Dinesh Kumar and Others vs State of Rajasthan

R.S. Chauhan, J.—Aggrieved by judgment dated 11.6.2004 passed by the Additional Sessions (Fast Track), Behror, District Alwar, Dinesh Kumar and Dharmveer have approached this court. By the said judgment, the learned Judge has convicted and sentenced the appellants as under:--

"Dinesh Kumar

U/s. 302 IPC: Life imprisonment, imposed him with a fine of Rs. 1000/-, and directed to further undergo six months simple imprisonment in default thereof.

Dharmveer

U/s. 302/34 IPC: Life imprisonment, imposed him with a fine of Rs. 1000/-, and directed to further undergo six months simple imprisonment in default thereof."

In a nutshell, the case of the prosecution is that on 29.7.2003, Pankaj Kumar (P.W. 1) submitted a written report (Ex. P.1) before the SHO, Police Station Behror, which when translated into English, reads as under:--

"To, The SHO Police Station Behror

Sir,

Humbly it is submitted that my brother, Virendra Singh, used to work at Hotel Minar owned by Dinesh Kumar and Dharmveer. Last night around 12:00 O''clock at night, Virendra asked Dinesh and Dharmveer to return Rs. 600/- of his, which he had lent to them. Due to this, there was a verbal altercation and push and shove between them. After this, Virendra left the place on his bicycle. Dinesh and Dharmveer went inside the room, picked up some weapon, and went after Virendra. Dinesh hit him over the head with the weapon. Virendra caught hold of him and fell at the spot. After this, Subhash, Dharmveer, Dinesh and Balveer, Sunil, Raj and Lalit picked him up. Dinesh and Subhash took Virendra, on a motorcycle, to the Behror hospital. The doctors at the hospital declared him dead. The moment I came to know this, I came to the hospital. I noticed that Virendra had a grievous injury on his head. There may be other injuries on his body. But I do not know. After this, we went back to the hotel. In a room of the hotel, we discovered a blood stained shirt and a pant. There was blood on the side of the road. A pair of slippers were lying here and there. A cycle was also there. But it is said that the cycle was placed there later on. Subhash and Balveer working at the hotel, have seen this incident. Two or three other persons, who keep on coming and going they have too seen this incident. These persons have told me about the incident. Therefore, I pray that legal action should be taken, and the guilty should be punished.

Sd/- Pankaj Kumar S/o. Prabhati Lal Yadav, By caste Aheer, Village Kalyanpura, Tehsil Behror, District Alwar."

On the basis of this written report (Ex. P.1), the police chalked out a formal FIR (Ex. P.2), namely FIR No. 372/03 for offences under Sections 302, 201 IPC. It started investigation. After arresting both the appellants, a charge-sheet for offences under Sections 302 and 201 IPC was filed before the ACJM, Behror. The case was committed to the Sessions Court, therefrom it was transferred to the learned Judge. The learned Judge framed the charges against the appellants for offences under Sections 302 read with Section 34 IPC. In support of its case, the prosecution examined nineteen witnesses, and submitted forty-eight documents. After completing the prosecution evidence, the learned Judge recorded the statement of the appellants under Section 313 Cr.P.C. Both the appellants claimed that Virendra had met with an accident on National Highway No. 6. He met with an accident on a motorcycle. He sustained injuries in the accident. However, the defence did not examine any witness in its favour. After completing the trial, the learned Judge convicted and sentenced the appellants, as aforementioned. Hence, this appeal before this court.

Mr. Rajesh Goswami, the learned counsel for the appellants, has raised the following contentions before this court: firstly, Virendra had died due to an accident, and not due to any assault made by the appellants.

Secondly, the entire case of the prosecution is based on testimony of Subhash (P.W. 4). However, he is not a trustworthy witness as he has changed his stand from what he had stated in his police statement under Section 161 Cr.P.C. (Ex. D.1), to what he had stated in his supplementary statement (Ex. D.2) given under Section 161 Cr.P.C., and what he had stated in his testimony before the court. Initially, he had claimed that Virendra had died due to an accident as he was drunk. But in his testimony, he claimed that the appellant Dinesh had hit him.

