State Of Uttarakhand & Others vs Subhash Juyal & Others

Ravindra Maithani, J

Since common question of law and facts are involved in both these appeals, therefore, same are being taken up together and decided by this common judgment.

At the outset it may be mentioned that Criminal Appeal No.366 of 2012, Subhash Juyal vs. State has been preferred against the judgment and order dated 29.08.2012 passed by learned IVth Additional Sessions Judge, Dehradun, in Sessions Trial No.54 of 2008, State Vs. Subhash Juyal and in Sessions Trial No.55 of 2008, State vs. Subhash Juyal. By the impugned judgment and order, the appellant Subhash Juyal has been convicted under Section 304 IPC and 324, IPC but he has been acquitted of the charge under Section 4 read with Section 25 of the Arms Act, 1959. He has been sentenced as hereunder:-

"(i) Under Section 304 IPC rigorous imprisonment for 7 years and a fine of Rs.10,000/-

(ii) Under Section 324 IPC six month's simple imprisonment and a fine of Rs. 1,000/-.

Both the sentences shall run concurrently. In default of payment of fine, the appellant shall undergo further simple imprisonment for a period of six months."

Government Appeal No.04 of 2013, State vs. Subhash Juyal has been preferred by the State against the same impugned judgment and order dated 29.08.2012 for enhancement of the sentence.

In this judgment reference to appellant means appellant Subhash Juyal.

Briefly stated, according to the prosecution, on 27.02.2008 there was a function in the house of PW 6 Prem Singh Gusain, which was attended by the deceased Purushotam Raturi and PW 2 Manoj Chamoli. There, in the function at about 10 in the late evening, appellant Subhash Juyal and his three companions assaulted the deceased Purushotam and PW2 Manoj Chamoli, without any reason by khunkhri (a sharp edged weapon). The deceased was taken to hospital where he was declared dead.

Injured PW2 Manoj Chamoli was serious, therefore, he was referred to Indresh Hospital. A report of this incident was lodged on 28.02.2008 mid night at 00.20 hours by PW1 Radha Krishna Raturi, father of the deceased. A case was lodged under Section 302, 326 IPC and investigation carried out. Inquest of the dead body was prepared on 28.02.2008. Punch opined that the deceased died due to injury sustained in the fight. The post mortem was conducted on 28.02.2008 by PW7 Dr. Narayan Singh. The following ante-mortem injuries were found by the doctor:-

"(i) Incised wound at the left side of the neck, 7 cm long, 2 cm in width and 4 cm deep. The skin muscles and great vessels of the neck were cut. The margins were clear, everted. Edges were red and swollen with clotting.

(ii) Small abrasion on right knee."

According to PW7 Dr. Narayan Singh cause of death was coma and hemorrhage due to excessive bleeding and the injuries were caused by sharp cutting weapon. Duration of death was 12-24 hours prior to the post mortem.

Appellant was arrested and at his instance on 28.02.2008 the khunkhri, by which the deceased was attacked, was recovered and recovery memo was also recorded. Based on it, a case under Section 4 read with Section 25 of the Arms Act, 1959 was also registered against the appellant. PW2 Manoj Chamoli and PW3 Pankaj Bhatt were also examined under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). The investigating officer also took into possession plain and blood stained soil, prepared the site plan of the place of incident as well as place from which, recoveries were made. After investigation charge sheet under Section 4 read with Section 25 of the Arms Act, 1959 and 302, 326 IPC was submitted in the court. On 27.01.2009 charges under Section 302, 326 IPC were leveled against the appellant to which, he denied and claimed to be tried. Charge under Section 25 of the Arms Act, was also leveled against the appellant to which, he denied and claimed trial.

