HEMANT GUPTA, J.
Appellant Prince Kumar son of Ravinder Kumar has been convicted for the offences punishable under Sections 302/34 and 307 IPC and sentenced to undergo imprisonment for life and rigorous imprisonment for 10 years respectively, by the learned Additional Sessions Judge, Ferozepur, by judgment and order dated 17.03.2006. The appellant has further been directed to pay a fine of Rs.5000/- under each head. In default, the appellant was directed to undergo further rigorous imprisonment for a period of three months. Both the sentences were ordered to run concurrently.
The appellant has challenged his conviction and sentence with the filing of Criminal Appeal No.337-DB of 2006, while the complainant Ganesh Chander son of Bhajan Lal, cousin of the deceased, has filed Criminal Revision No.1871 of 2006 seeking setting aside of judgment and order dated 17.03.2006. Both the cases have been taken up for decision together by this common order.
The prosecution case was set in motion on the statement of Ganesh Chander son of Bhajan Lal made to ASI Banta Singh, P.S.Khuian Sarwar at about 2.00 PM on 20.10.1997. In his statement (Ex.PC), Ganesh Chander stated that on 20.10.1997 at about 8.30/8.45 am, he was standing in front of the gate of his house in village Telupura, when Malkiat Kumar son of Pirthi Raj and Jagdish son of Kundan Lal, resident of Khuian Sarwar came on the turning of Village Telupura, for going to college. In the meantime, a Janta Transport bus, the route of which was from Haripura to Abohar via Khuian Sarwar, stopped on the turning of Telupura. Golu son of Takhur Ram resident of Haripura armed with knife; Prince Kumar son of Ravinder Kumar Bishnoi, resident of Haripura armed with knife; Raju son of Mohinder Singh, resident of Khuian Sarwar armed with Soti; and 5/6 more boys armed with soties, chain, knife and empty handed alighted from the bus. All of them exhorted that ‘today Malkiat Kumar and Jagdish Kumar should be taught a lesson for stopping them from eveteasing’.
He further stated that within his sight, two boys caught hold of Malkiat Singh and Golu gave knife blow to Malkiat Singh hitting him on the left flank of chest. Two other boys caught hold of Jagdish and Prince Kumar gave a knife blow hitting him on the outer side of left flank. In the meantime, Ranjit Kumar son of Pirthi Raj Kamboj, resident of Khuian Sarwar, who was going towards the fields, saw the fight and tried to separate boys, then Raju gave him a soti blow, which hit him on his head. At that time, Bagmal Master son of Sunder Ram Kamboj, resident of Khuisan Sarwar also came to the spot and witnessed the entire occurrence. On raising alarm by them, all the accused persons fled away from the spot with their respective weapons. He further stated that when he and Khushhal Chand son of Lakha Ram Kamboj, resident of Khuian Sarwar were going to Civil Hospital, Abohar in a jeep taking Malkiat and Jagdish in an injured condition, after crossing the petrol pump of Khuian Sarwar, Malkiat Kumar died, but still they took them to the hospital. On reaching hospital, the Doctor declared Malkiat as dead, whereas Khushal Chand got admitted Jagdish Kumar. He further stated that after leaving Khushal Chand to guard the dead body of Malkiat Kumar, he was going to Police Station to lodge a report, but ASI Banta Singh met him near the bus stand Khuian Sarwar and recorded his statement. On the basis of such statement, ruqa (Ex.PC/1) was sent to the police station for registration of an FIR. On receipt of ruqa, an FIR (Ex.PC/2) was lodged at about 2.25 pm. The special report was received by the learned Duty Magistrate at 4.30 pm. Thereafter, ASI Banta Singh – the Investigating Officer went to the Civil Hospital and prepared inquest report Ex.PD in respect of the dead body of Malkiat and sent the same for post-mortem. On the identification of Ganesh Chander, ASI Banta Singh arrested accused Prince, Ajay, Kavish and other co-accused, when they were standing at bypass.
He also inspected the spot and collected blood stained and ordinary earth. During interrogation, accused Prince Kumar suffered a disclosure statement Ex.PJ and in pursuance of such statement, knife used by him was recovered vide recovery memo Ex.PJ/2.
