Subhash vs State of Haryana

V.K. Bali, J.

Two real brothers, Subhash and Mohan Lal sons of Shri Giani Ram, who have been sentenced to undergo inprisonment for life and to pay a fine of Rs. 500/ each and in default thereof to further undergo RI for six months under Section 302 read with Section 34 of the Indian Penal Code, have filed the present appeal bearing No. 174DB of 1993 against the orders of the Sessions Judge, Karnal, dated April 2, 1993. Murti Devi widow of Krishan Lal seeks enhancement of sentence given to the two appellants through Criminal Revision No. 428 of 1993. By this order, thus, we shall dispose of the appeal as also the revision, referred to above.

Malhar Singh, Inspector/SHO, Police Station, Sadar Karnal moved in the matter to register a case against Subhash and his Brother Mohan Lal on the information received by him from Lakhi Ram son of Shri Jagan Nath, who, on July 24, 1991 at 7.30 a.m. stated before him that they were four brothers, eldest being Sita Ram and younger to him being Giani Ram. He was younger to Giani Ram and Bal Kishan was still younger to him. His father, Jagan Nath was alive and he was owner of 8 acres of land. His father, by way of family partition, had given to him and his brothers two acres of land each. His father had installed one electric tubewell in the said land. All of them were irrigating from that common tubewell turn by turn. His brother Giani Ram and he cultivated the land. He had taken two acres of land from his brother Sita Ram on lease and he cultivated the same. Giani Ram cultivated the land of Bal Kishan on lease. They had mutually decided the turn of water from the said tubewell day wise. On July 23, 1991 it was their turn of water. In the evening the appellant Subhash told him that they would take the turn of water, whereupon his son Krishan told that is was their turn of water that day. There was an altercation on that issue. Appellant Subhash threatened to see him and others at the tubewell as to who was to irrigate. At about 9.30 p.m. electric supply had started. His son Krishan and he came at the tubewell and switched the tubewell which started irrigating the fields. At about 1 a.m. he went to divert the flow of water. His son Krishan was sitting on a cot near the tubewell. Just then the appellants came there. Immediately on arriving there, they said that they would take the turn of water. Thereupon, his son Krishan said that it was their turn of water and as such they could not take the turn of water. At this, the appellants hurled abuses. He was also attracted to the tubewell. Appellant Subhash gave a kassi blow to Krishan on his head whereas Mohan gave a kassi blow on his left knee. He raised alarm which attracted Nathu son of Parsa Ram, Brahman by caste, resident of the village, who was also irrigating his land in the adjoining fields. He came running. In his and Nathu Ram''s presence, the appellants kept on giving blows with their respective kassis to Krishan indiscriminately and fled away from the spot while wielding kassis at them. His son Krishan succumbed to his injuries at the spot. Nathu and he had witnessed the said occurrence in the light of electric bulb fitted on the Kotha of the tubewell. Leaving Nathu Ram at the spot to guard the dead body, he had come to the Police Station and gave his statement which was recorded by Malhar Singh, Inspector/SHO, Police Station Sadar Karnal. It has come in the evidence that the Police Station is at a distance of 11 Kms. from the place where Krishan was murdered and that the special report had reached the Magistrate concerned at 8.30 a.m., which, as mentioned above, was recorded at 7.30 a.m. on July 24, 1991. Dr. S.R. Ajman, Senior Medical Officer, General Hospital, Karnal, conducted postmortem examination on the dead body of Krishan on July 24, 1991 at 3.15 p.m. and found the following injuries:

"1. An incised wound 7 cms x 4 cms over the occipital region. Underlying bone was fractured. Brain matter was coming out.

An incised wound 5 cms x 2 cms bone deep over the left mastoid region.

An incised wound 9 cms x 3 cms over the vault of the skull. Underlying bone was fractured.

An incised wound 5 cms x 2 cms over the right parietal area of the skull.

An incised wound 8 cms x 4 cms bone deep over the left knee joint.

An incised wound 6 cms x 3 cms muscle deep over the back of right forearm near the elbow joint.

An incised wound 41/2 cms x 2 cms over the back of middle of left forearm.

An incised wound 3 cms x 1.5 cms muscle deep over the lateral aspect of left shoulder area of the arm.

An incised wound 4 cms x 2 cm over the dorsum of the hand, muscle deep on the left side.

An incised wound 2 cms x 1 cm muscle deep, over the dorsum of the hand over the little finger left side."

An incised wound 3 cms x 1 cm over the dorsum on the hand near the ring finger on left side.

On dissections, there was fracture of both parietal and occipital bones, There was subdural haematoma over both the parietal area of the brain and occipital lobde of the brain. There was fracture of 5th metacarpal bone. The stomach contained semidigested food material approximately 200 CC. The small intestine contained chytoe and gases. The large intestine contained fiecal matter and gases. The liver was pale and healthy. All other organs were healthy. In the opinion of the doctor, the death had occurred due to shock and haemorrhage as a result of aforesaid injuries which were antemortem and sufficient to cause death in ordinary course of nature. The probable time that elapsed between the injuries and death was within a few minutes and between death and portmortem was within 24 hours.

Whereas, Lakhi Ram, father of the deceased, appeared as PW2, Nathu Ram, a neighbourer, who had arrived at the place of occurrence, appeared as PW3. Both of them supported the prosecution version in all its material details. The way and manner in which the investigation proceeded in the matter was provided by PW6 Inspector Malhar Singh and PW8 Vijay Kumar. The accused in their statements recorded under Section 313 Cr.P.C. denied their participation in the occurrence leading to the death of Krishan and further stated that it is a case of blind murder and they had been roped in falsely. They, however, led no defence. After the resultant trial, both the appellants were held guilty and convicted under Section 302 read with Section 34 of the Indian Penal Code and as mentioned above, sentenced to undergo life imprisonment and also to pay a fine of Rs. 500/ each and in default of the payment thereof, to further undergo RI for six months.