In order to prove the case, prosecution examined total 13 witnesses, namely, PW1 Radha Krishna Raturi, PW2 Manoj Chamoli, PW3 Pankaj Bhatt, PW4 Surendra Singh Bhandari, PW5 Naresh Raturi, PW6 Prem Singh Gusain, PW7 Dr. Narayan Singh Khatri, PW8 Khemraj, PW9 S.I. Rakesh Kumar, PW10 S.I. Prakash Chandra Joshi, PW11 Dr. Rahul Joshi, PW12 Darban Singh and PW13 Bhagwat Sharan.

Appellant was examined under section 313 of the Code. According to the appellant on 27.02.2008 he had a fight with the deceased, as deceased was drunk. On that day, after dinner near an electric pole, the deceased along with 8-10 people assaulted him by khunkhri; he sustained injuries at his head. In that scuffle, the appellant fell in a Naali and one more person fell over him, who was in a critical stage. The head of the appellant was bleeding, therefore, he returned to his home. There was no light. In the scuffle the khunkhri swinged indiscriminately. Appellant has not adduced any evidence in his defence.

After hearing the parties, by the impugned judgment and order, appellant has been acquitted of the charges under Section 4 read with Section 25 of the Arms Act, 1959 but, he has been convicted under Section 304 and 324 IPC and sentenced, as stated hereinbefore.

Aggrieved, the State preferred appeal for enhancement of the sentence, whereas, the appellant preferred appeal against conviction.

Learned counsel for the appellant would raise the following arguments in the case:

(i) The medical evidence does not support the ocular evidence because according to PW2 Manoj Chamoli, the appellant made three assaults with khunkhri at the deceased but the doctor found only one injury by sharp edged weapon.

(ii) Source of light is not established; it was dark, therefore, the witnesses had no opportunity to see as to who has done what.

(iii) The site plan is not correct; it reveals that PW2 Manoj Chamoli was not at the place of occurrence, at the relevant time.

(iv) Injuries on the appellant are not explained; appellant was attacked and he did not kill the deceased.

(v) PW2 Manoj Chamoli and PW3 Pankaj Bhatt both are not reliable because even they have denied as to what has been recorded in their statements under Section 164 of the Code.

(vi) Investigation is defective.

It is urged that in the mid night, in a commotion, the incident had occurred; it cannot be believed that somebody had seen the appellant attacking. The appellant himself is an injured. It is argued that the prosecution utterly failed to prove the case against the appellant and the appellant ought to have been acquitted of the charges, therefore, the impugned judgment and order deserves to be set aside and the appeal filed by the appellant allowed.

On the other hand learned State counsel would argue that PW2 Manoj Chamoli is an injured witness; PW3 Pankaj Bhatt is a young boy; they have no reason to tell a lie before the court; other witnesses have supported the prosecution case; the injuries on the appellant have been adequately explained; there is no doubt in the prosecution case. Even the appellant in his statement recorded under Section 313 of the Code has admitted that he had a fight with the deceased on the date of incident and in that fight he sustained injuries. Learned State counsel would argue that appellant himself admitted that he had a fight, on the date of incident, with the deceased in which khunkhri was used, which swinged indiscriminately. Therefore, it is argued that prosecution has successfully proved the case beyond reasonable doubt against the appellant and the appellant has rightly been convicted but, the manner in which the deceased has been killed warrants enhancement of the sentence. Therefore, the appeal filed by the appellant may be dismissed and while enhancing the sentence, Government Appeal may be allowed.

PW1 Radha Krishna Raturi, father of the deceased, who upon information having been received, reached at the spot and saw the deceased dead. According to this witness, there were few boys standing nearby, who told this witness that appellant had a khunkhri and he killed the deceased and ran towards fields. Thereafter the deceased was taken to hospital, where he was declared dead. PW2 Manoj Chamoli had become unconscious at the hospital. He was referred to Indresh Hospital. This witness proved the FIR.

