Raj Kumar vs State of Haryana

V.K. Bali, J.

This is a case of one brother killing another and where father of both, the accusedappellant and deceased is the solitary eye witness, fully supporting the prosecution version. Appellant has also not denied the occurrence but in defence projects it to be a case of grave and sudden provocation. In the very nature of things, therefore, all that needs adjudication is as to whether the father of appellant and the deceased, who, as mentioned above, is the solitary eye witness, is a wholly reliable witness and, if so, whether the appellant has been able to establish that he killed his brother on account of grave and sudden provocation. Learned Additional Sessions Judge, Sonepat, vide his order of conviction and sentence dated March 23, 1995, however, held the appellant guilty of intentionally causing death of his brother Ram Bhaj and, thus, ordered him to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/ or in default of payment of fine, to further undergo Rigorous Imprisonment for six months.

The occurrence leading to death of Ram Bhaj took place at about 4 a.m. on April 18, 1994 inside the room of Jagdev, brother of the deceased and appellant at Gohana in the State of Haryana. Hukam Chand, father of the appellant and deceased, who appeared as PW6, in his statement, Ex.PH, which was recorded by ASI Jagpal Singh PW8 on April 18, 1994 at 3.15 p.m., stated that he was doing leather work and had taken a contract of dead animals of village Bhainswal Kalan. He had six sons, out of whom, Ram Bhaj, aged 40 years, was unmarried. One son, namely, Madan was blind. The right eye of Ram Bhaj was not in order. One younger son, namely, Jagdev, aged about 2021 years, was still unmarried. All these three sons and he were living together whereas Chaman, Jai Bhagwan and Raj Kumar were living separately. They had separate rooms constructed in one plot. His son Raj Kumar had suspicion that Ram Bhaj was having illicit relations with his wife and in this regard Ram Bhaj had assured Raj Kumar that he was not having illicit relations with his wife Saroj. He took Saroj as his daughter. But this suspicion remained in the mind of Raj Kumar. For the last several days he had this grudge in his mind. On the intervening night of April 1718, 1994 he and Ram Bhaj were sleeping in a room after bolting the door from inside. In the morning at 4 a.m., all of a sudden, Raj Kumar entered the room by opening the door and switched on the light. He got up and saw Raj Kumar armed with a square iron rod. Hardly he had got up from his cot that immediately Raj Kumar gave several iron rod blows lathiwise on the head of Ram Bhaj while he was sleeping. He tried to catch hold of him and raised an alarm to the effect that Raj Kumar had killed Ram Bhaj. He asked his sons to come but he could not overpower Raj Kumar. When his other sons got up, then Raj Kumar ran away. Ram Bhaj was unconscious as he was lying asleep. When his son Chiman Lal got up, he told him this story and took Ram Bhaj to Hospital at Gohana from where he was referred to Medical College and Hospital, Rohtak. He further stated that Raj Kumar had caused injuries to Ram Bhaj mercilessly and while going, Raj Kumar threatened him that he would kill him. He apprehended that Raj Kumar might kill him, as well. Formal FIR, Ex.PH/2, based upon the statement of Hukam Chand, came to be recorded at Gohana at 5 p.m. on April 18, 1994 under Section 302 of the Indian Penal Code. The special report with regard to incident reached the concerned Magistrate at Gohana at 10.30 a.m. on April 19, 1994.

The prosecution with a view to bring home the offence against the appellant, examined Dr. S.S. Punia as PW1 who stated that on April 18, 1994 at 6.35 a.m. he had medicolegally examined Ram Bhaj and found following injuries on his person :

"1. A lacerated wound 6 x 1 cm x bone deep on the left temporoparietal region, 3 cms above the top of the left ear pinna. Blood was oozing out.

A lacerated wound 5 x 1 cm x bone deep on the left parietal region, 2 cms in front of injury No. 1.

A lacerated wound 4 x 1 cm x bone deep on the left parietal region, 3 cms in front of injury No. 2."

Xray examination and Surgeon''s opinion were recommended in respect of all the injuries. The injuries were found to have been caused by blunt weapon within a probable duration of 24 hours. The case was then referred to Medical College and Hospital, Rohtak. The doctor, after seeing the iron rod, Ex.P1 in the Court, opined that the injuries were possible from the same. Dr. R. Jindal, PW2 stated that he had brought the treatment record of Ram Bhaj and as per the same he was admitted in MCH Rohtak on April 18, 1994 at 8.30 a.m. and he expired on April 19, 1994 at 3 a.m. He had intimated the Incharge, Police Post, MCH Rohtak in this regard vide Ex.PC. Dr. Arvind Makkar, PW3 stated that on April 18, 1994, he had seen the injured Ram Bhaj in the casualty ward of MCH Rohtak. On that day, the police moved an application Ex.PD before him for opinion as to whether Ram Bhaj was fit to make statement or not. On the said application he gave his opinion, Ex.PD/1 in negative. PW9 Dr. Subhash Juneja had conducted postmortem examination on the deadbody of Ram Bhaj. He found following three injuries :

"1. A stitched wound 3 cms on left parietal region.

A stitched wound 6 cms on temporoparietal region.

A stitched wound obliquely placed on left parietal region."

