Crl. Appeal No. 467 DB of 1998 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 467 DB of 1998
Date of decision: October 1, 2008
Krishan Kumar and another ...Appellants
Versus
State of Haryana ...Respondent
CORAM:- HON'BLE MR. JUSTICE K.S. GAREWAL
HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. Baldev Singh, Senior Advocate with
Mr. Arshwinder Singh, Advocate,
for the appellants.
Ms. Navin Malik, Additional Advocate General, Haryana.
K.S.GAREWAL, J.
Krishan Kumar (20) and Bhoop Singh (28), residents of
Durjanpur, Police Station Agroha, District Hisar, were charged under
Section 302 read with Section 34 IPC for the murder of Dharmapal (20) of
their village. They were tried by the learned Additional Sessions Judge,
Hisar, found guilty on August 22, 1998 and sentenced to rigorous
imprisonment for life and to pay fine of Rs. 1000/-, in default of payment of
fine, they were to further undergo rigorous imprisonment for three months.
Dharampal was the son of Jag Ram @ Jaggu (PW-7) and
Sarwan Devi (PW-8) also of Durjanpur. On the evening of August 13, 1996
Crl. Appeal No. 467 DB of 1998 2
at about 7 PM, Jag Ram @ Jaggu, his wife Sarwan Devi and brother Lekh
Ram were sitting in the courtyard of their house. Bhoop Singh accused and
his nephew Krishan Kumar came to their house and called Dharampal out.
Jagram, Dharmpal and Dharmpal’s sister Kali were at that time busy cutting
green fodder with their gandasa. Dharampal left the gandasa and went out of
the house. He was followed by Jag Ram.
They found Krishan Kumar appellant 1 and his maternal uncle
Bhoop Singh standing outside the house. Bhoop Singh addressed
Dharampal and said that he had beaten their “bitch” for the defecating and
they had now come to teach him a lesson. In the meanwhile, Lekh Ram also
came out of the house. Bhoop Singh began abusing Dharampal and caught
hold him from behind. Krishan Kumar stabbed Dharampal in the abdomen
on the right side of the navel. After inflicting injuries both Bhoop Singh and
Krishan Kumar left the scene. Jag Ram and Lekh Ram lifted Dharampal and
brought him inside their house. Thereafter they arranged for transport and
evacuated him to Hisar hospital but Dharampal died outside the hospital
gate.
Jag Ram @ Jaggu met ASI Kapoor Singh in the hospital and
gave his statement. ASI Kapoor Singh of Police Station, Agroha, had
reached the hospital on receiving an intimation from the SHO, Police
Station, Hisar, regarding Dharampal’s death. Jag Ram’s statement was
concluded at 11.30 PM and on its basis FIR was registered at Police Station,
Agroha, at 1 AM on August 14,1996. The special report of the case was
delivered to the Magistrate, Hisar at 3.30 AM.
The Investigating Officer commenced the investigation by
preparing the inquest report of the dead body which was lying in Civil
Crl. Appeal No. 467 DB of 1998 3
Hospital, Hisar. Thereafter, the body was sent for post-mortem which was
conducted by Dr. Ramender Singh (PW-1), Medical Officer, Government
Hospital, Hisar at 12.30 PM on August 14, 1996. The Medical Officer
found the following injury.
“1. There was a spindle shaped incised wound measuring 2
inch in length. The maximum width was ½ inch in the
middle. It was placed obliquely on the right side of
abdomen about 3 inches from the umblicus clotted blood
was present in and around the wound on probing and
dissection the direction of the wound was upwards and
slightly medically. It traversed through the muscle and
facia of the anterior abdominal wall and there was a cut
of 1.5 inch x 0.5 inch in the ascending colon and a cut in
the inferior surface of liver which was 1.0 inch x 0.5 inch
x 0.5 inch in size. The abdominal cavity contained about
one litre of blood. The depth of the wound was about 6
inches.
The heart was healthy and empty. The large intestines
contained facecal matter. The stomach was healthy and
empty. Other organs were pale and healthy.”
In the opinion of the Medical Officer, the cause of death was
harmorrhage due to the aforesaid injury which was sufficient to cause death
in the ordinary course of nature.