The post-mortem examination on the dead body of Malkiat Kumar was conducted by PW-7 Dr. S.K.Juneja on 20.10.1997 at about 3.30 pm. He proved the report of post-mortem examination as Ex.PA. He has, inter alia, found that the body was having an incised wound of the size 1.7 cm x .2 cm placed vertically on the left side of chest, 11 cm below the left nipple and 8 cm from midline towards left. Clotted blood and plasma was present. PW-8 Dr. Sandeep Kumar medico legally examined Jagdish Kumar son of Kundan Lal on 20.10.1997 at about 9.40 am and found an incised wound left lateral side of lower part of chest in the anterior ancillary line. Fresh bleeding was coming out. Wound was longitudinally in direction and about 12 cm from left nipple. He proved the medico legal report in respect of Jagdish Kumar as Ex.PO. On the same day at about 12.20 pm, PW-2 Dr. Sandeep Kumar also medico legally examined Ranjit Kumar and found a lacerated wound over right side of skull in the temporal region 5 x 1.5 cm, muscle deep about 10 cm above the upper margin of the right ear. He also proved the medico legal report in respect of Ranjit Kumar as Ex.PP. In his cross-examination, he stated that the injury on the person of injured has not affected any internal organ of his body and inflicting of such injury by friendly hand cannot be ruled out. The injury on the person of Ranjit Kumar being result of fall cannot be ruled out. He stated that Jagdish Chand and Ranjit Kumar were brought to him at about 9.35 am and 12.10 pm respectively.
On completion of other necessary formalities, the present appellant along-with other accused was made to stand trial, whereas accused Golu was tried separately by Juvenile Court. To prove its case, apart from examining the PW-7 Dr. S.K.Juneja and PW-8 Dr. Sandeep Kumar, the prosecution has also examined Ganesh Chander- the author of FIR as PW-5, who supported the initial version given by him in the statement Ex.PC. In his cross-examination, PW-5 Ganesh Chander stated that Jagdish Kumar and Malkiat Kumar were standing at a distance of 35/40 feet from the gate of his house and that the bus was stopped at that place for about two minutes. He stated that the hospital is at a distance of 13/14 kms. from that place and the jeep came to the spot after about 5/7 minutes. He does not know the owner of the jeep, who had taken them to the hospital. He admitted that he has not named the persons, who caught hold of the deceased Malkiat Kumar and the injured Jagdish Kumar in the first version. He denied the suggestion that he has not witnessed the occurrence and he never took the injured to the hospital. He stated that village Haripura is at a distance of 4 kms. from his village and that Golu accused was known to him by his face previously. He denied the suggestion that the occurrence has not taken place in the manner alleged by him, but it took place in the bus itself. He stated that blood had fallen at the spot and the same was collected by the Police.
Jagdish Kumar – injured in the same occurrence, has been examined as PW-3. He deposed that he was caught hold by Vinod and Karaj by his arms and Prince gave a blow with his knife on his left flank. He stated that Ajay and Kulwinder caught hold of Malkiat by his arms and Golu gave a blow with his knife about his left flank. He deposed that when Ranjit Kumar, who was proceeding to his fields, tried to save them from the accused, Kaveesh caught hold of him from his backside, then Raju gave a blow with his stick on the head of Ranjit Kumar. He deposed that Ganesh Chander has witnessed the occurrence from the gate of his house. In his cross-examination, he denied the suggestion that the house of Raju is at a distance of 2 killas, but it is at a distance of 10/12 killas from his house. He admitted that there is bus stop at Government Primary School, which is at a distance of 10/12 killas from his house. He stated that he used to travel in the said bus daily. He denied the suggestion that the sisters of accused Prince and Kulwinder also used to travel in the same bus. He stated that his shirt and vest, which were worn by him at the time of occurrence, were soiled with blood and were having corresponding cuts and that he had not produced the same before the police at the time when his statement was recorded.
Ranjit Kumar, the other injured has been examined as PW-2. He also supported the prosecution version in its entirety. In his cross examination, he admitted that there was a bus-stop at Government Primary School, Khuian Sarwar and that bus stop of Telupura is at a distance of kms. from that school. He stated that he reached the hospital at about 11.00 am and was taken there by Raja Ram on the motor-cycle. He denied the suggestion that no occurrence has taken place in his presence. He denied the suggestion that the sisters of accused Kulwinder and Prince used to travel in the same bus for going to Abohar in connection with their studies. He stated that the bus, which came to the spot, was full with passengers, but denied the suggestion that there was no injury was caused to Jagdish and that the occurrence took place inside the bus in which Malkiat received injury and the driver of Bus removed him therefrom at the spot.
