Virender Kumar vs State of Haryana

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment and order dated 22.5.1997 passed by the court of the learned Sessions Judge, Ambala, who convicted the appellant Virender Kumar u/s 304 Part II, IPC, and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 5,000/; in default of payment of fine, the appellant was further directed to undergo R.I. for six months. It may be mentioned here that along with the appellant, Vijay Kumar, nonappellant was also tried and vide the same judgment and order, he was convicted u/s 324, IPC, and was sentenced to undergo R.I. for 2 years and to pay a fine of Rs. 2,000/; in default of payment of fine, he was further directed to undergo R.I. for three months. The brief facts of the case can be described in the following manner :

On 15.4.1995 at 12.05 AM, the statement of Saroop Singh, father of the deceased Manmohan Singh alias Sonu was recorded by ASI Narinder Kumar and it was stated by Saroop Singh that he was the resident of Bazara Bazar, Ambala Cantt. He had three sons. The name of one son was Manmohan Singh alias Sonu, aged about 21 years. About one month prior to the occurrence, which took place on 14.4.1995, at about 10.30 PM in Ambala Cantt, a scuffle took place between his son Manmohan Singh on one side and Virender Kumar s/o Roshan Lal, appellant, and Vijay Kumar s/o Lekh Rai, on the other side, over the issue of loan of money as his son Manmohan Singh had advanced some loan and was making a demand upon the accused to return the same. According to the complainant, on 14.4.1995 at about 10.30 PM, he, his son Manmohan Singh, his friend Lakhwinder Singh (injured) and one Satish Chander, were returning from Hathi Khana Mandir. His son Manmohan Singh and his friend Lakhwinder Singh were proceeding ahead of him and Satish Chander. At about 10.30 PM, when the deceased Manmohan Singh and his fried Lakhwinder Singh reached near Kirchi Mirchi Chowk, appellant and his companion Vijay Kumar met them from whom his son Manmohan Singh made a demand of money upon which a quarrel took place and within no time the appellant and his companion took out their knifes. Appellant Virender Kumar gave a knife blow in the abdomen of his son Manmohan Singh while his companion Vijay Kumar gave a knife blow in the abdomen of Lakhwinder Singh alias Lucky. When the complainant and Satish Chander aforesaid reached near the place of occurrence, both the accused ran away along with their respective weapons. In the meanwhile, 2/3 persons reached at the spot and removed the injured Manmohan Singh and Lakhwinder Singh to the Civil Hospital, Ambala Cantt, where Manmohan Singh was declared dead on account of the knife injury while Lakhwinder Singh, injured, was got admitted in the hospital. It is alleged by the complainant that when he was going to the police station for lodging the report, the police party met him. Resultantly, on the above allegations, FIR, Ex.PF, was registered in the Police Station, Ambala Cantt, on 15.4.1995 vide FIR 143.

Injured Lakhwinder Singh reached the Civil Hospital, Ambala Cantt, at 11 PM as is evident from his medicolegal report, Ex.PA. Immediately, thereafter, he was medically examined and the doctor found the following two injuries on his person :

"1) 1/2 cm x 1 cm x skin deep incised wound was present on the anterior abdominal wall on left side in mid axillary line 4 cm above illic crest.

2) Swelling 3 cm x 1 cm was present on the face on left side just below left eye."

The arrival of Manmohan Singh alias Sonu has been shown in the Hospital at 11.20 P.M. and he was also medicolegally examined immediately thereafter and the doctor who issued, Ex.PB, the medicolegal report of Manmohan Singh, found the following injuries on his person :

"1) Incised wound 2 cm x 1/2 cm was present on the anterior abdominal wall on right side 1 cm. below and 6 cm lateral to umbilicus. The depth was not explored and he was freshly bleeding. Detailed examination was not possible."

Ruqa, Ex. PC, was sent by Dr. L.N. Garg, Medical Officer to the Incharge, Police Post, informing that Lakhwinder Singh and Manmohan Singh had arrived in the hospital at 11/11.25 PM, respectively, and Manmohan Singh expired in the hospital at 11.40 PM on 14.4.1995.

