Vinod Kumar vs State of Haryana

K.S. Kumaran, J.

AppellantsVinod Kumar, Bansi Lal (both sons of Dharam Pal) and Dharam Pal faced trial before the Additional Sessions Judge, Karnal under Section 302 read with Section 34, Indian Penal Code, for the murder of Jai Kishen on 19.6.1991 All the three of them were accordingly convicted by the learned Additional Sessions Judge by his judgment dated 30.11.1993/3.12.1993 and sentenced to undergo imprisonment for life under Section 302 read with Section 34, IPC, to pay a fine of Rs. 500/ each, and in default to undergo further rigorous imprisonment for six months, aggrieved by which they have preferred this Cr. Appeal.

Cr. Revision 529/1994 preferred by Rakesh Kumar, the complainant, has been admitted and ordered to be heard along with the criminal appeal, by which the revision petitioner has requested for the enhancement of the sentence and also for compensation.

The case of the prosecution, as seen from the FIR, registered on the basis of the statement of Rakesh Kumar made on 19.6.1991, is as follows.

Complainant Rakesh Kumar and his father were running a meat stall at Hospital Chowk, Karnal, and accused Vinod Kumar is also running a similar meat stall adjacent to their shop. They had quarreled many times previously on account of their business and cases have also been registered and are pending in courts.

On 19.6.1991 at about 6.30 p.m., Rakesh Kumar was supplying meat to a customer by name Surinder Kumar. Balwant singh, servant of Rakesh Kumar, was also present in the shop. Jai Kishen the father of Rakesh Kumar was standing outside the shop. In the meantime, the accused Vinod Kumar, Dharam Pal each armed with a meatcutting knife came there along with accused Bansi Lal. Accused Dharam Pal instigated that the enemy should be killed. Accused Bansi Lal caught hold of the hands of Jai Kishen and accusedDharam Pal gave a knifeblow on the left side of the abdomen of Jai Kishen, while, accusedVinod Kumar gave a knife blow on the left side of his chest. Jai Kishen fell down and succumbed to the injures on the spot. Rakesh Kumar ran away, met the police and gave the report (Ex. PC).

Rakesh Kumar (P.W. 4) gave evidence about the previous disputes and the cases pending between them and also about the occurrence of the lines of this complaint. He also deposed about the lifting of the bloodstained earth and a pair of chappals under memo Ex. PN from the scene of occurrence. P.W. 4 further deposed that on 27.6.1991 accusedVinod Kumar was apprehended from Randhir Cinema on his indication, and that on his disclosure statement (Ex. PQ), a knife (Ex. P4) was seized from under the counter in his shop through recovery memo Ex. PR. ASI Labh Singh (P.W. 6) of Police Post, Civil Lines, Karnal, who investigated the case deposed that on 19.6.1991 when he, along with ASI Lachhman Singh and other police officials, was going towards Hospital Chowk Karnal, complainantRakesh Kumar met them near the gate of Police Lines and his statement (Ex. PC) was recorded. ASIRadhey Sham (P.W. 1) of Police Station City Karnal deposed that on 19.6.1991 ruqa (Ex. PC) was received on the basis of which he recorded the formal FIR Ex. PC/1. ConstableRanbir Singh (P.W. 7) of Police Station City Karnal stated that on 19.6.1991 he was entrusted with the copies of special report, and that he delivered the FIR at the residence of Chief Judicial Magistrate Karnal at 11.45 PM. ASILabh Singh (P.W. 6) stated that he went along with the complainant to the place of occurrence and on receipt of the intimation from the Civil Hospital he went to Civil Hospital Karnal and saw the body of Jai Kishen. He deposed that he prepared the inquest report Ex. PG and left the request for post mortem. Dr. Anil Sharma (P.W. 3), the then Medical Officer, General Hospital Karnal, who conducted the post mortem on 20.6.1991 deposed that rigor mortis was present on all the four limbs of Jai Kishen and clothes were smeared with blood stains. He found the following injuries :

"1. Incised wound of size 5.0 x 1.8 cm was present over the left side of the chest. The front portion 5 cm. below the superio medical inside the body. The probing could be done only up to 10 cm. On further dissection, the corresponding 6th rib was fractured and there was laceration of 8 x 3.5 cm. over the corresponding part of left lung. On further exploration, heart was found injured from its inferior part with laceration of 7.5 x 1.0 cm. and its superior part with a wound of 2.0 x 1.0 cm. The pleural cavity and pericardial cavity found full of blood.

