Jeevan Lal and anr vs State

Nirmal Singh, J.

This judgment shall govern the disposal of both these appeals which arise out of the same order dated 20/21st Feb'98 passed by the learned

Sessions Judge, Udhampur.

Appellant Jeevan Lal in Criminal Appeal No 10/98 along with his father Shankar Dass, since deceased, and his mother Geeta Devi, since

acquitted, were prosecuted under Section 302, 307, 448 read with Section 34 RPC, for having committed murder of deceased Vijay Kumar and

injuring PW Romesh Chander on 30th April'91 at village Malhar tehsil and district Udhampur.

The prosecution case is that on 30th April'91 at about 7.30 pm, Romesh Chander was returning to his house from a Gharat (water flour mill).

When he reached near his house, he met his paternal uncle Shanker Dass, who started abusing him. There was an altercation between Shanker

Dass and Romesh Chander PW. Shanker Dass had a sickle in his hand. He gave a blow hitting on the left eye of Romesh Chander. Shanker Dass

left the scene whereas injured Romesh Chander went to his house. PW Sheela Devi along with her daughter Sanjokta and three daughterinlaws

namely Babli, Rani and Guddi were also present in the house. In the meanwhile, Vijay Kumar, ^""eased, brother of Romesh Chander also returned

to his house and enquired about the incident from his brother. In the meanwhile, at about 8 p.m. Shanker Dass accompanied by his son Jeevan Lal

and his wife Geeta Devi came to the house of injured Romesh Chander and started abusing him. Shanker Dass and Jeevan Lal were armed with

daggers. When Romesh Chander came out of the compound, Geeta Devi caught hold of Romesh Chander and Jeevan lal gave a dagger blow on

the back of Romesh Chander due to which he fell down. Vijay Kumar, brother of Romesh Chander came to rescue his brother. Geeta Devi also

caught hold of Vijay Kumar and Shanker Dass and Jeevan Lal inflicted blows in his abdomen. Vijay Kumar became unconscious and the ladies

present in the house raised alarm. On this, the accused ran away from the spot along with the weapons. The injured were taken to hospital where

Vijay Kumar was declared dead. Injured Romesh Chander was admitted in the hospital and was given treatment.

Sheela Devi went to the police station and made a statement on the basis of which FIR under Sections 302, 307, 448 read with Section 34 RPC

was registered against the appellantsapcused.

P.W. Ganesh Raj, SI, went to the spot, took the dead body into custody and sent it for autopsy which was conducted by Dr. TR Gupta vide his

report ExPW M/l. During investigation Geeta Devi and Shankar Dass were arrested by SI Ganesh Raj and the appellant Jeevan Lal was found

absconding. Shankar Dass was interrogated. On interrogation, he made a disclosure statement on 8.5.91 and got recovered the weapon of

offence. Jeevan Lal was also arrested on 16.4.93. After his arrest, he was interrogated and made a disclosure statement. The weapons of offence

were recovered and seized vide seizure memo EXPW JK/1 and EXPW JK/2.

After completion of the investigation, challan was presented 'and the accused were chargesheeted under the aforementioned Sections to which they

pleaded not guilty.

To prove the case, the prosecution has examined PWs namely Mst' Sheela Devi, Krishan Dass, Romesh Chander, Sanjokta Devi, Mst Babli, Mst

Rani Devi, Mule Raj, Mango, Joginder Kumar, Shiv Lal, Jai Lal, Kamlesh Kumar, Photographer, Durga Dass, Dr. Anju Balla, Dr TRGupta, Nazir

Ahmed, Constable, Ganesh Raj Sharma, SI, Isher Dass, and Sham lal, ASI.

When the appellantaccused were examined under Section 342 Cr.P.C, to explain the incriminating evidence appearing in the prosecution evidence,

they have not denied the occurrence. Accused Shankar Dass took the plea that after closing of his office when he was returning home and was

passing through the passage which passed from outside the house of complainant, PW Romesh Chander caught him and started beating him with a

stick and also called his brother Vijay Kumar and exhorted him to reach there with a drat for killing him. Vijay Kumar came with a drat. Thereafter

he raised alarm and his wife Geeta Devi also reached on spot. According to Shankar Dass, both Romesh Chander and Vijay Kumar gave him

beating. Vijay Kumar deceased then handed over the drat to Romesh Chander who tried to gave a blow to him but instead of hitting him, it hit the

deceased Vijay Kumar.