On 14.4.1995, ASI Narinder Kumar, PW10, received a telephonic message that some violence had taken place in Kirchi Mirchi Chowk. He recorded the DDR to that effect and, thereafter, he reached at the said Chowk at about 11 PM. Nobody was available to him so as to supply him the information about the incident. Resultantly, he went to Civil Hospital, Ambala Cantt, and came across Saroop Singh, father of the deceased. This witness recorded the statement, Ex.PN, of Saroop Singh. It was read over and explained to him. Saroop Singh signed the same in token of its correctness. Thereafter, Narinder Kumar, ASI, made endorsement, Ex, PN/1, underneath the said statement and it was sent to the police station for the registration of the case and formal FIR, Ex.PF, was recorded by ASI Fateh Singh. Narinder Kumar, ASI, prepared the inquest report, Ex.PL, on the dead body of Manmohan Singh. He submitted an application, Ex.PK, the request for postmortem examination and the dead body was sent to the hospital for postmortem examination. This I.O. also took into possession the clothes of the deceased from the Medical Officer when those clothes were produced by HC Balbir Singh vide memo, Ex.PR. The statement of Lakhwinder Singh was also recorded u/s 161, Cr.P.C. and his clothes were also taken into possession vide memo, Ex.PQ.

ASI Narinder Kumar visited the place of occurrence and prepared the rough site plan, Ex.PY, with correct marginal notes. On 15.4.1995, both the accused were arrested. Virender Kumar, appellant, was interrogated about the weapon on 16.4.1995 and he suffered a disclosure statement, Ex.PZ, to the effect that he had kept concealed a knife in a box in his house and he could get it recovered by pointing out the place of concealment. His disclosure statement was read over and explained to him and it was attested by the witnesses. Vijay Kumar, nonappellant, also suffered a disclosure statement that he had kept concealed a Chhuri in an Ala of his house and he could get the same recovered by pointing out the place of concealment. In pursuance of the disclosure statement, the appellant led the police party and the witnesses to the place of concealment and got recovered the knife, Ex.P3, which was taken into possession vide recovery memo, Ex.PT. A sealed parcel was prepared and the seal after use was handed over to Harjit Singh, PW. Thereafter, at the instance of Vijay Kumar, the Chhuri, Ex.P7, was recovered and it was taken into possession vide separate memo, Ex.PU. A sealed parcel was also prepared in this regard.

On 14.4.1995, Dr. L.N. Garg, PW1, medically examined Lakhwinder Singh and found the following two injuries on his person :

"1) 1/2 cm x 1 cm x skin deep incised wound was present on the anterior abdominal wall on left side in mid axillary line 4 cm above illic crest.

2) Swelling 3 cm x 1 cm was present on the face on left side just below left eye."

As per the opinion of the doctor, injury No. 1 was caused by a sharp edged weapon while injury No. 2 was caused by a blunt weapon. The probable duration of injuries was 24 hours. Ex.PA is the carbon copy of the MLR of Lakhwinder Singh. This doctor, on the same day at 11.20 PM, also medically examined Manmohan Singh alias Sonu and found the following injury :

"1) Incised wound 2 cm x 1/2 cm was present on the anterior abdominal wall on right side 1 cm. below and 6 cm lateral to umbilicus. The depth was not explored and he was freshly bleeding. Detailed examination was not possible."

The probable duration of this injury was also within 24 hours. Fresh bleeding was present. Ex.PB is the correct carbon copy of the MLR of Manmohan Singh alias Sonu. This doctor sent Ruqa, Ex.PC, to the Incharge, Police Post, Regiment Bazar, Ambala Cantt, to the effect that Manmohan Singh expired on 14.4.1995 at 10.40 PM (as per Ruqa, Ex.PC the time of the death of Manmohan Singh was 11.40 PM). On 9.5.1995, on police request, Ex.PD, this doctor declared the injury of Lakhwinder Singh as simple vide his opinion, Ex. PD/1. This very doctor on 15.4.1995, declared Lakhwinder Singh fit to make the statement vide his opinion, Ex.PE/1.

Dr. Beenu Gupta, PW4, along with Dr. Alkh Nanda conducted the postmortem examination of the dead body of Manmohan Singh and the following injuries were noticed at the time of the postmortem examination :

"1) 2 cm x 1 cm incised wound, elliptical in shape were present on the anterior abdominal wall 5 cm below and lateral to the umbilicus, right side obliquely placed, medial end of the wound was sharp, the lateral end was blunt. The wound was communicating with the pritonial cavity.

