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PETITIONER: PARAMJIT & ANR.

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       26/09/1996

BENCH: A.S. ANAND, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T DR. ANAND. J.      This appeal  under Section  16  of  the  Terrorist  and Disruptive Activities  (Prevention) Act,  1985  (hereinafter ’TADA’) is  directed against  the judgment  and order of the Judge, Designated  Court, Rohtak  dated  18.4.1987/20.4.1987 vide which  appellant  No.  1  Paramjit  was  convicted  for offences under  Section 302  IPC and  under Section 25/27 of the Arms  Act, 1959  readwith Section 6 of TADA. He has been sentenced to  undergo imprisonment for life for the offences under Section  302 IPC  and to 2 years RI on each of the two counts under  Section 25/27 of the Arms Act and Section 6 of TADA. Appellant  No.2 Inderjit  Singh was  convicted for  an offence under  Section 302/34  IPC and  sentenced to undergo imprisonment for  life. Through  this statutory appeal, they have called in question their conviction and sentence.      According to  the prosecution  case, appellant Paramjit passed some  indecent remarks  on some  young girls near the village  well  when  the  deceased,  a  co-villager  of  the appellant reprimand  him for  this misconduct. On 25.12.185, some time  after the reprimand, the appellants declared that they would  teach a lesson to Rambhaj, deceased for becoming a ’dada’.  On reaching near Rambhaj washing his clothes near the radewala  wells in  the afternoon, the appellants rushed towards  him   On  reaching  near  Rambhaj,  deceased,  they announced that they had come to teach him a lesson  Rambhaj, got up  and came down the perapet of the well. Inderjit took the deceased  in his  grip while  Paramjit gave him one blow with a  knife on the left side of the chest and another blow on the left side of the thigh. He also hit the deceased with the blunt  side of  the knife  on the  right side  of  chest Chander Bhan,  PW5 and Sunder Lal saw the occurrence and ran to rescue  the deceased.  On seeing  them coming towards the place of occurrence, the appellants left carrying the weapon of offence  with them.  Sunder Lal took Rambhaj to his house and from  there to  village Sampla.  At Sampla  they met ASI Rattan Singh,  PW6 in  the main  bazar at  about 3.45  p.m.. Rambhaj, deceased  made a statement, Ex. PO, to the said ASI about the  assault on him After recording the statement, the ASI sent the same to the police station, for registration of

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the  formal   FIR  Ex.   PO/C  and   case   under,   Section 307/324/323/34 IPC  was  thereupon  registered  against  the appellants. Rambhaj  deceased was  sent to  the hospital  at Sampla and  was medically examined by Dr. B.D. Kalra, PW1 at about 4.20  p.m. The  following injuries  were found  on his person :      "1. Incised wound 1 cm. x 5 cm., in      the left  exillary region  with cut      in  the   shirt.  There  was  fresh      bleeding  from   the   wound.   The      margins of  the wound  were  sharp.      There  was  surgical  emphysema  in      surrounding nipple to lower side in      the four  inches area medial to the      left side.      2. Reddish  bruises 2  inches x 1/2      inch on the right side of the front      of chest extending laterally.      3. Incised  wound 1 cm x .5 cm with      sharp   everted    margins,    with      corresponding cut  in under wear on      the left  side of  lateral side  of      thigh.  There  was  fresh  bleeding      form  the  wound.  Wound  was  four      inches below  and left  to enterior      superior illiae spine. Injuries No.      1  and  2  were  kept  under  x-ray      observation."      Dr. Kalra   PW1  found the  condition of  Rambhaj to be serious and  referred him to Medical College at Rohtak where the injured  reached at about 5.35 p.m. Dr. Ashok Arora, PW2 medically  examined   the  injured   at  the  hospital.  The deceased, however  succumbed to  his injuries  at about 6.20 p.m. Information  about the  death of  Rambhaj was  sent  to police post  through ruqqa  Ex. PD.  The offence was altered and investigation  taken in  hand. The investigating officer PW6 recorded the statement of the eyewitnesses and took into possession the clothes of the deceased from the hospital. An inquest was  conducted by  PW6 and  the dead body of Rambhaj was sent for post-mortem examination, which was conducted by Dr. Juneja,  PW3. According  to PW3,  death of  Rambhaj  was caused due  to shock  and haemorrhage  resulting from injury No.1 and  that the injury No.1 was found sufficient to cause death.      ASI  Rattan   Singh,  PW6   on   receiving   telephonic information that  the  appellants  were  present  in  Sampla Mandi, rushed  there and  arrested them.  On  interrogation, Paramjit appellant  disclosed that  he had concealed a knife and bushirt  in a  cattle shed  in his house and pursuant to the said  disclosure statement,  he led  the police party to the  recovery   of  the  knife  and  the  bushirt  Inderjit, appellant also  made a  statement   under Section  27 of the Evidence Act  and got  recovered a  bushirt. from his house. Both the  bushirts were  found to he stained with blood. The blood stained  clothes of  the deceased and the accused were sent to forensic science laboratory, Madhuban and as per the reports   Ex. PN  and PN/1  of the  Serologist and  Chemical Examiner all  the articles  were found  to be  stained  with human  blood.   On  completion  of  the  investigation,  the appellants were sent up for trial and tried and convicted in the manner already noticed.      The prosecution  examined Chander  Bhan, PW5  and  five other witness. The statement made by the deceased, Ex. PO to ASI Rattan  Singh, PW6,  which formed  the basis of the FIR, was treated  as  the  dying  declaration  of  Rambhaj.  That

