Anoop @ Arjan vs State of Haryana

Inderjit Singh, J.—The present appeal has been filed by the appellant against the judgment/order dated 12.11.2007/14.11.2007, passed by the Addl. Sessions Judge, Jind, whereby he was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 8000/- u/s 302 IPC and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. The appellant was further convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1500/- u/s 394 IPC and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months. The appellant was also convicted and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/- u/s 449 IPC and in default of payment of fine, to further undergo rigorous imprisonment for a period of one month. All the sentences were ordered to run concurrently. The prosecution version briefly stated is that in this case FIR has been registered on the basis of statement of Raj Kumar Anand given to Inspector Badri Parshad, SHO, Police Station Jind (now DSP) on 29.10.2005 at 10.30 P.M. Raj Kumar Anand-complainant stated that he is practising as an Income Tax Lawyer at Jind. His daughter Meenakshi is married with Naresh Singla and she is residing in Urban Estate, Jind. His wife Smt. Santosh Anand is Principal in Moti Lal Nehru Public School, Jind. They had engaged Ramesh son of Tika Ram, Caste Sharma (Koirala) as servant for the last about one month. On 29.10.2005, in the evening, the complainant and his wife Santosh Anand were sitting in the lobby of their house after taking dinner, while Ramesh was cleaning utensils. At about 8.00 P.M., the bell of his house rang up and he directed his servant Ramesh to see as to who had come and to open the door after seeing from the glass. Then Ramesh opened the door and three young boys with muffled faces entered in the house. Two of them were armed with pistol and one of them was armed with knife. They started quarreling with Ramesh just after opening the door. Ramesh in order to save himself entered in the office of the complainant. Complainant reached at door of his office and saw that one boy caught hold his servant Ramesh and one was causing injuries with knife to Ramesh repeatedly. On seeing the complainant, one boy came to him and put his pistol on the person of the complainant and directed him to hand over whatever he was having otherwise he (accused) will shoot him. In the meantime, his both companions also reached in the lobby. One of them inflicted knife blow to his wife and they pushed her, which caused scratch on her wrist. During scuffle, the handkerchief fell down from the faces of the accused. In the meantime, his friend Sh. S.K. Garg, Advocate came to see him by chance. He rang up the bell and saw through glass that one boy was aiming pistol on the complainant. He informed the police telephonically. The complainant and his wife called for their daughter and son-in-law loudly. On hearing noise, many persons gathered outside the house and the police also reached. All the accused went on the roof through staircase with their respective weapons. The complainant further stated that he came out after opening the door of his office. His servant Ramesh was lying in the office unconscious. With the help of public, Police apprehended all the three accused. On interrogation, one accused disclosed his name as Karan Singh @ Ravinder, who is armed with country-made pistol. Another accused disclosed his name as Anoop @Arjan, who is armed with knife and caused knife blow to the complainant, his wife and his servant Ramesh. The third accused disclosed his name as Hari Singh @ Ajay and he was also armed with counter-made pistol. In the meantime, his son-in-law Naresh Singla and daughter Meenakshi also reached. He and his son-in-law took Ramesh to Civil Hospital, Jind where doctor admitted Ramesh. The complainant was also dressed and stitched. During treatment his servant Ramesh succumbed to knife injuries. Raj Kumar Anand-complainant produced the MLR of Ramesh to DSP Badri Parshad and got recorded his above statement. Ruqa was sent to the police station for registration of the case. Then DSP Badri Parshad inspected the dead body of Ramesh and prepared inquest report Ex. PB. He recorded statement of Naresh Singla and Rajiv Goyal. He prepared application Ex. PX for conducting post mortem on the dead body of Ramesh. Then he went to the spot and inspected the place of occurrence and prepared rough site plan Ex. PBB. Photographer Baljit Singh took snaps of the place of occurrence. DSP Badri Parshad recorded statements of Smt. Santosh Anand and Sh. S.K. Garg, Advocate. ASI Dharamvir Singh produced before him three accused namely Anoop @ Arjan, Karan @ Ravinder and Hari Singh @ Ajay, who were apprehended by ASI Dharamvir Singh at the spot. On search, a knife was recovered from the possession of Anoop @ Arjan, which was sealed in parcel after preparing the sketch and taken into possession vide recovery memo Ex. PL (Knife is Ex. P5). DSP Badri Parshad also lifted blood with the help of cotton and put the same in a small plastic box and sealed it with seal B.P. and taken into possession vide recovery memo Ex. PP. He also lifted blood-stained piece of carpet and pair of chappal of Ramesh etc. He arrested the accused at the spot and also made search of the other accused, who have been sent to Juvenile Court. He then got removed blood-stained clothes of accused Anoop and sealed in parcel and taken into possession vide recovery memo Ex. PS (Shirt is Ex. P14 and pant is Ex. P15). At 8.15 P.M. Dr. Satish Sulekh (PW-11) medico legally examined Ramesh and found following injuries on his person:-

