Vijay Kumar vs State of Punjab

V.K. Bali, J.

Whereas Vijay Kumar, Sarwan Kumar and Kamal Kishore are aggrieved of the order of conviction and sentence recorded against them by the learned Sessions Judge, Gurdaspur, holding Kamal Kishore guilty of an offence under Section 302 IPC and ordering him to undergo imprisonment for life and to pay a fine of Rs. 2,000/, or in default of payment of fine to further undergo rigorous imprisonment for a period of two years, as also holding Sarwan Kumar and Vijay Kumar guilty under Section 326 read with Section 34 IPC and ordering them to undergo rigorous imprisonment for three years and to pay a fine of Rs. 2,000/ each, or in default of payment of fine, to further undergo rigorous imprisonment for six months, the State of Punjab in Crl. Appeal No. 268DBA of 1997 is equally aggrieved of the order referred to above, whereby the learned Sessions Judge has acquitted Vijay Kumar and Sarwan Kumar, of the charges under Section 302 read with Section 34 IPC. Obviously, therefore, the prayer of the appellants in Crl. Appeal No. 116DB of 1996 is that they deserve a clean acquittal, thus, necessitating setting aside of the order of conviction and sentence recorded by the learned Sessions Judge, the State of Punjab seeks modification of the same order and, as referred to above, to convict Vijay Kumar and Sarwan Kumar under Section 302 read with Section 34 of the Indian Penal Code. It may be mentioned here that appellant Kamal Kishore was also held guilty and convicted under Section 25 of the Arms Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/, or in default of payment of fine, to further undergo rigorous imprisonment for three months. Crl. Appeal No. 117DB of 1996 has been filed by Kamal Kishoreappellant challenging his conviction and sentence under Section 25 of the Arms Act.

Learned counsel for the appellants in Crl. Appeal No. 116DB/96 while arguing the matter, however, confined his arguments with regard to nature of offence committed by Kamal Kishore and nonsharing of common intention of Sarwan Kumar and Vijay Kumar with their coappellant Kamal Kishore in causing the death of Makhan @ Bittu. The State counsel, on the other hand, has endeavoured to show that Sarwan Kumar and Vijay Kumar shared the intention of Kamal Kishore in causing the death of Makhan @ Bittu and, therefore, they too deserve to be held guilty under Section 302 read with Section 34 IPC. In the context of the contentions raised by learned counsel for the parties, there is only need to briefly notice the facts of the case.

The occurrence leading to death of Makhan @ Bittu took place on November 5, 1990 at 10 a.m. The incident with regard to death of Makhan @ Bittu was reported by his mother Mrs. Alice to Ashok Kumar, ASI, Police Station City Pathankot when she made a statement before him, on the basis of which formal FIR came into being at 11.15 a.m. on November 5, 1990 itself. Special report reached the concerned Magistrate at Pathankot at 2 p.m. on the same day. Mrs. Alice, who appeared as PW5, stated that on the eventful day, she along with her brother Tarsem Lal son of Madho Ram, Christian, resident of Rankey Mandir Lamini and her son Makhan @ Bittu, was going to attend the Court in a case registered against Makhan under the Gambling Act. At about 10 a.m. when they reached Mohalla Kanshi Nagar, Kamal Kishore alias Kamba son of Jagan Nath, Mahasha, Sarwan Kumar son of Gurdas, Mahasha and Vijay son of Mulakh Raj, Harijan, residents of Ambedkar Nagar met them. They raised a lalkara saying, "Makhan be ready, we will not allow you to escape alive." Sarwan and Vijay physically caught hold of Makhan by his arms and Kamal Kishore @ Kamba took out a knife from his fold (Dub) and gave a knife blow on the left side of the chest of Makhan, as a result of which he fell down on the ground. She and Tarsem Lal took care of him but he died at the spot. She further stated that on October 13, 1990, Makhan @ Bittu had taken away Sunita daughter of Ram Lal Mahasha to Palampur with her consent where they solemnised their marriage in Arya Samaj Mandir on October 15, 1990. They also got registered their marriage in the Court at Palampur. Thereafter, Sunita had gone to her parents, who had objected to this marriage. On that day, due to this grudge, Kamal Kishore @ Kamba, uncle of Sunita, Sarwan, her cousin (father''s elder brother''s son) by conniving with Vijay had killed her son Makhan @ Bittu. Her mother Sardaran had also reached at the spot and witnessed the whole occurrence. After leaving behind her near the deadbody, she went to police station to lodge the report.