PW2 Manoj Chamoli is the star witness in the case. According to him on 27.02.2008 he had gone to attend a function in the house of PW6 Prem Singh Gusain. The appellant, Vijay Dabral, Kishori, Devendra, Pankaj Bhatt and the deceased were also present. When this witness was returning home, he saw appellant and deceased abusing each other near an electric pole. Appellant Subhash Juyal had a khunkhri. This witness caught hold of the deceased but in the meanwhile, the appellant hit him with khunkhri. He tried to intervene but then he ran away. This witness stood at a distance and saw that the appellant hit the deceased by khunkhri in his neck, head and on the chest. Meanwhile, hearing the noise, villagers also reached at the spot and took the deceased to Doon Hospital in the motorcycle, where doctor declared him dead. This witness was medically examined; his wounds stitched and referred to Indresh Hospital. This witness was also examined under Section 164 of the Code, which he had proved.

PW3 Pankaj Bhatt is a boy of 18 years when he deposed before the court. He states that on the date of incident, when he was returning from the function, he saw deceased lying on the pathway near the house of PW2 Manoj Chamoli near a pole. Appellant Subhash Juyal was standing there with a weapon like khunkhri in his hand. At a distance PW2 Manoj Chamoli was also standing. He was bleeding from face; he was injured. According to PW3 Pankaj Bhatt, on questioning PW2 Manoj Chamoli had told him that appellant hit him and the deceased. This witness informed the family members of the deceased. Then the villagers assembled; deceased was taken to Hospital where he was declared dead. He also proved his statement recorded under Section 164 of the Code.

PW4 Surendra Singh Bhandari is the person, who reached the hospital and saw the deceased dead. In his examination-in-chief he states that khunkhri was recovered and he signed the recovery memo and also witnessed the inquest. But, in his cross-examination he states that khunkhri was not recovered in his presence. He simply signed, where police asked him to sign.

PW5 Naresh Raturi is a witness of recovery of khunkhri at the instance of the appellant. According to him on 28.02.2008, the appellant was arrested and brought at the place of incident. He got the khunkhri recovered from a field of wheat; recovery memo was prepared; it had blood stains. He proved the recovery memo and also other documents regarding taking of plain and blood stained soil from the place of occurrence. This witness proved the weapon of the offence and other articles.

PW 6 Prem Singh Gusain is the witness, in whose house the function was going on, on the date of incident. He states that the deceased and appellant quarreled in his house and he intervened. The deceased had abused him and then both of them had left. Thereafter, according to this witness, when he heard the noise he went and saw the deceased dead and PW2 Manoj Chamoli injured.

PW 7 Dr. Narayan Singh Khatri, conducted post mortem. Reference has already been made as to what was found in the post mortem. PW 8 Khemraj, is formal witness, who took the dead body for post mortem. PW 13 Head Constable Bhagwat Sharan is also another formal witness, who has proved the check FIR and entries in general diary of the police station. PW 9 S.I. Rakesh Kumar had prepared inquest of the dead body.

PW10 S.I. Prakash Chandra Joshi is the witness, who investigated the offence under Section 4 read with Section 25 of the Arms Act, 1959. He proved charge sheet.

PW11 Dr. Rahul Joshi on 27.08.2008 at 10:45 p.m. conducted medical examination of PW2 Manoj Chamoli and found following injuries:-

"i. Lacerated wound 5x1 on left side face .75 cm medial to left ear.

ii. Lacerated wound 10x1 cm on right side posterior abdominal wall. 14 cm below inferior angle of right side scapula.

Tenderness over chest"

According to this witness, injury no.1 and 2 were caused by blunt object. He proved the medical report.

PW 12 Darban Singh is the Investigating Officer. He proved the documents prepared by him, and the charge sheet.

