Partly allowed

Ravinder Singh Alias Partap v. State of Punjab

Punjab & Haryana HC26 Mar 2014CRA-S/658/2002

Case brief

AI extract

What is this about?

Appeal against conviction in a murder case. The High Court held the death resulted from a vaso-vagal shock caused by a push, not homicide. The court distinguished Satnam Singh and acquitted the appellant of Section 304 Part II IPC, convicting him only of Section 323 IPC, while maintaining the 449 IPC conviction.

What did the court decide?

Conviction changed from Section 304 Part II IPC to Section 323 IPC; conviction under Section 449 IPC maintained; sentence of one year RI and fine of 1000/- awarded.

Ravinder Singh Alias Partap Vs State… — Murder and Culpable Homicide | Punjab & Haryana HC (2014)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRA-658-SB-2002 Date of Decision: 26.03.2014

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Ravinder Singh alias Partap

...... Appellant

Versus

State of Punjab

...... Respondent

CORAM: HON'BLE MR.JUSTICE SURINDER GUPTA

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Present : Mr. P.S. Brar, Advocate for the appellant. Mr. Varun Sharma, AAG, Punjab.

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SURINDER GUPTA, J.

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Appellant faced trial for offence under Sections 449, 302, 323

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IPC in case bearing FIR No. 120 dated 27.7.1999 registered at Police Station City Moga and was convicted and sentenced as follows :-

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Conviction for offence	Se	ntence
punishable Under Section(s)	Rigorous Imprisonment		Fine
304 Part-II IPC	Seven years	`5000/-. payment further six mont	In default of of fine to undergo RI for hs.
323 IPC	Six months	-------
449 IPC	Three years	`2500/-. payment undergo months.	In default of fine to further RI for three

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The case of the prosecution in brief is that on 27.7.1999, Sham

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Sunder (deceased) had gone to fetch milk for his family at 4 a.m. On his return, he found a person present in the drawing room and raised lalkara, which attracted the complainant, Navdeep Kapoor, his son and wife Komal. The intruder had scuffle with the complainant, his mother, father and gave

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fist blows. He picked a wrench lying in the drawing room and hit the mother on the back of her right hand. The complainant and his father Sham Sunder went ahead resulting in a scuffle with him. The intruder gave push with his both hands to Sham Sunder, who fell on the ground and became unconscious. The intruder was named in the FIR as Ravinder Singh alias Partap (appellant). The complainant rushed to a doctor to provide medical aid to his father and taking the benefit, the appellant succeeded in slipping away from the spot. The doctor on arrival declared Sham Sunder as dead. The matter was reported to the police vide statement of Navdeep Kapoor Ex. PH, whereupon SI/SHO Police Station City Moga made endorsement Ex. PH/3, on which the FIR Ex. PH/1 was registered.

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The appellant was arrested on 28.7.1999 and after completion of investigation, challan was presented in Court for offence punishable under Sections 458, 460, 323, 302, 458 IPC.

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The case was committed to the Court of Sessions for trial by the Sub Divisional Judicial Magistrate, Moga vide order dated 13.11.1999.

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The appellant was charge-sheeted for offence punishable under Sections 302, 449 and 323 IPC.

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On completion of prosecution evidence, statement of appellant under Section 313 Cr.P.C. was recorded, wherein he denied the allegations levelled against him and pleaded false implication. In defence, he stated as follows :-

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“ I was having love affair with Puja daughter of Sham Sunder deceased. We want to marry with each other. The family of

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Sham Sunder felt it ill. Sham Sunder died natural death and they falsely implicated me in this case. ”

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Mohinder Kaur was examined as defence witness as DW-1.

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I have heard learned counsel for the appellant and have perused the record with their assistance.

