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The State Vs. Inder S/O Kirpa Convict and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Appeal No. 791 of 1963
Judge
Reported inAIR1965P& H469; 1965CriLJ670
ActsIndian Penal Code (IPC), 1860 - Sections 34, 302 and 324; Code of Criminal Procedure (CrPC) , 1973 - Sections 342 and 423
AppellantThe State
Respondentinder S/O Kirpa Convict and ors.
Cases ReferredHarbanas Singh v. State of Punjab
Excerpt:
.....- he was also satisfied that the motive for the murder of dilbagh deceased had been proved. the injuries, which could have been caused with weapon like a jeli, were sufficient in the ordinary course of nature to cause death. what may be called the golden thread running through all the decisions of the supreme court is the rule that in deciding appeals against acquittal the court of appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting judge is clearly unreasonable. once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a 'compelling reason'..........been able to say about these witnesses is that har karan is an uncle of janak ram, father of the deceased, teka is the landlord of janak ram and birkha is a fifth degree collateral of teka. this circumstance, in my opinion, does not discredit the testimony of the three eye witnesses when they have given a convincing explanation with regard to their presence near the place of occurrence. according to these witnesses they were smoking huqqa in the field of teka at the time of the occurrence. the fields of these witnesses are in close vicinity and keeping in view the hour of occurrence, which took place at 3 or 4 p.m. i see no ground to disbelieve their statement that they were sitting together under a shisham tree and smoking huqqa when the occurrence took place.(10) mr. sibal has also.....
Judgment:

H.R. Khanna, J.

(1) Inder, aged 25 years. Partap, aged 22/25 years and Balwant, aged 20/22 years, were tried in the Court of Sessions Judge, Hissar, under S. 302 read with S. 34 of the Indian Penal Code for accusing the death of Dilbagh deceased, aged 17 years. The learned Sessions Judge gave the benefit of doubt to Partap and Balwant and as such acquitted them, while Inder was convicted under S. 324 of the Indian Penal Code, and was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 2000 or in default to undergo rigorous imprisonment for a further period of one year. Out of the fine, if realized, Rs. 1,500 were ordered to be paid, to Janak Ram father of the deceased. The State has filed the present appeal against the acquittal of Partap and Balwant and for the conviction of all the three accused under S. 302 read with S. 34 of the Indian Penal Code.

(2) The prosecution case is that the three accused are cousins. In March 1929 Chhelu, grandfather of Inder and Balwant accused, and brother of Dhanpat, grandfather of partap accused, was killed. Crossreports, copies of which are Exhibits P.N. and P. O., were made in respect of that occurrence to the Police. Janak Ram, father of Dibagh deceased, and Har Karan, a third degree collateral of Janak Ram, were convicted in the case relating to that occurrence and were sentenced to undergo rigorous imprisonment for a period of five years. The present occurrence, which took place on 30th November 1962, is a sequel to that earlier occurrence of 1929.

(3) On the day of occurrence at about 3 or 4 p.m. it is alleged. Birkha and Har Karan (P. Ws) were smoking huqqa in Teka's field under a shisham three in the area of village Puthi. The fields of Birkha and Har Karan are in other neighbourhood of the field of Teka. The above mentioned prosecution witnesses then heard cries mar diya, mar diya' from a nearby gowara field which had been taken for cultivation by Janak Ram from Teka (P.W.). Teka, Birkha and Har Karan then got up and saw the three accused injuring Dilbagh deceased with jelis in the above gowara field at a distance of about two kill as from the place where those prosecution witnesses were sitting. Teka, Birkha and Har Karan then went to the place where the three accused were causing injuries to Dilbagh deceased and asked them as to why they were attacking Dilbagh. The accused them replied that they were avenging the murder of their grandfather Chhelu. The accused also stated that if anybody came near he too would be deal with in the same manner.