(i) An incised wound on left parietal region of scalp which was transversely placed and bleeding profusely hair roots were cut, the injury was bone deep of length 3.9 cm x 1 cm, both ends of injury were tapering. X-ray and report was advised.

(ii) An incised wound which was obliquely placed on left parietal region of scalp two fingers breadth posterior to injury No. 1, it was bleeding profusely and hair roots were cut. Size of injury was 3.6 cm x

0.7 cm x bone deep, both ends of the injuries were tapering. X-ray and report was advised.

(iii) An incised wound was present on left cheek 2 cm anterior to left ear and extending forwards and downwards of size 5.9 cm x 0.5 cm x muscle deep, both ends of injury were tapering fresh bleeding was present.

(iv) An incised wound was present below the left areola it was transversely placed and of size 3.7 cm x 1 cm and spindle shape, it was bleeding profusely. X-ray and report was advised.

(v) An incised wound was present on the right supra clavicular region on the base of neck, it was obliquely placed and of size 3.6 cm x 1 cm and was of spindle shape, it was bleeding profusely. X-ray and report was advised.

On the same day at 8.55 P.M., Ramesh was declared dead. On the next day i.e. on 30.10.2005, at 2.00 P.M., on police application Ex. PX, Dr. Satish Sulekh (PW-11) conducted post mortem examination on the dead body of Ramesh (deceased) and found following injuries:-

(i) There was an incised wound on left parietal region of scalp which was transversely placed near the forehead of size 3.9 cm x 1 cm x bone deep and spindle shape. On dissection a haematoma was present and a mark of size 1.1 cm x 0.2 cm was present on left parietal bone corresponding to the incised wound, clotted blood was present.

(ii) An incised wound was obliquely placed two fingers breadth behind injury No. 1, the anterior end of injury was lying medially near the mid line of scalp, the size of injury was 3.6 cm x 0.7 cm x bone deep. On dissection a haemotoma was present and dark coloured liquid blood was oozing from the injury, both ends of injury were tapering.

(iii) An incised wound was present on the middle 1/3rd of right parietal region of scalp which was beginning from the mid line and extending laterally and posteriorly and was of size 3.7 cm x 0.5 cm x bone deep. On dissection a haematoma was present, dark coloured liquid blood was oozing from the injury, both ends of the injury were tapering.

(iv) An incised wound was present on the posterior half of both parietal region across the mid line of scalp and was of size 4.1 cm x 1 cm x bone deep and obliquely placed. On dissection a haematoma was present, dark coloured liquid blood was oozing from the injury, both ends of the injury were tapering.

(v) An incised wound was present on the right side of occipital region over the lower quadrant of size 4 cm x 0.7 cm x bond deep, on dissection a haematoma was present, dark coloured liquid blood was oozing from the injury, both ends of the injury were tapering.