As mentioned above, Murti Devi has filed Crl. Revision No. 428 of 1993 for enhancement of the sentence given to the appellants.

We have heard Mr. H.S. Gill, learned Senior Advocate, appearing on behalf of the appellants and Mr. Varinder Singh, Deputy Advocate General, Haryana. With their assistance, we have gone through the records and, in particular, the statements of PW2 and PW3. But for minor discrepancies, nothing material has been brought to our notice that might detract from their sworn depositions made in the Court. They were subjected to lengthy crossexamination which test they withstood more than adequately. Mr. H.S. Gill, however, contends that it is a case of blind murder which appears to have been committed at 10 p.m. on July 23, 1991 and the time has been postponed by three hours simply with a view to cover the delay in lodging the F.I.R. and to manipulate the material details to rope in the appellants. With a view to substantiate the plea, noted above, it is being argued that PW1 Dr. S.R. Ajmani had deposed that semi digested food was found in the stomach of the deceased and if the deceased had taken his meals by 7 or 7.30 p.m. on July 23, 1991, it would be by 10 p.m. that the food would be semidigested whereas at about 1 a.m. it would be fully digested. We find absolutely no force in the contention as, concededly, none of the witnesses was questioned as to at what time the deceased had taken his last meals. Without pinpointing the time of consumption of food by the deceased, the contention of the learned counsel, in our considered view, needs to be repelled as it would not even arise for consideration.

The second contention of the learned counsel is that the conduct of the eye witnesses so as not to intervene and, particularly of the father of the deceased, militates against the human conduct and, therefore, the finding deserves to be recorded that none of the witnesses was present there. With a view to substantiate the said contention, it has been further argued that there was no question of PW2 and PW3 not to have approached the authorities of police for such a long time. In fact, it is only in the morning when they came in the fields and found Krishan lying dead that they reported the matter to the police. It is being further argued that Nathu Ram is not an independent witness and being a neighbour of the deceased and his father, he was a witness, who really wanted success of the complainant in proving the prosecution version. We have given our thoughtful consideration to the contentions of the learned counsel, noted above, and find that there is no substance whatsoever in either of them. Pitted against two youngmen, who were belabouring his son, it may not have been possible for Lakhi Ram, father of the deceased, to intervene. We could well imagine the circumstances in which he was pitted against that he might not be able to render proper assistance to save him from the two accused, both of whom were armed. It might have been a case of helpless resignation to the situation faced by him. Insofar as Nathu Ram, neighbour in concerned, he could well think to save himself as, in all probability, if he was to intervene, he would have also been caused some injuries. In the present set of circumstances, normally people even do not come to depose in a Court with regard to the occurrence they have witnessed themselves and here the learned counsel for the appellants expects a non interested third party to intervene in an ongoing fight of somebody else. Nathu Ram has been proved to be an independent witness and the only criticism levelled against him that he is a neighbour, straightaway fails on the score that if he is a neighbour of the complainant Lakhi Ram, he is a neighbor of the appellants as well, as, concededly, Nathu Ram and appellants have adjoining lands. The only other argument raised by learned counsel for the appellants is that the bulb on the tubewell kotha has been introduced with a view to strengthen the prosecution version and to convince the Court that the appellants were recognised and in fact and reality there was no light at the scene of occurrence. In that regard, the attention of the Court has been drawn to the statement of the Investigating Officer, who had not shown the bulb in the site plan prepared by him at the spot. This argument, in our view, cuts no ice for the reason that it is only a minor discrepancy and if the statements of the eye witnesses are otherwise credible, on this small count, their depositions cannot be rejected. That apart, concededly, the witnesses of the occurrence and the appellants are close relations and even if there was no electric light, it was not difficult for them to have recognised them even from their voice.

As a last resort, Mr. Gill endeavored his best to convince us that even if the prosecution story is accepted in its entirety, it being a sudden affair, the offence will not fall under the mischief of Section 302 IPC and at the most it may be a case that might be covered under Section 304, Part I or II, as the case may be. For his aforesaid contention, learned counsel relies upon Jagpati v. State of Madhya Pradesh , 1993 Crl.L.J., 1058, Gurnam Singh & Another v. State of Punjab, 1996(1) Recent Criminal Reports 287,(SC): 1995(3) All India Criminal Law Reporter 432 and State of Gujarat v. Panubhai & Another, 1991 CrI .L.J. 2226. We have gone through these judgments but find that facts of these cases are entirely distinguishable from the facts of the case in hand. Herein the appellants had threatened the complainant and his son prior in point of time from the time when the occurrence actually took place when they had resented the complainant and his son for taking turn of water on the fateful day/night. They were met with an objection with equal vehemence from the complainant and his son and at that stage the appellants had told them that they would be dealt with. It is, thus, a case where the appellants had come at the scene of occurrence having already planned that if the complainant and his son would divert water to their fields, they would be taught a lesson for that. For that precise reason they were armed. That apart, is not a case where, on altercation, only one or two injuries were inflicted by the appellants. The positive case of the prosecution is that when the victim had fallen down, repeated blows were given by both the appellants resulting into his death on the spot. This contention of the learned counsel is also repelled.

Finding no merit in this appeal, we dismiss the same.

Insofar as Crl. Revision No. 428 of 1993 is concerned, suffice it to say that it is not a rarest of rare case which might warrant death penalty to the appellants. The revision is also devoid of merit and is consequently dismissed.