Kumar Vs. State of Punjab  INSC 513 (6 May 1997)
MUKHERJEE, K. VENKATASWAMI
6TH DAY OF MAY, 1997 Present:
Mr. Justice M.K. Mukherjee Hon'ble Mr. Justice K. Venkataswami Ram Jethmalani,
U.R. Lalit, Sr.Advs., P.K.Dey, Sanjay M. Tripathi, Advs for (Ms. Rani Jethmalani)
Adv. with them of the appellants.
Adv, for R.S. Sodhi, Adv. for the Respondent
following Judgment of the Court was delivered:
Kumar, the appellant before us, his brother Narinder Kumar and father Om Prakash
were tried by the Session Judge, Jullunder for an offence punishable under
Section 302/34 I.P.C. on the allegation that on April 15, 1986 they committed the murder of Yudhvir in furtherance of
their common intention. While acquitting Om Parkash of the above offence the
trial Judge convicted the other two and sentenced each of them to suffer
imprisonment for life and pay fine. As the appeal preferred by the two convicts
was dismissed by the High Court they filed a petition before this Court seeking
special leave to appeal. Such leave was granted to the appellant only and hence
this appeal at his instance.
(the deceased) along with his brother Jyoti Parkash and father Sukhdev Raj
(P.W.5) used to reside at Basti Sheikh in the city of Jullunder, Dharam Pal (P.W.6), brother of Sukhdev,
also resided in the same locality in an adjacent house. Om Parkash is married
to the sister of Sukhdev's father and his house is situated at a distance of
about 75 yards from the house of Sukhdev.
to the prosecution case about three or four days prior to the incident, with
which we are concerned in this appeal, Narinder and Sanjeev had quarrelled with
Yudhvir and in course thereof exchanged abuses. The matter was, however,
settled at the instance of the respectable people of their locality.
the further prosecution case that on April 15, 1986 Yudhvir Left his house at or about 6.15 A.M. for his usual morning stroll. Shortly thereafter Sukhdev
and Jyoti Parkash who were in their house heard shouts `bachao bachao'. Both of
them then rushed towards the direction wherefrom the shouts emanated. Dharm Pal
also came out of his house and followed Sukhdev and Jyoti Parkash. Proceeding
ahead they found Yudhvir in the grip of Om Parkash and Sanjeev and Narinder
standing there with a dagger and a kirch respectively. Om Parkash raised a lalkara
exhorting his sons to kill Yudhvir and thereupon they started inflicting blows
on Yudhvir with their respective weapons.
consequence thereof Yudhvir fell down on the ground with bleeding injuries.
When Sukhdev, Dharam Pal and Jyoti Parkash raised alarms the three miscreants
left the spot along with their weapons. Sukhdev and Dharam Pal immediately
removed Yudhvir to Civil Hospital, Jullunder in an autorickshaw and got him admitted there.
Dr. Aneja conducted his medico-legal examination and noticed the following
Incised would about 4" x 2" was present on the abdomen on left side,
present in the left unbilical region and extending upto the mid line. Fresh
profuse bleeding was present. Intestines were protruding out of the wound and amentum
was protruding out of the wound.
Incised wound 1 1/4" x 1/2" present on anterior surface of chest,
right side near the mid line about 2 1/2 below and towards right side of sternal
notch. Fresh bleeding was present. X-ray was advised.
Incised wound 2 1/2" x 1/2" muscle deep present on anterior surface
of left upper arm in upper part. Fresh bleeding was present.
Incised wound 1 1/2" x 1/2" into muscle deep present just above
injury No.3 and was communicating to injury No.3. Fresh bleeding was present.
Incised wound 1 1/2" x 1/3" into muscle deep present on the ventral
surface of left forearm in lower part. Fresh bleeding was present." On the
same day at 6 P.M. Sukhdev Raj went to the police station and lodged a report,
which was recorded by A.S.I. Swaran Singh (P.W.7) and a case was registered.
by Sukhdev Raj, A.S.I. Swaran Singh came to the spot and after inpsection
prepared a site plan. On April
17, 1986 Yudhvir
succumbed to his injuries and consequently the case registered against the
accused was converted to one under Section 302/34 I.P.C. On completion of
investigation police submitted challan against Narinder Kumar only but after
the matter was reinvestigated by Shri Umrao Singh, S.P. Crime a supplementary challan
was put in against Sanjeev Kumar and Om Parkash also.
appellant pleaded not guilty to the charge levelled against him and contended
that he had been falsely implicated in the case.
support of its case the prosecution examined ten witnesses of whom Sukhdev Raj
(P.W.5) and Dharam Pal (P.W.6) figured as eye-witnesses. No witness was however
examined on behalf of the defence. The trial Court found the evidence of the
above two witnesses trustworthy so far as it related to the role played by two
brothers in the murderous assault on the deceased and a motive to commit the
crime. As, according to the trial Court, their evidence stood corroborated be
the medical evidence, it convicted the appellant and his brother. The trial
court, however, gave benefit of doubt to Om Prakash and acquitted him by way of
abundent caution. The High Court agreed with all the findings of the trial
court and accordingly dismissed the appeal.
