls wet and he told Joginder to take the water from the other tap. However, Joginder started drinking water forcibly. Joginder and Dalip grappled with each other. Dalip shouted to give beating to Joginder. In the meantime, Sudhir armed with iron pipe, Subhash armed with iron rod and Ramesh armed with lathi alongwith others came to the spot. All of them started assaulting Joginder. Sudhir gave a blow with iron pipe to Joginder which hit him on his head. Subhash gave an iron rod blow to Joginder which hit him on his nose. Ramesh gave a lathi blow on the left foot, while Surinder and Rajan caused injuries to Joginder on his chest with brickbats.

Joginder raised an alarm. Kanchan and her husband Rajinder, Lachhmi, Munni, Prem Kumar and others reached the spot. The accusedappellants ran away.

Joginder was removed to L.N.J.P., Hospital, Kurukshetra, and was medicolegally examined. Keeping in view his condition, the patient was referred to Post Graduate Institute at Chandigarh. It appears that the condition of Joginder became serious and he was taken to Mission Hospital, Ambala City where he breathed his last. Dr. Kuldip Kumar, Medical Officer, Community Health Centre, Maharpur, conducted the postmortem on the mortal remains of Joginder. In the opinion of Dr. Kuldip Kumar, the cause of death was due to injury to the brain which was sufficient to cause death in the ordinary course of nature.

Sub Inspector Sube Singh on that day was Incharge Police Post Civil Line, Kurukshetra. He received a telephonic message about the occurrence and about injury having been caused to Joginder. He went to the spot and collected certain documents from Ranjit Singh constable. Thereafter, he went to L.N.J.P. Hospital, Kurukshetra, Joginder was declared unfit for making a statement by the doctor. At 7.50 P.M. again, Joginder was not fit to make a statement. Sub Inspector Sube Singh could not meet any relations of Joginder On 16th January, 1990 again he went to the hospital and was informed that Joginder has been referred to Post Graduate Institute at Chandigarh. He further came to know that relations of Joginder reside at Gandhi Nagar, Thanesar, near a Mandir at Kurukshetra. He went to the said place. Kanchan met him. He recorded her statement (Ex. PW 5) which was thumb marked by her; which he endorsed. On the basis of this, formal First Information Report was recorded. The above said Investigating Officer came to Chandigarh to enquire about the condition of Joginder but was informed that no such person had been admitted to the Post Graduate Institute at Chandigarh. He came back to Kurukshetra. A wireless message was received that Joginder had gone to Mission Hospital, Ambala City. Thereupon, Investigating Officer came to Ambala City. By that time Joginder had expired. The Investigating Officer came back and recorded statement of Rajinder and Kamleshwari. The appellants were arrested on 19.1.1990. Sudhir appellant produced on pipe, while Subhash appellant produced the iron rod. On these broad facts, challan against the appellants has been filed. The learned trial Court on appraisal of evidence, came to the conclusion that prosecution has successfully proved its case beyond all reasonable doubts against the appellants and convicted them for the offence punishable under Section 304II of the Indian Penal Code. With these findings, the above said order was passed. Aggrieved by the said order, the appeal has been failed.

The real cause of death is not of much controversy. Doctor Rakesh Jain Medical Officer, Civil Hospital, Jagadhri (PW1) had examined deceased Joginder on 15.1.1990. He has found the following injuries on his person :

Bleeding from, right nose was present.

There was a diffuse swelling of size 8x3 cms. on right side of forehead. Advised Xray skull.

He further stated that Ruqqa was sent to the Incharge, Police Post, IIIrd Gate, Kurukshetra University, Kurukshetra but the injured was not fit to make the statement. During crossexamination, he added that the injured was brought to the hospital by one Kamleshwari and he was only responding to oral command, The witness has stated that Dr. Pawan Goyal who is surgeon in the hospital at Kurukshetra had referred the injured to Post Graduate Institute, Chandigarh.

Dr. Jayant Banerji PW4 was working in Mission Hospital, Ambala City, when Joginder was brought to the hospital where Dr. Jayant Banerji found the following injuries :

The patient was having bleeding from the nose with C.S.F. rhinorrhea (which means that the fluid from the brain was coming through the nose).

Right sided black eye.

Superficial haematoma Right occipital area. Fracture right temporal area.

Finality to the said cause of death is given by Dr. Kuldip Kumar PW 3 on 17.1.1990, who was posted as Medical Officer, General Hospital, Ambala City. He conducted postmortem on the person of the deceased and had found similar facts. Following injuries were noted by Dr. Kuldip Kumar :

There was a swelling 5cm x 3cm on the right parietooccipital region. On opening the scalp, there was a fracture 2cm x 4cm on the right parieto occipital region. On opening the scalp there was a haematoma 25cm x 20 cm. in the parieto occipital region. The injury being antemortem in nature.

Swelling 8 cm x 3 cm on the forehead. On opening the scalp the fracture of right parieto occipital region and haematoma found as described under injury No. 1.

In the opinion of Dr. Kuldip Kumar the cause of death was due to injury on the brain which was sufficient to cause death in ordinary course of nature. During crossexamination, he had explained that haematoma present in the brain found at the time of postmortem examination was in all probabilities sustained because of injury No. 1 referred to above. This evidence conclusively shows that Joginder had received injuries attributed and died as a result of the said injury caused to the brain as such.