Arguments have been advanced that PW2 Manoj Chamoli and PW3 Pankaj Bhatt are not reliable. Their presence at the scene of occurrence has been doubted. It is true that PW3 Pankaj Bhatt in his cross-examination denied to have given certain statements, to the Magistrate, under Section 164 of the Code but, merely because of this, his evidence cannot be discarded. On the material particulars, this witness is consistent. He does not say that he saw the appellant hitting the deceased. What he says is that while returning from the function he saw deceased dead, the appellant holding khunkhri standing nearby and at distance PW2 Manoj Chamoli injured, bleeding from his face. PW3 Pankaj Bhatt also says that on being asked PW2 Manoj Chamoli told him that the appellant hit him and the deceased by khunkri.

PW2 Manoj Chamoli's presence has been doubted and this has been done along with the site map. PW12 Darban Singh has prepared the site plan of the place of incident. In fact, he has prepared two site plans Ex.A-16 and Ex.A-17. Ex.A-17 is the site plan showing the place at which, the deceased was killed. Ex.A-16 is the place, which shows the place from which khunkhri was recovered at the instance of the appellant.

In both the Exs.A-16 and A-17 the indicator of directions is definitely wrong, instead of East, West has been mentioned and vice-versa. But, when questioned, PW12 Darban Singh says that the indications are right. It cannot be believed but it does not make his entire statement unreliable. PW2 Manoj Chamoli states in his examination that he was a tenant of Dayawati. Dayawati's house has been shown in the site plan. PW 12 Darban Singh says that PW2 Manoj Chamoli was not a tenant of Dayawati. These are not very material issues. What is material is that an incident occurred after a function, in which PW2 Manoj Chamoli also sustained injuries. The place of occurrence has been categorically shown near the electric pole and it is as such shown in the site plan Ex.A-17. It is not a case that PW2 Manoj Chamoli does not stay in the vicinity. Therefore, site plan cannot be doubted. In so far as the place of occurrence is concerned what is more important is, in fact, the incident has been admitted by the appellant. PW.2 Manoj Chamoli has been given a suggestion on behalf of the appellant that in defence, the appellant snatched khunkhri from the hands of the deceased and then hit him. In his examination under Section 313 of the Code, the place of occurrence has categorically been established by the appellant himself. When in answer to question 4, he states that near electric pole he had a fight with the deceased. So the arguments with regard to site plan does not carry much weight. It is true that the Investigating Officer would have been more elaborate while preparing the site plan. The directions would have been rightly indicated. The distance recorded. It is a kind of defective investigation, to that extent. But, it does not go to the root of the matter.

This error in the site plan does not affect the veracity of the statements of PW2 Manoj Chamoli, PW3 Pankaj Bhatt and PW12 Darban Singh.

If we look at the statement of PW2 Manoj Chamoli, he states that when attacked by the deceased, he sustained injuries. PW11 Dr. Rahul Joshi states that on 27.02.2008 at 10:45 p.m. he medically examined PW2 Manoj Chamoli in Doon Hospital Dehradun and found the injuries on him, which have already been quoted hereinbefore.

PW1 Radha Krishna Raturi, PW3 Pankaj Bhatt and PW6 Prem Singh Gusain have corroborated the statement of PW2 Manoj Chamoli. Soon after the incident when all the three witnesses reached at the place of incident, they saw PW2 Manoj Chamoli there, bleeding from his face, in an injured stage. PW11 Dr. Rahul Joshi confirms it. The statement of PW2 Manoj Chamoli transpires confidence. Place of occurrence is established. Injuries on PW2 Manoj Chamoli are proved. The statement of PW2 Manoj Chamoli is reliable and trustworthy.

Trustworthyness of PW2 Manoj Chamoli has also been assailed on the ground that his statement does not find support by the medical support insofar as numbers of attacks are concerned.

