The State Vs. Khazan Chand and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/899171
SubjectCriminal
CourtJammu and Kashmir High Court
Decided OnAug-20-1992
Case NumberAcquittal Appeal No. 29 of 1981
Judge R.P. Sethi, J.
Reported in1994CriLJ460
ActsEvidence Act - Section 32(1); ;Ranbir Penal Code (IPC), 1989 - Sections 147, 148, 149, 299, 300, 304, 323 and 334
AppellantThe State
RespondentKhazan Chand and ors.
Appellant Advocate S.K. Gupta, Addl. Adv. General
Respondent Advocate G.N. Goni, Adv.
Cases ReferredGodhu v. State of Rajasthan
Excerpt:
- r.p. sethi, j.1. the accused-respondents were charge-sheeted under sections. 304 and 323 read with section 149, r.p.c. by the learned sessions judge, kathua and after conclusion of the trial, were acquitted of the charges vide the judgment impugned in this appeal. it is submitted that the judgment of the trial court is erroneous both in law and facts of the case and that the offences under sections. 304, 323, 147 and 148, r.p.c. were fully established from the evidence on record but the court below failed to properly appreciate the evidence led in the case. there was no justification for not believing the prosecution evidence as was done by the trial court. the minor discrepancies were not sufficient to order acquittal of the respondents.2. according to the prosecution krishen pw along with the complainant, his brother and mother lodged a report in police station, billawar on 18-10-1978 alleging therein that on 14-10-1978 at about 9/10 a.m. while he along with his mother, was going from their cattle shed they met accused khazan chand enroute in the fields of the jagatu. the accused khazan chand had cut grass from their land several times. the complainant requested him not to repeate the cutting of grass in future which infuriated the said accused who indulged in vituperations so loudly that rest of the accused, one of whom is his wife and the other women folk of the homstead arrived at spot and indulged in abuses likewise. all the respondents are alleged to have assaulted the complainant and his mother wherein accused khazan chand inflicted one blow with lathi to the complainant and his mother. the women folk from the accused side indulged in brick batting which struck his mother. the mother of the complainant was thrown on the ground and beat with fists and kicks. due to timely intervention of jagatu and other persons the complainant and his mother were rescued from the clutches of the accused. mst. durgi's condition deteriorated on account of the beating with the result that she was admitted in the nearby dispensary. the report was delayed on account of the deterioration in the condition of mst. durgi who was thereafter shifted to hospital at kathua by the doctor attending on her at bilktwar wherefrom she was again shifted to saddar hospital, jammu, where she succumbed to her injuries and died on 24-10-1978. upon post-mortem the doctor opined that her death was as a result of suppurative peritonitis. alter completion of the investigation, the challan was produced in the court and upon conclusion of the trial the accused were acquitted.3. in order to prove their case the prosecution examined krishen, jagtu, inder, mast, ram, sant ram, gorkhu, isher dass, ali mohd patwari, krishen lal, mukhtiar singh, dr. inder singh, radiologist, dr. r. k. gupta, dr. ved bhushan, dr. nirmal gupta and dilip singh, sho in support of its case. in defence the accused persons produced durga dass and manzoor ahmed constables as their witnesses.4. i have heard learned counsel for the parties and perused the record.5. learned counsel appearing for the appellant has submitted that the court below has not properly appreciated the evidence of pws krishen, jagtu and indroo. krishen is admittedly the son of the deceased who would normally not make a false statement in a case in which his mother has died. he would be interested to see that the real culprits got convicted. however, the possibility of exaggerated version or improvements cannot be ruled out. from the evidence of krishen, jagtu and indru, pws, it is established that injuries were caused with the sticks, kicks, blows and stones and the mere fact that the injury found on the person of the deceased could not be related to the stick, was not sufficient to hold that the prosecution had failed to prove the case against the respondents. the minor discrepancies in the statements of the witnesses are sure to arise in a case particularly when their statements are recorded after a lapse of time and the perception differed from person to person. in bharat singh v. state of uttar pradesh, air 1972 sc 2478 : (1972 cri lj 1704) it was held that the contradictions in the evidence of the prosecution witnesses regarding the weapon of offence possessed by