Subhash vs State of Haryana

Sat Pal, J.

By this judgment, we are disposing of Criminal Appeal No. 422DB of 1995 and Criminal Revision No. 37 of 1996. Criminal Appeal No. 422DB of 1995 has been filed by Subhash who has been convicted under Section 302 IPC for murder of Kishori Lal and has been sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/ and in default of payment of fine, he was ordered to undergo RI for a period of six months vide judgment dated 4th September, 1995, passed by the learned Additional Sessions Judge, Sonepat. By the said judgment, other two accused namely Rajesh alias Chikna and Bhoopa alias Ajay, have been convicted under Section 324 IPC but the learned Additional Sessions Judge released them on probation of good conduct on their entering into bonds of good behaviour in the sum of Rs. 5,000/ with one surety in the like amount each for a period of one year. Cr. Revision No. 37 of 1996 has been filed by Suresh Kumar who is the real brother of deceased Kishori Lal and in this petition it has been prayed that the accused Subhash may be awarded death sentence under section 302 IPC and the other two accused Rajesh and Bhoopa be convicted under Section 302/34 IPC instead of section 324 IPC. The petitioner has also prayed for award of compensation of Rs. 4 lacs in favour of Nirmala widow of the deceased Kishori Lal and his three minor children and aged parents against all three accused.

The case against the accused Subhash, Bhoopa alias Ajay and Rajesh alias Chikna was registered at Police Station, Sonepat on 6.6.1994 vide FIR Exhibit PA/2 on the basis of a statement of Suresh (PW 3) which was recorded by SI Bhuj Raj (PW 9) in the Civil Hospital, Sonepat on 7th June, 1994 at 1.15 a.m. (midnight). Suresh in his statement, had stated that two days prior to the occurrence there arose a dispute between his brother Kishori Lal and Subhash son of Puran Khatti over money matters and Subhash had threatened his brother Kishori Lal that he would teach him a lesson. He further submitted that on 6.6.1994 at about 9.15 p.m. he along with his brother Kishori Lal, his brotherinlaw Ashok Kumar (PW 4) and one Jagga had set out for walking after taking meals. When they reached near the flour mill of Suresh Punjabi in Raj Mohalla, they saw Subhash son of Puran Khatti, Bhoopa alias Ajay Kumar and Rajesh son of Jaswant, standing near the chowk. He further stated that his brother Kishori Lal asked them as to why they were standing there and on this Subhash got enraged and said to his brother Kishori Lal "who the hell are you to ask this question". At this, his brother Kishori Lal asked Subhash not to hurl abuses. At this Subhash, Bhoopa alias Ajay and Rajesh got enraged and raised a lalkara saying "Catch hold of them". Thereafter Subhash took out a knife from the pocket of his pants and he and his brotherinlaw Ashok Kumar retraced out of fear. Meanwhile, Bhoopa alias Ajay and Rajesh caught hold of his brother Kishori Lal and within their sight Subhash gave two knife blows to his brother Kishori Lal, out of which one blow hit on the left side of his chest and the other blow hit on the left side of his abdomen, as a result of which his brother fell down. They raised alarm and on hearing alarm his elder brother Yash Pal came to the spot and on his arrival Subhash, Bhoopa alias Ajay and Rajesh fled away from the spot. Thereafter, he and his brother Yash Pal removed his brother Kishori Lal in an injured condition to the Civil Hospital, Sonepat, on a motorcycle where the doctor declared him dead.

On the basis of the above statement, SI Bhup Ram sent ruqqa to the Police Station through Sarwan Kumar Constable for registration of the case. Thereafter, the writing of the FIR at P.S. Sonepat commenced at 1.15 a.m. and the FIR was completed at 2 a.m. on 7.6.1994. Special report reached the Ilaqa Magistrate at 7 a.m. on 7th June, 1994. SI Bhuj Ram (PW 9) thereafter conducted the inquest proceedings vide Exhibit PE and proceeded to the place of occurrence. There he prepared the rough site plan Exhibit P1 depicting the place of occurrence. He also lifted the bloodstained earth from the spot vide memo Exhibit PL.

