Partly allowed

Dinesh Kumar v. State of Haryana

Punjab & Haryana HC3 Jul 2013CRA-D/121/2009

Case brief

AI extract

What is this about?

This High Court allowed a criminal appeal in partial modification of conviction and sentence. The court found that the prosecution failed to prove premeditation or motive during a sudden cricket-related quarrel. Consequently, the charge of murder was reduced to voluntary causing of death (Section 304 Part II IPC), resulting in a reduced sentence of seven years. The conviction for voluntary causing

What did the court decide?

Conviction under Section 302 IPC set aside and convicted under Section 304 Part II IPC; sentence reduced to seven years rigorous imprisonment; appeal partly allowed.

Dinesh Kumar Vs State of Haryana — Murder and Culpable Homicide | Punjab & Haryana HC (2013)

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Crl.A. No.121-DB of 2009

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Crl.A. No.121-DB of 2009

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DATE OF DECISION: JULY 3, 2013

DINESH KUMAR

...APPELLANT

VERSUS

STATE OF HARYANA

...RESPONDENT

2. Crl.A. No.228-DB of 2009

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DATE OF DECISION: JULY 3, 2013

BHAGAT SINGH & ORS.

...APPELLANTS

VERSUS

STATE OF HARYANA

...RESPONDENT

CORAM:HON'BLE MR.JUSTICE M.JEYAPAUL. HON'BLE MRS.JUSTICE ANITA CHAUDHRY.

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Whether the judgement should be reported in the digest? Yes

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PRESENT: MR. BALDEV SINGH, SR.ADVOCATE WITH MR. DEEPINDER SINGH, ADVOCATE FOR THE APPELLANT IN CRL.A. NO.121-DB OF 2009

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MR.R.S. RAI, SR. ADVOCATE WITH MR.D.S. BRAR, ADVOCATE FOR THE APPELLANT IN CRL.A. NO.228-DB OF 2009.

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MR.DHRUV DAYAL, DAG, HARYANA.

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M.JEYAPAUL, J.

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Accused Dinesh Kumar, Bhagat Singh, Om Dutt and Som Dutt

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were convicted under Section 302 read with Section 34 IPC and were sentenced to undergo life imprisonment and to pay a fine of `4000/- each and in default to undergo a further period of 4 years R.I, each. They were also convicted for the offence under Section 323 read with Section 34 IPC

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Crl.A. No.121-DB of 2009

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and were sentenced to undergo R.I. for 6 months and to pay a fine of `500/each and in default to undergo further period of 1½ months.

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Accused Dinesh Kumar has filed Crl.A. No.121-DB of 2009. The other three accused have jointly preferred Crl.A. No.228-DB of 2009. It is also pertinent to mention here that Devender, Hariom and Hargopal were acquitted of the charges framed as against them. Accused Rawal was sent to Juvenile Board to face the enquiry.

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The case in brief of the prosecution is that on 16.5.2004, at about 5.30/6.00 p.m., PW7 Munshi Ram was returning to his village Ladiaka after grazing his cattle. When he reached near piao, he heard an alarm “ MAAR DIYA-MAAR DIYA ”. He reached the site and found accused Somdutt, Omdutt, Bhagat Singh, Dinesh, Devinder and Rawal of village Rundhi attacking his son Madan, Khem Chand and Krishan Kumar with hockey sticks, bats and dandas. When he tried to save them, he was also abused and beaten by the accused. He cried aloud and the villagers were attracted to the scene of occurrence. The assailants escaped on tractor. There was a previous quarrel which took place on 15.5.2004. That was the motive for the attack. Madan became unconscious due to injuries sustained by him. He was taken to Civil Hospital, Palwal. PW7 Munshi Ram, PW8 Krishan Kumar and PW9 Khem Chand also were taken to the hospital for treatment. On the basis of the information furnished by PW7, a case under Section 148, 323, 506 read with Section 149 IPC was registered as against the accused on 18.5.2004.

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PW10 Dr.J.P.Parsad, medico-legally examined PW7 Munshi Ram on 16.5.2004 at about 11.35 p.m. He found abrasion on the left side of

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Crl.A. No.121-DB of 2009

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the knee measuring 2cm x 1cm. PW7 also complained of pain on his left side heel, left side ankle, left side thigh and right arm. There was also reddish bruise at the right forearm measuring ½ cm x ½ cm. He opined that all these injuries would have been caused by blunt weapon. PW10 medicolegally examined PW8 Krishan Kumar at 00.25 a.m. on 17.5.2004. PW8 complained of pain at his left ankle and left hand. There was a bruise at his right side calf measuring 5 x 2 cm. Those injuries were certified as simple in nature. He opined that those injuries would have been caused by blunt weapon. PW10 also medico-legally examined PW9 Khem Chand on 17.3.2004 at 00.10 a.m. He found diffuse swelling at the left forearm. PW9 also complained of pain at his left ankle. PW10 opined that those injuries would have been caused by a blunt weapon.