the accused do not discredit the testimony of such witnesses. it was further held that in the confusion of the moment the witnesses are prone to such errors especially if seized by sudden fear. in that case the discrepancies referred to regarding the weapon of offence were as to whether the accused had used a hockey stick or pistol. the supreme court on facts of the case, held (para 7):it is then said that there are serious contradictions in the evidence of the prosecution witnesses which have not been considered by the high court but this argument also does not impress us. for example, whereas rahman shah says that the appellant was carrying a weapon like a hockey stick another witness called safiq says that the appellant was armed with a pistol. it is common experience that in the confusion of the moment witnesses are prone to make such errors especially if seized by sudden fear. besides, those who are determined to be lawless do not always stick to their weapons.dr. nirmal gupta who examined mst. durgi on 18-10-1978 found the following injuries on her person:1. an abraison over the righ back of abdomen about 5' away from the mid line and over the right iliac crest. the size of the crest was 1 cm x 1 cm. healing had started taking place;2. pain and tenderness in the right iliac fossa. no external mark of injury was found. muscle guard present.3. pain and tenderness in both sides of lower chest present.in his opinion the injuries were caused by a blunt object and were of 4/ 5 days duration. he has proved the certificate ex. pwmg. he also examined krishen pw and found abrasion over the middle of left clavicle of vi cm x l/2 cm. the doctor has opined that this injury could not be caused by the stick, ex. pi.6. dr. bhushan gupta who was registrar of surgery, in smgs hospital, jammu, proved his report ex. pwvb wherein stated:1. the surgery was conducted as diagnosis ! of perforation gut was suspected;2. the possible cause could be blunt trauma, as it was a simple perforation with mucosa protruding out from the tear.3. before the surgery was conducted the history of patient dated back 7th days and during this time suppuration can result because of the contents leaking into the peritoneal cavity;4. it could possibly be the cause of external trauma or the violence;5. any blunt weapon can result into such .; injury. he has opined that the injury could be caused by kicks to the deceased and was sufficient to cause the death of the deceased.7. dr. r. k. gupta, who conducted the post-mortem examination of mst. durgi, opined that the deceased died as a result of suppurative peritonitis. the trial court did not rely upon the testimony of eye-witnesses ' merely on the ground of the alleged contradictions regarding the infliction of injuries by stick, kicks, fist-blows or stones. pw krishen had specifically stated that khazan chand accused had kicked his mother in the belly. it is admitted that the complainant had stated regarding the infliction of injuries by kicks to his mother but the court below adopting a hyper technical approach, found that the particular kick which was the cause of death was not referred to specifically in the fir. the statement of indru has not been believed on the ground that he has been working in his field at the time when occurrence took place and that he could not have seen the occurrence. it has wrongly been held by the court below that the said witness introduced a new story. infliction of injury with kicks and blows by khazan chand is admitted by all the prosecution witnesses. the court below was, therefore, not justified in rejecting the testimony of the eye-witnesses.8. the dying declaration of the deceased was rejected by the trial court allegedly on the ground that the deceased, in fact, had made many such dying declarations. such declaration was also rejected on the ground that the same was made by the deceased in the company of her son which, according to the trial court, being joint declaration was no dying declaration. the alleged two versions of the dying declarations by mst. durgi, were made to the naib sarpanch sant ram in presence of krishen pw. she is stated to have specifically mentioned that master khazan chand was responsible for beating her. it is noted by the trial court that mst. durgi had stated that khazan chand had kicked her in the belly. the alleged contradictions, in fact, do not exist and the trial court has wrongly rejected the dying declaration of the deceased.9. it is well settled proposition of law that dying declaration itself is not sufficient to warrant conviction unless it is corroborated by some other evidence. it has to be closely scrutinized as to its truthfulness like any other important piece of evidence in the light of the surrounding circumstances and the circumstances