Devinder Kaur vs State of Punjab

M.L. Koul, J.

The appellant Devinder Kumar along with his four companions Rajesh Kumar alias Rajnish, Vijay Kumar, Amrit Lal and Raj Kumar (hereinafter referred to as the accused) faced trial under Sections 302 read with Section 149 and 147 of the Indian Penal Code before the trial Court who on the conclusion of the trial convicted the accused Devinder Kumar under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/; in default of which he was further ordered to undergo three month''s rigorous imprisonment. The other accused were acquitted of the charges framed against them.

The allegations levelled against the accused on the basis of which they faced the above motioned trial are that the complainant Narinder Kumar was married with Savita daughter of Boota Ram resident of Kot Baba Deep Singh, Amritsar about three years before the occurrence took place. She lived with the complainant only for 5/6 months and was suffering from mental disorder. She was living with her parents for the last 2 years. The respectables and the villagers tried their utmost to patch up the matter between the parties but the same did not materialise.

On 10.5.1992, the complainant, his mother Avinash Kumari and younger brother Surinder Kumar were present in their house when at 3 p.m. all the accused came there and told them that they wanted to have final settlement between the complainant and his wife about their matrimonial dispute. In reply the complainant told them that he would call his maternal grandfather Chaman Lal and therefore his younger brother was sent for him. Soon after Chaman Lal entered their house all the accused fell upon him. The complainant''s mother requested the accused to leave her father but the brotherinlaw of the accused Devinder Kumar raised a Lalkara that they should not be allowed to escape. On this accused Rajnish pushed down the deceased on the ground and accused Vijay Kumar caught hold of him from his arms while he was lying on the ground. Rajesh Kumar and Raj Kumar accused held him from his legs. The accused Devinder Kumar sat on his chest and strangulated him. The deceased died on the spot. The complainant and his mother Avinash Kumari raised alarm and the accused ran away from the spot.

The complainant left his brother there to guard the dead body and went himself to lodge a report with the Police. On the way to the Police Station he met ASI Kishori Lal at AmritsarBatala road and made the statement Ex. PG before him on the basis of which FIR No. 163 dated 10.5.1992 was registered. The Police swung into action and on completion of the investigation challaned all the accused for the offences as mentioned above.

At the outset it is not out of place to mention that the other four accused namely Amrit Lal, Rajnish, Vijay Kumar and Raj Kumar have been acquitted by the trial Court on the very evidence on which the present accused has been convicted and sentenced for an offence under section 302 of the Indian Penal Code. Once the State and the complainant have not preferred any appeal or revision against the acquittal order, therefore, this Court suo moto is not in a position to go into the acquittal order passed by the trial Court. So we have to remain confined to the appeal of accused Devinder Kumar to determine as to whether he has been rightly convicted and sentenced by the trial Court or not.

It is an admitted case of the parties that the relations between the parties were not cordial for a matrimonial dispute was pending between the complainant and his wife Savita sister of accused Devinder Kumar. There is every likelihood and as proved by the prosecution that the accused had come to the house of the complainant to arrive at a final settlement with regard to the matrimonial dispute pending between the complainant and his wife Savita. The deceased died in the house of the complainant and he according to the prosecution came there at the instance of the complainant to hold negotiations with the accused. Soon after he entered the house the accused fell upon him and was strangulated to death by the appellantaccused.

It was argued by the learned defence counsel Mr. Mann that there was delay in lodging the report with the police which according to him was filed on 11.5.1992 for the fact that the special report was received by the Magistrate on that date at 10 a.m. However, this argument of the learned defence counsel is belied on the ground that the report has been promptly lodged with the Police when the complainant made a statement Ex. PG before the Assistant Sub Inspector on the AmritsarBatala road and the same assumed the character of FIR No. 163 dated 10.5.1992. The dead body was recovered and it was brought to the mortuary on that day. No time was left with the complainant to improve upon the actual scene of incident and to involve the accused unnecessarily in the matter. The accused in no manner could deface the prosecutions story that the deceased was present in the house of the complainant and had come there to negotiate between the parties for a settlement. It is an established fact that the deceased was killed in the house of the complainant and that too by strangulation.