2) 1/2 cm x 1/2 cm bruise on the left elbow on mid lower line.

3) 1 cm x 2 cm bruise on the forehead 2 cm above the mid part of left elbow.

4) 1 cm x 1 cm bruise left anterior lateral aspect of lower end of left leg.

5) Fracture of nasal bone was present."

The cause of death, in the opinion of the doctor, was hemorrhagic shock due to injury No. 1. All the injuries were declared antemortem and the probable time that elapsed between the injury and death was few minutes and between death and postmortem was within 24 hours.

Finally, on the completion of the investigation of the case, the appellant and his companion were challaned u/s 302/324, IPC read with section 34, IPC, in court of the Illaqa Magistrate, who supplied the copies of the documents to the accused and vide commitment order dated 14.6.1995, committed the accused to the court of Sessions. Vide order dated 25.7.1995, Virender Kumar, appellant, was chargesheeted u/s 302, IPC, while his coaccused Vijay Kumar was chargesheeted u/s 302/34, IPC. He was also chargesheeted u/s 307, IPC, while the present appellant was also chargesheeted u/s 307/34, IPC. Appellant Virender Kumar was further chargesheeted u/s 25 of the Arms Act. The charges were read over and explained to the accused, who pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined, Dr. L.N. Garg, PW1, HC Nafe Singh, PW2, HC Manohar Lal, PW3, Dr. Beenu Gupta, PW4, Saroop Singh, complainant, father of the deceased, PW5, Lakhwinder Singh, injured, PW6, Om Parkash, PW7, ASI Balbir Singh, PW8, Harjit Singh, PW9 and ASI Narinder Kumar, I.O., PW10. The prosecution also tendered into evidence the affidavits of the formal witnesses.

The statements of the accused were recorded u/s 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and Virender Kumar, appellant, stated before the trial court, as follows :

"I am innocent. No money was due to me. There was no such dispute on one hand between myself and Vijay Kumar and on the other hand with the deceased. None of us inflicted any knife blows to the deceased.

In fact, there was some `Jagrata'' at Kirchi Mirchi Chowk and we learnt later on that the deceased had misbehaved there with some ladies and some people there caused injuries to the deceased. I am totally innocent. I have been implicated falsely and out of suspicion."

The plea of Vijay Kumar, nonappellant, was as follows :

"I am totally innocent. Myself and Virender Kumar never inflicted any knife blows to the deceased. I was not present on Kirchi Mirchi Chowk. We later on learnt that there was some function of `Jagrata''. At that place, the deceased was perhaps drunk and he misbehaved with some ladies, therefore, he was given injuries by some unknown persons. In fact, the members of family of the deceased have been facing criminal cases. The complainant is a registered bad character. They have involved me falsely. There was no dispute regarding payment of money etc. I am not concerned with the occurrence in question at all."

When called upon to enter into their defence, the accused examined Rukmani Devi as DW1.

The learned trial court convicted the appellant u/s 304 Part II, IPC, and his companion Vijay Kumar was convicted u/s 324, IPC. It appears that Vijay Kumar, nonappellant, has not challenged his conviction. Aggrieved by his conviction and sentence, the present appeal by Virender Kumar, appellant, which I am disposing of with the assistance rendered by Shri D.S. Walia, counsel for the appellant and Shri Shailender Singh, DAG, Haryana, on behalf of the respondent and with their assistance have gone through the record of this case.

The submission raised by the counsel for the parties and the evidence which has been recorded by the trial court can be discussed and divided into the following heads :

1) First Information Report;

2) Motive;

3) Occular evidence;

4) Medical evidence; and

5) Offence, if any, and against whom.