The Investigator proceeded to Durjanpur, recorded the
statements of the eye witnesses Sarwan Devi, Lekh Ram and took blood
stained earth from the spot. He looked for the accused but could not find
Crl. Appeal No. 467 DB of 1998 4
them. Krishan Kumar was arrested on August 19, 1996 from Bus Stand
Durjanpur. He was interrogated and his disclosure statement led to the
recovery of a knife from a rain water outlet (parnala) of the kitchen of his
house. Bhoop Singh was also arrested on August 19, 1996.
After completion of the investigation, both the accused were
sent up for trial. Charges were framed against Krishan Kumar under Section
302 IPC and against both Krishan Kumar and Bhoop Singh under Section
302/34 IPC, to which they pleaded not guilty and claimed trial. The main
witnesses examined by the prosecution were Dr. Ramender Singh (PW-1),
Jag Ram @ Jaggu (PW-7), Sharwan (PW-8) and ASI Kapoor Singh (PW-
10).
After completion of the prosecution evidence, the accused were
examined without oath under Section 313 Cr.P.C. Both denied the
prosecution case but Krishan Kumar pleaded a counter-version to the
following effect:-
“Bhoop my co-accused is my maternal uncle. My parents are
dead and I have minor sister who is unmarried and reside with
me at village Dobhi. I occasionally visit village Durjanpur to
meet my maternal uncle. My maternal uncle and I were not
having any bitch. My maternal uncle has four children two of
them are sons and two of them are daughters. There is a public
latrine abutting the street in the vicinity of the house of my
maternal uncle. On the alleged day of the occurrence my
maternal aunt Chameli alias Guddi had gone to answer the call
of nature in the public latrine. I was present at the house of my
maternal uncle who had gone to sell milk at Hisar as he is a
Crl. Appeal No. 467 DB of 1998 5milk vendor. After sometime I heard the cries of my maternal
aunt and I immediately rushed to the street near the latrine and
saw that Dharampal had caught hold of my maternal aunt with
intend to molest and ravish her. I caught hold of Dharampal
deceased but immediately thereafter he took out a knife and
attempted to assault me. In my attempt to save myself I caught
the arm of Dharampal and twisted it and in the struggle he
suffered an injury with that knife in his abdomen”.
When called upon to enter defence Bhoop Singh pleaded alibi
in the following terms:-
“I am a milk vendor. I used to go to sell milk Hisar at 6.00 AM
and used to return to my village at 11.00 AM and again I used
to go at 3.00 P.M. and used to return at 8/9.00 P.M. On 13.9.96
at about 7.00 P.M. I was not present in my village and had
come to Hisar for selling milk.”
The accused were called upon to enter defence. Guddi @
Chameli appeared as DW-1 and testified that she had gone to the common
public latrine at 6.30 AM. The deceased entered the latrine with bad
intention, caught hold of her to outrage her modesty. She raised an alarm
which attracted Krishan Kumar. The deceased came out of the latrine and
she also followed him. Krishan Kumar caught hold of the deceased’s hand
but the deceased took out a dagger from the fold of his pyjama to assault
Krishan Kumar. Krishan Kumar caught hold of his hands and twisted them.
In the struggle the dagger which the deceased was holding entered his own
abdomen. Blood drops fell on the ground around the latrine.
The learned Trial Judge accepted the prosecution version in its
Crl. Appeal No. 467 DB of 1998 6
entirety. The defence pleaded by the accused was rejected as being
improbable. The learned Trial Judge held as under:-
“It is pertinent to mention here that the case of the defence, is
that Krishan accused had grappled with the deceased and the
knife had hit the deceased in that scuffle. So the presence of
Krishan accused at the spot is not disputed. From the evidence
on record it is clear that deceased had only one injury on his
person. There is no evidence on record to prove that Krishan
accused had received any injury on his person. Had there been
any scuffle in between Krishan and Dharmapal deceased there
would have been injuries on the person of both of them as both
of them are young persons. The absence of injury on the
person of accused as well as any other injury on the person of
deceased suggests that the defence version is improbable.
Otherwise also from the site plan it is apparent that the public
latrine is near the Abadi. So no one will dare to molest a
woman at such a place during day time.”