Dr. A.K. Gupta (PW 5) who was posted as Medical Officer, Civil Hospital, Sonepat, at the relevant time, conducted the post mortem examination vide report Exhibit PD on the dead body of the deceased Kishori Lal and he found the following injuries on his person :

(1) A stab wound 2 cms. x 3/4 cms. with clear cut margins. The margins were inverted longitudinally placed in the 4th intercostal space just inner to nipple going downward, backwards and inwards cutting 5th rib near sternum piercing through the right ventricle. Pericardeal cavity was full of blood. Clotted blood was there at the external wound site and there was corresponding cut in the banian and shirt.

(2) A stab wound 2.5 cm x 0.5 cms. slightly oblique with clear cut margins present in the left lumber region 3 inches from midline just below the level of umbilicus. Clotted blood was present around the wound, and dark clotted blood came out on pressing the wounds site. On exploration direction of the wound was found to be downwards backwards, and slightly medially going into peritoneal cavity piercing the mesentry and small gut. Dark clotted blood was present in periotoneal cavity.

The stomach was found containing small quantity of semidigested food and gastric juices. All the organs were healthy and pale. Bladder was empty.

In the opinion of the Doctor A.K. Gupta, the cause of death was due to shock and haemorrhage as a result of injury to the heart which was antemortem in nature and was sufficient to cause death in the normal course.

On 7th June, 1994, Inspector Chaman Lal Malhotra SHO P.S. Sonepat (PW 10) arrested accused Subhash and on 8th June, 1994, during the course of investigation accused Subhash suffered disclosure statement Exhibit PH, leading to the recovery of knife Exhibit P1 from the place near Ganda Nala at Murthal Road which was taken into possession vide memo Exhibit PH. PW 10 prepared the rough site plan Exhibit PH/3 depicting the place of recovery. Accused Rajesh was arrested on 9th June, 1994 and the third accused Bhoopa alias Ajay was arrested on 10th June, 1994. After the completion of the investigation, challan was filed against all the accused by the Police under Section 302 read with section 34 IPC.

In support of the case, the prosecution examined 10 witnesses. PW 1 SI Ram Dia investigated the case partly and had recorded the formal FIR. PW 2 Anil Kumar draftsman prepared the scaled plan of the place of occurrence which is Exhibit PB. PW 3 Suresh s/o Jessa Ram and PW 4 Ashok Kumar are the eye witnesses. PW 5 Dr. A.K. Gupta conducted the post mortem examination on the dead body of the deceased vide report Exhibit PD. PW 6 Head Constable Rajbir had proved his affidavit Exhibit PG with regard to the taking of the case property. PW 7 UGC Ishwar Singh has proved the delivery of the special report at the residence of the Ilaqa Magistrate. PW 8 Suresh son of Bishan Dass has proved the recovery of the knife as a result of the disclosure statement of accused Subhash. PW 9 SI Bhuj Raj had conducted the main investigation. PW 10 Inspector Chaman Lal Malhotra has proved the recovery of knife exhibit P.1 as a result of disclosure statement.

The accused in their respective statements recorded under Section 313, Cr.P.C. denied the charge. However, no defence evidence was led by the accused.

Relying on the above evidence, the learned Additional Sessions Judge vide impugned judgment dated 4.9.1995 convicted the accused Subhash and sentenced him under Section 302 IPC as stated herein above. However, accused Bhoopa alias Ajay and Rajesh were not held guilty under Section 302 IPC and instead they were held guilty under Section 324 IPC and sentenced as stated hereinabove.

Mr. Hundal, learned counsel appearing on behalf of the appellant submitted that none of the two alleged eye witnesses PW 3 Suresh Kumar and PW 4 Ashok Kumar had witnessed the occurrence. In this connection he referred to the statement of PW 3 and submitted that this witness, in his cross examination, had stated that Kishori Lal was taken to the hospital on the motor cycle which was driven by Yash Pal and Kishori Lal was made to sit in between him and Yash Pal. He had further stated that his clothes had some blood stains at that time. He, however, submitted that neither the motor cycle nor the blood stained clothes were shown to the Police. In this connection, he also drew our attention to the ruqqa Exhibit PF and submitted that in this ruqqa, it has been stated that Kishori Lal was brought to the hospital by Jaswant son of Jassa Ram and in this ruqqa there is no mention of PW 3 Yash Pal or PW 4 Ashok Kumar. He, therefore, contended that both PW 3 and PW 4, in fact, were not present at the time of occurrence.