With a view to substantiate its case, the prosecution examined Dr. J.S. Bhinder, Medical Officer, Civil Hospital, Pathankot as PW1, who conducted postmortem on the deadbody of Makhan @ Bittu and found following injuries :

"1. An incised wound measuring 2.5 cm x 1 cm was present on left mid exillary line at level with nipple. Left lung was punctured.

Left vertical was cut and the cut was corresponding to external cut. Massive haemorrhage was present in pericardial and pleural cavity".

In the opinion of the doctor, the cause of death was due to massive haemorrhage on account of injury to heart and lungs. The injury was ante mortem in nature and sufficient to cause death in ordinary course of nature. Dr. Arvind Gautam appeared as PW 2 and stated that on November 8, 1990 at 3 p.m. he medicolegally examined Kamal Kishore and noted no mark of external injury on his body. Gurbas Singh Draftsman, who appeared as PW 3, only stated that he had prepared scale site plan of the place of occurrence on the pointing of Smt. Alice. ASI Sansar Chand appeared as PW4 and detailed the steps that he had taken while investigating this case. Eye witnesses, PW 5 Mrs. Alice and PW 6 Tarsem Lal supported the prosecution version. All that requires to be mentioned here is that they stated that all the three appellants raised a Lalkara and cautioned Makhan Singh to get ready as they would not allow him to go alive. It further requires to be mentioned that Mrs. Alice stated in her crossexamination that her other son Hindu Masih was in jail and her yet another son Saudagar remained in custody in a case registered against him under Section 379 IPC. PW6 Tarsem Lal stated in his crossexamination that he had spotted the accused from a distance of ten paces and when he spotted them, at that time Kamal Kishore had taken out a knife from his fold and from that place they had raised a Lalkara. They immediately caught hold of Makhan from his arms. Jagan Nath, PW8 deposed that he was the priest of Arya Samaj Mandir, Palampur and that the marriage ceremony of Makhan and Sunita was performed in the Mandir on October 15, 1990. ASI Janak Raj, who appeared as PW12, also detailed the steps that he had taken while investigating this case. So is the position of Ashok Mohan Sub Inspector who appeared as PW13. Report of the Forensic Science Laboratory, Ex.PT and affidavit of Constable Mohinder Singh, Ex.PY were tendered into evidence by the learned Public Prosecutor.

When examined under Section 313 Cr.P.C., the appellants herein denied their involvement in the case and pleaded that they were innocent and had been falsely implicated. They led evidence in defence but inasmuch as no arguments at all have been raised on the basis of defence led by the appellants, there is no need to mention the same. As referred to above, learned counsel for the appellants has raised only two fold contentions. His first contention is that even if the prosecution story is believed in its entirety, Kamal Kishore cannot be held guilty under Section 302 IPC as he had given only one injury and which, even though was on the vital part of body of Makhan @ Bittu and ultimately proved fatal, he cannot be convicted under Section 302 IPC. It was at the spur of moment that the occurrence had taken place and appellantKamal Kishore had not repeated the injury either with knife or caused him any other injury. We are not at all impressed with the aforesaid contention of the learned defence counsel. AppellantKamal Kishore gave a knife blow on the vital part of Makhan @ Bittu. The injury as described by the doctor, PW1, appears to be very serious in nature. It was an incised wound measuring 2.5 cm x 1 cm present on left mid exillary line at level with nipple. Left lung was punctured. Left vertical was cut and the cut was corresponding to external cut. Massive haemorrhage was present in pericardial and pleural cavity. In the opinion of the doctor, the injury was sufficient to cause death in ordinary course of nature. We are quite convinced that the kind of weapon used by the appellantKamal Kishore and the part of body selected by him and ultimately the injury that was caused would certainly pin him down under Section 302 IPC. There is no scope at all to hold him guilty under any of the parts of Section 304 IPC. Inasmuch as no other point with regard to Kamal Kishoreappellant has been raised, his appeal deserves to be dismissed and we order accordingly.