An incised wound of 3.5. x 1.3 cm. was present over the left side of front of abdomen. It was 6 cm. to the left umbilicus. It was vertically placed going inside thebody with depth of 10 cm. Laceration of 1.5 x cm.was present over the small gut (corresponding part)."

He further deposed that the stomach contained 200 cc of semidigested food material and the large intestine contained faecal matter and gas. Rest of the organs were found healthy. He opined that death was due to shock and haemorrhage as a result of injuries to vital organs which were ante mortem in nature and which were sufficient to cause death in the ordinary course of nature. According to this witness, death was almost instantaneous and the time that had elapsed between death and post mortem was within 24 hours. Ex. PE is the copy of the post mortem. He also stated that a kurta, banyan and payjama (Exs. P1 to P3) were handed over by him to the police after the post mortem, in a sealed cover. The doctor further deposed that both the injuries described by him could have been caused by the knife (Ex. P4) shown to him and that they are possible by any other weapon of similar type and size as that of the knifeP.4.

ASILabh Singh (P.W. 6) further deposed that he again went to the place of occurrence along with the complainantRakeh Kumar, Surinder and Balwan, and got the scene of occurrence photographed. He further deposed that he took into possession bloodstained earth and a pair of bloodstained chappals from the place of occurrence under recovery memo Ex. PN, and arranged for taking of photographs of the dead body. Jiwan Kumar (P.W. 5), the photographer, stated that he took the photographs of the dead body and the scene of occurrence. ASILabh Singh (PW) further deposed that he prepared the rough site plan (Ex. PV). He also deposed that on 20.6.1991 he took into possession a parcel containing the clothes of the deceased. The ASI further deposed that on 27.6.1991, on the information given by the complainant he went to Randhir Cinema and apprehended accused Vinod Kumar who, on interrogation, made a disclosure statement (Ex. PQ) and in pursuance of the same, seized the knifeP4, which was bloodstained at the time of recovery under recovery memo Ex. PR.

The accused, when examined under Section 313, Cr.P.C., generally denied, the allegations made against them. AccusedVinod Kumar stated that he is innocent. AccusedBansi stated that on 19.6.1991 at about 7.15 PM when he was passing in front of the shop of Jai Kishen on his way to his house, he found Jai Kishen lying injured and almost dead; that he immediately removed him to the hospital along with Balwan, the servant of Jai Kishen, where Jai Kishen was declared dead. He claimed himself to be innocent. AccusedDharam Pal claimed himself to be innocent and stated that he left Karnal at 11.45 PM on the night intervening 19.6.1991 and 20.6.1991 along with Dr. D.P. Goyal, Medical Officer, General Hospital Karnal to Medical College Hospital Rohtak along with a patient named Shanti. He said that they had come back to Karnal at 6.00 PM on 20.6.1991 and remained with the doctor till 7.00 PM on 20.6.1991. He stated that they had travelled by official jeep and the log book of the same contains his name also. The accused did not examine any witness on their side.

The learned Additional Sessions Judge after analysing the evidence placed before him convicted and sentenced the accused as mentioned above, aggrieved by which the accused have come forward with the appeal, while the complainant has preferred the revision petition both of which we are disposing of by this common judgment.

Therefore, we have to find out whether the prosecution has been able to make out its case against all or any of the accused and if so, whether there is any ground for enhancing the sentence awarded to the accused/appellants and to award compensation to the complainant.

