Vakil vs State of Haryana

R.L. Anand, J. (Oral)

By this judgment I dispose of two Criminal Appeals Nos. 95SB of 1997 titled Vakil and another v. State of Haryana, and 61SB of 1997 title Balbir Singh v. State of Haryana, as both of them arise out of common judgment and order dated 10th January, 1997 passed by the learned Additional Sessions Judge, Panipat, who convicted Balbir Singh appellant under Section 307, Indian Penal Code, while Vakil and Sarwan appellants were convicted under Section 307 with the aid of Section 34 of the Indian Penal Code. Balbir Singh appellant was sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 4,000/ and in default of payment of fine, he was ordered to undergo rigorous imprisonment for a further period of six months. Vakil and Sarwan were sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 3000/ each. In default of payment of fine, each of them was ordered to undergo rigorous imprisonment for a further period of four months.

Brief facts of the case can be noticed in the following manner :

On 30th July, 1992 after receiving ruqa (Ex.PA) at about 8.10 A.M. from C.H.C. Samalkha, regarding the admission of injured Rajesh Kumar with a knife injury in his abdomen and then referring him for General Hospital, Panipat, A.S.I. Sat Pal Singh (P.W.10), with two constables was present at Bus Stand, Samalkha, to go to General Hospital, Panipat, when he met Smt. Sudershan Kumar (P.W.11), Headmistress of Government High School, village Rakshera, who gave him statement in writing (Ex.PG) about the occurrence. The statement was to the effect that on 30th July, 1992 at about 8 A.M. the students of 9th Class, including Rajesh Kumar (P.W.4), were preparing school ground for play, when three boys entered the school by scaling over the boundary wall and one of them gave knife injury in the abdomen of Rajesh Kumar. She was informed by Satish (P.W.9) brother of Rajesh Kumar, student of 10th Class, as well as by other boys, that said injury was given by accused Balbir Singh alias Dalbir and the name of other accused was Vakil, whereas, she could not be apprised about the third accused. The assailants belonged to village Rakshera and after causing injury, all the accused ran away from the place of occurrence after scaling over the boundary wall. Satish, brother of Rajesh Kumar, then took the injured to the hospital for medical help. The application (Ex.PG) was sent to the Police Station for registration of the case and formal F.I.R. (Ex.PA/1) was registered by Head Constable Ranbir Singh (P.W.1) for an offence under Section 324 read with Section 34 of the Indian Penal Code. The Investigating Officer Shri Satpal Singh then went to the place of occurrence, prepared rough site plan (Ex.PH) and recorded the statements of the witnesses. He visited General Hospital, Panipat, in order to record the statement of the injured but he was informed that injured Rajesh Kumar had already been referred to M.C.H. Rohtak. On the next day A.S.I. Satpal Singh went to M.C.H. Rohtak and after getting medical opinion (Ex.PD/1) about the fitness of the injured, his statement was recorded under Section 161 of the Code of Criminal Procedure. As per version of the injured on the day of occurrence he was preparing the school ground for play when all the three appellants came there after scaling over the boundary wall of the school. Vakil and Sarwan caught hold of him, while Balbir Singh alias Dalbir Singh gave him knife blow in his abdomen. He raised noise, attracting his brother Satish (PW9), Daya Nand and Ishaq. After causing the injury, the accused ran away from the place of occurrence after scaling over the boundary wall of the school. According to the injured the motive for the crime was that a day before accused Balbir Singh had lost a Kabaddi match from him and then he had quarrelled with him but they were separated at that time. However, the appellants had a grouse in their heart of hearts and for the alleged insult caused to Shri Balbir Singh appellant, the injury has been caused to him.

Injured Shri Rajesh Kumar was examined by Dr. Mahavir Singh (P.W.5), who issued medicolegal report (Ex.PC), found single incised wound with clear cut margin and visible muscle present in right, hypochondriacs region of the sizes 3 cm. x 2 cm. This injury was kept under observation. The opinion of Dr. R.K. Goel about the nature of the injury was sought, who gave his opinion and on its basis Dr. Mahavir Singh (P.W. 5) declared the injury as dangerous to life.

On 7th August, 1992, A.S.I. Satpal Singh arrested Balbir Singh and Vakil. Balbir Singh was interrogated about the weapon of offence under Section 27 of the Indian Evidence Act. He disclosed that he had kept concealed the knife in his tubewell `Kotha'' and he would get the same recovered. His disclosure statement (Ex.PJ) was recorded. It was read over and explained to him. Balbir Singh then led the Police Party to the place of concealment and got recovered knife (Ex.P1), which was taken into possession vide recovery memo. Ex.PF. This knife was sent to the office of the Chemical Examiner, who found blood on it but no human blood could be determined by the Serologist.

