JUDGMENT
Pritam Pal, J.
1. Appellant Anil Kumar and three others have filed their respective appeals i.e. bearing Cr. Appeal Nos. 391-DB of 1997 and 392-DB of 1997 by Anil Kumar, Crl. Appeal No. 398-DB of 1997 by appellants Parveen Kumar and Lal Chand and Criminal Appeal No. 527-DB of 1997 by appellant Gulbar against judgment and order dated April 2, 1997 passed by the learned Sessions Judge, Karnal, whereby appellant Anil Kumar was convicted under Section 302 of I.P.C. and also under Section 25 of the Arms Act, whereas the other three appellants were convicted under Section 302 read with Section 34 of I.P.C. and then sentenced to undergo R.I. for life and to pay a fine of Rs. 1000/- each and in default of payment of fine to further undergo R.I. for one year each under Sections 302 and 302 read with Section 34 of I.P.C. Appellant Anil Kumar was also sentenced to undergo R.I. for two years for the offence punishable under Section 25 of the Arms Act. However, the sentence awarded to Anil Kumar appellant under Section 25 of the Arms Act, was also ordered to run concurrently with the sentence imposed in, the murder case.
2. Since all the aforesaid four appeals arise out of one and the same occurrence connected to the same murder case, therefore, they are being disposed of by this common judgment.
3. The facts culminating to the commencement of these aforesaid appeals may be recapitulated thus:
On August 22, 1996, at about 3.00 p.m., Nirmal Singh, since deceased (20 years of age), in the company of Jagjit Singh (PW-2) and Harvinder Singh (PW-3), boarded a Haryana Roadways Bus from Karnal for going to Gharaunda Town. They all the three companions occupied a seat meant for two passengers. Then all the four accused (hereinafter referred to as the appellants) also boarded the same bus and sat by the side of the complainant party, and started teasing them. On this, an altercation ensued on account of taking the seat by the complainant party inasmuch as according to the appellants, they had placed a note book on the seat and as such, the seat was in their occupation. The appellants had to get down at Madhuban, but they did not do so and they threatened to settle score at Gharaunda with the complainant party. When the said bus reached at Bus Stand Gharaunda, there three of the appellants caught hold of Nirmal Singh, whereas the 4th one i.e. Anil Kumar inflicted a knife blow to him in his right flank. The eye-witnesses i.e. Jagjit Singh (PW-2) and Harvinder Singh (PW-3) caught hold of Anil Kumar, but he along with his companions managed to run away from the spot. However, Anil Kumar also sustained injuries on his both hands when he had fallen down. After the occurrence, Nirmal Singh who had become unconscious, was removed to the Hospital, at Gharaunda, but in the meantime, he expired at about 4.20 p.m. on the same day. Thereafter, on receipt of ruqa Ex. PB from the hospital, PW-6 Rameshwar Pass, the then S.I./S.H.O. of Police Station, Gharaunda, rushed to the hospital and there, he recorded statement Ex.P.C. of complainant Jagjit Singh at 6.30 p.m.. and also of the eye-witnesses to the occurrence, in the above narration of facts. Ultimately, a formal F.I.R. Ex.PC/1 was recorded by Sher Singh ASI at 6.45 p.m. on the same day. PW-6 S.L. Rameshwar Dass, then took the investigation of this case into his hand. He then prepared inquest report Ex.PG/1. After that, he got conducted autopsy on the dead body of the deceased vide post mortem report Ex. PG/2. On the same day, the Investigating Officer proceeded to the place of occurrence i.e. Bus Stand, Gharaunda. There in the presence of the witnesses, he prepared rough site plan Ex.PH of the place of occurrence with correct marginal notes in his hand. From the spot, he also effected recovery of Identity Card of Anil Kumar appellant Ex.P-2, Bus Pass Ex.P-3 and photographs Ex.P-4 to P-8 and three currency notes Ex.P-9 to P-1l which were kept in the purse Ex.P-1 and the same were taken into possession vide recovery memo Ex.PD.
4. All the four appellants were arrested on August 25, 1996. It was on August 26, 1996, that appellant Anil Kumar had made a disclosure statement to the effect that he had kept concealed a spring actuated knife in the Patel Park under a Peepal tree standing near the statue of Sardar Patel and he could point out and get the same recovered. In that behalf, his disclosure statement Ex.PJ was recorded. Then in pursuance of his said disclosure statement, appellant Anil Kumar got recovered knife Ex.P-12, which was taken into possession vide recovery memo Ex.PJ/1 from the place shown in the site plan Ex.PJ/2. Sketch of knife Ex.PJ/3 was also prepared. For recovery of the knife (Ex.P-12) a separate case under Section 25 of the Arms Act, was also got registered against Anil Kumar appellant.