After giving blows to the deceased, the three accused went away. Teka, Birkha and Har Karan then went to the spot where the deceased was lying unconscious, and within about fifteen minutes he expired. Teka and Birkha them remained near the dead body, while Har Karan went to the village abadi and informed Janak Ram (.P. W. 5), father of the deceased about the occurrence. Janak Ram along with others other went to the place of occurrence where Teka and Birkha (P. Ws.) were sitting near the dead body of the deceased. The chaukidars were called to the place of occurrence. One of the chaukidars was deputed to stay near the dead body, while, in the company of the other chaukidar, Janak Ram set out for the police-station to lodge the report. Janak Ram and the chaukidar left the village on foot. On reaching village Ugalan on the way they hired a tonga at about 2 a.m. and reached police-station Narnaund, which is at a distance of sixteen miles from the place of occurrence. Report Exhibit P.B. was lodged at the police station by Janak Ram at 6.10 a.m.

(4) S. I. Shiv Dayal (P. W. 14) then took a truck and went to the place of occurrence along with Janak Ram and reached there at 10.45 a. m. The Sub-Inspector found the dead body of Dilbagh deceased in the gowara field and prepared the inquest report and the injury statement. He also took into possession bloodstained earth from that spot. The three accused appeared before the Sub-Inspector in village Puthi on 2nd December 1962. Shirt Exhibit P. 2 of Inder accused was then found to be bloodstained and was taken into possession. Inder was interrogated and he stated that he had concealed his jeli in the stalks of Bajra lying in his field and that he could get the same recovered. Memo Exhibit P. E. with regard to the statement of Inder was prepared. Inder thereafter got recovered jeli Exhibit P. 1 from the above mentioned place. The jeli was found to be bloodstained. It was taken into possession and made into a sealed parcel as per memo Exhibit P.F. On chemical analysis by the Chemical Examiner and the Serologist the blood on the bloodstained earth, jeli Exhibit P. 1 and shirt Exhibit P. 2 was found to be human blood as per reports Exhibits P. O and P. R.

(5) Post mortem examination on the body of the deceased was performed by Dr. R. K. Verma on 2nd December, 1962 at 11 a.m. and following injuries were found on the body of the deceased :

1. A Punctured wound 1/2' circular 3/4' deep left axilla occupying 7th intercostal space.

2. Two incised and punctured wounds below left clavicle each measuring 1/2' X 1/4' and 1/2' deep parallel to the left clavicle.

3. A punctured wound 1/2' X 1/4' on the left side of the neck (in middle).

4. An abrasion 1/2' circular behind pinna of left ear.

5. A punctured would on left of nose measuring 1/4' X 3/4' and 1/2' deep 1/2' to left of right eye.

6. A scratch would 4' X 1/4' on front of chest crossing 7th, 8th and 9th ribs in anterior axillary line.

7. Multiple small punctured wounds (8) 1/4' X 1/4' each would on front of abdomen, right side to right of umbilicus.

8. A punctured wound back of right thigh 3/4' X 1/4' X 1/4', 7' above right knee joint.

9. An incised would in middle of right leg 1/4' broad 1' long and 1/2' deep.

10. A superficial punctured would 1/2' X 1/4' X 1/4' on the back of left thigh, 7' above left knee joint.

11. A punctured would 1/4' X 1/4' X 1/2' on lateral side of left thigh about 7' above left knee joint.

12. A punctured, would 1/2' X 1/4' X 1/4' on front and middle of left leg.

13. A punctured wound 1/2' X 1/2' X 1/2' on inner aspect of right thigh 2' below inquinal region.

14. An oblique punctured wound 3' X 1/4' X 1/4' on back and upper 1/3' of left leg, 5 below knee

region.

15. A punctured wound 3' X 1/2' X 1/2' on left side on neck.

16. Multiple contusion marks 1/4' to 1/2' circular on front of neck and right side of cheek.

17. An incised and punctured would 2' deep 1/2' on front and right side of neck, 1' right of mid line.

18. An oblique punctured wound 11/2' X 1/2' X 1' on right side of neck.

19. An incised would 1/2' X 1/4' X 1/4' on front and mid line of neck above laryngal prominence.

20. An abrasion 3' X 1' on back and left side of chest.

(6) At the trial, Teka (P. W. 1) Birkha (P. W. 3) and Har Karan (P. W. 4) gave eye-witness account of the occurrence and supported the prosecution case about the three accused having caused the death of Dilbage deceased buy giving him jeli blows.