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Learned counsel for the appellant has argued that in this case the prosecution has failed to prove that death of Sham Sunder was caused due to any injury caused by the appellant. The Doctors have not been able to ascertain the cause of death of Sham Sunder, as such, the same cannot be attributed to the push given by the appellant. There is delay of about 5 hours in reporting the matter to the police, which has not been explained. There is unexplained delay of about 8-9 hours in medical examination of Komal wife of deceased. As per the allegations in the FIR the complainant has not identified the appellant at the spot rather they came to know of his name at later stage. The entire version of the prosecution in this regard is false. In fact, the appellant had affairs with the sister of complainant. This fact has been proved on file by producing evidence, which has been wrongly ignored by the trial Court. The family of complainant was not happy with the relations of appellant with the sister of the complainant and in order to take revenge, he has been falsely implicated in this case.

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It has further been argued by learned counsel for the appellant that even if the prosecution version be believed the offence disclosed against the appellant is under Sections 323, 449 IPC. The appellant has already undergone six months imprisonment and as such a lenient view be

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taken regarding the quantum of sentence.

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Learned State counsel has argued that the occurrence has taken place in the early hours of the morning at about 5/5:30 a.m. The appellant had entered the house of the complainant. Deceased was hale and hearty. He had been getting up at 4:00 a.m. and used to go for fetching milk for his family. He had returned his house at about 5:00 a.m. when he found the appellant in the house. It was the impact of the push given by the appellant that deceased died at the spot. He had also caused injury with the wrench lying there, on the person of wife of the deceased. The matter was reported to the police at 10:45 a.m. and there is no delay in reporting the matter to the police. After recording the statement of complainant, 'ruqqa' was sent to the police station whereupon the formal FIR was registered and by 1:45 p.m. it also reached the Illaqa Magistrate. The story of love affair of appellant with the sister of the complainant has no basis. In case the appellant was known to the complainant and the deceased, they could directly mention his name in the FIR. Even if it is believed that he had affairs with the sister of the complainant, it is quite possible that the parents and other family members may not be aware of the same. In any case, the appellant had no business to enter the house of the complainant in the early hours of the morning and to grapple with the deceased, complainant and the wife of the deceased.

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The submissions made by the learned counsel for the parties make out following points for determination :-

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1. Delay in FIR.

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2. Delay in medical examination of Komal w/o Sham Sunder (deceased)

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3. Cause of death of Sham Sunder.

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4. Identification of appellant and defence version.

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(1) Delay in FIR.

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The occurrence in this case had taken place in the early hours of the day. The deceased had gone to bring milk at 4:00 a.m. and returned, when he found the appellant in his house and raised alarm crying “ Chor, Chor ” ('Thief-Thief'). As per the prosecution, after scuffle with Navdeep Kapoor, PW-6, son of the deceased, the appellant gave a push to the deceased, who fell on the ground and became unconscious. A doctor , who was living in the nearby street, was brought, who declared Sham Sunder as dead. Thereafter the matter was reported to the police. The occurrence had taken the family of the deceased by surprise. Death of Sham Sunder and injury to Komal wife of the deceased had put the entire family in shock. Under such circumstances, it take some time to come out of the trauma and shock and to reconcile before reporting the matter to the police. Firstly, there is no delay in this case, secondly, the delay has not resulted in giving exaggerated version or naming more persons as accused in this case.

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While dealing with the point of delay in lodging the FIR, Hon'ble Supreme Court in the case of Ravinder Kumar vs. State of Punjab (AIR 2001 SC 3570) has observed as follows :-

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“14. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of uncoversantness is not too uncommon among

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urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.

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15. We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out that the stale demand made in the Criminal Courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the merely delay in lodging the FIR. [Vide Zahoor v. State of U.P. 1991 Suppl. (1) SCC 372; Tara Singh v State of Punjab, AIR 1991 SC 63; Jamna vs. State of U.P. 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations:

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"It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times

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being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report."

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In view of the facts and circumstances discussed above, this argument of the learned counsel for the appellant that the prosecution version could be discarded on the ground of delay in reporting the matter to the police has no merits.

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(2) Delay in medical examination of Komal w/o Sham Sunder (deceased)

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Injuries found on the person of Komal W/o Sham Sunder were as follows:

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“1. There was lacerated wound ½ x 1/3 cms with swelling 2 ½ x 3 cms involving the dorsal aspect of right hand. Patient was advised X-ray. But the patient refused admission.”