(vi) An incised wound was present on the left cheek begging 2 cm anterior to left ear and extending forwards and downwards and of size 5.9 cm x 0.5 cm x muscle deep and was spindle shape, clotted blood was present, dark coloured liquid blood was oozing from the injury, both ends of the injury were tapering.

(vii) A stitched wound was present on right supra clavicular region near the base of the neck, it was obliquely placed and on dissection underlying muscles were incised, the pleura and the upper lob of the lung were also incised. The size of superficial injury was 3.6 cm in length and the size of injury to the pleura and lungs was 1.6 cm x 0.5 cm x 1.4 cm deep Haemo thorax was present of approximately 1.5 litres of dark coloured blood along with clotted blood.

(viii) A stitched wound of size 3.7 cm which was transversely placed below the left areola in the sixth intercostals space, on dissection the underlying muscles were incised and the pleura and lungs tissues had in incision of size 2.6 cm x 1 cm x 3.2 cm. Haemo thorax was present of approximately 1.2 litres of dark coloured liquid and clotted blood.

(ix) Incised wound lying medial to medial margins of right scapula and of size 2.6 cm x 0.4 cm and spindle shaped, both ends of the injury were tapering. On dissection sub cutaneous tissue and muscles were incised and a haemmotoma was present and dark coloured liquid blood was oozing from the injury, the injury was obliquely placed and piercing the pleura of size 0.6 cm x 0.2 cm.

(x) An incised wound of size 3.7 cm x 1 cm spindle shape lying below the left shoulder blade, transversely placed and on dissection underlying soft tissue alongwith the pleura and left lung were incised of size 2.4 cm x 0.6 cm x 1.2 cm Haemo thorax was present as mentioned above injury no. 8.

(xi) An incised wound of size 2.4 x 0.3 cm x muscle deep on left side of back medial to medial margins of left scapula. On dissection haemmatoma was present and dark coloured liquid blood was oozing from the injury. Both ends of the injury were tapering.

(xii) An incised wound was present two fingers breadth below injury no. 10 and placed transversely and slightly lateral to injury no. 10. The size of injury was 3.4 cm x 0.6 cm and was spindle shape on dissection underlying soft tissues were incised alongwith the pleura and lung bearing an incision of size 2.2 x 0.4 x 1.1 cm with Haemo thorax as mentioned in injury no. 9.

(xiii) An incised wound was present on right side of neck which was obliquely placed and was of size 6.7 cm x 0.9 cm spindle shape, the posterior end of injury was lying upwards. Both ends of the injury were tapering. On dissection the injury was muscle deep and a haemmotoma was present. Dark coloured liquid blood was oozing from the injury.

Dr. Satish Sulekh (PW-11) opined that the cause of death in this case was shock and haemorrhage as a result of injuries to vital organs, which were ante mortem in nature and sufficient to cause death. PW-11 Dr. Satish Sulekh also deposed regarding medico legally examination of Raj Kumar Anand-complainant at 8.15 P.M. and found one incised wound on his person.

After necessary investigation, challan was presented against accused. Vide order dated 17.10.2006, Karan @ Ravinder and Hari Singh @ Ajay were declared juvenile and were sent to the Juvenile court. Finding prima facie case, the appellant was charge-sheeted u/s 449, 394 and 302 IPC, to which the appellant pleaded not guilty and claimed trial.

