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PETITIONER: SANJEEV KUMAR

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       06/05/1997

BENCH: M.K. MUKHERJEE, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                   THE 6TH DAY OF MAY, 1997 Present:              Hon’ble 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.      R.C.  Kohli,   Adv,  for   R.S.  Sodhi,  Adv.  for  the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered:                       J U D G M E N T      M.K. Mukherjee, J.      Sanjeev 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.      Yudhvir (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.      According 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.      It is  the further  prosecution case  that on April 15,

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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. As a  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 injuries:      "1. 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.      2. 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.      3. 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.      4. 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.      5. 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. Accompanied 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.      The appellant pleaded not guilty to the charge levelled against  him   and  contended   that  he  had  been  falsely implicated in the case.      In 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

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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.      Mr. Jethmalani,  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 :      "I 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.      Mr.  Jethmalani   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.      General condition  of  the  patient      was  critical.   He  was   in   the

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    peripheral circulatory  failure. He      was    being    transfused    poor.      Seriousness 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.      After 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.      Two eye  witnesses  have  explained      that   they    remained   busy   in      attending  to   the   injured   and      arranging for  blood and medicines.      It is  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.      Sukhdev  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.      For 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.      Mr. Jethmalani  lastly argued that having regard to the

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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.      Having 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. The appellant,  who is  on bail,  shall now surrender to his bail bonds to serve out the sentence.