The accused were called to lead defence. In defence, they examined Badri Nath arid Mohan Lal.

The learned Sessions Judge after appreciating the evidence of the prosecution and the defence, acquitted Geeta Devi. However, Shanker Dass

and Jeevan Lal were convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. One lac under Section 302 RFC.

For commission of offence under Section 307 RFC, accused Jeevan Lal was further sentenced to undergo rigorous imprisonment for a period of

ten years and was also liable to pay fine of Rs. 10,000. For commission of offence under Section 448 RFC, both the accused were sentenced to

undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 500/.A11 the sentences were ordered to run concurrently.

It is against this conviction and sentence, the appellants Shanker Dass and Jeevan lal have filed Criminal Appeal No. 10/98 and the State has

preferred acquittal appeal No. 21/98, whereas the learned Sessions Judge, Udhampur, has made a reference under Section 374 Cr.P.C. for

confirmation of sentence imposed upon Shankar Dass and Jeevan Lal.

During the pendency of appeals, appellant Shanker Dass has died. Proceedings against him, therefore, shall stand abated.

First of all, we take the appeal filed by the State against the acquittal of Geeta Devi.

When a matter pertains to acquittal, the appellate or revisional court has to be slow to interfere in the order passed of acquittal. The order of

acquittal can be interfered with only if the judgment passed by the court below is palpably perverse or based on misreading of evidence and where

two views are possible, the one taken by the trial court in making a judgment of acquittal should not be disturbed.

Mr SC Gupta, learned AAG, appearing for the State virtually failed to assail the finding of the learned Sessions Judge with regard to the acquittal

of Geeta Devi by pointing out that order of acquittal is perverse or based on misreading of the evidence.

We have perused the evidence on record. After appreciating the same, we are of the view that the learned Sessions Judge has not committed any

legal error in acquitting Geeta Devi, rather, the finding recorded by the court below is in consonance with the evidence on record. The prosecution

had examined Smt Sheela Devi, mother of the deceased Vijay Kumar. She had deposed in her statement that on the day of occurrence, her son

Romesh Chander had gone to a flour mill (Gharat). At about 7.30 pm she along with her daughter Sanjokta and three daughter inlaws, Mst Babli,

Mst Rani and Guddi, were present in the house. Her son Romesh Chander had gone to a Gharat to fetch flour and her other son was sowing the

wheat crop in the land. When Romesh Chander returned to the house, he was having an injury which was given by Shanker Dass. She further

deposed that after about half an hour, all the three accused came to their house and attacked Romesh Chander. Accused Jeevan Lal stabbed him

at his back with a dagger. Romesh chander fell down. Geeta Devi caught hold of Vijay Kumar from his arm and Shanker Dass and Jeevan Lal

stabbed him with the daggers at his Abdomen. To the same effect is the statement of, Sanjokta, Babli, Rani and Romesh Chander.

Deceased Vijay Kumar and PW Romesh Chander were quite young. It is riot believable that Geeta Devi would have caught hold of young men to

facilitate stabbing by the other coaccused. The learned Sessions Judge has rightly observed in this regard as under:

According to the case of the prosecution while the accused Jeewan Lal firstly, stabbed PW Romesh Chander accused Mst Geeta had kept him

held up and likewise the accused Shanker Dass and Jeewan Lal had stabbed the deceased Vijay Kumar, she had again held up the deceased

Vijay Kumar The eye witnesses PW Romesh Chander and others have stated so in their evidence but on the fact of it, it appears highly improbable

and it will be doubtful. There would not have been the necessity of holding PW Romesh Chander by accused Mst Geeta as PW Romesh Chander

had come in the compound alone at that time Similarly when the deceased Vijay Kumar was assaulted and stabbed by accused Shanker Dass and

Jeewan Lal at that time PW Romesh Chander had already fallen on the ground so again there would not have been any necessity of holding

deceased Vijay Kumar by accused Geeta Devi for facilitating the stabbing on him. In this view of the matter the participation of the accused Geeta

Devi in the occurrence seems to be doubtful

Thus, the observations made by the learned Sessions Judge are not perverse or misreading of the evidence. Rather, these are correct as it is the

tendency in this part of the country that when a party is involved in a hurt case, the complainant party tries to involve as many as persons possible

of the accused side as it has been done in this case. Therefore, no ground is made out for disturbing the finding recorded by the learned Sessions

Judge in acquitting Geeta Devi.