There was previous enmity between the family of the accused and the family of the complainant is obvious, as cases have been registered against them. The prosecution itself has brought on record Ex. PL and Ex. PL/1 an FIR and the chargesheet respectively. Even in the complaint lodged by Rakesh Kumar in the present case there is mention about the same. So there could be reason for all or any of the accused to attack the members of the family of the complainant. The question is as to who did attack Jai Kishan (deceased), the father of the complainant on 19.6.1991, the date of the occurrence in question. We have the evidence of Rakesh Kumar (PW4) that on 19.6.1991 at about 6.45 or 7 PM while he was in his meat shop, his servant Balwan was also in the shop whereas his father Jai Kishen (deceased) was standing outside the shop. According to him, he was at that time talking to his customer Surinder Kumar. He deposed that at that time the accused Vinod Kumar, Bansi Lal and Dharam Pal came there, that accusedDharam Pal and Vinod were armed with a meat cutting knife each while accusedBansi Lal was barehanded, and that accused Dharam Pal instigated the other accused and he himself then dealt a knife blow on the abdomen of Jai Kishen, while, accusedBansi Lal was holding the hands of deceasedJai Kishen. According to him accusedVinod Kumar dealt a knife blow on the left side of the chest of Jai Kishen. Of course he is the only eyewitness examined in this case and the prosecution has given up Balwan and Surinder Kumar. PW4Rakesh Kumar is the son of the deceased and, therefore, an interested witness. Admittedly, there is enmity between the families of the accused and the complainant. Therefore, though the evidence of PW4Rakesh Kumar cannot be subjected to wholesale condemnation on this ground, yet this Court will have to carefully examine the evidence of this witness to find out how far he is reliable. As pointed out already accusedDharam Pal stated during the course of his statement under Section 313 of the Code of Criminal Procedure that he left Karnal at 11.45 PM on 19.6.1991 and had been to Rohtak along with Doctor Goyal and a patient by the name Shanti in the official Jeep. Of course he has not examined Dr. Goyal or the alleged patient Shanti or produced any document to show that he travelled in the official jeep during the relevant time. But we will have to take into consideration certain other factors which go to probablise the case of the defence that Dharam Pal has been falsely implicated.

Dharam Pal is stated to have stabbed Jai Kishen with a meat cutting knife. This meat cutting knife allegedly used by Dharam Pal has not been recovered. Dr. Anil Sharma (PW3) who performed the postmortem of Jai Kishen found two incised injuries one on the left side of the chest and the other on the left side of the abdomen. He stated even during the course of examinationinchief that these two injuries could have been caused by the knife marked as Ex. P4 in this case. Of course he also stated that these two injuries are possible by any other weapon of similar type and size as that of Ex. P4. This knife Ex. P4 has been recovered on the disclosure statement made by accusedVinod Kumar and at his instance. Therefore, when the knife allegedly used by Dharam Pal has not been recovered and when the Doctor has opined that these two injuries could have been caused by the same weapon Ex. P4 it can be basis for giving the benefit of doubt to accusedDharam Pal, if we bear in mind the admitted enmity that exists between two families. Therefore, there could be certainly motive on the part of the complainantRakesh Kumar to falsely implicate as many members of the family of the accused as possible.

Similarly, we find that accusedBansi Lal should have also been falsely implicated in this case. His statement under Section 313, Cr.P.C., was that on the date of occurrence at about 7.15 PM when he was passing in front of the shop of Jai Kishen he found Jai Kishen lying injured and almost dead, and that he along with Balwan (servant of Jai Kishen) took Jai Kishen to the hospital where he was declared dead. it was rightly contended on behalf of this accused that if really this accused was guilty and had held the hands of Jai Kishen (deceased) at the time of occurrence, as alleged by the prosecution, then it would be wholly improbable that he would have himself taken the deceased to the hospital. It is against the normal human conduct that a person, after committing a crime, would have the courage to remain on the scene of occurrence and would also take the injured to the hospital. Further, if the common intention of the accused was to kill Jai Kishen then also it is improbable that accusedBansi Lal would have taken the injured Jai Kishen to the hospital. We find evidence in the shape of the intimation sent by the hospital (mark ''C'') wherein it has been stated that the deceased Jai Kishen was brought to the hospital by accusedBansi Lal. The intimation was sent at 7.30 PM on 19.6.1991. This fact has also been reflected in the DD reports marked Ex. PT and PU, entered at 7.50 PM and 8.00 PM, respectively. The learned Additional Sessions Judge refused to accept this intimation mark ''C'' as genuine and had observed that the statement in the document mark ''C'' about accusedBansi Lal was inserted in connivance with the doctor on duty. There is no basis whatsoever to show that the accused influenced the doctor who sent this intimation mark ''C''. It is also improbable that the accused could have inserted such statement in mark ''C'' at 7.30 PM, i.e., soon after the occurrence. The occurrence had taken place at about 6.30 P.M. and deceasedJai Kishen was taken to the hospital at 7.20 PM, and it is improbable that within such a short span of time the accused could have thought of such a clever idea to see that accusedBansi Lal escapes the clutches of law. There is no basis whatsoever for coming to the conclusion that the doctor also connived with the accused and made such an entry. That intimation had reached the police post of the General Hospital at 7.50 PM and from there the Police Post Civil Lines at 8 PM on the same day. Therefore, it is evident that these entries in mark ''C'', Ex. PT and PU are genuine, and that the accusedBansi Lal must have taken Jai Kishen to the hospital. AccusedBansi Lal specifically stated that he took Jai Kishen to the hospital, along with Balwan, who is the servant of Jai Kishen. But Balwan was not examined by the prosecution. As pointed out already there were only two stab injuries on deceasedJai Kishen, and the doctor''s evidence shows that these injuries could have been caused by the same knifeEx. P4. The overt act attributed to accusedBansi Lal is only that he held the hands of deceasedJai Kishen at the time of the occurrence. If we take into consideration the factors referred to by us above then it will be clear that due to the enmity between the two families, accusedBansi Lal must have been falsely implicated.