During the course of investigation Sarwan was found innocent. On the completion of the investigation, Balbir Singh and Vakil were challaned under Section 307 read with Section 34 of the Indian Penal Code, in the Court of the Illaqa Magistrate, who supplied copies of the documents to the accused and vide commitment order dated 17th November, 1992 committed the accused to the court of Session in order to face the trial. Earlier the charge was framed against Balbir Singh and Vakil under Section 307 and Sections 307/34 of the Indian Penal Code, but later on Sarwan Singh was also arrayed as an accused on the application of the prosecution under Section 319 of the Code of Criminal Procedure. Sarwan Singh was also chargesheeted under Sections 307/34, Indian Penal Code. The charges were read over and explained to the accused, to which they pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined as many as 11 witnesses, including the injured and the doctor, who examined injured Rajesh Kumar. I need not incorporate in this judgment statements of all the witnesses.

On the course of the prosecution evidence, statements of the accused were recorded under Section 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused denied all these circumstances and stated that they were innocent. In defence they examined D.W. 1 Shri Murad Ali.

Learned trial Court relied upon the prosecution story, rejected the defence version and convicted and sentenced the appellants in the manner stated above and aggrieved by their conviction and sentence, present two appeals have been filed, which I am disposing of with the assistance rendered by Shri Parduman Yadav, Advocate, and Shri V.K. Bali, Advocate, appearing on behalf of the appellants, and Shri Shailender Singh, Deputy Advocate General, Haryana, who appeared on behalf of the State.

First of all I would take up the appeal of Sarwan. Learned counsel Shri Parduman Yadav, appearing on behalf of this appellant, submitted that benefit of doubt should go to this appellant as he was not named in the F.I.R. Moreover Sarwan was found innocent during the course of investigation. It was also submitted by the learned counsel for the appellant that as per the allegations of the prosecution, Sarwan allegedly caught hold of Shri Rajesh injured and it is highly unlikely that two persons would catch hold Rajesh in order to facilitate the crime for their coaccused Balbir.

On the contrary it was submitted by the learned counsel appearing on behalf of the State that the F.I.R. was not lodged by the injured P.W. Rather an application was submitted by the Headmistress of the School, who was not the eyewitness of the occurrence, after she was reported about the occurrence by the school boys and in this way she might have forgotten to name Sarwan in the application submitted by her to the Police. Shri Rajesh injured has categorically named Shri Sarwan Singh. In these circumstances the presence of Sarwan Singh should not be doubted.

After considering the rival contentions of the parties, I am of the opinion that benefit of doubt should go to Mr. Sarwan Singh appellant. Though the Headmistress was not the eyewitness of this case, but she is basing her ruqa (Ex.PG) on the testimony of those witnesses, who allegedly saw the occurrence. The statement of Rajesh was not recorded on the day of occurrence. Even otherwise it looks to be improbable that Shri Sarwan Singh would try to facilitate his coaccused Vakil and Balbir for the commission of the alleged offence. Moreover during the course of investigation Shri Sarwan Singh was found to be innocent. It is true that the Criminal Court did not agree with the finding of the Investigating Agency but the learned trial Court forgot this fact that investigation is primarily the function of the State Police and if during the course of investigation a particular person has been found to be innocent and that investigation has not been doubted by the State, the benefit of doubt should go to that person, whose identity, according to the State itself was doubtful. At the cost of repetition, it may be mentioned that Sarwan Singh appellant was not challaned by the Police and he was only summoned under the provisions of Section 319 of the Code of Criminal Procedure. In this view of the matter, I extend the benefit of doubt to Shri Sarwan. His appeal stands accepted and he stands acquitted of the charge framed against him.

With regard to the appeal of Shri Balbir Singh, learned counsel Shri V.K. Bali submitted that the trial Court committed a patent illegality in recording his conviction under Section 307 of the Indian Penal Code. He submitted that injured Shri Rajesh was medically examined by Dr. Mahavir Singh (P.W. 3) on 30th July, 1992 and found only one incised wound measuring 3 cm. x 2 cm. on the abdomen of the injured. The injured was referred to a Surgeon and Dr. R.K. Goel was the relevant person to perform the operation on the injured. Dr. Mahavir Singh has given the opinion about the injury of Shri Rajesh by relying upon the opinion of Dr. R.K. Goel, who has not been examined by the prosecution and in this manner this appellant has been deprived of his valuable right of crossexamination. In the absence of the statement of Dr. R.K. Goel, the statement of Dr. Mahavir Singh to the effect that injury No. 1 i.e., the solitary injury, on the person of Rajesh was dangerous to life, was correct.

