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PETITIONER: KRISHAN,

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       01/05/1997

BENCH: M.K. MUKHERJEE, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Consequent upon  dismissal of  his appeal  by the  High Court Krishan,  the appellant herein, stands convicted under Section 302 I.P.C. and sentenced to death for committing the murder of  Ranbir, his  brother-in-law, in  October 23, 1994 inside District  jail, Sonepat,  where the  former was under going a  sentence of imprisonment life and the latter was an under trial prisoner.      According to the prosecution case on the fateful day at or about  10.45 A.M.  When the  deceased was getting himself shaved by Ram Phal (P.W.3) who is a barber by profession and at the  material time was serving a sentence, in Barrack No. 3 of  the Jail,  the appellant came there with kassi (spade) in his  hand and  inflicted two successive blows on the head of Ranbir,  with whom  he had a property dispute as a result or of  which he  fell down  and started  bleeding profusely. Ramphal raised  an alarm  which attracted  the attention  of Head constable  som Nath,  who was  on duty nearby. Ram Phal and Som  Nath chased  the appellant who had fled away in the meantime  with   the  kassi,   and  nabbed  him  with  great difficulty, They  then went  to  Shri  Ashok  Kumar  (P.W.4) Assistant  Superintendent  of  the  Jail  and  narrated  the incident and  also handed  over the kassi to him. Shri Kumar then arranged  a vehicle  to shift  Ranbir  to  the  General Hospital, Sonepat.  There Ranbir  was examined  by Dr.  R.R. Mittal (P.W.1) and he found the following:-      "1. incised  wound in  front of the      left pinna  extending upto mid line      of vault  of skull  which was  12x1      cms.x bone deep. Fresh bleeding was      present and brain matter was coming      out of the injury and      2. Incised  wound on the skull from      its  middle   to   parieto-temporal      region measuring  10x1 cms.  x hone      deep  with  fresh  bleeding.  Brain      matter  was   coming  out‘  of  the      injury.  X-ray   was   advised   in      respect  of   skull  and   surgical      opinion was sought".

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    According to  the doctor,  both the  aforesaid injuries could be  caused by  a sharp-edged  weapon like  Kassi.  The doctor sent  a ruga  (Ext. PB)  to  in-charge,  police  post General Hospital, Sonepat, at 12  noon.      On receipt  of a telephone message from the city Police Station, S.I.  Ami Singh (P.W.8), who was then posted as in- charge Police  post, Gohama  Road, Sonepat,  first  went  to General Hospital,  Sonepat. Where  he  came  to  learn  that Ranbir Singh  had since  been referred  to Medical College & Hospital, Rohtak.  Thereafter, he  came  to  District  Jail, Sonepat,  where  Chander  Singh  (P.W.7)  made  a  statement (Ext.PB) regarding  the  incident.  He  forwarded  the  said statement  for   registration  of   a  case   and  took   up investigation.  Thereafter,  S.I.  Ami  Singh  recorded  the statements of  Ram Phal,  Som Nath  and  Ashok  Kumar  under Section 161 Cr. P.C. He took possession of the kassi(Ext.P1) from Ashok  Kumar and  seized some  blood stained earth from the place  of incident.  He also  prepared a rough site plan (Ext. PI).      In the  right intervening  26/27th of October, 1994 the Investigating  officer   received  a  message  from  Medical College & Hospital, Rohtak that Ranbir Singh had since died. On receipt  of this  message, S.I.  Ami Singh  reached there along with  H.C Dhera  Singh and  Constable Suresh Kumar and conducted inquest  proceedings (Ext.PX).  He then  sent  the dead   body   for   post-mortem   examination.   Post-Mortem examination was  conducted by  Dr. A.P.  Sharam (P.W.10)  in Civil Hospital,  Rohtak and  he noted two stitched wounds on his  person   corresponding  to   the  medico-legal  report. According to  the doctor,  the injuries were ante-mortem and sufficient to cause death in the ordinary course of nature.      The appellant  who was already lodged in District Jail, Sonepat as a convict on some other murder case was put under arrest by  S.I. Ami Singh. On 23.10.1994, S.I. Ami singh had deposited the  Kassi Ext.  P.1 duly  sealed in  a packet and another packet  containing  blood  stained  earth  with  the moharrir Malkhana  Randhir Singh and on 16.11.1994  the said Head Constable  Randhir Singh  handed  over  the  same  duly intact to the said Constable Vinod Kumar for being delivered at the  Forensic Science  Laboratory (F.S.L.)   and the said constable delivered  the same  there duly intact on the same day. Subsequently,  report from  the F.S.L.,  Madhuban  vide Ext. pp  was received  to the  effect that  there was  human blood on  the Kassi  (Ext. P.1)  and the blood stained earth lifted from  the spot.  On completion  of investigation  the police submitted  charge-sheet against  the appellant and in due course the case was committed to the court of sections.      The appellant pleaded not guilty to the charge levelled against him  and stated that he had been falsely implicated. He took the stand that on the date of the incident he was on duty at  the Sabzi  Panja in Jail and came to the Barrack on hearing the  alarm of  whistles issued  by the  Lambardar on duty and then came to know that Ranbir was lying injured. He further stated  that  on  seeing  him  injured,  he  started dressing him  and while  he was  still    dressing  him.  he himself   became   unconscious   and   thereafter   regained consciousness in the hospital.      To sustain  the charge  levelled against  the appellant the prosecution  principally relied  upon the ocular version of Ram Phal (P.W.3) and Chander Singh (P.W.7), the warden of the jail. Both the learned Courts below found that the above two  witnesses   were  natural,   probable  and  independent witnesses and  there was  no reason  to disbelieve  them. As their evidence   stood  amply corroborated  by  the  medical evidence  and   the  First  Information  Report,  which  was

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promptly lodged,  the Courts below recorded their respective findings against the appellant.      We have  for ourselves  perused the  entire evidence on record and  see no  reason to  interfere with the concurrent findings recorded  by the  learned courts below as they have been arrived  at on  a detailed  and proper appraisal of the evidence and are based on cogent and convincing reasons. The conviction of  the appellant   under section 302 I.P.C. must therefore be upheld.      Coming now  to the  sentence we find that the principal reason which  weighed with the courts below to hold that the extreme penalty  of death  was called  for, was that earlier the appellant  had committed  a  murder  for  which  he  was serving the  sentence of  life imprisonment  at the material time and  that he  committed another  murder  while  he  was released on  parole. Undoubtedly  felonious propensity of an offender  is  a  fact  which  requires  consideration  while dealing with  the question  of imposition of the sentence of death but  that cannot  be made  the  sole  basis  for  such sentence as  all other factors relating to the commission of the crime including motive manner and magnitude have also to be taken  into consideration.  Taking an overall view of the attending facts  and circumstances of the instant case we do not feel  that this  is one  of the rarest of the rare cases where the  appellant  should  be  sentenced  to  death,  we, therefore, commute  the sentence  of death  imposed upon the appellant for  his conviction  under Section  302 I.P.C.  to imprisonment for  life, but maintain the sentence of fine of Rs. 5,000/-  and the  sentence to be undergone in default of payment thereof. The appeal is thus disposed of.