Now, we take the appeal filed by Jeevan Lal. Mr B.S. Manhas, learned counsel appearing for the appellant submitted that the learned Sessions

Judge has not appreciated the evidence on record in right perspective and has based his finding on surmises and conjectures. He submitted that

there is delay in lodging the FIR. The occurrence in this case has taken place at about 8 p.m. but the FIR has been got registered after due

deliberations and consultation on the day of occurrence at llpm. He pointed out that from the place of occurrence, when a person goes to the

hospital, he has to pass by the side of the police station of the area concerned. He further submitted that the injured Romesh Chander was the best

witness to lodge the complaint but instead of that the complaint has been lodged by Sheela Devi. He further pointed out that when Romesh

Chander was medically examined, he was accompanied by policemen. This shows that the complainant party firstly went to the police station and

then went to the hospital but had not lodged the report, and therefore, this delay in lodging the FIR is fatal to the case of prosecution.

We have given our thoughtful consideration to the submissions made by the learned counsel for the appellant and find the same without any

substance. The delay ifsofacto is not fatal to the case of the prosecution. The delay is fatal when the prosecution concoctes a false story, introduces

the false witnesses who have not witnessed the occurrence and implicate the innocent persons as accused. In the instant case, the occurrence has

not been denied by the appellants.

Appellant Shankar Dass, since deceased, when was examined under Section 342, as indicated above, did not deny the occurrence. Rather, he

admitted the presence of injured Romesh Chander as well as that of Vijay Kumar but he tried to put counter version by explaining that when he

was returning home after closing his office and was passing through the passage which was just outside the house of the complainant, PW Romesh

Chander started beating him with a sickle and also called his brother Vijay Kumar and exhorted him to reach there with a Darat for killing Shankar

Dass. He had further deposed that Vijay Kumar came there with a Darat and his wife Geeta Devi also reached there. He further deposed that

Vijay Kumar handed over the sickle to Romesh Chander and he tried to gave a blow with it to him but instead of hitting him, it hit the deceased

Vijay Kumar. When the occurrence is admitted, then, if there is any delay in lodging the FIR, it loses its importance. In that eventuality, it is for the

court to see whether the version given by the prosecution is correct or that of the accused.

As per the prosecution version, there were two occurrences. The first occurrence had taken place at about 7.30 r ai and the second had taken

place at about 8 p.m. PW Romesh Chander had deposed that when he was returning home and carrying about 20/25 kgs wheat flour on his head

along with 4 kgs of sugar, Shankar Dass accused started abusing him. Shankar Dass was having a sickle in his hand, he gave a sickle blow which

struck on his face under the left eye. He further deposed that he snatched the sickle from Shanker Dass at which Shanker Dass ran away. Romesh

Chander PW also sustained injuries which have been proved by Dr Anju Bala, who medically examined him. These injuries are as under:

K An incised wound on left cheek below left eye 2 cms x 5 cms which was bleeding.

Stab wound on the left side of back of chest below left scapula 2 cms x 0.5 cms x 1 1/2"" deep obliquely placed.

Shanker Dass has given no explanation how Romesh Chander received above injuries on his person. Taking into consideration the seat of injury

and its nature, it cannot be said that these are the result of friendly hand. The defence taken by Shanker Dass is, thus, not believable.

Dr. T.R. Gupta, conducted the post mortem examination of deceased Vijay Kumar along with the Board of doctors and following injuries were

found on his person:

An incised wound on the left side the mid axillary line on the 9th rib 11/2"" x 1/2"" cutting the muscle rib and puncturing the spleen, omentum

coming out of the wound. The wound was iliac crest.

An incised wound on the left side the chest 4"" below the left nipple muscle deep 1 Vo."" x 1 1/2"".