the learned counsel appearing for the appellant, firstly drew our attention to
the following statement made by A.S.I, Swaran Singh (P.W.7) in his cross examination
reached Civil Hospital Jullunder on 15.4.1986 at about 1 P.M. Sukhdev Raj and Dharam
Pal PWs were also present in Civil Hospital, Jullunder at that time. I had
asked them to make their statements but they did not make any statement before
me concerning the occurrence at that time. I made an entry in this regard in
the daily register on my arrival at the police station." and the daily
entry of Jullunder Police Station, Division No. 5 dated 15.4.1986 made by him
at 3.40 P.M. (Exhibit DF), to the same effect and contended that refusal on the
part of the two eye witnesses to make any statement regarding the incident even
after four hours clearly indicated that they were still contemplating as to how
a story of assault was to be yarned. From the testimonies of the two eye
witnesses we find that when they were cross examined on this aspect of the
matter they asserted that P.W.7 did not meet them in the hospital nor did he
enquire as to how the assault tool place, P.W.5 also stated that he remained
busy for arranging blood in order to save the life of his son. In accepting the
statements of the eye witnesses in preference to that of the Investigating
Officer in this regard and rejected a similar contention raised before it, the
High Court pointed out that several complaints were made by Sukhdev against he
conduct of investigation of P.W.7 and he also admitted certain lapse in the
investigation. The High Court accordingly concluded that it could not be said
that the eye witnesses did not have a version of the incident till lodging of
the FIR at 6 P.M. Having given our anxious
consideration to the contention raised by Mr. Jethmalani in this behalf we find
no reason to differ from the views expressed by the High Court.
next contended that there was an inordinate and unexplained delay in lodging
the F.I.R. in that, thought according to the prosecution the incident took
place at 6.30 A.M. it was lodged at the police station
at 6.15 P.M. which, admittedly, was at a
distance of two furlong from the spot. In repelling this contention when raised
before it, the High Court observed as under:- "Om Parkash accused is
closely related to Sukhdev Raj. He is married to the latter's father's sister.
Dr. Naja and Dr. Parmar have graphically described the condition of injured Yudhvir.
condition of the patient was critical. He was in the peripheral circulatory
failure. He was being transfused poor.
of the condition was explained to his relative. The operation upon the patient
was started at 9.00
a.m. Because of stab
wound in the chest there was a root in the pleura through which air and blood
were coming out.
the operation the patient was kept in the recovery room of the operation
theatre and was shifted to the ward. General condition of the patient was
serious in the ward also. Patient was having respiratory distress. The intercostal
tube in the sixth intercostal space was blocked and it was over changed. Three
incisions were given over the chest wall to relieve the respiratory distress.
During the post-operative period the condition of the patient remained stormy.
eye witnesses have explained that they remained busy in attending to the
injured and arranging for blood and medicines.
a well know fact that the block is not easily available in the Muffasil town
and it can be obtained after making serious efforts. The operation on the
injured lasted about five hours. It can be safely inferred that fairly large
amount of blood must have been needed during and after the operation. So the
explanation of the witnesses regarding their not lodging the report is
acceptable especially as, when the accused to be named were closely related.
Raj was already under stress because of the precarious condition of his son. He
did not also weigh in his mind the pros and cons of getting a case registered
against his near relations. This is more as when there was no previous enmity
between the two families.
all these reasons the report was not lodged till 6.15 p.m. The close relationship of the complainant with the accused
is a sufficient safeguard against the false implication of any of the accused,
if Sanjeev Kumar has not actually caused injuries to Yudhvir, Sukhdev Raj would
have been the last person to falsely name him." As the above quoted observation
are unexceptionable, we do not find any merit in the second contention of Mr. Jethmalani.
lastly argued that having regard to the categorical admission of Sukhdev Raj
(P.W.5) that the spot where his son received injuries at the hands of Sanjeev
Kumar and Narinder Kumar was not visible for his house, the court below ought
not to have placed any reliance upon the evidence of P.W.5 and P.W.6 to convict
the appellant. We do not find any substance in this contention also. The two
eye- witnesses did not claim that they had seen the assault while standing near
their respective houses. On the contrary, they averred that when they heard the
shouts bachao bachao they came out of their houses and rushed towards the place
of occurrence;; and it is only after reaching there that they saw the incident.
They further stated that they saw Yudhvir had been caught by Om Prakash at the
corner of two streets and he was pushed to some distance and then given blows.
It cannot, therefore, be said that the claim of above two witnesses that they
saw the incident is untenable.
carefully gone through the entire evidence we find no reason to interfere with
the concurring findings of the courts below that P.Ws. 5 and 6 has no enmity
with the family of Om Prakash to falsely implicate them and, on the contrary,
they related to each other; that despite a searching and detailed
cross-examination they could not be discredited and that their evidence stood
fully corroborated by the medical evidence. We, therefore, dismiss the appeal.
appellant, who is on bail, shall now surrender to his bail bonds to serve out