5. Appellant Anil Kumar was also got medico-legally examined by P.W. 1 Dr. Rakesh Bansal vide MLR Ex.PA/1. After completion of formal investigation, all the appellants were challaned under Section 302 read with Section 34 of IPC.
6. Appellant Anil Kumar was charge-sheeted for the commission of offence punishable under Section 302 of IPC, and also under Section 25 of the Arms Act, while other appellants were charge-sheeted for the commission of offence punishable under Section 302 read with Section 34 of IPC vide order dated November 15, 1996, passed by the learned trial Court, to which they pleaded not guilty and claimed trial.
7. Prosecution in order to substantiate its case, examined as many as six witnesses in the main case of committing the murder of Nirmal Singh, namely, P.W. 1 Dr. Rakesh Bansal, he had examined appellant Anil Kumar on August 25, 1996 vide medico-legal report Ex. PA/1; P.W. 2 Jagjit Singh, he is a complainant and eye-witness to the occurrence; P.W. 3 Harvinder Singh, he is another eye witness to the occurrence and also a witness to the recovery of. purse Ex. P-1 which contained Identity Card, Bus Pass and photographs. Said purse was also taken into possession vide recovery memo Ex.PD; P.W. 4 Dr. Yogesh Sethi, he had conducted autopsy on the dead body of the deceased on August 23, 1996 at 11.20 a.m. vide his post-mortem report Ex. PG/2; P.W. 5 Constable Lajpat, he had delivered the Special Report to the Illaqa Magistrate and other higher authorities and in that behalf, he also placed on record his affidavit Ex. PE/2 and P.W. 6 S.I. Rameshwar Dass, he is the Investigating Officer in this case. Role assigned to him has already been given while narrating the prosecution case.
8. After closure of the prosecution case, the appellants were examined in terms of their statements recorded under Section 313 of Cr. P.C. and the entire incriminating evidence was put to them. They denied the same in toto. However, appellant Anil Kumar while denying the allegations also submitted in reply to last question No. 26 as under:
I had not committed any murder and the case is absolutely false. In fact, as soon as I got down from the bus at Gharaunda, Nirmal Singh and one of his companions whose name I do not know, caught hold of me and assaulted me. The companion of Nirmal Singh tried to give a knife blow to me. I got aside and the blow fell on Nirmal Singh. I ran away from the spot and went to the shop of my uncle, which is situated near Bus Adda Gharaunda. My uncle gave me slap blow and told me that I should not have quarrelled. I told my uncle that I had not quarrelled with any body. When my uncle had gone out for some work seven-eight boys came there, they took me out of the shop and assaulted me and gave me injuries with swords hitting me on my arms and thigh. They took me to the Police Station. In my purse, there were certain addresses and the names of other three accused, who have been involved in this case, police people arrested the three accused also.
9. When the appellants were called upon to enter their defence, they chose in negative.
10. The learned trial Court after appraisal of the entire evidence brought on the file and hearing learned Counsel for the parties, convicted and sentenced the appellants, as indicated in the opening part of this judgment. This is how feeling aggrieved, they have come up in their respective appeals.
11. We have heard learned Counsel for the parties and with their assistance have gone through the record carefully.
12. Mr. Baldev Singh, learned Senior Advocate, appearing on behalf of appellant Anil Kumar in both the above mentioned appeals, put forth his three fold arguments. At the first place, he submitted that Anil Kumar did not cause any injury to Nirmal Singh deceased, as alleged by the prosecution. His second argument is that if he is proved to have caused any injury the same was in his self defence and in the last, he submitted that the case against appellant Anil Kumar, if at all, made out is only under Section 304-Part II of the IPC. In support of his aforesaid points of arguments, he submitted that Anil Kumar had also sustained five injuries in a fight which had taken place at the spur of moment. This appellant was about 18 years of age at the time of occurrence as his date of birth is October 14, 1977. Only one blow is alleged to have been caused to the deceased by this appellant. There was no previous enmity of this appellant with the deceased. He then also relied upon Rajangam v. State (Tamil Nadu) and K. Ramakrishnan Unnithan v. State of Kerala 1999 SCC (Cri) 410 : 1999 Cri LJ 2101.