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Dr. Naresh Kumar , PW-1 examined Komal w/o Sham Sunder

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at 1:50 p.m. on 27.7.1999. The doctor had advised X-ray examination but she refused admission in the hospital.

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Learned counsel for the appellant has argued that the delay in the medical examination of Komal has not been explained and the injury on her person was also fresh even after about 6-7 hours of the occurrence.

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The injury on the person of Komal was lacerated wound on the dorsal aspect of right hand. She had lost her husband in the morning and it was quite natural for her to attend to the family corus, arrival of friends and relatives mourning the death of her husband than to rush to the hospital.

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This also explain as to why she refused her admission in the hospital when the Doctor advised her X-ray examination. In such circumstances, one looses balance of mind. The grief of a lady who has lost her husband all of a sudden in such a tragic incident can be well understood. It is difficult to believe that under such circumstances she will fabricate an injury and get herself medically examined to involve the appellant. The injury on the person of Komal rather give credence to the statement of the complainant and support the prosecution version regarding the occurrence.

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(3) CAUSE OF DEATH OF SHAM SUNDER :

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Dr. Vajinder Singh, PW-5, conducted the post mortem examination on the dead body of the deceased. He did not find any external sign of injury. The definite cause of death could not be ascertained but PW-5 Dr. Vajinder Singh has stated that the possibility of death of Sham Sunder due to vaso-vagal shock cannot be ruled out. He has further stated that there can be many causes for vaso-vagal attack. Learned Additional Sessions Judge, Moga, while dealing with the term 'vaso-vagal attack' has referred to it description as given in Parikh's text book of Medical Jurisprudence and Toxicology, which is reproduced as follows:

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“........apart from organic diseases, a syncopal type of death may result from reflex cardiac arrest or inhibition of the heart due to the vagal stimulation, commonly known as vaso-vagal shock, neurogenic shock, or vagal inhibition. In this condition, as a result of vagal stimulation, cardiac and respiratory centres are suddenly paralysed with consequent stoppage of heart and respiration resulting in immediate loss of life. The cause of such vagal inhibition include : (1) sudden fright or emotion and (2) injury to the trigger areas (receptor areas), such as carotid sinus, solar plexus, testicles, serious membranes, etc. Even a trifling injury to these areas may result in sudden death.

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In the said book an example is recorded of a man who attempted to molest a girl. He tried to prevent her from shouting by putting his hands on her mouth. She suddenly went limp and her dead body was in his hands.

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Such vagal inhibition as a cause of death is important in certain cases of accidental hanging; throttling; blow on the epigastrium; emotional tension; sudden immersion of the body in cold water; insertion of an instrument into uterus, bladder, rectum or any body cavity; and light anaesthesia (especially chloroform). In these conditions, as the trauma may be very trifling and the actual mechanism is a physiological process, anatomical changes are not discernible. Therefore, there are no characteristic postmortem appearances and the cause of death is inferred from negative findings; the history is typical, viz, trauma to the receptor area which may not have left a mark; death is instantaneous; there are no fatal injuries; there is no poisoning; and there is no natural disease to account for the cause of death. ”

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“Vasovagal attack” has been defined in New Concise Medical Dictionary as follows :-

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“Vaso-vagal attack: It is a temporary loss of consciousness due to sudden slowing of heart attack. Over stimulation of vagus nerve helps to control breathing. Severe pain, shock and fear may also result in 'vaso-vagal attack'. It may precede with sweating, nausea and dizziness.”

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In this case deceased, as per his routine had gone to fetch milk for his family at about 4:00 a.m. On return he found the appellant in the drawing room of his house. Out of fear, anxiety and tension, he raised alarm crying “thief, thief” attracting his son and wife to the spot. A scuffle ensued with the intruder in which Komal received injury, the intruder gave a push

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to the deceased, as a result of which he fell flat and became unconscious. The doctor who was called to the spot declared him 'dead'.