The learned counsel further submitted that medical evidence was also contrary to the ocular version given by the alleged eye witnesses. He submitted that PW 3, in his statement, had stated that he along with Ashok Kumar and deceased Kishori Lal had taken meals at 9 p.m. and deceased was brought to the hospital at 10.30 p.m. and was declared as `brought dead'' but PW 5 Dr. A.K. Gupta in his statement, had stated that the deceased had taken meals 2/3 hours before death. He further submitted that PW 3, in his cross examination has stated that the knife blow was caused upwards but PW 5 Dr. A.K. Gupta, in his statement, has stated that the injuries have been inflicted from the front side and the thrust of the knife must be downwards.

The learned counsel further submitted that there was unexplained delay in delivering the special report at the residence of the Ilaqa Magistrate. He submitted that PW 1 Ram Dia, Sub Inspector, in his statement has stated that the special report was handed over to UGC Ishwar Singh at 2.15 a.m. but admittedly the said report was delivered at the residence of the Ilaqa Magistrate at 7 a.m. and the distance between the Police Station and the residence of the Ilaqa Magistrate was only 2 kms. and thus there was substantial delay in reaching the special report at the residence of the Ilaqa Magistrate.

The learned counsel further submitted that PW 1 Ram Dia, in his cross examination, stated that DD entry No. 47 was entered on receipt of ruqqa from SI Bhoj Raj and D.D. entry No. 49 on the basis of completion of the FIR. He further stated that he had not entered the names of the accused and the witnesses in the said DD entry. He, therefore, contended that in view of these facts there was clear violation of Section 154 Cr.P.C. and Rule 24.1 of the Punjab Police Rules and as such, the appellant was entitled to the benefit of doubt. In support of his submission, the learned counsel placed reliance on a judgment of the Supreme Court in Ishwar Singh v. State of U.P., AIR 1976 SC 2423 and a judgment of this court in Bhag Singh v. State, 1992(1) RCR 145.

The learned counsel further submitted that there was discrepancy in the statement of PW 3. He submitted that PW 3, in his statement before the trial court, had submitted that one day prior to the incident, the appellant Subhash had threatened Kishori Lal that he would see him but in his statement, recorded by the Police under Section 161 Cr.P.C., he had stated that the said dispute was two days prior to the incident.

The learned counsel further submitted that the alleged motive was also not proved by the prosecution. He submitted that though PW 3, in his statement, had stated that there was a dispute on money matters, a day prior to the incident but it has not been proved that any amount was due to the deceased from the appellant. He also submitted that all these facts made the case of prosecution doubtful and it was not clear as to who had caused the injuries.

Lastly, as an alternative argument, the learned counsel for the appellant submitted that in any case, no case is made out against the appellant under Section 302 IPC and at the most the present case could be covered under Section 304 Part II, IPC. He submitted that the intention to murder cannot be attributed to the appellant as even according to the case of the prosecution, it was the deceased who had provoked the appellant by asking the appellant and his two companions as to how they were standing though admittedly the place where they were standing was a public place. He submitted that the examinationinchief of PW 3 itself shows that it was a case of sudden provocation. In support of this submission, the learned counsel placed reliance on the following judgments :

(1) Kishore Singh v. State of Madhya Pradesh 1977 SCC (Cri) 656;

(2)

Surinder Kumar v. Union Territory Chandigarh, 1989(2) RCR (Crl.) 140 : AIR 1989 SC 1094.

Mr. Varinder Singh, learned Deputy Advocate General, appearing on behalf of the State submitted that there was no delay at all in delivering the special report at the place of Ilaqa Magistrate. The learned counsel drew our attention to the FIR Exhibit P/2 and submitted that the FIR itself shows that the recording of the FIR commenced at 2 a.m. vide DD entry No. 47 and was completed at 3.05 a.m. vide D.D. entry No. 49. He, therefore, contended that PW 1 SI Ram Dia had incorrectly stated in his crossexamination that the special report was handed over to UGC Ishwar Singh at 2.15 a.m. He submitted that on the contrary, UGC Ishwar Singh, in his statement, correctly stated that special report Exhibit PA/2 was handed over to him at 3.30 a.m. and the same was delivered by him at the residence of the Ilaqa Magistrate at 7 a.m. As regards the admission of PW 1 SI Ram Dia that he has not entered the names of the accused and the witnesses in the DD entry, the learned counsel submitted that the said DD entry is not part of judicial record and even otherwise omission of these particulars in the said DD entry was not of any significance as the said DD entry pertained to the completion of the FIR when all these particulars have been mentioned in the FIR itself.