The prosecution in order to substantiate the charges against the accused person, examined PW-1 Santosh Anand (wife of the complainant), who was the eye witness to the occurrence and deposed as per prosecution version. PW-2 S.K. Garg, Advocate, who reached on the spot and deposed as per prosecution version. PW-3 Raj Kumar Anand, who is the complainant and another eye witness to the occurrence. He also deposed as per prosecution version. PW-4 Naresh Singla, son-in-law of the complainant, who also reached on the spot and deposed as per prosecution version. PW-5 Dilbagh Singh, Constable-cum-Draftsman mainly deposed regarding preparing of scaled site plan Ex. PC. PW-6 EHC Satish Kumar deposed regarding disclosure statement Ex. PE made by the appellant-Anoop @ Arjan. PW-7 ASI Dharamvir Singh who reached at the spot along with Constable Rajesh Kumar deposed as per prosecution version. He also deposed regarding investigation of the accused by DSP Badri Parshad. PW-8 ASI Ganga Ram mainly deposed regarding getting conducted post mortem on the dead body of Ramesh (deceased). PW-9 DSP Badri Parshad is the Investigating Officer. He deposed regarding investigation of the case. PW-10 Partap Singh Bhatia, Reader to District Magistrate deposed regarding sanction orders Ex. PDD and Ex. PEE. PW-11 Dr. Satish Sulekh deposed regarding medico legally examination of Ramesh (deceased).

When examined u/s 313 Cr.P.C., the accused denied the correctness of the evidence and stated that it is totally false case. He has been falsely involved in this case and pleaded himself as innocent. He further stated that he was not present at Jind on the date of occurrence.

On the basis of the evidence produced by the prosecution, accused Anoop @ Arjan was convicted and sentenced as stated above.

We have heard the Learned Counsel for the parties and have gone through the evidence on record minutely.

At the time of argument, learned senior counsel for the appellant mainly argued that the accused has been falsely implicated in the present case as the accused was standing outside the house and on suspicion he was apprehended. Learned senior counsel also argued that in the present case, the accused, if at all, is liable u/s 460 IPC and not u/s 302 IPC.

As regarding first argument of learned senior counsel for the appellant, we find that PW-1 Santosh Anand wife of Raj Kumar Anand-complainant, who is eye witness to the occurrence has deposed consistently as per prosecution version. PW-2 S.K. Garg, Advocate, who also came by chance to the house of the complainant and seen the occurrence, has deposed as per prosecution version. PW-3 Raj Kumar Anand who is the complainant and eye witness to the occurrence, has also deposed as per prosecution version. They all deposed consistently and there is no material contradiction in their statements nor there is any material improvement in their statements. Presence of all these PWs on the spot cannot be doubted. PW-1 and PW-3 were present when this occurrence took place in their house. PW-2 S.K. Garg has come on the spot by chance and has also seen the occurrence. All these PWs are trustworthy and reliable witnesses and there is nothing in the cross-examination to disbelieve their statements. Further, we find that the oral statements of the PWs have been duly supported by medical evidence and the investigation of the case. PWs have no enmity or motive to falsely implicate the accused in the present case and to depose falsely against them. When the complainant and his wife raised alarm, so many people gathered in the street. Even PW-2 called the police and the police also reached on the spot. As the people and police were outside the house, therefore, the accused could not run away and they went to roof through staircase, where Anoop @ Arjan (appellant) was apprehended along with his co-accused on the spot. Further, we find that as per prosecution version, the clothes of the appellant were blood-stained, which were taken into possession. The injury suffered by complainant-Raj Kumar Anand from the hands of accused-appellant also supports and corroborates the prosecution version that the appellant along with his co-accused had come with the intention to commit robbery in the house. There is no dispute regarding their identification. From the evidence on record, in no way, it can be held that the accused (appellant) was present in the street or was apprehended on the ground of suspicion. All the PWs have duly proved the prosecution case beyond any reasonable doubt. Therefore, the argument of the learned senior counsel for the appellant that the appellant has been falsely implicated or implicated on the basis of suspicion cannot be believed and has no merit.

As regarding the next argument, we find that appellant was armed with knife. He has caused injury to Ramesh (deceased), who was having so many incised wounds on his person. Appellant has also given knife blow to the complainant. As the appellant has committed murder of Ramesh, therefore, he is liable u/s 302 IPC.