of the case bearing in mind that the statement is by a person who is dying and normally is not likely to implicate innocent person falsely. the supreme court held in godhu v. state of rajasthan, air 1974 sc 2188 : (1974 cri lj 1500) that if apart of the dying declaration is proved to be false, whole of the dying declaration cannot be rejected. in that case two parts of the dying declaration were held separable. one was treated as false while the other was relied upon. the statement made to the police by the victim who subsequently succumbed to the injuries is admissible under section 32(1) of the evidence act provided the statement related to the cause of his death. mst. ram pw has specifically stated that upon enquiry mst. durgi the deceased had told him unequivocally that khanzan chand accused-respondent had inflicted the injuries on her belly along with other accused persons. sant ram p.w. 5 has also stated that when he reached home he found mst. durgi in the company of krishen lying on the ground and upon enquiry she told that khazan chand accused had beaten her. isher dass pw who is the son-in-law of the deceased has also stated that mst. durgi had told him regarding the infliction of injury by khazan chand along with others. from the fir it also appears that mst. durgi who had gone to lodge the report along with her son had stated that the injuries were caused by khazan chand and other accused persons.10. on a critical examination of the prosecution evidence it is established that the occurrence had taken place in which mst. durgi, the deceased and her son krishen, were injured. it is also established that khazan chand had inflicted fatal blow on the belly of mst. durgi. it has been established beyond any doubt that mst. durgi died on account of the injury caused on her person by khazan chand respondent. there is no major contradiction requiring rejection of whole of the prosecution story or version. however, there appears to be some exaggerations and minor improvements in the depositions of the prosecution witnesses so far as they have tried to connect the other ladies accused with the commission of the crime. the prosecution did not succeed in proving beyond doubt regarding the involvement of ishro, gungi, gali and chanchlo in the occurrence. khazan chand has been proved to be responsible for infliction of the injuries on the person of mst. durgi.11. it has, however, to be seen at this stage as to of what offence khazan chand respondent can be convicted and sentence. in order to attract the provisions of s. 340, rpc the prosecution is under an obligation to prove that the accused had committed culpable homicide not amounting to murder. for holding a person guilty for culpable homicide it has to be established that the death was caused by doing an act with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death or with the knowledge that he was likely by such act to cause death. a person who causes bodily injury to another knowing that such person is labouring under a disorder, disease or bodily infirmity and thereby accelerates the death of that person, is also deemed to be responsible for causing his death. in the instant case, there does not appear to be any circumstances showing or suggesting the existence or knowledge on the part of khazan chand respondent to cause culpable homicide within the meaning of section 299, r.p.c. he is also not shown to be aware of the fact that mst. durgi was labouring under any disorder, disease or bodily infirmity. under exception (4) to section 300 culpable homicide is not murder if it is committed without premeditation in sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. the injury received by mst. durgi, according to dr. nirmal kumar gupta, has not been found to be grievous and has, therefore, presumed to , be simple in nature. the accused khazan chand has, therefore, been proved to have caused hurt to mst. durgi and krishen with the knowledge of causing such hurt to them and is, therefore, guilty of an offence punishable under section 323, r.p.c. he is not entitled to the exception of circumstances as contemplated by section 334, r.p.c.12. under the circumstances this appeal in so far as accused-respondents, namely, mst. ishroo, mst. gugni, mst. golo and mst. chanchallo, is dismissed. khazan chand respondent is held guilty and convicted for the commission of offence under section 323, r.p.c. upon proof of the offence under section 323, r.p.c., khazan chand respondent is sentenced to undergo rigorous imprisonment for nine months and to pay a fine of rs. 1,000/ - in default of payment of fine he shall further undergo ri for 3 months more. out of the amount of fine when realised, a sum of rs. 800/- shall be paid to krishen pw, the son of the deceased.
Judgment:

R.P. Sethi, J.

1. The accused-respondents were charge-sheeted under Sections. 304 and 323 read with Section 149, R.P.C. by the learned Sessions Judge, Kathua and after conclusion of the trial, were acquitted of the charges vide the judgment impugned in this appeal. It is submitted that the judgment of the trial Court is erroneous both in law and facts of the case and that the offences under Sections. 304, 323, 147 and 148, R.P.C. were fully established from the evidence on record but the Court below failed to properly appreciate the evidence led in the case. There was no justification for not believing the prosecution evidence as was done by the trial Court. The minor discrepancies were not sufficient to order acquittal of the respondents.

2. According to the prosecution Krishen PW along with the complainant, his brother and mother lodged a report in Police Station, Billawar on 18-10-1978 alleging therein that on 14-10-1978 at about 9/10 a.m. while he along with his mother, was going from their cattle shed they met accused Khazan Chand enroute in the fields of the Jagatu. The accused Khazan Chand had cut grass from their land several times. The complainant requested him not to repeate the cutting of grass in future which infuriated the said accused who indulged in vituperations so loudly that rest of the accused, one of whom is his wife and the other women folk of the homstead arrived at spot and indulged in abuses likewise. All the respondents are alleged to have assaulted the complainant and his mother wherein accused Khazan Chand inflicted one blow with Lathi to the complainant and his mother. The women folk from the accused side indulged in brick batting which struck his mother. The mother of the complainant was thrown on the ground and beat with fists and kicks. Due to timely intervention of Jagatu and other persons the complainant and his mother were rescued from the clutches of the accused. Mst. Durgi's condition deteriorated on account of the beating with the result that she was admitted in the nearby dispensary. The report was delayed on account of the deterioration in the condition of Mst. Durgi who was thereafter shifted to hospital at Kathua by the doctor attending on her at Bilktwar wherefrom she was again shifted to Saddar hospital, Jammu, where she succumbed to her injuries and died on 24-10-1978. Upon post-mortem the doctor opined that her death was as a result of suppurative peritonitis. Alter completion of the investigation, the challan was produced in the Court and upon conclusion of the trial the accused were acquitted.

3. In order to prove their case the prosecution examined Krishen, Jagtu, Inder, Mast, Ram, Sant Ram, Gorkhu, Isher Dass, Ali Mohd Patwari, Krishen Lal, Mukhtiar Singh, Dr. Inder Singh, Radiologist, Dr. R. K. Gupta, Dr. Ved Bhushan, Dr. Nirmal Gupta and Dilip Singh, SHO in support of its case. In defence the accused persons produced Durga Dass and Manzoor Ahmed constables as their witnesses.

4. I have heard learned Counsel for the parties and perused the record.

5. Learned counsel appearing for the appellant has submitted that the Court below has not properly appreciated the evidence of PWs Krishen, Jagtu and Indroo. Krishen is admittedly the son of the deceased who would normally not make a false statement in a case in which his mother has died. He would be interested to see that the real culprits got convicted. However, the possibility of exaggerated version or improvements cannot be ruled out. From the evidence of Krishen, Jagtu and Indru, PWs, it is established that injuries were caused with the sticks, kicks, blows and stones and the mere fact that the injury found on the person of the deceased could not be related to the stick, was not sufficient to hold that the prosecution had failed to prove the case against the respondents. The minor discrepancies in the statements of the witnesses are sure to arise in a case particularly when their statements are recorded after a lapse of time and the perception differed from person to person. In Bharat Singh v. State of Uttar Pradesh, AIR 1972 SC 2478 : (1972 Cri LJ 1704) it was held that the contradictions in the evidence of the prosecution witnesses regarding the weapon of offence possessed by the accused do not discredit the testimony of such witnesses. It was further held that in the confusion of the moment the witnesses are prone to such errors especially if seized by sudden fear. In that case the discrepancies referred to regarding the weapon of offence were as to whether the accused had used a hockey stick or pistol. The Supreme Court on facts of the case, held (para 7):

It is then said that there are serious contradictions in the evidence of the prosecution witnesses which have not been considered by the High Court but this argument also does not impress us. For example, whereas Rahman Shah says that the appellant was carrying a weapon like a hockey stick another witness called Safiq says that the appellant was armed with a pistol. It is common experience that in the confusion of the moment witnesses are prone to make such errors especially if seized by sudden fear. Besides, those who are determined to be lawless do not always stick to their weapons.