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PW14 Dr.J.D.Singh medico-legally examined Madan (since

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deceased). He found the following injuries:-

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“ 1. Abrasion measuring 5 x 2 cm and swelling on the left shoulder. The movement of his shoulder was found hampered.

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2. Abrasions and mild swelling on the back of the left side.

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3. Bleeding from the left ear. There was also swelling on the left temporal region. Surgical treatment was advised.

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4. Abrasions and swelling on the right side of the back. ”

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PW14 opined that all those injuries would have been caused by the blunt

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weapon. Madan (since deceased) was found unconscious and uncooperative at the time when he was brought to the hospital for treatment. 6. Considering the nature of injury sustained by deceased Madan

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as per medical information the case was converted into one under Section 307 IPC. Subsequently, on 24.5.2004 Madan succumbed to the injuries. Therefore, the case was converted into one under Section 302 IPC.

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Accused Hari Om and Hargopal were produced by Sh.Subhash before PW16 SI Bhagat Ram. A hockey bat was recovered from accused Hariom and a danda was recovered from accused Hargopal on the basis of disclosure statements separately made by them. PW16 also arrested accused Dinesh, Devender and Somdutt. He laid final report after completing the investigation in this case.

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PW13 Samay Singh recorded the supplementary statement of PW7 Munshi Ram. He arrested accused Bhagat Singh. A bat used in the quarrel was recovered from his possession under Seizure Memo. Accused Om Dutt was arrested on 23.5.2004. The tractor which was used for fleeing from the scene of occurrence was also recovered from him under Memo Ex.PA.

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PW17 Dr.Rohit conducted post mortem examination on the dead body of Madan on 24.5.2004 at 12.15 a.m. He found that there was a contusion measuring 18x10 cm over both fronto-parietal region and left temporal region of the head. On examination of the head, he found that there was effusion of blood in both fronto-parietal region and left temporal head. There was also a linear fracture of left temporal bone. There was diffuse subdural and subarachnoid haemorrhage of both cerebral hedmisphere. He opined that Madan died due to cranio-cerebral damage caused by the impact of some blunt force on the head.

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The accused-appellants have stated that they were innocent, but a false case was foisted on them, while responding to the questionaire put to them under Section 313 Cr.P.C.

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The trial Court having relied upon the evidence of PW7, PW8, PW9 and PW15, in the background of the medical evidence available on record, recorded conviction as against the accused-appellants as stated supra.

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Learned Senior counsel appearing for the accused-appellants would vehemently submit that the DDR was antedated in order to specifically refer to the involvement of the accused in the crime. PW8 and PW9 had turned completely hostile to the case of the prosecution. PW15 Bhudev was introduced as eye witness for the purpose of this case. It is their submission that motive part of the case of the prosecution was not established. PW7 had a tendency to include even the persons who were not involved in the occurrence and also to give clean chit to the accused who had already been arrayed as accused. PW7 has not attributed specific overtact to the individual accused. His generic testimony cannot be held sufficient to prove the heinous crime of murder.

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We heard the submissions made by learned DAG, Haryana appearing for the State supporting the verdict of conviction and sentence recorded by the trial Court.

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PW7 Munshi Ram, PW8 Krishan Kumar, PW9 Khem Chand and PW15 Bhudev are the star witnesses in this case. They have been examined as ocular witnesses to the case of the murder. But unfortunately, PW8 Krishan Kumar and PW9 Khem Chand who had sustained injuries in

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the occurrence as per the medico-legal report submitted by PW10 Dr.J.P.Parsad chose to turn hostile to the case of the prosecution. In other words, their evidence does not support the case of the prosecution.

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PW7 Munshi Ram had sustained injury in the occurrence as per the medico-legal report submitted by PW10 Dr.J.P.Parsad. There was an attempt made by the defence to show that PW7 had sustained self-suffered injuries. But in our considered view, the nature of injuries noted down in the MLR (Ex.PJ) concerning PW7 would go to establish that those injuries could not have been suffered by a person by self-infliction. PW10 has categorically deposed that such injuries would have been caused by blunt weapon. Therefore, we have no hesitation to reject the argument submitted by learned senior counsel appearing for the accused-appellants that PW7 Munshi Ram had sustained self-inflicted injuries. 16. PW7 Munshi Ram is an injured witness in this case. His evidence cannot be simply ignored by the Court of Law. Rather his evidence will have to be placed on a higher pedestal while evaluating the materials on record. PW7 has categorically deposed that these accusedappellants armed with bat and danda attacked Madan (since deceased) and caused injuries on his person. The evidence of PW14 Dr.J.D.Singh who medico-legally examined Madan and issued MLR would go to show that Madan was brought in an unconscious state. As per evidence of PW17 Dr.Rohit, the head injuries received by Madan at the hands of the accused had proved fatal.

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PW15 Bhudev who is none other than the son of PW7 and brother of deceased Madan has also completely supported the case of the

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prosecution. It is true that his name did not figure in the first information report, but PW7 has clarified the position that the villagers surged to the scene of occurrence on hearing his noise. His son PW15 was also one of the villagers who thronged to the scene of occurrence. No wonder, PW15 Bhudev also witnessed the accused-appellants who were armed with bat and danda attacking not only Madan, but also PW7 Munshi Ram.