It has been forcefully argued that the prosecution has failed to
establish any real motive. The two accused were said to have stabbed the
deceased because he had beaten their bitch. However, the prosecution has
failed to show when this incident occurred, whether it was seen by any one
else and what was so special about that bitch that had made the accused so
sensitive. There did not appear to be any other past enmity or motive
between the two families. Therefore, beating of a bitch did not sound to be
such a strong motive that would drive any one to commit murder.
A lot of stress was placed on the fact that the place of
Crl. Appeal No. 467 DB of 1998 7
occurrence was not outside the house of the deceased but at a little distance
therefrom, as no blood was found outside the house. Blood was found
outside the latrine which was about 33 ft from the entrance of the house,
therefore, this lent corroboration to Guddi’s version. It was also argued that
neither Sarwan Devi nor Jag Ram @ Jaggu had mentioned the name of Lekh
Ram in their evidence. They had testified that one Prabhu was with them
when the occurrence took place.
Lastly, it was argued that Bhoop Singh had been empty handed
while Krishan Kumar had acted in exercise of right of self defence. Krishan
Kumar was attracted to the spot when he heard his aunt Guddi’s screams
coming from latrine. When he reached the spot he found the deceased had
caught hold of Guddi and was trying to outrage her modesty. It was then
that Krishan Kumar stabbed the deceased.
On behalf of the State, it was argued that Guddi’s version had
not been supported by any one else from the village. She had not made any
complaint to any senior officials about the false implication of her husband
and nephew. As regards, the discrepancy over Lekh Ram, it was stated that
Lekh Ram and Prabhu are the same person. Indeed in the statement of
Sarwan (PW-8) it has been clearly brought out that she alongwith Parbhu
and Lekh Ram were sitting in the courtyard. Lastly, it was submitted that
Bhoop Singh was not a milk vendor but a barber. His alibi that he was in
Hisar to sell the milk was false. There was no proof that he was engaged in
selling the milk.
We are unconvinced about the so-called motive that the
deceased was stabbed because he had beaten Bhoop Singh’s bitch.
Something else must have happened which had led to Dharampal getting
Crl. Appeal No. 467 DB of 1998 8
stabbed. It was obvious that Dharampal was stabbed outside the latrine and
not outside the gate. This is because no blood was found outside
Dharampal’s house, but had been collected from near the latrine. If this is
so, then it can be said with certainty that Dharampal was stabbed near the
latrine. It seems to us that the defence version was built up around the
latrine for the reason that it was near the latrine that Investigator had found
the blood.
The prosecution case that it was a fight over a bitch does not
appear to be convincing. In the same way, even the defence version that
Dharampal had stabbed himself with his own dagger is equally
unbelieveable. However, it is certain that occurrence had taken place
outside the latrine. It is possible that Guddi was present there and
something may have occurred between the deceased and Guddi. We are not
supposed to re-construct the scene of occurrence, by borrowing bits from
the prosecution and the defence case. Either the prosecution or the defence
version have to be accepted or rejected in totality. Improbability of
Dharampal’s stabbing himself is very high. A person holding a knife
realizes at once that someone is trying to snatch it, he would immediately
loosen his grip to avoid hurt. However, Krishan Kumar inflicted only a
single knife blow on the abdomen of Dharampal. He did not give repeated
blows. The fight over the bitch was a trivial matter. Krishan Kumar may
have had no intention to murder Dharampal.
Therefore, while rejecting the defence version and accepting
the prosecution case, we find that the offence committed by Krishan Kumar
is not one punishable under Section 302 IPC but one under Section 304
Part-II IPC. Krishan Kumar is acquitted of the charge under Section 302
Crl. Appeal No. 467 DB of 1998 9
IPC. Bhoop Singh did not share any common intention with Krishan
Kumar. Bhoop Singh is accordingly entitled to a complete acquittal.
Consequently, this appeal is partly allowed. Krishan Kumar’s
conviction is converted from Section 302 IPC to one Section 304 Part-II
IPC. Krishan Kumar is sentenced to undergo five years imprisonment under
Section 304 Part II IPC and to pay fine of Rs. 25,000/-, in default of
payment of fine, he shall undergo further rigorous imprisonment for one
year. Bhoop Singh is acquitted of all charges. Fine, on recovery, shall be
paid to the heirs of the deceased.
(K.S. GAREWAL)
JUDGE
1.10.2008 (JITENDRA CHAUHAN)
prem JUDGE
Whether refer to Reporter Yes