There is merit in the contention raised by Shri V.K. Bali. The record shows that Dr. Mahavir Singh medically examined the injured and his injury was referred to the surgeon for further treatment. It was Dr. R.K. Goel who performed operation over the injured and gave his observations (Ex.PE/1). His surgical findings could not be tested or scrutinised by appellant Shri Balbir Singh. In these circumstances the opinion of Dr. Mahavir Singh, who has simply based his opinion on Ex. PE/1, cannot be acted upon for the purpose of convicting Shri Balbir Singh under Section 307 of the Indian Penal Code. The operation notes recorded by Dr. R.K. Goel, without his crossexamination, would not come to the rescue of the prosecution. In my opinion the opinion of Dr. Goel is of no use to establish the offence under Section 307 of the Indian Penal Code. Rather the evidence on the record is that Dr. Goel was in service. In spite of the fact that he was in service, the prosecution did not make any efforts to examine this witness to prove his finding that Shri Balbir Singh appellant committed the offence under Section 307 of the Indian Penal Code. Accordingly, I mitigate the offence and conviction of Shri Balbir Singh appellant to that under Section 324 of the Indian Penal Code instead of Section 307 of the said Code.

Though an effort was made by the learned counsel appearing on behalf of the appellants to prove that the occurrence had not taken place in the manner as stated by the prosecution, yet I am not convinced with their argument. The learned counsel submitted that one of the eyewitnesses Shri Daya Nand (P.W.7) has not supported the evidence of the prosecution and that the other eye witness, who has been relied upon by the trial Court, is the real brother of the injured.

Relationship per se is no ground to reject the testimony of a relation witness. Rather he will be the last person to screen the real offender. At the most the testimony of relation witness can be looked into by way of corroboration. In the present case there is the solemn statement of Shri Rajesh that the occurrence had taken place in broad daylight at about 8 A.M. on 30th July, 1992. Knife injury has been caused to Rajesh, who could easily identify his assailant. The story of the prosecution further goes that on the previous day there was an altercation over Kabaddi match. There was strong motive on the part of Shri Balbir Singh to teach a lesson to Shri Rajesh Kumar. There is a categorical statement of the injured that Vakil appellant caught hold of the injured from his hands and facilitated the crime for his coaccused Shri Balbir Singh. In these circumstances Vakil must have shared common intention along with his coaccused Shri Balbir Singh. His conviction under Section 324 read with Section 34 of the Indian Penal Code is hereby maintained.

Learned counsel for the appellant then submitted that Shri Balbir Singh has already undergone one and half years of sentence while his coaccused Vakil has served one year and three months of the sentence and both these appellants should be visited with leniency in the matter of sentence.

The offence in this case has been mitigated on account of adequate reasons as the prosecution did not examine Dr. R.K. Goel. Nevertheless I cannot forget that injury was caused in the abdomen, which is a sensitive and vital part of the body. The injured underwent operation. Keeping in view the damage caused to the body of the injured, I am of the considered opinion that ends of justice would be fully met if Shri Balbir Singh is ordered to undergo rigorous imprisonment for a period of two years under Section 324 of the Indian Penal Code and Shri Vakil appellant is ordered to undergo rigorous imprisonment for a period of one year and six months under Section 324 read with Section 34 of the Indian Penal Code. Appellant Balbir Singh would pay a fine of Rs. 4,000/, if not paid, in default of payment of fine, he would undergo further rigorous imprisonment for a period of six months. Appellant Vakil shall pay a fine of Rs. 3,000/, if not paid, in default of payment of fine, he would undergo further rigorous imprisonment for a period of six months. Out of the total fine of Rs. 7,000/, imposed upon both the appellants, Rs. 4,000/, shall be paid to injured Shri Rajesh Kumar, and Rs. 3,000/ shall go to the State. Intimation will be sent to Shri Rajesh for the realisation of the amount of Rs. 4,000/ by way of compensation awarded to him.

Net result is that the appeal of Shri Sarwan appellant stands accepted and he stands acquitted of the charges framed against him. The appeals of Balbir Singh and Vakil appellants are partly allowed by modifying their conviction under section 307 and Sections 307/34, Indian Penal Code, to the one under Section 324 and Sections 324/34, Indian Penal Code, respectively. Sarwan Singh appellant stands discharged from his bail order.

Both the criminal appeals stand disposed of in the above terms.

Appeals partly allowed.