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The evidence of PW15 cannot also be ignored just because he was closely related to the deceased. The occurrence had taken place at about 5.30-6.00 p.m., very nearer to the village. Therefore, the presence of PW15 at the scene of occurrence cannot at all be doubted. In fact the evidence of PW15 lends corroboration to the evidence of PW7. The medical evidence also supports the ocular testimony. In view of the above, we hold that Madan had died out of the joint attack launched by accusedappellants Dinesh Kumar, Bhagat Singh, Om Dutt and Som Dutt.

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Learned Senior counsel appearing for the appellants would submit that the prosecution has not come out with a case that there was a conspiracy hatched by the accused-appellants to plunge into concerted action. In order to prove the case under Section 34 IPC, it is necessary that there must be prior conspiracy or premeditation. A common intention can be formed in the course of occurrence. [See Hari Om vs. State of Uttar Pradesh, (1993) 1 Crimes 294 (S.C.)].

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We are now confronted with the question whether the instant case would fall under the ambit of Section 302 IPC or Section 304 IPC.

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PW7 Munshi Ram has deposed that a day earlier to the occurrence there was some altercation between the boys hailing from two

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villages who had come for playing cricket match. He would admit that the matter would have been probably settled. It is his admission that he was not present at the time when such an incident took place on the previous day. Except PW7, no other witness has spoken about the motive part of the case of the prosecution. We entertain a doubt as regards the motive attributed to the accused by PW7 as we find that PW7 infact came out with a hear-say evidence as regards the motive. None of the person who was present at the time when the occurrence took place on the previous day was examined by the prosecution. Therefore, we have no hesitation to conclude that the prosecution miserably failed to establish the motive for the occurrence.

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PW7 has further deposed that on 16.5.2004 at about 5.30 p.m. he reached dharamshala after grazing his cattle. He found boys of his village Ladiaka and the boys of village Rundhi playing cricket in the panchayat land. At that point of time he heard a cry “ Maar Diya-Maar Diya” f rom the boys who played over there. The above facts and circumstances spoken to by PW7 would go to show that the present occurrence had taken place all of a sudden while the boys from two different villages were playing cricket game in the panchayat land. The boys had used only cricket bat and danda. They had not gone to the panchyat ground armed with weapons to attack the victims. In such circumstances, we have no hesitation to conclude that the accused-appellants who were found playing cricket in the panchayat land would not have intended to cause the death of Madan who was also playing over there. The facts and circumstances would suggest that in the sudden quarrel that erupted between the boys hailing from two villages, the accused-appellants had

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launched attack on the person of deceased Madan. As motive was not established, we have left with no option but to conclude that there was no premeditation for causing the death of Madan. While playing cricket the boys from both the villages in the heat of passion had started attacking Madan (since deceased). The nature of weapons of offence they held and the nature of injuries sustained by Madan would suggest that the accusedappellants had not taken undue advantage of the situation. But the seat of injury found on the person of the injured would go to show that the accusedappellants would have the knowledge that their attack would definitely take away the precious life of Madan.

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It is quite clear from the above facts and circumstances that the accused-appellants who formed a common intention during the course of the sudden fight which took place without any premeditation attacked deceased Madan with the full knowledge that their attack would definitely take away the life of Madan and cause his death. The act of the accused-appellants squarely falls under Exception 4 to Section 300 IPC and consequently attract the offence under Section 304 Part II IPC.

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The prosecution has also established through the evidence of PW7 Munshi Ram who sustained simple injury and the evidence of PW10 Dr.J.P.Parsad who medico-legally examined him that PW7 sustained simple injury at the hands of the accused-appellants who attacked him in furtherance of their common intention to cause injury to him.

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In the result, the judgement of conviction and sentence recorded by the trial Court for offence under Section 302 read with Section 34 IPC is set aside. Instead, the accused-appellants are convicted for the

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offence under Section 304 Part II read with Section 34 IPC and were sentenced to undergo 7 years rigorous imprisonment and to pay a fine of `1000/- each and in default to undergo a further period of 3 months each. The conviction and sentence imposed by the trial Court as against the accused-appellants for the offence under Section 323 read with Section 34 IPC stands confirmed. With the above modification, the appeal stands allowed in-part.

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The accused-appellants Bhagat Singh, Som Dutt and Dinesh Kumar are on bail. Their bail bonds stand cancelled. They shall surrender within 15 days from the date of this judgement before the Chief Judicial Magistrate, Faridabad, who shall send them to jail to undergo the remaining part of the sentence. If they fail to surrender, the learned Chief Judicial Magistrate, Faridabad shall take coercive steps to secure their presence and send to them to jail to undergo the remaining part of the sentence.

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(M.JEYAPAUL) JUDGE

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July 3, 2013 (ANITA CHAUDHRY) Gulati JUDGE

Dinesh Kumar v. State of Haryana

Case brief

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Dinesh Kumar v. State of Haryana

Case brief

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