Two bruises over the right shoulder.

In the opinion of doctor the cause of death was haemorrhage and shock due to spleenic rupture and duration of death was within 24 hours. Injuries

No. 1 and 2 were the fatal injuries.

The case of Shanker Dass accused was that Vijay Kumar came with a Darat. He handed over the same to Romesh Chander who tried to gave a

blow to him but instead of hitting him, it landed on the person of Vijay Kumar. This defence taken by Shanker Dass can not be believed because

as noticed above, Vijay Kumar was having three injuries on his person as per the post mortem examination. If the version given by Shanker Dass

would have been true, then there would have been only one injury on the person of deceased Vijay Kumar because Ramesh Chander would not

have given repeated blow to his brother Vijay Kumar. Ramesh Chander, PW, has also sustained injuries on his person but no explanation has been

given by Shanker Dass or Jeevan Lal whereas the appellants/accused have admitted presence of Ramesh Chander and Vijay Kumar at the place

of occurrence.

Learned counsel for the appellant also tried to make the case of prosecution doubtful by making a submission that the occurrence has taken place

in the locality but no independent witness has been examined and only related witnesses have been examined. This submission raised by the

learned counsel for appellant is also without any force. There is no law that evidence of a related and interested witness cannot be relied upon.

When the case is based on testimony of related and interested witnesses it puts the court on its own guard to scrutinize their evidence with great

care and caution. The case of prosecution hinges on the statement of Ramesh Chander, Sanjokta, Babli and Rani and Sheela Devi. PW Romesh

Chander is the stamped witness. He has received injuries in the occurrence and has given minute detail of the occurrences with regard to time,

place and the manner in which these have taken place and the weapon used by the accused appellants. His version has been fully corroborated by

PW Sheela Devi, Babli, Sanjokta and Rani who are the eye witnesses. Presence of these related eye witnesses is the most natural as the time of

occurrence is 8 pm and it has taken place in the compound of the house of the complainant. So their presence at the place of occurrence cannot be

doubted. These eye witnessesRomesh Chander, Sheela Devi, Sanjokta, Babli and Rani have been crossexamined at length but nothing favourable

came to the defence. The evidence of related and interested witnesses can be discarded only where the evidence given by these witnesses smack

of partisanship and is tainted but when the evidence is convincing, reliable and trustworthy, then such an evidence is not to be discarded simply on

the ground that they are related to the deceased or injured. The evidence of Romesh Chander, Babli, Sanjokta and Rani has been further

corroborated by medical evidence given by Dr TR Gupta who has conducted the post mortem examination on the dead body of deceased Vijay

Kumar and Dr Anju Bala who has conducted medical examination on the person of Romesh Chander.

The learned counsel for the appellant further tried to make out the case of the prosecution doubtful by pointing out that the prosecution has

suppressed the genesis of the occurrence. He pointed out that Shankar Dass accused now deceased, had also sustained injuries but these injuries

have not been explained by the prosecution.

We have considered this aspect of the case also. The prosecution is not supposed to explain each and every injury on the person of accused and is

to explain only those injuries which the accused has sustained in the occurrence and are fatal in nature, as has been laid down in the case of Baba

Nanda, vs. State of Assam, AIR 1977 SC 2252. The injuries on the person of Shanker Dass were not only simple in nature but they were also on

non vital parts. Such like injuries can be self suffered to make out a counter case which seems to have been done in this case. Therefore, the

submission made in this regard by the learned counsel for the appellants is without any force.

Mr BS Manhas, learned counsel for the appellants submitted that as per the version given by Romesh Chander, Babli, Rani and Sanjokta, accused

Shankar Dass and Jeewan Lal stabbed Vijay Kumar with a dagger in his abdomen due to which his intestines came out and he died at spot. He

submitted that the prosecution has failed to ascertain who was the author of fatal injury, therefore, appellants could not be convicted under Section

He placed reliance on a judgment of the Supreme Court reported in 1973 (Vol. 1) C.L.R. 14, Ram Lal us. Delhi Administration, 1976 (Vol.

IV) C.L.R. 204, Tarsem Lal vs. The State of Punjab.