Thirdly, although the prosecution had tried to project Balveer as an eyewitness, but Balbeer has merely stated that he was informed by Dinesh, who came running to his Dhaba (restaurant) and told him that Virendra had met with an accident. Thus, he is not an eyewitness of the incident.

Fourthly, even Dr. Satyaveer Yadav (P.W. 9), Dr. M.M. Rawat (P.W. 10) and Dr. M.M. Sharma (P.W. 11), the three doctors who formed the Medical Board, have admitted in their cross-examination that the head injury suffered by Virendra could be due to a vehicular accident. Therefore, they have probablised the defence story that Virendra had died due to an accident and not due to a homicidal death.

Lastly, in the alternative, the learned counsel has pleaded that even if the prosecution case were taken to be true, the incident had occurred over a trifle matter, at the spur of the moment, in the heat of passion, without any premeditation and it is a case of single injury on the head. Therefore, the case would not travel beyond Section 304 Pt.I IPC.

On the other hand, the learned Public Prosecutor has pleaded that in order to save their own skin, the appellants had tried to give the murder a color of an accident. However, according to Dr. Satyaveer Yadav (P.W. 9), Dr. M.M. Rawat (P.W. 10), Dr. M.M. Sharma (P.W. 11), Virendra had suffered five injuries, a lacerated wound extending from bridge of the nose to the crown region of skull, brain deep. The said injury was caused by a blunt weapon. Such an injury cannot be caused by a vehicular accident especially when Virendra was walking in the ''Kachha area'' of the side of the road.

Secondly, had there been a car accident, the vehicle would have left some traction marks on the road.

Thirdly, the medical evidence supports the testimony of Subhash (P.W. 4) that it is Dinesh who had caused an injury to Virendra''s head by hitting him with an iron instrument.

Fourthly, by recovery memo (Ex. P.9) the police had recovered an iron pipe and an iron ''Kush''. Therefore, the recovery supports the testimony of Subhash.

Lastly, considering the impact of the single injury, the intention of the appellants is clear. Therefore, the case falls under Section 302 IPC and not under Section 304 Pt.I IPC.

Heard the learned counsel and perused the impugned judgment and examined the record.

Before we deal with the contention of the learned counsels, it would be fruitful to deal with the evidence produced by the prosecution.

Subhash (P.W. 4) is the star witness. In his examination-in-chief, he informs the court that "on 28.7.2003, I was working at Minar Hotel. I joined the job just seven days before. The hotel owners are the accused, Dinesh and Dharmveer, who are present in the court. Balbeer, Virendra, Sunil and Babloo used to work there. Raju also used to work there. The incident occurred on the 20th around 12:00 to 1:00 O''clock at night. Virendra had lent Rs. 600/- to Dinesh for the purpose of buying wooden pieces. That night, Virendra asked Dinesh to return his money. Dinesh told him that he would return the money, after all he was not running away from the hotel. Dinesh cursed Virendra. Virendra also cursed Dinesh. Dinesh slapped Virendra, and in turn, Virendra also slapped Dinesh. When we tried to set apart the two, Dinesh kept on cursing. A Indica Car and a truck was also standing at the hotel. Those persons also intervened and separated the two. Virendra picked up his bicycle to return back to his home at Kalyanpura. Dinesh and Dharmveer went into their room. Dinesh brought out a weapon, made out of the iron, which he hid, and Dharmveer also carried a one ft. long iron pipe which he also tried to hide. Dharmveer caught hold of him. Dinesh hit Virendra with the iron weapon on his head. I saw them hitting him. I went back to the hotel and told Balbeer that Dharmveer and Dinesh had assaulted Virendra. Balveer told me not to tell any one. Dinesh came back from the place of the incident to the hotel and said that an accident had occurred. Balveer, Sunil, Raju, Bablu and I went to the place of incident. The staff members told Dinesh to bring his motorcycle so that they could carry Virendra to the hospital. Dinesh brought his motorcycle from the hotel. We placed Virendra on the motorcycle, and took him to the hospital. Near the electricity powerhouse, I told Dinesh that you have hit Virendra. He told me not to tell this to anyone and he would give me Rs. 5000-7000. He also told me that in case I were to tell this to anyone, he would kill me. He left Virendra and me at the hospital. Satyaveer and Pankaj came to the hospital. I told them that Dinesh and Dharmveer had assaulted Virendra. I went back home. Virendra had died at the spot itself."