The cause of death in the opinion of doctor was shock as a result of head injuries with its complications which were antemortem in nature and sufficient to cause death in ordinary course. The probable duration between the injuries and death was within few hours to two days and between death and postmortem within 6 to 36 hours. Mohan Lal Verma, Draftsman, who appeared as PW4, stated that he had prepared scaled site plan. Ex.PE correctly according to the situation obtaining at the spot. PW5 Constable Ajit Singh stated that on April 23, 1994 appellant was interrogated in his presence by ASI Jagpal and he had made disclosure statement, Ex.PF wherein he had inter alia stated that he had thrown the iron rod along the kikkar trees outside his house and that he could get the same recovered. The appellant then led the police party to the pointed place and got recovered iron rod, Ex.P1 which was taken into possession vide memo Ex.PG. Hukam Chand, father of the appellant and deceased appeared as PW6 and he deposed in tune with the FIR lodged by him. In his crossexamination, he denied the suggestion that on the day of occurrence appellant was out of station to Karnal and on his arrival he straightaway went into the Kotha of the house where his wife used to sleep and that incidently he found that she was having sexual intercourse with Ram Bhaj. He also denied the suggestion that the appellant then lost balance and after lifting the iron rod he inflicted its blows on the deceased which resulted into his death. He also denied that he was not sleeping in that room and was rather sleeping in the courtyard of the house. Davinder Singh Constable, who appeared as PW7 stated that on April 18, 1994 he was posted as MHC in Police Station Gohana. On that day he received statement of Hukam Chand, Ex.PH in the police station through Constable Kapur Singh, on the basis of which he had recorded formal FIR. ASI Jagpal Singh, who appeared as PW8, detailed the steps that he had taken while investigating this case.

When examined under Section 313 Cr.P.C., the appellant while denying the incriminating material put to him, stated that as a matter of fact when he came from outside, he found that his wife Saroj and deceased Ram Bhaj were in a compromising position. He lost his tamper and inflicted blows of rod on the person of Ram Bhaj on account of sudden and grave provocation. He led evidence in defence and examined Jai Bhagwan, his another brother as DW1. He stated that on the intervening night of April 1718, 1994 he was present in his house. Raj Kumar had gone to Karnal on that day and he returned at about 4 a.m. on April 18, 1994. When the appellant came there, he found his other brother Ram Bhaj in his own room where his wife was sleeping. The deceased had illicit relations with her and the appellant noticed the same at that time. In heat of passion, the appellant inflicted iron rod on the head of deceased. He and his father were attracted there on hearing the alarm. He had told this thing to the police as well. In his crossexamination he denied the suggestion that the appellant had not gone to Karnal on that day and that he caused injuries to the deceased while he was sleeping with them. Saroj, wife of the appellant, was examined as DW2. She stated that on the intervening night of April 1718, 1994 appellant had gone to Karnal and in his absence Ram Bhaj had entered her room and attempted to rape her. The appellant came all of a sudden and got enraged. He inflicted iron rods on the head of the deceased and on hearing the alarm her fatherinlaw Hukam Chand and brotherinlaw, Jai Bhagwan, who were sleeping in an other room, also came there. In her crossexamination, she denied the suggestion that the deceased was sleeping along with Hukam Chand and Jai Bhagwan in another room and that the appellant went there and caused injuries to the deceased as he suspected his illicit relations with her.

We have heard Mr. S.S. Narula, learned counsel for the appellant and Mr. Varinder Singh, learned Dy. Advocate General, Haryana and, with their assistance, carefully gone through the records of the case. Here is a case where Hukam Chand lost his one son and the direct effect of his deposition against the appellant is to result into practically losing another son as well. In the very nature of things, therefore, if there be no animus for Hukam Chand to depose against his son, his evidence has to be believed. Nothing at all has been pointed out by learned defence counsel either from the narration of events given by Hukam Chand while lodging the FIR or while appearing in the witness box that might even remotely suggest that Hukam Chand was inimically disposed towards the appellant. Learned defence counsel, very faintly and half heatedly, however, contends that the threat extended by the appellant while leaving the place of occurrence that even Hukam Chand would be killed clearly suggests that even Hukam Chand had illicit relations with Saroj. The contention needs to be mentioned so as to be rejected. Hukam Chand, when appeared in the witness box, was 70 years of age. There is no positive evidence as to how many children in all Hukam Chand had but surely he had six grown up sons. All others, but for the deceased and youngest who was 2021 years of age, were married, and with so many children, who were married, it does not look probable that at that age Hukam Chand might be having illicit relations with his daughterinlaw Saroj. It may be recalled that Saroj appeared as DW2 and did not even remotely mention that her fatherinlaw had an evil eye on her. We have gone through the statement of Hukam Chand and are convinced that he has given a truthful version of the incident leading to death of Ram Bhaj. His statement inspires confidence.

Insofar as defence projected by the appellant of grave and sudden provocation is concerned, we have absolutely no doubt in our mind that the same is only a madeup affair. It appears to us that the appellant, driven into situation as he was, where his father was the star prosecution witness, had no choice but for to coin a story. But his endeavour did not proceed ahead as nothing at all was brought on records to substantiate the same. The defence witnesses i.e., the real brother of the appellant and, of course, the deceased, and wife of the appellant, it appears to us, are only trying to save the appellant. May be, insofar as DW1 Jai Bhagwan is concerned, the appellant has been able to plead mercy and insofar as DW2 is concerned, she has no choice but for to support the version of her husband. However, even if one has to go by the statement of these two witnesses, it clearly transpires that the appellant had knowledge of illicit relations between his wife and Ram Bhaj. If he had prior knowledge of these two indulging into sexual inter course, surely, it cannot be a case of grave and sudden provocation. Further, DW2 Saroj has nowhere stated that on the eventful night Ram Bhaj had attempted to rape her.

In view of the discussion mad above, the twin questions have necessarily to be answered against the appellant. Finding no merit in this appeal, we dismiss the same, thus, upholding the order of conviction and sentence recorded by the learned trial Judge.