It is true that according to PW2 Manoj Chamoli, the appellant hit the deceased at three places, namely, at neck, head and chest and it is also true that PW7 Dr. Narain Singh Khatri found only one incised wound on the neck of the deceased. But, it also does not cast any doubt in the statement of PW2 Manoj Chamoli, under the facts and circumstances of the case, because firstly, PW2 Manoj Chamoli himself is an injured and secondly the fight continued for a long, from the place of function at PW6's house to the place of incident. It might also happen that the deceased tried to hit at three places but succeeded in one hit at the neck of the deceased. There appears to be no material contradiction in the statement of PW2 Manoj Chamoli and medical evidence. It doesn't doubt prosecution story.

It was a function in the house of PW6 Prem Singh Gusain where there was fight between the deceased and the appellant. They were taken out from the function but the fight continued. There were few more persons also. PW2 himself has stated that there were Vijay Dabral and others also. Vijay Dabral was a close friend of the deceased, who was working in the police department. PW2 has stated that initially in the function, the dispute was between Vijay Dabral and the appellant. This fight continued and at a distance of 40-50 paces from the place of function, near electric pole, the deceased was killed. Now a few more arguments may be appreciated. They are with regard to the injuries on accused and the source of light.

At this stage reference can be made to the suggestion given to PW2 Manoj Chamoli that the deceased hit first by khunkhri at the head of the appellant and then it is the appellant, who snatched the khunkhri and hit the deceased. This suggestion was denied by PW2 Manoj Chamoli. The deceased and the appellant both were drunk. PW2 Manoj Chamoli has stated about it. PW 2 Manoj Chamoli in the statement says that when the villagers arrived they had beaten up the appellant and the appellant sustained injuries. PW12 Darban Singh, Investigating Officer at one stage denied of having seen any injury on the appellant but soon after he says that in the general diary of the police station on 28.02.2008, the injuries on the head of the appellant with stitches had been recorded. In case, the injuries of the accused are not explained, the Court may draw various references, depending upon the kind of injuries. In the case of Lakshmi Singh and Ors. v. State of Bihar, 1976 CriLJ 1736, the Hon'ble Supreme Court observed as hereunder:-

"Where the prosecution fails to explain the injuries on the accused, two results follow:

(1) that the evidence of the prosecution witnesses is untrue; and

(2) that the injuries probabilise the plea taken by the appellants.

It was further observed that:

In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;

(3) that in case there is a defence version explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."

In the case of Lakshmi Singh (supra), Hon'ble Supreme Court has also referred to the judgment in the case of State of Gujarat Vs. Bai Fatima and another (1975) 2SCC 7. In the case of Bai Fatima (supra), Hon'ble Court observed as hereunder:-

"17 In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all."

The instant case is a different case; deceased and the appellants were together; both were drunk; coming from a function. They fought at the function and when taken out from there, unfortunately continued the fight on the pathway, at the distance of about 30-40 paces from the place of function, the deceased was killed. The injuries on the appellant have been admitted by the prosecution. They have not been suppressed. PW2 Manoj Chamoli states about it, in his cross examination. Under Section 164 of the Code, PW3 Pankaj Bhatt stated that appellant was bleeding from his head though he denied to have given this statement when examined in Court. As stated, PW12 Darban Singh has admitted that there were injuries on the appellant. The injuries have been explained. PW2 Manoj Chamoli says that villagers had beaten up the appellant. More importantly, the appellant himself explained the injuries sustained by him. In his examination under Section 313 of the Code, in answer to question no.4, he states that alongwith deceased 8 -10 persons assaulted him and he sustained injuries on his head. Now this has to been seen in totality. It was a kind of continuous fight between appellant and the deceased. In that, the appellant sustained injuries. So the injury is not suppressed: genesis of offence is not deviated. Things are very clear. Therefore, appellant cannot take any advantage of the fact that he had also sustained injuries, because the injuries have been explained by the prosecution and also has been explained by the appellant.