ASI Banta Singh – the Investigating Officer has been examined as PW-4. He deposed that he recorded the statement of Jagdish after he was declared fit by the Doctor on his application Ex.PE. Thereafter, he went to the spot and collected blood stained as well as ordinary earth, which was converted into separate sealed parcels and taken into possession vide memo Ex.PF. He prepared rough site plan Ex.PG of the place of occurrence with correct marginal notes. He deposed that it was on 21.10.1997, he recorded the statement of Ranjit Kumar after the Doctor declared him fit on his application Ex.PH. He deposed that on 26.10.1997, knife was recovered in pursuance of disclosure statement Ex.PJ suffered by Prince in the presence of HC Kartar Chand and Phool Chand. In his cross-examination, he stated that Ganesh Chander met him at about 1.00 pm. He stated that he did not collect blood stained wearing apparels of Jagdish and Ranjit, as at that time they were not wearing those apparels. He stated that he did not join the driver Gurcharan Singh and conductor Mulkh Raj of the bus in the investigation, but in fact they were joined as such by Inspector, who had taken over investigation from him on 23.10.1997. Des Raj, DSP, the then SHO, P.S.Khuian Sarwar has been examined as PW-12. No cross-examination was conducted on him in respect of investigation of the driver and the conductor of the bus having been joined in the investigation by him, as deposed by ASI Banta Singh. In their statements, recorded under Section 313 Cr.P.C., the appellant as well as other co-accused denied all the incriminating circumstances appearing against them in the prosecution evidence. They, however, asserted that the occurrence has taken place in the bus and they have been falsely implicated. In their defence, the accused examined Gurcharan Singh – the driver of the bus as DW-1 and Buta Singh as DW- 2. DW-1 Gurcharan Singh stated that some passengers boarded the bus from Haripura and that the next stoppage was village Telupura. He stated that when he was about half kilometer from village Telupura, some persons started fighting in the bus i.e. some students. One student namely Golu resident of Village Haripura gave a stab injury with knife to another student Malkiat Singh. He stated that he stopped the bus and Golu got down from the bus and fled away. Thereafter, he took the bus to the police station, where he met ASI Banta Singh and narrated the incident to him. He stated that ASI Banta Singh told him to go and thereafter he went to Abohar on the bus. In his cross-examination, he stated that he did not disclose his statement to any police official earlier and that he orally narrated the incident to the owner of the transport. He did mention that his statement was recorded by the police on 23.10.1997, but did not state in his statement to the police that the fight took place at bus stand Telupura and not inside the bus. He denied the suggestion that no fight took place in the bus nor he saw the occurrence. DW-2 Buta Singh has proved the statements Ex.DA and Ex.DC of Ranjit Kumar and Ganesh made in proceedings against Golu, who was tried by the Juvenile Court.
After considering the entire evidence on record, the learned trial Court found that accused Nos.2 to 7 i.e. other than the appellant were not named in the FIR and were found innocent during the course of investigation, therefore, these accused cannot be said to have shared any common intention with the main accused Golu. The learned trial Court has also noticed that the names of other accused were disclosed by PW-3 Jagdish Kumar, when his statement was recorded in the later part of the day in the hospital. It was found that PW-5 Ganesh Chander – complainant has not identified the accused and he has not given any identification of the accused in the FIR, therefore, in the absence of test identification parade, it cannot be said that how he can identify the accused in the court for the first time. It was also noticed that the said witness has not been able to point out as to which weapon was with each of the other accused. In respect of Raju accused, who has said to have given stick blow to Ranjit Kumar, the learned trial Court recorded a finding that there is no reason as to why Ranjit Kumar was not shifted to hospital along-with other injured Jagdish Kumar and deceased Malkiat Kumar. Still further, there is over-writing in the medico-legal report Ex.PB, wherein time appears to have been changed from 7.10 pm to 12.10 pm. The learned trial Court concluded that the injury on his person was fabricated in order to introduce him as a witness to provide corroboration to the version given by other prosecution witnesses. Raju was not a student of the college on those days and for the last 2/3 years he was not attending the college. The learned trial Court held that by holding a small stick in his hand, he cannot be have a common intention with Golu and Prince, who were holding deadly weapons. Considering the entire evidence led by the parties, the learned trial Court granted benefit of doubt to Ajay Kumar, Raju, Vinod Kumar, Karaj Singh, Kulwinder Kumar and Kaveesh Kumar, whereas convicted and sentenced Prince Kumar – appellant, as mentioned above.
Before this Court, learned counsel for the appellant has vehemently argued that the prosecution case is full of contradictions and is not based upon reliable evidence. It is contended that the injury on the person of the deceased cannot be caused with a knife. The injury can be caused by only a sharp edged weapon such as Sua and not by knife. The occurrence has taken place in the bus, as is deposed by DW-1 Gurcharan Singh, the driver of the bus, but the prosecution has shifted the place of occurrence at village Telupura. The prosecution has not led any evidence of the blood stained earth recovered from the place of occurrence. The evidence of Ranjit Kumar has been right disbelieved by the learned trial Court, as the cutting in the medico legal report has not been explained by Doctor and that there is no evidence that the injury attributed the appellant is dangerous to life, so as to convict the appellant for an offence punishable under Section 307 IPC.