13. Mr. Ashit Malik, learned Counsel appearing of behalf of appellants namely, Parveen Kumar and Lal Chand, argued that in this case, names of these two appellants were not mentioned in the FIR. In fact, they were involved in this case falsely. None of them was identified and at the same time, identification parade was also not conducted in order to link them with the commission of crime of this case. He also argued that in fact, as per the prosecution story, their role is only that they had caught hold of Nirmal Singh deceased when Anil Kumar had inflicted a single blow of knife in his right flank. In such circumstances, they could not have been held guilty for commission of murder of Nirmal Singh with the aid of Section 34 of IPC inasmuch as they (Parveen Kumar and Lal Chand) might not have the knowledge that Anil Kumar appellant was having a spring actuated knife in his pocket. He then submitted that in fact, here was a sudden altercation between two groups of students and there was no pre-meditation or any special motive to cause the murder of Nirmal Singh. In support of his arguments, he also relied upon Ajay Sharma v. State of Rajasthan 1999 SCC (Cri) 74 : 1998 Cri LJ 4590. learned Counsel further pointed out some embellishments/improvements and contradictions occurred in the statements of star witnesses i.e. P.W. 2 Jagjit Singh and P.W. 3 Harvinder Singh.
14. Similarly, Mr. R.P. Rana, learned Counsel appearing on behalf of appellant Gulbar adopted the same points of arguments raised by Mr. Ashit Malik, and at the same time, he also contended that in fact, Gulbar was working as a labourer in a factory at Panipat. He was below 20 years of age at the time of occurrence and had not caused any injury to the deceased.
15. After putting forth the aforesaid points of arguments, learned Counsel for the appellants contended for their acquittal.
16. On the other hand, Mr. S.K. Garg, Narwana, learned Additional Advocate General, Haryana, has argued that here in the instant case, an altercation between the parties over taking of a seat in the Haryana Roadways Bus is an admitted fact. All the four appellants had to get down from the bus at Madhuban but they continued travelling in the same bus with the deceased up-to Gharaunda in order to settle the score. Appellants, namely Parveen Kumar, Lal Chand and Gulbar had caught hold of Nirmal Singh deceased when the latter had got down from the bus at bus stop of Gharaunda town, whereas Anil Kumar, who was having a spring actuated knife Ex. P-12, had inflicted injury in the abdomen of Nirmal Singh. He then argued that name of Anil Kumar was specifically mentioned in the FIR by P.W. 2 Jagjit Singh complainant-eye witness, whereas the names of other three appellants, namely Parveen Kumar, Lal Chand and Gulbar were given by P.W. 3 Harvinder Singh, also an eye-witness, on the same day when his statement Under Section 161 of Cr. P.C. was recorded by P.W. 6 S.I. Rameshwar Dass. He also argued that the appellants were also produced before the Illaqa Judicial Magistrate to seek consent for their identification parade, but they had refused to join the same. Learned Addl. A.G. also then submitted that the knife Ex. P-12 had a handle of 17 cm. in length further having a blade of 16 cm. This knife is a spring actuated one which was got recovered from appellant Anil Kumar in pursuance of his disclosure statement Ex. PJ. In this behalf, he also made a reference to the recovery memo Ex. PJ/1. At the fag end of his arguments, Mr. S.K. Garg, made a reference to the medical evidence and argued that the same goes a long way to corroborate the ocular version consisted in the statements of material witnesses i.e. P.W. 2 Jagjit Singh and P.W. 3 Harvinder Singh. After putting-forth the aforesaid points of arguments, Mr. Garg, contended for dismissal of all the above respective appeals filed by the appellants.