The learned counsel further submitted that the medical evidence was not contrary to the ocular version of the eye witnesses PW 3 and PW 4. He submitted that PW 4, in his statement had stated that they had taken meals at 8.30 p.m. and the death occurred at 10.30 p.m. He submitted that PW 5 Dr. A.K. Gupta has stated, in his crossexamination that the deceased might have taken his meals 2/3 hours before his death. He, therefore, contended that the period of 2/3 hours is approximate and even otherwise the same was not contrary to the statement of PW 4 that they had taken the meals at 8.30 p.m. He further submitted that as per Exhibit PF the deceased was brought by Jaswant S/o. Jassa Ram and it is also stated therein that said Jaswant is the brother of the deceased. He submitted that admittedly Jassa Ram had three sons, namely Yash Pal, PW 3 Suresh Kumar and deceased Kishori Lal. He submitted that from ruqqa Exhibit PF it is clear that in fact the deceased was brought by his brother. It is also clear from this ruqqa that this was prepared at 10.15 p.m. and PW 4 in his statement, had stated that he and Jaswant had followed Yash Pal and Suresh in the Hospital and they had reached the hospital at 9.45 p.m. He submitted that from this it was clear that all the said four persons including Jaswant were present in the hospital when Exhibit PF was prepared. As regards the production of blood stained clothes and blood stained motor cycle before the Police, the learned counsel submitted that the nonproduction of these articles could not be fatal as this could have been due to some negligence on the part of the Investigating Officer. The learned counsel further submitted that the motive in this case is insignificant as the ocular version itself has been proved by the two eye witnesses.

Lastly, the learned counsel submitted that the present case was fully covered under Section 302, Indian Penal Code as the appellant had inflicted two knife injuries and both the injuries were inflicted on vital parts of the body. In support of this submission, the learned counsel placed reliance on a judgment of the Supreme Court in State of Karnataka v. Vedanayangam, 1995(1) RCR 231.

In the rejoinder arguments, the learned counsel for the appellant submitted that even the alleged recovery of knife Exhibit P1 was fake one and it has not been proved by the prosecution that the knife was tainted with human blood as the report of the Forensic Science Laboratory, Exhibit PM shows that the material had disintegrated.

We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records.

From the facts on record, we find that PW 3 Suresh Kumar and PW 4 Ashok Kumar are natural witnesses who had seen the occurrence. There is no inconsistency in the statements of these two eyewitnesses that on 12th June, 1994 they along with the deceased had taken meals at about 8.30 p.m. together and when they were loitering in the market at about 9.15 p.m. they met appellant Subhash and other two coaccused Rajesh alias Chikna and Bhoopa alias Ajay. It is also proved from their evidence that PW 3 Suresh Kumar and his brother Yash Pal had taken the deceased Kishori Lal to the hospital and PW 4 Ashok Kumar along with Jaswant who was a servant of Suresh, had followed them; and PW 4 and Jaswant reached the hospital at about 9.45 p.m. Again the evidence of PW 3 and PW 4 is consistent to the effect that there was an altercation between the appellant Subhash and deceased Kishori Lal and thereafter the appellant Subhash inflicted two knife injuries.