(7) The accused, in their statements under S. 342 of the Code of Criminal Procedure, denied the prosecution allegations about their participation in the present occurrence. Inder accused also denied that shirt Exhibit P. 2 was removed from his person and that jeli Exhibit P. 1 was recovered in pursuance of disclosure statement made by him. According to Inder, he was away to village Khar Khara on the day of occurrence. No evidence was produced in defence.

(8) The learned Sessions Judge held that the three eye-witnesses were present near the scene of occurrence and witnessed the actual occurrence. He was also satisfied that the motive for the murder of Dilbagh deceased had been proved. The plea of Inder accused, which was based merely on his own statement under S. 342 of the Code of Criminal Procedure, that he was away to another village, was found to be without substance. The learned Sessions Judge then referred to Sohan Singh V. Emperor, AIR 1935 Lah 130 in which it had been laid down that in case of rival factions corroboration must be looked for as a matter of prudence. As such a corroboration was lacking with respect to Partap and Balwant accused, they were given the benefit of doubt and were acquitted. So, far as Inder accused is concerned, it was observed that as a large number of injuries had been found on the body of the deceased and not fatal injury could be specifically ascribed to Inder, he should be convicted under S. 324, Indian Penal Code. Inder was, accordingly convicted and sentenced as above.

(9) After hearing Mr. Jagga on behalf of the State and Mr. Sibal on behalf of the accused respondents, I am of the view that the learned Sessions Judge was in error in acquitting Partap and Balwant accused, and that case under S. 302 read with S. 34, Indian Penal Code has been proved against all the three accused. There can be no manner of doubt that a very large number of injuries were inflicted on Dilbagh deceased as a result of which he died. Dr. Verma, who performed the post mortern examination, found 20 injuries, some of which were multiple injuries, on the body of the deceased. Most of these injuries were punctured or incised and punctured wounds. Death of the deceased, according to the doctor, was due to shock and extensive multiple inter muscular hemorrhage caused obey sharp pointed and heavy weapons in various attempts and on various regions of the body. The injuries were sufficient in the ordinary course of nature to cause death. The injuries, which could have been caused with weapon like a jeli, were sufficient in the ordinary course of nature to cause death. According to the prosecution case, the above injuries were caused boy the three accused bout the accused have denied this allegation.

The prosecution in support of its case, as stated above, examined three witnesses namely, Teka (P.W. I.) Birka (P.W.3.) and Har Karan (P. W. 4.) with regard to the actual occurrence, and all these witnesses deposed about their having seen the three accused giving jeli blows to the deceased. After having been taken through the evidence of these witnesses, I see no cogent ground to disbelieve them. All that Mr. Sibal has been able to say about these witnesses is that Har Karan is an uncle of Janak Ram, father of the deceased, Teka is the landlord of Janak Ram and Birkha is a fifth degree collateral of Teka. This circumstance, in my opinion, does not discredit the testimony of the three eye witnesses when they have given a convincing explanation with regard to their presence near the place of occurrence. According to these witnesses they were smoking huqqa in the field of Teka at the time of the occurrence. The fields of these witnesses are in close vicinity and keeping in view the hour of occurrence, which took place at 3 or 4 p.m. I see no ground to disbelieve their statement that they were sitting together under a shisham tree and smoking huqqa when the occurrence took place.

(10) Mr. Sibal has also referred to the fact that each of the three accused is the only son of his parents as admitted by Teka (P.W.) This fact would also, in my opinion, make no substantial difference if the prosecution evidence against the three accused is convincing as it is in the present case. It is no doubt true that jeli of only Inder accused was recovered and not those of the other two accused, but that fact would also not materially affect the case. The occurrence took place on 30th November, 1962 while the accused were arrested on 2nd December, 1962, and it would not have been difficult for Partap and Balwant accused to do away with their jelis during this interval. The non-recovery of the jelis of Partap and Balwant would not exculpate them if the ocular evidence adduced at the trial about their participation in the occurrence be worthy of credence. The ocular evidence also receives support from the large number of injuries on the body of the deceased which go to show that there were a number of assailants.