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From the facts and circumstances as discussed above, it is made out that death of Sham Sunder had taken place due to vaso-vagal shock. In the postmortem examination, all the vital organs of deceased were found to be healthy and no sign of injury on the person of deceased was found. There is no evidence that deceased was having any ailment. From the medical evidence that has come on file it is proved that the cause of death of deceased was 'vaso-vagal attack' and not any injury received by him.

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(4) IDENTIFICATION OF APPELLANT AND DEFENCE VERSION :

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The appellant is named in the FIR. The complainant while appearing as PW-6 has identified the appellant in the Court. He has stated that he came to know the name of the appellant from his friend Khajan resident of Jawahar Nagar, Moga. He has further stated that the appellant was 4/5 classes senior to him, as such, he knew him. He was in 5^th class when the appellant was studying in 10^th class.

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Komal wife of the deceased while appearing as PW-9 has also identified the appellant. She has stated that the appellant was grappling with the deceased when they reached the spot on hearing the alarm raised by the deceased. On seeing them, the appellant lifted iron wrench and hit on her right hand. Thereafter he caused fist blows on her husband and gave him a push as a result of which he fell down and became unconscious. She has stated that appellant was known to her son Navdeep Kapoor

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In view of the statement of the complainant as well as Komal,

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the identification of the appellant is duly proved. Firstly, he was named in the FIR, secondly, PW-6 Navdeep Kapoor and PW-9 Komal had a close encounter with the appellant during the occurrence. He had not only grappled with them but had also caused injuries to Komal, PW-9. She had lost her husband in the occurrence. The image of the assailant got imprinted in her mind and particularly in such facts and circumstances Komal, PW-9 would never forget the face of the assailant who intruded in her house, caused injuries to her and grappled with her husband. The identification of such an accused in the Court is a valid identification.

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In case titled as State of H.P. vs. Puran Chand 2003 (1)RCR (Crl.) 264 , the Hon'ble Supreme Court has observed that when the occurrence has been witnessed by the prosecution witnesses and the accused were identified in the court in that event test identification parade was not required. In that case, the witness who was a child was himself seriously injured.

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In the case of Ronny @ Ronald James vs. State of Maharashtra 1998 (2) Apex Court Journal 12 (SC) the Hon'ble Supreme Court had observed that the identification of the accused by a witness if he had an opportunity to interact with him or to notice his distinctive features lends assurance to his testimony in the court and that the absence of corroborative evidence by way of test identification parade would not be material.

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In case George vs. State of Kerala, 1998 (2) RCR (Crl.) 199 the Hon'ble Apex Court while dealing with the point of identification of the

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accused for the first time in the court had observed as follows :-

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“25.......So far as the first ground is concerned, law is well settled that identification of an accused in Court is the substantive evidence of the person identifying and his earlier identification in a T.I. parade corroborates the same. In other words, want of evidence of earlier identification in a T.I. parade does not affect the admissibility of the evidence of identification in court.

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26. We may now consider what will be the effect of failure to hold the T.I. parade. In Kanta Prasad vs. Delhi Administration [1958 S.C.R. 1218] a two Judge Bench of this Court observed as under:

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"It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification would be a matter for the Courts of fact......"

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(emphasis supplied)

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The Hon'ble Supreme Court in the case of Ramanabhai Naranbhai Patel & Ors. vs. State of Gujarat (2000) 1 SCC 358 while dealing with the question of test identification parade had observed as follows :-

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“..... It, therefore, cannot be held, as tried to be submitted by the learned counsel for the appellants, that in the absence of test identification parade, the evidence of eye witness identifying the accused would become inadmissible or totally useless. Whether the evidence deserves any credence or not

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would always depend on the facts and circumstances of each case....... the fact remains that these eye witnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad day light. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them.”

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The Hon'ble Supreme Court in Ramanabhai Naranbhai Patel's case (supra) further observed as follows :-

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“......... The accused mounted an assault on her husband in her bed room and even though she might not be knowing the accused earlier the faces of the accused mounting such as assault and which caused fatal injured to her husband can easily be treated to have been imprinted in her mind and when she could identify these accused in the Court even in the absence of test identification parade, it could not be said that her deposition was unnatural or she was trying to falsely rope in the present accused by shielding the real assaulters on her husband.”