After the deceased was declared dead in the hospital, Ram Phal, Head Constable sent ruqqa Exhibit PF at 10.15 p.m. to the incharge, Police Post, General Hospital, Sonepat, wherein it was stated that Kishori Lal had been brought dead to the hospital. PW 9 SI Bhoj Raj has proved that he received telephonic message at about 10.45 p.m. at Police Station City, Sonepat and thereafter he proceeded to the hospital. In the Hospital, PW 9 recorded the statement of PW 3 Suresh Kumar and on the basis of this statement, formal FIR was registered at P.S. City Sonepat. FIR Exhibit PA/2 further shows that the recording of the FIR commenced at 2 a.m. on 7th June, 1994 vide D.D. entry No. 47 and it was completed at 3.05 a.m. vide D.D. entry No. 49. PW 7 UGC Ishwar Singh has proved that the Special Report Exhibit PA/2 was handed over to him at 3.30 a.m. on 7th June, 1994 and he delivered the same at the residence of the Ilaqa Magistrate at 7 a.m. The ocular version of the two eye witnesses PW 3 and PW 4 has been fully corroborated by the medical evidence of Dr. A.K. Gupta (PW 5). The injuries found by Dr. A.K. Gupta in the postmortem report are in consonance with the oral version of the injuries given by the two eye witnesses PW 3 and PW 4. Dr. Gupta, in his crossexamination, has stated that the deceased might have taken his meals 2/3 hours before his death and according to PW 4, Ashok Kumar, the deceased Kishori Lal had taken the meals with them at about 8.30 p.m. and he was declared dead in the hospital at 10.15 p.m. From the aforesaid facts, it is clear that both PW 3 and PW 4 were present at the place of occurrence and their evidence is natural which has been corroborated by the medical evidence. We, therefore, do not find any merit in the contention of the learned counsel for the appellant that PW 3 and PW 4 were not present at the time of occurrence.

We also do not find any delay in recording the FIR or in the delivery of the special report at the place of Ilaqa Magistrate. The learned counsel for the appellant has relied upon the statement of SI Ram Dia to the effect that he had handed over the special report to UGC Ishwar Singh at about 2.15 a.m. We, however, find that the statement of the said witness is not above board. From the FIR, it is clear that the recording of the FIR started at 2 a.m. and it was completed at 3.05 a.m. It is not understood how SI Ram Dia could have delivered the special report to PW 7 at 2.15 a.m. when the FIR itself was completed at 3.05 a.m. We also find that PW 1 has tried to help the accused with some ulterior motive when he stated that he had not entered the names of the accused and the witnesses in DD entry No. 49. From the records we find that the register containing DD entry No. 47 and DD entry No. 49 was not before him when he gave this statement. We, therefore, deprecate the attitude of PW 1 SI Ram Dia who has tried to help the accused. Even if D.D. entry No. 49 did not contain the names of accused and the witnesses, it cannot be of any assistance to the accused as the entry No. 49 pertains to the completion of the FIR and the FIR contains the names of the accused and the names of the witnesses, and further, as stated earlier, the special report which is the copy of the FIR, was delivered at the residence of the Ilaqa Magistrate promptly. In this connection, reference may be made to a Division Bench judgment of the Delhi High Court in State v. Hukam Chand, ILR 1974(1) Delhi 419, wherein it was observed that the provisions of Section 154 Cr.P.C. were meant to secure an assurance in respect of certain report having been made at certain time and if these guarantees are otherwise present, the omission of the concerned Police Officer to record the substance in the Daily Diary cannot be considered to be of much significance. The same view was taken by a Division Bench of this Court in Balwant Singh v. State of Punjab, 1978 Crl Law Times 194. In a recent judgment in Hardev Singh v. Harbhej Singh, JT 1997(1) SC 29, the Hon''ble Supreme Court has also taken the same view. The Division Bench judgment of this court in the case of Bhag Singh (supra) relied upon by the learned counsel for the appellant is of no assistance to the appellant as in that case, there were material discrepancies in the ocular account of the occurrence and the medical evidence. On the same ground, the judgment in the case of Ishwar Singh (supra) is of no assistance to the appellant.

As regards the contention of the learned counsel for the appellant that there is a discrepancy between the ocular version of the eye witnesses and the medical evidence as to whether the thrust of the knife was upwards or downwards, we do not find any substance in this contention. Both PW 3 and PW 4, in their statements, have clearly stated that they had seen the actual infliction of the knife blows while turning back and as such this alleged discrepancy is not of any significance. As regards the motive, we agree with the contention of the learned counsel for the appellant that the statement of PW 3 and PW 4 as to whether any dispute over money matter had arisen between the deceased and the appellant a day or two days prior to the date of incident, is not free from suspicion as these witnesses have not been able to prove that any money was payable by the appellant to the deceased. We, however, find that the motive in the present case loses its significance as the inflicting of the knife injuries by the appellant has been fully proved by the two eye witnesses.