17. We have given our holistic view to the aforesaid rival contentions raised on behalf of the parties and find that here in the instant case, an altercation between the parties over taking of a seat in the Haryana Roadways Bus is an admitted fact. In this regard, we find a reference in the cross-examination of P.W. 2 Jagjit Singh, wherein it was suggested to him that appellant Anil Kumar was already occupying the seat in the bus and that they (complainant party) had asked him to vacate the seat and then they had occupied the said seat themselves. Further, it is also proved on the file that the appellants had to get down from the bus at Madhuban, which is near to their village Uncha Samana, but they continued travelling upto Gharaunda, as they had to settle the score with the deceased. At the bus stop of Gharaunda, all the three appellants, namely Parveen Kumar, Lal Chand and Gulbar who were empty handed, had caught hold of Nirmal Singh deceased whereas Anil Kumar appellant, who was having a spring actuated knife, had inflicted a knife blow in the abdomen of Nirmal Singh. After the occurrence, all the appellants had managed to escape from the spot and then family members of the injured were informed. Ultimately, the injured was removed to the hospital at Gharaunda, where he was declared dead. From there, ruqa Ex. PB was sent to the police station. In the meantime, on coming to know about the death of Nirmal Singh, both the eye-witnesses, namely P.W. 2 Jagjit Singh and P.W. 3 Harvinder Singh also reached the hospital and there statement Ex. PC of Jagjit Singh (P.W. 2) was recorded at 6-30 p.m. on the basis of which, formal FIR was recorded at 6-45 p.m. It is also evident on the file that the statement Under Section 161, Cr. P.C. of Harvinder Singh P.W. 3 was also recorded on the same day of occurrence i.e. immediately after recording of the FIR. In his statement, he has also specifically named the three appellants, namely, Parveen Kumar, Lal Chand and Gulbar. He has categorically stated that they all (appellants) were known to him because they all used to come to his college to meet one Sanjay Kumar, a student of his college. As stated above, the name of appellant Anil Kumar had already been mentioned by P.W. 2 Jagjit Singh in his statement Ex. PC. It is well established on the file that P.W. 2 Jagjit Singh, complainant and P.W. 3 Harvinder Singh, another eye-witness had come together with the deceased and the appellants from Karnal to Gharaunda in the same bus and they had an ample opportunity to identify each other, specially when they had also entered into an altercation on account of taking over a seat in the bus. In this view of the matter, there could not be any mistake on the part of the eye-witnesses regarding identification of the appellants. No doubt, there are some minor improvements and contradictions regarding the manner of teasing the complainant party by the appellants, but in view of the admitted fact, as discussed above, no significance can be attached to any such confrontations/contradictions occurred in the statements of the eye-witnesses.
18. Before touching the remaining points of arguments raised on behalf of the parties, let us reproduce the injuries suffered by Nirmal Singh deceased and appellant Anil Kumar. According to post-mortem report Ex. PG/2, Dr. Yogesh Sethi-P.W. 4 has found following injuries on the person of deceased Nirmal Singh :
1. Wound No. 1, abrasion 2 x 0.4 cm on forehead horizontally in middle line 2 cm below the hair line parallel to hair line.
2. Wound No. 2. Incised wound 3 cm x 1.5 cm x 8 cm. The edges were smooth, even and clean cut. The wound was vertically positioned. The shape was spindal and shapping. The direction of wound was from right behind toward left front. The wound passed from skin, subcutaneous tissue, subcutaneous pat and muscles and found entering the abdominal cavity upon defection and was therefore, punctured further category penetrated popularly called stab bone. The both edges were clean cut, almost parallel but slightly curved to each other and had sharp angle extremities. The aperture of puncture wound was 14 cm from back’s midline toward right side. The lower end of aperture of punctured wound was 3 cm above the posterior superior iliac crest of pelvic bone. No foreign fragment was found in soft tissues. On dissection of puncture wound undermeath muscles found cut. The retropartoneoul soft tissue right kidney bruised extensively. Blood was present in between tissue plains. The peretonium was also cut and abdominal cavity was full of blood fluid. Peretonium was already described in the wound No. 2 and right kidney extensively bruised.
Further in the opinion of the doctor, the cause of death in this case was due to puncture panetrating stab wound on the abdomen right side. All the injuries were ante-mortem in nature and sufficient to cause death in normal course of nature. The doctor further on seeing the knife Ex. P-12 also opined that injury No. 2 could be caused by the said knife.
19. On the other hand, the injuries shown on the person of appellant Anil Kumar by Dr. Rakesh Bansal P.W. 1 in the medico-legal report Ex. PA/1 are as under:
1. A scabed abrasion 1.5 x 1 cm on the posterior lateral aspect of right elbow;
2. A lacerated wound 1.5 cm x 5 cm x 5 cm on the posterior aspect of left fore-arm, 4 cm from below the elbow joint. Pus formation in the wound was present. There was no bleeding;
3. An abrasion 1 cm x 5 cm x skin deep on the posterior aspect of the left fore arm 2 cm below the elbow. Pus was present;
4. A diffuse swelling 7 cm x 4 cm on the posterior aspect of left hand. Pain and tenderness was present. Advised x-ray;
5. A scabed abrasion 2.5 cm x 2 cm on the posterior aspect of right thigh in its lower one third area.
20. Ultimately, all the above injuries on the person of appellant Anil Kumar were found simple in nature.
21. It is pertinent to mention here that the eye-witnesses in their respective statements have categorically stated that appellant Anil Kumar had also sustained injuries as he had fallen down while running from the spot after the occurrence. Thus, a perusal of the aforesaid medical evidence goes a long way to corroborate the ocular version consisted in the statements of both the star witnesses, namely P.W. 2 Jagjit Singh and P.W. 3 Harvinder Singh.