According to the prosecution, the occurrence had taken place in the city of Ambala at about 10.30 PM. A perusal of Exs. PA, PB and PC, fortify that the attendants of both the injured did not lose any time so as to take the injured to the hospital for their medical treatment. The Ruqa, Ex.PC, suggests that the arrival time of Lakhwinder Singh was 11 PM while that of Manmohan Singh was 11.20 PM. Further, the doctor has testified in this ruqa, Ex.PC, that Manmohan Singh expired at 11.40 PM. This ruqa was despatched to the Incharge, Police Post, Regiment Bazar, Ambala Cantt, at 12.05 AM on the early hours of 15.4.1995. A perusal of the medicolegal reports, Ex.PA and PB, of Lakhwinder Singh and Manmohan Singh, respectively, also indicates that both these injured must have reached the hospital at about 11 PM. The probable duration of the injuries of both the injured also clearly indicate that both these injured have received the injuries at one point of time. The statement of Saroop Singh was concluded by ASI Narinder Kumar at 12.05 AM, on the night intervening 14/15.4.1995. The formal F.I.R. has been registered in the police station at 12.15 AM vide DDR 41. Thus, it can be said that this F.I.R. has been recorded within two hours of the occurrence. A perusal of the same would show that the names of the injured, the names of the eye witnesses and the names of the accused with all material particulars have been mentioned. So far as the position of law is concerned, it is always insisted upon for the early lodging of the F.I.R. so that a coloured version should not come. The lodging of the prompt F.I.R. is an additional guarantee which may lend good corroboration to the statement of the maker of the same. In this case, Saroop Singh did not waste any time to report the matter to the police about this occurrence. Thus, I hold that F.I.R. in this case was prompt and can be looked into for the purpose of corroboration.

18A. So far as the motive is concerned, as per the story of the prosecution, the deceased had advanced some money to both the accused and when the money was demanded, it offended the appellant and his companion, who allegedly took out their knifes and started causing injuries to the deceased as well as to his companion Lakhwinder Singh. This was the motive which has also been highlighted by the father of the deceased. A father can know reasonably if there was any dispute between his son or the accused on the previous occasion. In all probabilities, the deceased must have informed his father that earlier there was a dispute between him and the accused over the return of the money and, in these circumstances, there is no improbability if the father has mentioned about the motive in his statement, Ex.PN. Even, Lakhwinder Singh, who is an injured and stamped witness in this case and whose statement has to be treated on a higher pedestal than that of an ordinary witness, has also deposed that immediately before the start of the occurrence, there was a demand of money on behalf of the deceased upon which both the accused started inflicting injuries.

The learned counsel for the appellant submitted that Om Parkash, PW7, has not supported the case of the prosecution with regard to the alleged motive as propounded by the prosecution. I have gone through the statement of Om Parkash and I am of the considered opinion that even from the statement of Om Parkash, the motive is discernible to the extent that there was a money dispute between the deceased and the accused. In order to repel the argument of the learned counsel for the appellant, I would like to quote in verbatim the statement of Om Parkash on this score :

"There was a dispute of the payment of Rs. 1,000/ between Virinder Kumar and Manmohan Singh deceased. I got the same settled 15 days before. No payment was made by Manmohan Singh to Virender Kumar in my presence of Rs. 1,000/."

This indicates that money was advanced by the deceased to Virender Kumar, appellant and it was very natural on the part of the deceased to make a demand of money which was not liked by the present appellant who without any reason, caused injury on the abdomen of the deceased. Motive is a hidden element which is locked in the heart of the accused. What prompted a criminal to commit an offence cannot be described with certainty by the prosecution. We all know that even without motive, the prosecution can succeed in proving the charges but here is a case where the prosecution has come with a definite motive and it has been proved not only from the statement of the father of the deceased but also from the statement of Lakhwinder Singh and even from the statement of Om Parkash. Om Parkash though has lied on certain aspects of the case but the defence cannot take the benefit of his statement as he has also admitted that there was a dispute of payment of Rs. 1,000/ between the present appellant and Manmohan Singh, deceased. Even if it is assumed for the sake of arguments that motive as alleged by the prosecution has not been proved by it, still conviction can be based if this court comes to the conclusion that the evidence of the prosecution is otherwise reliable and cogent. However, in the present case, I hold that the prosecution has also been able to prove the motive qua the appellant.