In his cross-examination by the counsel for Dinesh, this witness admitted that prior to this incident Dharmveer, Dinesh and Virendra had no animosity and they use to live with love and affection. Virendra was the cook at the hotel. Besides cooking, he would not do any other work. He further claimed that the police did not come at night, but came when Virendra''s body was sent for autopsy the next morning. He further claimed that before they brought Virendra to the hospital, he had already expired. He admitted that between the place of the incident and the hospital, there was a police station. But Dinesh was driving the motorcycle and he did not stop the motorcycle at the police station. He further claimed that when the police came, he immediately told the police about the incident. He also claimed that Virendra did not drink. When this witness was confronted with his first statement (Ex. D.1), he denied the fact that he told the police that Virendra was drunk. According to him, it is wrong to say that Virendra had slapped Dinesh as he was drunk. He further admitted that when the incident occurred, he did not catch hold of Dinesh, as Dinesh would have hit him also. He further claimed that since he did not realize that Dinesh and Dharmveer would have killed Virendra, the others in the hotel did not stop them. He further admitted that at that time Dinesh told everyone that Virendra had met with an accident. He also claimed that "it is true that at the Panchayat Samiti we ran into a second police car and Dinesh told them that Virendra had met with an accident". He denied the fact that when he went to the place of incident, Virendra was already lying on the road. He also claimed that Virendra was not walking on the road, but was walking on the ''Kachha Rasta''. He denied the suggestion and said "it is wrong to say that Virendra was not assaulted by Dinesh and Dharmveer, but died due to a car accident".

In his cross-examination by the learned counsel for the accused, Dharmveer, he again denied the fact that an accident had occurred. According to him, Dinesh had killed Virendra. He further clarified that the person driving the Indica Car had come and separated Dinesh and Virendra. There was a driver and a conductor of the truck they had tea at the restaurant and after separating Virendra and Dinesh, made the bill, and went towards Delhi. According to him the distance between the place of incident and Minar Hotel is about forty to fifty steps.

Balbeer Singh (P.W. 5) is another important witness. According to him, the incident had occurred on 28.7.2003 over Virendra asking Dinesh to return his money. According to him, both Virendra and Dinesh caught hold of each-other''s caller, and slapped each-other. According to him, while he was working in the kitchen, Dinesh came running from Ram Dhaba, and said that Virendra had met with an accident. Virendra was lying on the white strip on the road. His head was bleeding, and his bicycle was lying on the road without any damage. He also claims in his cross-examination that there was no animosity between Virendra, Dinesh and Dharamaveer. They used to live happily. In his cross-examination he clearly admits that he did not see the incident; his statement was recorded by the police after two to three days. He denied the fact that Virendra was drunk and was going to his house while he was drunk. He denied the fact that the persons working at Ram Dhaba were shouting that an accident had occurred.

According to Dr. Satyaveer Yadav (P.W. 9), Dr. M.M. Rawat (P.W. 10), Dr. M.M. Sharma (P.W. 11) were the members of the Medical Board. He proved the Post-Mortem Report (Ex. P.13) which is in his handwriting. According to the Post-Mortem Report, Virendra had suffered the following injuries:--

"1. Lacerated wound 9 x 1 1/2 inch over skull extending from bridge of nose to crown region of skull, brain deep and blunt.

Bruise 2" x 1" over left shoulder blunt.