We also do not find any merit in the alternative argument raised by the learned counsel for the appellant that at the most the present case could be covered under Section 304 Part II Indian Penal Code and not under Section 302 IPC. As stated earlier, the appellant was carrying knife in his pocket and he was having full knowledge that the injury caused by this sharp edged weapon was likely to cause death. It also cannot be said that there was no intention on the part of the appellant to cause death as the appellant inflicted two knife injuries, one on the left side of the chest and the other on the left side of the abdomen of the deceased. From this it is clear that both the injuries were inflicted on the vital parts of the body and there was clear intention of the appellant to cause death. The view taken by us finds full support from the judgment of the Supreme Court in the case of Vedanayagam (supra). Since the appellant had inflicted more than one injury with the sharp edged weapon and both the injuries were inflicted on the vital parts of the body, judgments in the case of Kishore Singh (supra) and Gurinder Kumar (supra) are of no assistance to him. We, therefore, do not find any infirmity or illegality with the judgment of the learned trial Court by which the appellant has been convicted under Section 302 IPC and has been sentenced to undergo imprisonment for life and to pay a fine in the sum of Rs. 2,000/.

Now we deal with the Revision Petition filed by the complainant. In the revision petition it has been prayed that the accused Subhash be awarded death sentence under Section 302 IPC and the other two accused Rajesh alias Chikna and Bhoopa alias Ajay be convicted and sentenced under Section 302 read with Section 34, IPC instead of Section 324, IPC. We, however, do not find any merit in the prayer for awarding death sentence to appellant Subhash as it is not one of the rarest of rare cases where death penalty could be awarded. Even the learned counsel for the petitioner did not address any argument to the effect that it was one of those cases where the death penalty could be awarded.

As regards the other two accused, Rajesh alias Chikna and Bhoopa alias Ajay, after carefully examining the evidence on record, we find that these two accused were not aware of the fact that their coaccused Subhash was carrying a knife as the knife was concealed in his pocket. In view of these facts, these two accused could not be convicted under Section 302 read with Section 34, Indian Penal Code and their conviction by the learned trial Court under Section 324 IPC is legal and valid. We, however, find that the reasons given by the learned trial Court for releasing them on probation without any compensation to the family of the victim are not valid. It has been proved by the prosecution that these two accused had caught hold of the deceased when the knife injuries were inflicted twice by accused Subhash. Admittedly, the deceased Kishori Lal has left his widow Nirmala Devi and three minor children, namely, Niraj (son), Sunny (son) and Warsha (daughter) and they have suffered by the action of the said accused. Thus they are entitled to a reasonable compensation under subsection (3) of Section 357 Criminal Procedure Code. These accused are young men in their twenties and being able bodied men they can pay the amount of reasonable compensation. As held by the Hon''ble Supreme Court in the case of Hari Krishan v. Sukhbir Singh, 1988(2) RCR (Crl.) 394 : AIR 1988 SC 2127, the power to grant compensation under Section 357(3) Criminal Procedure Code, was intended to do something to reassure the victim that he or she is not forgotten under the criminal justice system and it is a measure of responding appropriately to crime as well of reconciling the victim with the offender. Having regard to the facts and circumstances of the case, we consider that payment of Rs. 20,000/ as compensation under Section 357(3) by each of the respondentaccused to the widow of the deceased, namely Smt. Nirmala Devi and his three minor children, namely, Niraj (son), Sunny (son) and Warsha (daughter) would meet the ends of justice. Accordingly, we direct the respondents Rajesh alias Chikna and Bhoopa alias Ajay to pay Rs. 20,000/ each to the abovementioned widow and three minor children of the deceased Kishori Lal within three months from the date of the judgment. We further direct that in case of default of payment of compensation, the respondents Rajesh alias Chikna and Bhoopa alias Ajay shall undergo RI for a period of one year.

For the reasons recorded herein above, the judgment dated 4th September, 1995 passed by the learned Additional Sessions Judge, Sonepat is modified only to the extent of compensation to the widow and the three minor children of Kishori Lal deceased as indicated above and in all other respects, the said judgment is affirmed. The appeal and the revision petition are accordingly disposed of.