According to the complainant the dead body was removed for the postmortem examination after 4 p.m. which fact finds corroboration in the statement of PW. 6 Kishori Lal who conducted investigation in the matter and stated that the dead body was sent to the mortuary at 6 p.m. This shows that recording of the FIR was prompt and in time and the complainant or his mother did not get any time to incorporate the names of the accused falsely when they in any manner were not connected with the commission of the crime. May be the Constable who was entrusted with the special report took it lightly and did not submit the report before the Magistrate till next day. The same ipso facto does not demolish the prosecution case that the report lodged was belated especially when the inquest report was prepared soon after the occurrence took place and the dead body was sent to postmortem on that day. Also the report was lodged promptly with the Police and the dead body was recovered on the day the occurrence took place. As such the argument raised on behalf of the accused that the FIR is belated one and full of embellishments does not satisfy the judicial conscience of the Court to believe that it was delayed and the names of the accused have been incorporated in it after due thought and deliberation. No doubt the other accused have been acquitted by the trial Court on the very evidence of the complainant and his mother who witnessed the occurrence with their own eyes and stated that all the other accused helped the present accused in strangulating the deceased on the spot. However, there was no occasion for the deceased to come to the house of his daughter and die there as a natural death providing a chance to the complainant and his mother to involve the accused with the commission of the crime. We feel surprised and shocked to notice as to how the trial Court acquitted the other accused when sufficient evidence was brought on the record that they abetted the commission of the crime and had held the deceased by legs and the arms and provided helping hand to the appellantaccused in strangulating the deceased to death. It is not known as to what were the compelling reasons for the trial Court to take such a view in the matter and acquitted the other accused when they were definitely involved and proved to have committed the crime with the appellantaccused. As already said above that no appeal or revision has been preferred by the prosecution or the complainant, therefore, this Court in no manner is in a position to interfere with the acquittal order of the trial Court passed in favour of the other accused.

It was next argued by the counsel for the accused that once it has come in the evidence of complainant PW3 Narinder Kumar that the deceased (his maternal grandfather) was 65 years old and suffering from heart disease, therefore, there is every likelihood that he might have died as a natural death and was not killed by the accused. There is no corroborative evidence available on the record to show that the deceased died out of heart attack in a natural way. The medical evidence does not evaporate or sneak in any way that the heart disease of the deceased was the cause of his death and not the strangulation with which the deceased is alleged and proved to have been killed by the accusedappellant.

In this regard it is quite essential to refer to the medical evidence of PW2 Dr. R.K. Gorea who on the postmortem of the deceased found the following injuries on his dead body :

(1) An oval reddish bruise 3 x 2 cms on the right side of neck, 2 cms below the angle of mandible.

(2) An oval reddish bruise 2 x 1.5 cms on the right side of neck, 3 cms below and in front of injury No. 1.

The doctor sought the opinion of the Chemical Examiner/pathologist as well. On that report he confirmed his medical opinion that the cause of deceased''s death was due to asphyxia as a result of injuries Nos. 1 and 2 which in the ordinary course of nature were sufficient to cause his death. The doctor was crystal clear to say that the probable time that elapsed between the injuries and the death was within a few minutes. He further clarified himself to say that it is not always necessary that in the cases of strangulation carroted arteries, internal coats, ordinarily get ruptured. In this manner the doctor was vehement to depose on the basis of Pathologist report as well that the death of the deceased was due to asphyxia.

No plea of alibi is raised on behalf of the accused to dislodge the prosecution story that he came to the house of the complainant and murdered the deceased. It has come to the fore on the evidence of the complainant and his mother Avinash Kumari PW4 that the wife of the complainant was suffering from some mental disorder and many a time was taken to the doctor for check up. For this reason a family dispute erupted between the complainant and his wife. Their dispute was tried to be negotiated by elders and the others but they failed to make a settlement between the parties. All the accused on the day of occurrence came to the house of the complainant to settle the dispute and he called his maternal grandfather to his house to hold the negotiations. Unfortunately he was done away by the accused by strangulation.

The only circumstance which weighs in favour of the accused is that he had not come prepared to the house of the complainant with some weapon with premeditation to commit murder of the deceased for the fact he had no idea that the deceased would be present in the house of the complainant when they would reach there. May be, soon after the deceased was called by the complainant to his house the deceased''s presence at the spur of the moment might have offended the accused knowing that his sister''s marital life got spoiled, he lost the temper and control over his emotions, fell upon the deceased and strangulated him to death. In such circumstances of the case we are of the opinion that the case falls within clause 4thly of Section 300 of the Indian Penal Code and the accused is, therefore, held guilty of committing culpable homicide of the deceased not amounting to murder and instead of Section 302 IPC is convicted for an offence under Section 304 IPC and sentenced to rigorous imprisonment for a term of ten yeas and to pay a fine of Rs. 1,000/ in default of payment of fine he shall further undergo six months'' rigorous imprisonment.

With the above modification with regard to the change of offence for conviction and sentence awarded to the accused the appeal fails and is dismissed.

A copy of the judgment is directed to be sent to the trial Judge, Shri Nirmal Singh, Additional Sessions Judge, for information wherever he is posted at present.