The argument of the learned senior counsel for the appellant that this case falls u/s 460 IPC and not u/s 302 IPC, has no force. Section 460 IPC reads as follows:

S.460. If, at the time of the committing of lurking house-trespass by night or house-breaking by night, any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house-trespass by night or house-breaking by night, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine

From the above definition, it is clear that to constitute offence u/s 460 IPC, two or more persons are involved in committing the offence of lurking house-trespass or house breaking by night and that any of such persons voluntarily cause (or attempts to cause) death or grievous hurt to any person and all such persons would be punished under this Section for committing lurking house-trespass (or house breaking) by night. Section 460 IPC can be invoked only if from the evidence, it is clearly possible to conclude that before commission of the lurking house-trespass by night or house breaking by night, the offenders did not have a common intention of committing anything other than the above-mentioned offence and that if during the course of the commission of such an offence, one of the person caused death or grievous hurt to any person, then only every person jointly concerned in committing lurking house-trespass by night or house breaking by night, shall be guilty of an offence u/s 460 IPC. The object of Section 460 IPC is that where any person committing lurking house-trespass by night or house breaking by night voluntarily causes or attempts to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house-trespass by night or house breaking by night shall be punished in the manner provided for in this Section, irrespective of whether they were the persons who caused or attempted to cause death or grievous hurt. Section 460 IPC contemplates a situation when a number of persons commit lurking house-trespass by night or house breaking by night, any of them has caused death or grievous hurt etc. In such a situation, it is not necessary to ascertain the identity of the person who cause or attempt to cause death or grievous hurt. If the identity of the person who cause or attempt to cause death or grievous hurt etc. could not be ascertained, each one of the accused would be constructively liable for the offence u/s 460 IPC. That apart, the particular accused causing death, would be punishable if death ensues u/s 302 IPC or 304 IPC. Section 460 IPC lays down the constructive liability of one whether or not he actually caused death or grievous hurt. In no way, it can be held that if a person who was committing a burglary, happened also to commit murder that he should be merely punished for burglary and not for murder. Any person who cause death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

This question has also arisen in Sohan Singh Kesar Singh v. State of Punjab, AIR 1964 Punjab 130, in which this Court has held as follows:

14.... Section 460 merely provides for constructive liability of persons committing or concerned in, ''inter alia'' house-breaking by night in the course of which death is caused by one of the offenders and it prescribes enhanced penalty for the joint offenders. To attract this section it matters little as to who actually causes the death, for, everyone jointly concerned in committing the house-breaking is liable to the enhanced penalty under this section if death is caused in the course of the offence, no matter who is really responsible for the death. It does not, as indeed it cannot, be considered to serve as an exception to Section 302 of the Penal Code. If a person committing house-breaking by night also actually commits murder he must attract the penalty for this latter offence u/s 302 and I find it almost impossible to hold that he can escape the punishment provided for murder merely because the murder was committed by him while he was committing the offence of house-breaking, and that he can only be dealt with u/s 460. Neither the language of Section 460 nor the scheme of Penal Code nor logic and common sense would seem to support this contention which unhesitatingly repel.

The above-said case has also been relied upon by Hon''ble the Supreme Court in Abdul Aziz Vs. State of Rajasthan, and observed that if a person commits housebreaking by night and also commits murder, his act attracts Section 302 IPC and there is no dispute about the said proposition.

In view of the above, the case of the appellant does not fall u/s 460 IPC, rather he is liable u/s 302 IPC. Therefore, this argument of the learned senior counsel for the appellant has also no force.

From the record, we find that the ocular evidence as given by PW-1 to PW-3, who were eye witnesses, is duly supported by the medical evidence. The witnesses are truthful and reliable witnesses. The appellant has been apprehended on the spot. There is nothing in the cross-examination to disbelieve the version given by PWs.

In view of the above, we do not find any illegality or infirmity in the impugned judgment and order, and the same is, therefore, upheld. Resultantly, we find no merit in this appeal and the same is hereby dismissed.