The learned trial Court has disbelieved the evidence of Ranjit Kumar primarily for the reason that he was not taken to the hospital alongwith Jagdish, who was medico legally examined at about 9.40 am and that there is overwriting in the medico legal report of Ranjit Kumar i.e. from 7.10 pm to 12.10 pm. We are of the opinion that the findings recorded by the learned trial Court so as to disbelieve Ranjit Kumar are not sustainable in law. The veracity of the statement of Ranjit Kumar could not have been brushed aside only for the reason of overwriting in the MLR. PW-8 Dr.Sandeep Kumar, who has conducted medico legal examination has categorically stated in his cross-examination that Ranjit Kumar was brought to him at about 12.10 pm. He has denied the suggestion that in the column of arrival, the time was converted from 7.10 pm to 12.10 pm at the instance of police and the complainant. He also denied the suggestion that he was medico legally examined at 7.30 pm, but converted to 12.30 pm. He further stated that he sent the medico legal report to the police immediately i.e. within 10-15 minutes. Once the Doctor is categorical of Ranjit Kumar having brought for the purpose of medical examination at 12.10 pm, the inference drawn by the learned trial Court cannot be said to be justified.
PW-5 Ganesh Chander and PW-3 Jagdish Kumar are residents of village Telupura. As per the evidence on record, the route of the bus was Haripura and then to village Telupura on way to Abohar. Therfore, the place of occurrence cannot be said to be the bus, as the accused are residents of Village Haripura and have travel to Telupura of which village Malkiat Kumar- deceased and PW-5 Ganesh Chander and PW-3 Jagdish Kumar are the residents. It is probable and natural sequence of events. ASI Banta Singh – the Investigating Officer has deposed the evidence of lifting of sample earth and blood stained earth but no cross examination was conduicted on the witness. He has further deposed that the driver of the bus was associated in the investigations by Inspector, but the said Inspector has not been cross-examined on the question of statement recorded by him.
DW-1 Gurcharan Singh in his cross-examination has stated that his statement was recorded on 23.10.1997 by the police. The failure to cross-examine the Inspector, shows that DW-1 Gurcharan Singh – Driver was not a truthful witness. Still further, DW-1 Gurcharan Singh has not made any complaint to the police that he is witness to the occurrence. The occurrence cannot taken place in the bus, as the same was proceeding from Haripura i.e. the village of the accused to village Telupura, the village of the victims. Therefore, the place of occurrence is village Telupura and not the bus, as sought to be propounded by the accused. The medical evidence in respect of extent of injury shows that a wound of the size 1.7 cm x .2 cm. It may not be sufficient to come to the conclusion that the weapon of offence was not knife. All the three witnesses i.e. PW-2 Ranjit Kumar, PW-5 Ganesh Chander and PW-3 Jagdish Kumar have deposed that the accused Golu (juvenile) and the appellant Prince were armed with knife. The extent of injury on the person of the deceased depends upon number of factors such as the angle at which knife was inflicted, the force and the reaction of the victim. Keeping in view the consistent eye-witness account deposed by PW-2 Ranjit Kumar, PW-5 Ganesh Chander and PW-3 Jagdish Kumar, we find that the size of injury cannot be sufficient to arrive at a conclusion that the weapon of offence was not knife.
No doubt, Ranjit Kumar has reached at the hospital at about 12.10 pm, as against Jagdish, who has reached the hospital at about 9.40 am, but the fact remains that injury on the person of Jagdish is an open wound i.e. with knife and Ranjit Kumar has received blunt injury with lathi. Keeping in view the nature of injury received, the time taken by Ranjit Kumar to reach hospital cannot lead to inference that he was not present at the time of occurrence. We may notice that even if his evidence is excluded from consideration, still the testimonies of PW-5 Ganesh Chander and PW-3 Jagdish Kumar are consistent and sufficient to maintain conviction of the appellant.
The argument that it was a case of sudden provocation amongst the students leading to inflicting of blow by Golu on the person of the deceased Malkiat, and on Jagdish by the appellant is not made out. Golu and the appellant Prince are residents of village Haripura and have boarded the bus armed with sharp edged weapon i.e. knife. They travel kms. from village Haripura to village Telupura. The act of traveling together, armed with dangerous weapons of offence knowing fully well that they would encounter Malkiat Kumar and Jagdish Kumar at the next stop, shows that it was well planned and premeditated intention, which has taken the life of Malkiat Kumar. The appellant has shared common intention with Golu, when both of them attacked on Malkiat Kumar and Jagdish Kumar at village Telupura. Therefore, we do not find any merit in the argument raised that it was not a planned conspiracy with common intention.
In view of the above, we dismiss the appeal filed by the appellant Prince as the learned trial court has appreciated evidence in proper perspective.
In respect of criminal revision filed by the complainant Jagdish Chander, we are of the opinion that the view taken by the learned trial Court is a possible view on the basis of evidence led before it. It could not be pointed out that any evidence has not been taken into consideration or has been misread. In a revision, we find that the findings recorded by the learned trial court cannot be said to be perverse which may entitle this Court to take a different view than what has been taken by it. With the above observations, the appeal as well as the criminal revision stand dismissed.