(11) It also cannot be said that because of the previous incident of 1929 there came into existence two factions in the village, one representing the thulla of the deceased and the other that of the accused. There is no cogent evidence about the existence of such factions and though it happened that the parties involved in the previous occurrence belong to two different thullas, there is nothing to show that the relations of the various residents of one thulla with those of the other were strained after the previous occurrence. Perusal of the first information report, dated March 17, 1929, copy of which is Exhibit P.N., shows that the previous occurrence took place in 1929 when Chhelu deceased took water from the bucket of a woman and not because of any dispute between the two thullas. Harkaran P.W., in the present case, can no doubt be deemed to be an interested witness, because he was an accused in the earlier case relating to the incident of 1929, but Teka and Birkha P.Ws. had no animus to depose against the three accused. The fact that Teka is the landlord of Janak Ram, father of Dilbagh deceased, would not discredit his testimony. In any case, Birkha is a wholly disinterested witness and the fact that he is a fifth degree collateral of Teka would not in any way detract from the value of his evidence.

(12)The learned Sessions Judge has taken the view that it was necessary to have the corroboration of the evidence of the eye witnesses before convicting the accused. In this connection I may observe that the necessity of corroboration of the evidence of the eye witnesses depends upon the facts of each case. It is a rule of caution devised to seek assurance and dispel any lingering doubt, but it is not every case which attracts this rule. Broadly speaking the necessity of such corrobation arises where the evidence of the eye-witnesses, though ex facie acceptable, is not of such a character upon which implicit reliance can be placed. In such an event prudence dictates that the Court should insist upon some kind of corroborative evidence to lend assurance to the ocular testimony. Where, however, the evidence of the eye-witnesses, as in the present case, is convincing and the story narrated by them natural, and there is nothing to show that an attempt has been made to rope any innocent persons along with the guilty, the Court would not, in my opinion, be justified in insisting upon corroboration qua an accused and in acquitting him in the absence of such corroborative evidence. The view taken by the learned Sessions judge in acquitting Partap and Balwant accused, in my opinion, was manifestly erroneous.

(13) The principle, which the Courts should bear in mind while interfering with a judgment of acquittal, has been laid down in Harbanas Singh v. State of Punjab, A I R 1962 S C 439 and reads as under;

'In emphasising the necessity of 'compelling reasons' to justify an interference with an order of acquittal the supreme Court did not in any way try to curtail the power bestowed on appellate Courts under S. 423 of the Code of Criminal Procedure when hearing appeals against acquittal; the Court was anxious to impress on the appellate Courts the importance of bestowing special care in the sifting of evidence in appeal against acquittals. What may be called the golden thread running through all the decisions of the Supreme Court is the rule that in deciding appeals against acquittal the Court of Appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate Court comes to the conclusion that the view taken by the lower Court is clearly an unreasonable one that itself is a 'compelling reason' for interference. For, it is a courts' duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established'.

(14) I have, in the present case, sifted the evidence against the three accused with special care and have examined the reasons given obey the learned Sessions Judge in acquitting Partap and Balwant accused and in not convicting the three accused under S. 302, read with S. 34, Indian Penal Code, and am of the opinion that the view taken obey the learned Sessions Judge is clearly unreasonable. I, therefore, have come to the conclusion that the present is a fit case in which we should interfere with the order of the court below. I would o accordingly hold that all the three accused joined together in causing injuries to the deceased. The nature and number of injuries, which were given to the deceased, as also the weapons used by the accused, go to show that their common intention was to cause the death of the deceased and they inflicted those injuries in furtherance of that intention. I, consequently, accept the appeal, set aside the acquittal of Partap and Balwant accused, and convict all the three accused under S. 302 read with S. 34 of the Indian Penal Code and sentence each of them to imprisonment for life

D. Falshaw, C.J.

(15) I agree.

(16) Appeal allowed.


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