ASI Labh Singh (PW 6), the investigating officer also stated in his evidence that the Inspector of PoliceAmir Singh after enquiries instructed him not to arrest accusedDharam Pal and Bansi Lal, and that the Assistant Superintendent of Police had mentioned in the case diary about the innocence of these two accused. Of course, this alone cannot be a ground for coming to the conclusion that these two accused are not guilty, but the circumstances pointed out by us above are strengthened by this fact also to come to the conclusion that the guilt of the accused Bansi Lal and Dharam Pal has not been proved to the hilt.

This apart we find that there is delay in lodging the FIR also. The occurrence is alleged to have taken place at 6.30 PM on 19.6.1991. PW4 stated that immediately he ran away to give the complaint to the police and met ASI Labh Singh near the police lines at about 8.15 PM or 8.30 PM. PW4, the complainant admitted in his evidence that he cannot say if the police lines is situated at a distance of about 200 metres from his shop. The photographer Jiwan Kumar (PW5) on the other hand stated that Hospital Chowk is at a distance of about 200 yards from police lines. The shop of the complainant Rakesh Kumar PW4 is situated only in the area of Hospital Chowk where the occurrence has taken place. Therefore, we can see that immediately after the occurrence PW4. Rakesh Kumar had run away from the place of occurrence and had met the police party headed by ASI Labh Singh (PW6) within about 200 yards or metres, and his complaint was allegedly recorded at that time, but, we find that the special report had reached the Magistrate only, 1145 PM. If really the complaint had been given by Rakesh Kumar immediately after the occurrence and his statement had been recorded immediately, then it would not have taken so much time for the special report to reach the Chief Judicial Magistrate, at Karnal City itself. The attempts made by PW4 Rakesh Kumar to say that immediately after the occurrence he went to the house of his wife and then to his brother''s shop etc. in order to explain the delay, cannot at all be accepted, because, in the FIR itself, it has been specifically stated that he ran away from the scene of occurrence and was going to the police post to lodge the report when he met ASI Labh Singh. Therefore, these subsequent explanations are clearly afterthought and cannot be accepted at all. So, the delay in lodging the complaint certainly gave the necessary time for consultations, manipulations and false implication. So, this is also a factor which goes to show that the two accused Bansi Lal and Dharam Pal are entitled to the benefit of doubt.

So far as accused Vinod Kumar is concerned, as pointed out already, we have the evidence of PW4 Rakesh Kumar that he stabbed the deceased with the meat cutting knifeEx. P4. On the disclosure statement made by the accusedVinod Kumar, this knife was also seized at his instance, from his shop. The doctor''s evidence shows that the two injuries found on the deceased could have been caused by this knife Ex. P4. It may be that PWRakesh Kumar has involved falsely Bansi Lal and Dharam Pal in connection with this offence due to the enmity, but we cannot also lose sight of the fact that, being the son of the deceased he (P.W. 4) would leave the real culprit also. In the circumstances pointed out by us, we are of the opinion that the prosecution has been able to prove the guilt of accusedVinod Kumar.

Therefore, taking into consideration all these circumstances, we are of the opinion that the prosecution has been able to establish the guilt of accusedVinod Kumar only, and that accusedBansi Lal and Dharam Pal are entitled to the benefit of doubt. Therefore, these two have to be acquitted.

So far as the revision filed by the complainant is concerned, we are of the view that there is no reason for enhancing the sentence awarded to accused Vinod Kumar. There has been enmity between the parties. As a result thereof accusedVinod Kumar had stabbed Jai Kishen (deceased), but this cannot be stated to be a case warranting the death penalty. Similarly, there is no ground for granting compensation also to the complainant.

In the result the appeal is allowed in part setting aside the conviction of and the sentence passed against accusedappellants Bansi Lal and Dharam Pal, and both of them are acquitted. But, the conviction of and the sentence passed against accused appellantVinod Kumar are confirmed. Criminal Revision No. 529 of 1994 is dismissed.