22. In this view of our foregoing discussion, the genesis of the occurrence, catching hold of the deceased Nirmal Singh by the three appellants, namely, Parveen Kumar, Lal Chand and Gulbar and inflicting the injuries by the 4th appellant Anil Kumar at bus stop of Gharaunda town, stand duly proved on the file.
23. Now adverting to the last contention raised on behalf of the appellants that there was no intention on the part of any of the appellants to commit the murder of Nirmal Singh, in fact they just wanted to give thrashing to the deceased and as such, the three appellants, namely Parveen Kumar, Lal Chand and Gulbar had not shared any common intention to kill the deceased.
24. We have given our thoughtful consideration to the last contention put forth on behalf of the appellants and find that the same is devoid of any merit, inasmuch as all the appellants are of one and the same village and they had an altercation in the bus and instead of getting down to their destination, they travelled upto Gharaunda i.e. the town of the deceased. During the interrogation of this case, Anil Kumar appellant had made his disclosure statement Ex. PI, in pursuance of which he got recovered a big knife Ex. P-12 vide recovery memo Ex. PJ/1 in the presence of S.I. Rameshwar Dass and Dilawar Singh P.Ws. Recovery of the said knife has been duly proved on the file from appellant Anil Kumar in a case registered against him under Section 25 of the Arms Act. In these given circumstances, it cannot be said that the other three appellants did not know about the keeping of such a big knife which had a handle of 17 cm in length and having a blade of 16 cm. They all the three are also proved to have caught hold of Nirmal Singh, deceased when appellant Anil Kumar had inflicted knife injury, which ultimately proved fatal. In this view of the matter, no benefit can be derived by the three appellants from the observations of their Lordships made in Ajay Sharma’s case 1998 Cri LJ 4590 (supra).
25. Now turning to the contention with regard to converting of the sentence under Section 304 Part II; it is suffice to say that there is a total journey of about 20/25 minutes in a bus from Karnal to Gharaunda and within this time, there was a sudden altercation between the deceased and the appellants who are between the age groups of 18 to 20 years. Admittedly, there was no previous enmity between the parties. Appellant Anil Kumar is proved to have caused a single blow on the person of Nirmal Singh deceased when he was caught hold of by the other three appellants i.e. Parveen Kumar, Lal Chand and Gulbar. Keeping in view the observations made by their Lordships in the cases of Rajangam 1993 Cri LJ 3680 and K. Ramakrishnan Unnithan’s 1999 Cri LJ 2101 cases (supra), we are of the considered opinion that the appellants would have not intended to cause the death of the deceased by inflicting a single injury, which was sufficient in the ordinary course to cause death of Nirmal Singh. However, by inflicting a single injury, they had the knowledge that they were likely to cause death, for which the offence made out is one punishable under Section 304 Part II of the IPC. Accordingly, we set aside the conviction of the appellants under Sections 302 and 302 read with Section 34 of IPC and sentence of life imprisonment awarded thereunder. Instead, we convict them under Section 304, Part II of IPC and sentence appellant Anil Kumar to undergo six years’ rigorous imprisonment under Section 304, Part-II of IPC, whereas appellants Parveen Kumar, Lal Chand and Gulbar, who were empty handed and did not cause any injury to the deceased, shall undergo rigorous imprisonment for two years each under Section 304, Part-II read with Section 34 of IPC. Rest of their sentences passed by the learned trial Court shall remain intact. If the appellants have already undergone the aforesaid sentence, they need not be arrested, otherwise, they shall surrender to undergo the remaining parts of their respective sentences.
26. In the result, Criminal Appeal No. 392-DB of 1997 stands dismissed, while the other three appeals i.e. Criminal Appeal Nos. 391-DB of 1997, 398-B of 1997 and 527-DB of 1997, are partly allowed to the extent, as indicated above.