Bruise 1 1/2" x 1/2" over left arm upper 1/3 and lateral aspect blunt.

Abrasion 1" x 1/2" over left forearm upper 1/3 and dorsal blunt.

Lacerated wound 3" x 2" x bone deep over left foot first, second and third toes etc.

Marks of ligature on neck."

The Medical Board has also discovered a fracture on the occipital frontal bone. The said fracture was under injury No. 1. The brain was also lacerated, and was coming out of the external injury.

According to the Medical Board, the cause of death was coma due to head injury.

In his cross-examination, the doctor admits that "it cannot be denied that these injuries could be caused due to a vehicular accident".

Dr. M.M. Rawat (P.W. 10) and Dr. M.M. Sharma (P.W. 11) have corroborated the testimony of Dr. Satyaveer Yadav (P.W. 9).

A bare perusal of the evidence reproduced above clearly proves that there was no animosity between Dinesh and Dharmveer on the one side, and Virendra on the other side. In fact, they used to live cordially. Due to the cordial relationship, Virendra had lent money to Dinesh for buying wood for the stove. However, when he asked for the said money, arguments had erupted between Dinesh and Dharmveer who were the employer, and Virendra who was an employee. The tempers flared up when Dinesh cursed Virendra and in turn, Virendra cursed Dinesh. Both assaulted each-other with slaps. This only added fuel to the fire. Being an employee, Virendra left the Dhaba, and was on his way back home. But in the heat of passion, at the spur of the moment, Dinesh and Dharmveer picked up iron pipe and iron ''Kush''. While Dharmveer caught hold of Virendra, Dinesh hit him over his head. Virendra collapsed and eventually died.

In order to save their own skin, Dinesh suddenly invented the story that Virendra had met with a vehicular accident. Rushing back to his Minar Hotel, he spread the same rumar. Even when he and Subhash took Virendra to the hospital, he told Subhash to repeat the same excuse. Dinesh even offered some money to him.

Subhash is a natural and a trustworthy witness. He is natural as he is an employee at the Minar Hotel. Both according to Subhas and Balbeer, Hotel Minar was functioning and serving food to the travelers even at late night. Subhash has given graphic detail, of the entire transaction. He had given the same details both in his police statements in Ex. D.1 and Ex. D.2. He has not only spoken about his own fears, but has also talked about the temptation offered by Dinesh to him in monitory terms. His statement was recorded on the very next day in the hospital itself. Since he is an employee of Dinesh and Dharmveer, there is no animosity between him and the appellants. Thus, there is no possibility of his falsely implicating his employers. Thus, he is a sole eye-witness of sterling worth. There is no reason to doubt his testimony.

However, even if his testimony were to be accepted, as stated above, the incident had occurred without any premeditation. It had occurred suddenly and at the heat of the moment. Neither Dinesh, nor Dharmveer planned a cold blooded murder. But at the spur of the moment, they had picked up an iron pipe and an iron ''Kush''. Dinesh has not even repeated the blows on the head. He caused a single injury on the head. Hence, the case does not fall under Section 302 IPC, but falls under Section 304 Pt.I IPC.

Since both Dinesh and Dharmveer had gone together, since both were armed with iron rod and iron kush, since Dharmveer caught hold of Virendra, while Dinesh assaulted him, obviously both shared a common intention.

Therefore, for the reasons stated above, we convert the conviction of accused-appellant, Dinesh Kumar, from Section 302 IPC to Section 304 Pt.I IPC and modify the sentence of life imprisonment to ten years'' rigorous imprisonment. However, we maintain the sentence of fine and default clause as imposed by the learned trial court. Similarly, we convert the conviction of accused-appellant, Dharmveer, from Section 302 read with 34 IPC to Section 304 Pt.I read with Section 34 IPC and modify the sentence of life imprisonment awarded upon him, to ten years'' rigorous imprisonment. However, we maintain the sentence of fine and default clause as prescribed by the learned trial court.

With the above modification in conviction and sentence, the appeal stands disposed of.