Argument has been raised with regard to the source of light. Reference has been made to the statement of PW2 Manoj Chamoli, when he says that there was dark at the place of incident. There was dark, which has been impressed upon. But, a statement cannot be read in isolation. The place of function was about 30-40 paces from the place of incident. PW1 Radha Krishna Raturi in his statement stated that there was light in the house adjacent to the place of incident. He has admitted that there was no light on the electric pole, though there was a bulb. PW12 Darban Singh has also stated about it. At this stage also the facts have to be seen in totality. It is not a case of assault by some unknown person. The deceased and appellant were known to each other? They were both young boys living in the same vicinity. They were drunk in the party fighting, which continued and they reached at the place of occurrence. Witnesses had ample opportunity to identify as to what was going on. If PW2 Manoj Chamoli says that it was dark, he was not saying that it was so dark that they could identify each other. He himself stated as to what did he see. As stated, the appellant admitted in his examination under Section 313 of the Code (Question 4) that near the electric pole he was assaulted by the deceased and others. Impliedly, source of light was admitted by the appellant also. Even the appellant was able to see, as to who were there. It is established beyond reasonable doubt. There was ample light for them to see each other. PW2 Manoj Chamoli was also known to both the deceased and victim. He also was able to see as to what was going on and to witness the incident.

Although, in answer to question no.16, in his examination under Section 313 of the Code, the appellant says that since there was dark, he could not see who attacked him and when he fell down one more person fell over him, who was critical. Since appellant was bleeding from his head he returned home. Last sentence of the appellant in his cross examination under Section 313 of the Code, is very important. What he says is that "in this scuffle the Khunkhri swinged indiscriminately". What it means? It corroborates the statement of PW2 Manoj Chamoli. PW2 Manoj Chamoli in his statement is most reliable witness. PW2 Manoj Chamoli, PW3 Pankaj Bhatt, PW2 Radha Krishna Raturi and PW6 Prem Singh Gusain have stated as to what did they see. There statements are reliable. It further proves that, in fact, there was enough light for the parties to identify each other and to see as to what had happened.

Learned court below took the view that the appellant has no occasion to get khunkri from his house because some person from the side of the deceased might have got the khunkri and assaulted and in self defence the appellant attacked the deceased and PW2 Manoj Chamoli. According to learned court below, the appellant exceeded his right to private defence. It is true that initially when the fight ensued between the appellant and the deceased in the house of PW6, none had khunkri but at a distance of about 30-40 paces near the electric pole, both the deceased and appellant were fighting and the khunkri was used. PW2 Manoj Chamoli states that he was attacked by the appellant with khunkri and he also witnessed that the deceased was also attacked with khunkri. This Court cannot presume that the deceased or any other person from his side had khunkri. The fact remains that PW2 Manoj Chamoli and deceased were attacked by the appellant by a khunkri. In his examination under Section 313 of the Code, in the last sentence the appellant says that in that fight the khunkri swinged indiscriminately. Therefore, this Court is of the view it is not a case of self defence.

The fight began at the function. Initially, it was between the appellant and Vijay Dabral and then between appellant and deceased. It was not a planned fight. It was a sudden fight. Having considered all the factors, including the manner the injuries, this Court is of the view that the case false under exception 4 to Section 300 IPC and the appellant is, therefore, liable to be punished under Section 304 and 324 IPC as has been done by the learned court below. The conviction of the appellant under Section 324 and 304 IPC is confirmed. The conviction need not be interfered with in this appeal.

Appellant has been convicted for 7 years rigorous imprisonment under Section 304 and six months simple imprisonment under Section 324 IPC along with fine. While awarding the sentence, the court considered the relevant factors. Appellant himself was a young boy of 24 years at the time of incident. Deceased was also a young boy of 24 years. This was a sudden fight. It was a first offence. Considering all the relevant factors, this Court is of the view that the learned court below awarded adequate sentences, which need not to be interfered with.

In view of the foregoing discussion, this Court is of the view that the learned court below has rightly convicted and sentenced the appellant and awarded adequate sentences. Therefore, both the appeals deserve to be dismissed.

Both the appeals are dismissed.