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The appellant has come up with a defence version that he was having affairs with the sister of complainant, who was studying in his school and was one year junior to him. Some cards marked as 'A to D' were produced in support of the contention of the appellant. The complainant

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Navdeep Kapoor has denied that these cards were sent by his sister to the appellant. Out of four cards two are the birthday cards while one is friendship card and other is good wishes card. Even if it be believed that the appellant had friendship or relations with the sister of the complainant, he had no reason to intrude their house without permission and to grapple with the deceased and cause injuries to Komal. The appellant examined one Mohinder Kaur as DW-1, who has stated that the sister of complainant was in love with the appellant and both wanted to marry but parents of the girl were not agreeing to the proposal. She had disclosed this fact for the first time in the Court when she appeared as DW-1 and has never stated this fact to any one earlier, despite the fact that the police had come and contacted her during investigation of the case.

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The defence version that the appellant has been falsely implicated due to his relations with the daughter of the deceased has no basis. In case, the appellant had relations with the daughter of the deceased, instead of being humble and remorseful on being caught in her house and showing due respect and regard to the parents and brother of a girl with whom he was allegedly in love affairs he created hooliganism and became aggressor. The defence version as put forth by the appellant, as such, is not believable and is discarded.

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Learned counsel for the appellant has relied upon the observations in the case of Satnam Singh vs. State of Punjab, 2004(1) RCR (Criminal) 974 and has argued that the offence made out against the appellant is under Section 323 and not 304 part -II IPC.

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In the aforesaid case, the accused had given a fist blow near the umbilicus of the deceased, who died the next day. As per the prosecution case, deceased had also been given fist blow by another accused and brick blow by the third accused. The prosecution version regarding the participation of second and third accused in the occurrence, was disbelieved. The Doctor had opined that the death may have occurred by brick blow with force and the reddish contusion could be caused by fist blow on the abdomen, which is every elastic structure. Under these circumstances, the appellant, who was attributed a fist blow in umbilicus of the deceased was acquitted of the charge for offence punishable under Section 304 IPC and convicted for offence punishable under Section 323 IPC.

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As per case of the prosecution, the appellant had entered the house of the deceased in early hours of the day and on being noticed, he grappled with the deceased and gave him a push as a result of which he fell down and became unconscious, and was declared dead by the doctor. Section 304 IPC reads as follows :-

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“304. Punishment for culpable homicide not amounting to

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murder – Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to tine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause

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death,

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or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”

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The appellant was not armed with any weapon. From the manner in which the occurrence took place, it appears that he in order to get himself freed from the complainant and the deceased, gave push to the deceased before running away. It is admitted case of the prosecution that Sham Sunder had not received any internal or external injuries at the hands of the appellant. It is evident that while giving a push the knowledge of the appellant that it is likely to cause death of Sham Sunder cannot be inferred. Sham Sunder otherwise was hail and hearty. He fell down, suffered shock resulting in his death. The provisions of Section 304 (II) IPC are not attracted to the present case. The offence attracted in this case is Section 323 and not Section 304 (II) IPC. The conclusion of the trial court that the push was given by the appellant with the knowledge that it was likely to cause death is not supported by any medical or other evidence on the file.

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In view of my discussion above, this appeal is partly accepted. The conviction of the appellant is converted from offence punishable under Section 304 (II) IPC to offence under Section 323 IPC and he is awarded sentence of one year and to pay fine of `1000/- and in default of payment of fine to undergo rigorous imprisonment for three months. The conviction

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and sentence of the appellant for offence under Section 449 IPC is maintained. The fine, if already paid, for conviction of offence punishable under Section 304-II IPC be adjusted towards the fine imposed under Section 323 IPC and remaining amount of fine be refunded.

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26.03.2014 ‘Satyawan’/deepak

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( SURINDER GUPTA ) JUDGE

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Ravinder Singh Alias Partap v. State of Punjab

Case brief

What is this about?

What did the court decide?

Ravinder Singh Alias Partap v. State of Punjab

Case brief

What is this about?

What did the court decide?

What the court decided

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