Dr. Nirmal Gupta who examined Mst. Durgi on 18-10-1978 found the following injuries on her person:

1. An abraison over the righ back of abdomen about 5' away from the mid line and over the right iliac crest. The size of the crest was 1 cm x 1 cm. Healing had started taking place;

2. Pain and tenderness in the right iliac fossa. No external mark of injury was found. Muscle guard present.

3. Pain and tenderness in both sides of lower chest present.

In his opinion the injuries were caused by a blunt object and were of 4/ 5 days duration. He has proved the certificate Ex. PWMG. He also examined Krishen PW and found abrasion over the middle of left clavicle of Vi cm x l/2 cm. The doctor has opined that this injury could not be caused by the stick, Ex. PI.

6. Dr. Bhushan Gupta who was Registrar of Surgery, in SMGS Hospital, Jammu, proved his report Ex. PWVB wherein stated:

1. The surgery was conducted as diagnosis ! of perforation gut was suspected;

2. The possible cause could be blunt trauma, as it was a simple perforation with mucosa protruding out from the tear.

3. Before the surgery was conducted the history of patient dated back 7th days and during this time suppuration can result because of the contents leaking into the peritoneal cavity;

4. It could possibly be the cause of external trauma or the violence;

5. Any blunt weapon can result into such .; injury. He has opined that the injury could be caused by kicks to the deceased and was sufficient to cause the death of the deceased.

7. Dr. R. K. Gupta, who conducted the post-mortem examination of Mst. Durgi, opined that the deceased died as a result of suppurative peritonitis. The trial Court did not rely upon the testimony of eye-witnesses ' merely on the ground of the alleged contradictions regarding the infliction of injuries by stick, kicks, fist-blows or stones. PW Krishen had specifically stated that Khazan Chand accused had kicked his mother in the belly. It is admitted that the complainant had stated regarding the infliction of injuries by kicks to his mother but the Court below adopting a hyper technical approach, found that the particular kick which was the cause of death was not referred to specifically in the FIR. The statement of Indru has not been believed on the ground that he has been working in his field at the time when occurrence took place and that he could not have seen the occurrence. It has wrongly been held by the Court below that the said witness introduced a new story. Infliction of injury with kicks and blows by Khazan Chand is admitted by all the prosecution witnesses. The Court below was, therefore, not justified in rejecting the testimony of the eye-witnesses.

8. The dying declaration of the deceased was rejected by the trial Court allegedly on the ground that the deceased, in fact, had made many such dying declarations. Such declaration was also rejected on the ground that the same was made by the deceased in the company of her son which, according to the trial Court, being joint declaration was no dying declaration. The alleged two versions of the dying declarations by Mst. Durgi, were made to the Naib Sarpanch Sant Ram in presence of Krishen PW. She is stated to have specifically mentioned that Master Khazan Chand was responsible for beating her. It is noted by the trial Court that Mst. Durgi had stated that Khazan Chand had kicked her in the belly. The alleged contradictions, in fact, do not exist and the trial Court has wrongly rejected the dying declaration of the deceased.