The occurrence has been unfolded by Lakhwinder Singh, the stamped witness, and Saroop Singh, father of the deceased. Both these witnesses have corroborated the allegations as contained in Ex.PN. It is the story of the prosecution that both these witnesses along with the deceased and Satish Chander were returning from Hathi Khana Mandir where a Jagrata was going on. In this type of function, the family members of one family can go there along with a friend, etc. The deceased and his companion were young. In these circumstances, it is not improbable if they had been going ahead of Saroop Singh and Satish Chander. Both these witnesses have consistently deposed about the occurrence. The knife has been used in this case as per the story of the prosecution and such like weapon can only be wielded if the assailant is hardly at a distance of one or two feet from the injured. Lakhwinder Singh, in these circumstances, will not have any difficulty to recognise his assailants though the occurrence has taken place at about 10.30 PM in the month of April, 1995. He being an injured witness, his presence has to be believed by the law courts. The learned counsel for the appellant has not been able to assail satisfactorily the statement of Saroop Singh and the injured witness Lakhwinder Singh though an effort was made by Mr. Walia to convince me that Saroop Singh was not not any eye witness of this case and he might have been informed subsequently about the injuries suffered by his son.

I also repel the argument of Mr. Walia when he submitted that Saroop Singh being a relation and interested witness, his statement should be discarded with regard to the main occurrence. The counsel submitted that it is just possible that he might have been informed of this occurrence by somebody else. The learned counsel also even referred to the statement of Saroop Singh when he deposed before the court to the following effect :

"We carried Manmohan Singh and Lakhwinder Singh both to the Civil Hospital, Ambala Cantt, around 12.20 in the night. The doctor told us that Manmohan Singh had passed away."

From the above two lines, the learned counsel for the appellant wants to make a catch thereof by stating that as per Ruqa, Ex.PC, and the medicolegal report, the injured arrived in the hospital at 11 PM and the name of Saroop Singh does not figure in any of the two M.L.Rs. that he was accompanying the injured.

I do not subscribe to the argument raised by the learned counsel for the appellant in view of the documentary evidence, Exs. PA, PB and PC, in which there is a clear mention that both the injured arrived in the hospital at 11 PM. Even the ruqa was despatched from the hospital at 12.05 AM on the night intervening 14/15.4.1995. I cannot also lose sight of the fact that Saroop singh is none else but the father of the deceased Manmohan Singh and he might have fumbled here or there in deposing about the time of the arrival in the hospital. If the statement of Saroop Singh is read as a whole, it will give a clear indication that he was one of the eye witnesses along with Lakhwinder Singh and Satish Chander. Relationship per se is no ground to reject the testimony of a witness. Rather, a real relation would be the last man to screen the real offender. At the most, I can scrutinise the statement of Saroop Singh with care and caution. The statement of Saroop Singh is fully corroborated from the statement of Lakhwinder Singh, who is an injured witness and whose testimony cannot be doubted very easily as I have stated above. In these circumstances, I am of the opinion that the prosecution has been able to prove that Virender Kumar, appellant, gave a knife blow in the abdomen of Manmohan Singh, and, unfortunately, that very injury became the cause of his death.

Medical evidence has been unfolded by two doctors; namely Dr. L.N. Garg, PW1 and Dr. Beenu Gupta, PW4. Both these doctors have stated that the injuries could be caused by a knife which was allegedly used by the appellant and his companion. The duration of the injuries and the nature of the injuries fully corroborate to the occular version as unfolded by Saroop Singh and Lakhwinder Singh.

So far as the offence part is concerned, I may say that there is no State appeal against the present appellant. It is the case of the prosecution itself that there was wordy altercation just before the occurrence. There was an alleged demand of money from the side of the deceased. A reasonable inference can be drawn that there must be some wordy duel between the deceased and his companion on one side and the appellant and his companion on the other side. The injury attributed to the present appellant ultimately became fatal qua the deceased. I do not see any infirmity in the judgment of the trial court when it convicted the appellant u/s 304 Part II, IPC.

It was, lastly, submitted by the learned counsel for the appellant that if none of his contentions prevails upon the mind of the court, the appellant may be visited with leniency in the matter of sentence. On the contrary, Mr. Shailender Singh has submitted that on account of the proved act of the appellant, the life of a young boy has been lost. The learned D.A.G. even went to the extent of saying that it was a case of murder. As I have already submitted above, the State has not filed any appeal. In the opinion of this court, the ends of justice would suffice, if the substantive sentence of the appellant is reduced from 10 years to 7 years and I order accordingly.

With the above modification in the matter of sentence, the appeal is hereby dismissed.