Coming now to the second contention of the learned defence counsel that it could not be said with certainty that appellantsSarwan Kumar and Vijay Kumar shared the common intention of appellantKamal Kishore in causing the death of Makhan @ Bittu. After giving our anxious thought, we are of the opinion that the same has considerable merit. The prosecution has not come up with any story to show that the appellants herein had met earlier at some point of time and planned as such to kill Makhan @ Bittu. It is not the prosecution case as well that they knew that Makhan @ Bittu would be going to attend the Court on a particular date and time. It may be highlighted that even though Sarwan Kumar may be related to Kamal Kishore, insofar as Vijay Kumar is concerned, he is not even remotely related to the two others, i.e. Kamal Kishore and Sarwan Kumar. To us, it appears that it was a case of chance meeting of the appellants and Makhan @ Bittu. With this background, it cannot be said with utmost certainty that Vijay Kumar and Sarwan Kumar knew that Kamal Kishore was armed with a knife. Even as per the prosecution version, after a lalkara was raised, Kamal Kishore had taken out the knife from his fold. Insofar as raising of lalkara is concerned, we are of the view that the prosecution version that all the three appellants raised a lalkara at the same time and in the same words, is exaggerated. At this stage it would be relevant to mention that the family of Makhan @ Bittu also appears to be having criminal background. Insofar as Makhan @ Bittu is concerned, as per the prosecution version itself, he was going to attend the Court as he had been booked under the Gambling Act. One of his brothers was in jail when he was knifed whereas his another brother was also in custody in a case registered against him under Section 379 IPC. Looking to this criminal background of the family, it is possible that lalkara to the effect that Makhan should not be permitted to go alive was intentionally introduced with a view to rope in as many as people in the ultimate and maximum offence. The Apex Court, in almost similar circumstances in Dajya Moshya Bhil v. The State of Maharashtra, 1984(2) CLR 712, which has been relied upon by the learned Sessions Judge as well, held as follows :

"That it must straightaway be conceded that the three appellants came together, near the place where the deceased in company of his two brothers, some witnesses and some companions were working and where the incident occurred. Standing by itself this circumstance may be sufficient to suggest that three had some common intention. The question is whether they had the common intention to commit murder of the deceased. If the three shared common intention to commit murder of the deceased as is now contended obviously appellant Nos. 2 and 3 would not come unarmed. It is admitted by the prosecution that at that time, appellant No. 1 was armed with a Dharya but appellants 2 and 3 were unarmed. It would be contrary to common sense to hold that appellants 2 and 3 accompanied appellant No. 1 with the avowed object of committing murder of the deceased yet came unarmed. Their intention by this very tell tale circumstance is contraindicated. Let it be made clear here that in order to attract Section 34 it is not sufficient to prove that each of the participating culprits had the same intention to commit a certain act. What is the requisite ingredient of Section 34 is that each must share the intention of the other. Appellants 2 and 3 though they were in the company of appellant No. 1 were shown to be unarmed. The High Court has overlooked this most important circumstance."

The facts of the case aforesaid fit in with the facts of this case, like a glove in hand. Learned Sessions Judge applied the ratio of the judgment aforesaid and, in our view, rightly so but erred while holding appellants Vijay Kumar and Sarwan Kumar guilty under Section 326 IPC. The unarmed accused in the case aforesaid were convicted under Section 326 IPC and, it appears to us, learned Sessions Judge has just simply followed the decision aforesaid, even though, on facts, there is slight difference. Whereas, in the present case appellants Vijay Kumar and Sarwan Kumar did nothing but for just catching hold of Makhan @ Bittu from his arms, the accused in Dajya Moshya Bhil''s case (supra) had chased the deceased/injured and pelted stones resulting into grievous injuries. Once, applicability of Section 34 IPC is ruled out, every accused has to be saddled with the offence committed by him. In the present case, therefore, appellants Vijay Kumar and Sarwan Kumar could not be held guilty under Section 326 read with Section 34 IPC. At the most they had entertained an intention of chastising Makhan @ Bittu and they could have, in that process, caused simple hurt. They are, thus, held guilty under Section 323 read with Section 34 IPC and ordered to undergo imprisonment for a period that they have already undergone. Their appeal to that extent is allowed.

Once we are accepting the contention of the learned defence counsel that appellants Vijay Kumar and Sarwan Kumar did not share the intention of Kamal Kishore in causing death of Makhan @ Bittu, the State appeal has naturally to remain unsuccessful. The same is, thus, dismissed.

Crl. Appeal No. 117DB of 1996 filed by Kamal Kishore against the order of conviction and sentence recorded against him under Section 25 of the Arms Act is also dismissed.