The material question that comes for consideration is as to who caused the said injuries. It requires to mentioned that the accusedappellant denied their involvement in the incident of the crime. AppellantSudhir during the course of his statement under Section 313 of the Code of Criminal Procedure, had stated that he has falsely been implicated as one Rajinder was nursing a grudge against him due to party faction. On a fateful day, a quarrel took place between the labour party working under contractor Khosla and other contractor Billa. Many labourers were involved. Joginder was pushed by somebody, he struck against an electric pole, as a result of which he sustained the injuries.

Identical was the defence of Subhash accusedappellant. He stated that he is a poor labourer and he is a victim of party faction prevailing amongst the labourers, of Billa and Khosla contractors. In this process, the accusedappellant had admitted that there is a party faction of the employees/labourers of Billa and Khosla contractors.

The eye witness account is given by Kanchan at whose behest, the First Information Report was recorded. She appeared as PW13. The witness had testified the details of the incident about Joginder having gone to drinking water and also to fetch water for them, when Dalip had a quarrel with him, he shouted others to join. Thereupon appellant, Subhash armed with a Saria, Sudhir appellant armed with a pipe came there alongwith others. Subhash gave saria blow to Joginder which hit him on a forehead and nose. Then Sudhir gave a pipe blow hitting on his forehead. It is true that the witness had stated that she does not know the name of labourers in the labour of Billa contractor, but such like variation necessarily does not demolish the testimony of the witness. She finds support about the incident from the statements of Lachhmi PW14 and Rajinder PW15. The substratum of the prosecution case is not shaken despite lengthy crossexamination.

It is true that Ex. PL/1 is a report sent to the Police Post, Ambala, on 16.1.1990. The concerned doctor had mentioned that Joginder has been admitted with an alleged history of an accident case. It is this fact which was pointed out to bring home the fact that the assertion about the appellant having caused the injury is not correct. But it has to be remembered that this document is not at the behest of any of the eye witnesses. It came into being on 16.1.1990. Thus, the probability of the mistake having crept cannot be ruled out. One cannot ignore Ex. PB which was the information sent by the Medical Officer, L.N.J.P. Hospital, Kurukshetra, wherein it is specifically mentioned that injured was admitted with alleged history and quarrel with these facts the prosecution had come to the Court with the history of quarrel leading to the fatal blows on the person of the deceased. This document rebuts and repells the assertion of the appellant''s learned counsel.

Learned counsel for the appellant in that event thought it appropriate to bring it to the notice of the Court that all the prosecution witnesses are relatives of the deceased and, therefore, were interested witnesses. More often than once it has been noted and held that merely because the witnesses are closely related to the deceased is no ground to reject their testimony on the ground that they are interested witnesses. The plea of enmity has not been substantiated. There is otherwise no reason as to why these witnesses would like to depose falsely against the appellants. In fact, being close relatives of the deceased, they would like the culprits to be brought to the picture, rather than implicate an innocent person. This argument, therefore, necessarily false to the ground.

There is no over emphasising the fact that in a criminal trial, the First Information Report must be lodged promptly. If there is a delay, the same should be explained as such, as has been held in the case of Narotam Singh v. State of Punjab and another, AIR 1978 SC 1542 that :

"Discrepancies do not necessarily demolish testimony; delay does not necessarily spell university and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative shortfalls. The ''Sacred cows'' of shadowy doubts and marginal mistakes, processual or other, cannot deter the Court from punishing crime where it has been sensibly and substantially brought home."

While examining the said question of delay that the First Information Report was recorded on 16.1.1990, one cannot ignore the explanations offered. Kanchan PW13 had explained that she had gone to her house to fetch money which was required. She added that Lachhmi had accompanied her. She had gone to give the money to her husband at about 4.00 P.M. and came back. Investigating Officer Sube Singh did not find any person in the hospital when he firstly went there. It would be travesty of facts to conclude that there was no eye witness. The learned trial Court had rightly noted that the deceased was an indoor patient in the Emergency Ward and remained in a big hospital. The witness could not be always available near the said place. In fact, in the Medical Legal Report Ex. PA, it is mentioned that the deceased was removed to the hospital by his relatives. This fact supports the above said conclusion that when Investigating Officer came there, it was coincidence that he could not meet the eye witnesses.

Some discrepancies are natural in this regard. The witnesses are poor persons working as labourers. They are not expected to be familiar with the niceties of law. One does not expect that they would rush to the police post and lodge the First Information Report immediately. Saving the Joginder''s life was the first priority. The Court is, therefore, not surprised that in the facts of this case, some delay occurred because the injured was directed to be removed to Post Graduate Institute, Chandigarh while he died at Ambala in the Mission Hospital. The entries show that it was on these account, the delay occurred but the same is explained. I find no reason to take the different view that of the learned trial Court.

In that event, it has been submitted that the sentence awarded by the learned trial Court is excessive. Both the appellants were stated to be young in age. In the facts and circumstances of the case, in my opinion since only one blow was given and not repeated by the appellants, the interest of justice shall be fully met, if the sentence is reduced.

For these reasons, appeals on merit fail and are dismissed. But instead of ten years, the imprisonment of the appellants is reduced to five years. I, accordingly, modify the order of the trial Court and sentence the appellants to undergo rigorous imprisonment for five years each and also to pay a fine of Rs. 1,000/ each. In default of payment of fine, to further undergo rigorous imprisonment for a period of three months.