We have given our thoughtful consideration to the submission made by the learned counsel for the appellants and find force in the same. Dr TR

Gupta, who had conducted post mortem examination had deposed that injury No. 1 noted in the post mortem examination, was in his opinion, the

cause for the death but the learned Sessions Judge has erroneously recorded that Dr TR Gupta has pointed out that injuries No. 1 and 2 are the

fatal injuries. The prosecution has not proved who is the author of injury No. 1. When it is not proved who is the author of fatal injury which has

resulted into death of deceased Vijay Kumar, then the accused cannot be convicted for the offence under Section 302 RFC. In Ram Lal's case

(supra), the Apex Court has held as under:

No attempt was made to identify the internal injury with either or both the external injuries found on the head. It is quite possible on that evidence

to infer that only one of these two injuries may have been responsible for death or both. The difficulty then arises which was the injury caused by

the appellant. The finding of the High Court was that the appellant Ram Lal had given only one blow with the stick on the head and not more than

one. In that case it will be very difficult to say whether the blow given by him was the one which ultimately proved to be fatal. Mr Khanna,

appearing on behalf of the Delhi Administration, contended that since the High Court came to the definite conclusion that the other assailants had

not given any blow on the head of the deceased it must be assumed that both these blow had been given by Ram Lal, appellant. But that would be

contrary to the finding of the High Court .which has specifically come to the conclusion that only one blow with the stick had been given by the

appellant on the head of the deceased. It was essential in this case, in order to bring home the offence of murder to the appellant, that the lathi blow

given by him on the head had proved fatal. Since the evidence clearly disclosed that two lathi blows had been given on the head and there is no

evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have

given the blow which did not prove fatal. In these circumstances, the appellant's conviction under Section 302 Indian Penal Code was plainly

incorrect. He and his companions had the common intention to cause grievous hurt and hence he can be convicted only under Section 325 r/w

Section 34. Since in pursuance of the common intention he had given a blow with a lathi on the head which is a vital part of the body he is not

entitled to the same consideration as the others in the matter of sentence because the other had given blows on non vital parts. Therefore, we set

aside the conviction under Section 302 Indian Penal Code and convict the appellant under Section 325 r/w 34 and sentence him to 5 years

rigorous imprisonment in respect of the offence committed with regard to deceased Har Lal...

A Division Bench of Punjab and Haryana High Court in Tarsern Lal's case (supra) held that when three persons alleged to have assaulted the

deceased, the author of fatal injury not ascertained, then anyone of the assailant could not be convicted under Section 302. Similar view was taken

by a Division Bench of Punjab & Haryana High Court in the case of 1977 (Vol.V) C.L.R. 95, Ajit Singh & Ors vs. The State of Punjab.

In the case in hand, injury No. 1 resulting in the death of deceased Vijay Kumar has not been attributed to either of the accused i.e. Jeewan Lal or

Shanker Dass since deceased. Therefore, both of them can claim benefit to the extent that they have caused individually the non fatal injury. Hence

both the accused cannot be convicted under Section 302 RFC. However, both the accused have participated in the attack on the deceased Vijay

Kumar, therefore, they had the knowledge that the injury given in the abdomen would likely cause death, therefore, the act of both the accused will

fall under Section 304 PartIculpable homicide not amounting to murder. Therefore, Jeewan Lal is convicted under Section 304 Part1 RPC and

taking into consideration the facts and circumstances of the case, appellant Jeewan Lal is sentenced to undergo ten years rigorous imprisonment

with a fine of Rs. 10.000/. In default of payment of fine, the appellant/accused shall further undergo rigorous imprisonment for a period of six

months. For offence under Sec. 307, appellant Jeewan Lal is further sentenced to undergo rigorous imprisonment for a period of five years and

shall also be liable to pay a fine of Rs. 5000/. In default of payment of fine, the appellant shall undergo rigorous imprisonment for a period of three

months. In case, fine is paid, the same would be payable to the wife of deceased Vijay Kumar. The conviction and sentence recorded under

Section 448 is maintained. All the sentences shall run concurrently.

In view of the above, both the appeals are dismissed with the above modification. Reference sent by the Sessions Judge is also rejected.