9. It is well settled proposition of law that dying declaration itself is not sufficient to warrant conviction unless it is corroborated by some other evidence. It has to be closely scrutinized as to its truthfulness like any other important piece of evidence in the light of the surrounding circumstances and the circumstances of the case bearing in mind that the statement is by a person who is dying and normally is not likely to implicate innocent person falsely. The Supreme Court held in Godhu v. State of Rajasthan, AIR 1974 SC 2188 : (1974 Cri LJ 1500) that if apart of the dying declaration is proved to be false, whole of the dying declaration cannot be rejected. In that case two parts of the dying declaration were held separable. One was treated as false while the other was relied upon. The statement made to the police by the victim who subsequently succumbed to the injuries is admissible under Section 32(1) of the Evidence Act provided the statement related to the cause of his death. Mst. Ram PW has specifically stated that upon enquiry Mst. Durgi the deceased had told him unequivocally that Khanzan Chand accused-respondent had inflicted the injuries on her belly along with other accused persons. Sant Ram P.W. 5 has also stated that when he reached home he found Mst. Durgi in the company of Krishen lying on the ground and upon enquiry she told that Khazan Chand accused had beaten her. Isher Dass PW who is the son-in-law of the deceased has also stated that Mst. Durgi had told him regarding the infliction of injury by Khazan Chand along with others. From the FIR it also appears that Mst. Durgi who had gone to lodge the report along with her son had stated that the injuries were caused by Khazan Chand and other accused persons.

10. On a critical examination of the prosecution evidence it is established that the occurrence had taken place in which Mst. Durgi, the deceased and her son Krishen, were injured. It is also established that Khazan Chand had inflicted fatal blow on the belly of Mst. Durgi. It has been established beyond any doubt that Mst. Durgi died on account of the injury caused on her person by Khazan Chand respondent. There is no major contradiction requiring rejection of whole of the prosecution story or version. However, there appears to be some exaggerations and minor improvements in the depositions of the prosecution witnesses so far as they have tried to connect the other ladies accused with the commission of the crime. The prosecution did not succeed in proving beyond doubt regarding the involvement of Ishro, Gungi, Gali and Chanchlo in the occurrence. Khazan Chand has been proved to be responsible for infliction of the injuries on the person of Mst. Durgi.

11. It has, however, to be seen at this stage as to of what offence Khazan Chand respondent can be convicted and sentence. In order to attract the provisions of S. 340, RPC the prosecution is under an obligation to prove that the accused had committed culpable homicide not amounting to murder. For holding a person guilty for culpable homicide it has to be established that the death was caused by doing an act with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death or with the knowledge that he was likely by such act to cause death. A person who causes bodily injury to another knowing that such person is labouring under a disorder, disease or bodily infirmity and thereby accelerates the death of that person, is also deemed to be responsible for causing his death. In the instant case, there does not appear to be any circumstances showing or suggesting the existence or knowledge on the part of Khazan Chand respondent to cause culpable homicide within the meaning of Section 299, R.P.C. He is also not shown to be aware of the fact that Mst. Durgi was labouring under any disorder, disease or bodily infirmity. Under Exception (4) to Section 300 culpable homicide is not murder if it is committed without premeditation in sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. The injury received by Mst. Durgi, according to Dr. Nirmal Kumar Gupta, has not been found to be grievous and has, therefore, presumed to , be simple in nature. The accused Khazan Chand has, therefore, been proved to have caused hurt to Mst. Durgi and Krishen with the knowledge of causing such hurt to them and is, therefore, guilty of an offence punishable under Section 323, R.P.C. He is not entitled to the exception of circumstances as contemplated by Section 334, R.P.C.

12. Under the circumstances this appeal in so far as accused-respondents, namely, Mst. Ishroo, Mst. Gugni, Mst. Golo and Mst. Chanchallo, is dismissed. Khazan Chand respondent is held guilty and convicted for the commission of offence under Section 323, R.P.C. Upon proof of the offence under Section 323, R.P.C., Khazan Chand respondent is sentenced to undergo rigorous imprisonment for nine months and to pay a fine of Rs. 1,000/ - in default of payment of fine he shall further undergo RI for 3 months more. Out of the amount of fine when realised, a sum of Rs. 800/- shall be paid to Krishen PW, the son of the deceased.