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statement reads as follows :      "I  am  a  student  of  Xth  Class.      Today, it  was  a  holiday,  I  was      washing  my  clothes  at  Radhewala      well, which  is  near  the    pond.      Paramjit  son  of  Kali  Ram,  Jat,      resident  of   Kharawar  was   also      present  there.   He  was   passing      indecent  remarks   at  the   girls      passing  that  way.  I  raprimanded      him. On  hearing exchange  of words      between us, my grand-mother, who is      wife  of  Ant  Ram,  separated  us.      After a  little time, at about 1.30      p.m.  Paramjit  alongwith  Inderjit      who is the son of his  tau (fathers      elder brother)  came there. Both of      them said  to me  that  they  would      teach me  a lesson  for becoming  a      dada. Inderjit caught hold of me by      the hands  and  Paramjit,  who  was      carrying in  his hand  a knife-like      iron object,  gave me  one blow  in      the left  side and  one blow on the      left thigh  from the  sharp side of      the weapon,  and one  blow from the      wooden side   on  the right side of      the  chest.  Seeing  this,  Chander      Bhan  and   Sunder  Lal,  Brahmand,      rescued me.  Otherwise, the accused      would have  inflicted further blows      on me  Sunder Lal  was taking me to      the Police  Station when you met us      at     Sampla  and   I  have   made      statement before  you. I have heard      it. It  is correct.  Action may  be      taken."      PW5, Chander  Bhan is  the eyewitness. He supported the prosecution case,  in its  entirety. Despite  lengthy  cross examination, the  defence was not able to create any dent in his evidence  and his credibility has remained unshaken. The evidence  of   PW5  is   fully  corroborated  by  the  dying declaration Ex. PO and his  name finds a mention in the said dying declaration. The  medical evidence rendered by PW1 and PW3 also fully supports the ocular testimony of PW5. We have carefully   scrutinised the  evidence of  PW5 and are of the opinion that  he is  a truthful  witness  and  his  evidence inspires  confidence.      The argument of learned counsel for the appellants that the non-examination of Sunder Lal and Smt. Kela has rendered the prosecution  case doubtful  does not  appeal to us. Smt. Kela admittedly,  had  not  witnessed  the  Occurrence  and, therefore,  her   non-examination  does   not   affect   the credibility of  the prosecution case. The non-examination of Sunder Lal, who witnessed the occurrence alongwith PW5, also does not affect the prosecution case. He was given up as won over. Since, the evidence Chander Bhan, PW5 has impressed us and his  evidence has  remained totally  unshaken, the  non- production of Sunder Lal is of no consequence.      Besides, the  evidence of  PW5, Chander  Bhan, there is also the  dying declaration of Rambhaj Ex. PO on the record. That dying  declaration extracted  elsewhere, fully supports the evidence  of  PW5.  Learned  counsel  for    appellants, however, submitted  that the dying declaration Ex P.O. was a doubtful document  and appeared  to  be  a  case  of  police

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padding. In this connection, learned counsel referred to the statement of  Dr. B.D. Kalra, PW1, who has deposed that when Rambhaj was  brought to the hospital, his pulse rate was 144 per minute  and his  blood pressure  was not  recordable. On this basis  it was  convassed that  Rambhaj could  not  have made the  statement Ex PO. We find ourselves unable to agree with the  learned counsel for the appellant. The evidence of Dr Kalra,  PW1 refers to the point of time, when he examined the deceased  at Sampla  Hospital. It was at about 4 20 p.m. that PW1  had found  that the  blood pressure of Rambhaj was not recordable  from that  it cannot  be  assumed  that  the statement made  by him  more than half an hour before, could not have  been made  by the deceased. The very fact that the statement Ex  PO has been signed by Rambhaj, deceased, shows that he was in a proper state of health and mind not only to make a  statement but also to sign it. There is no challenge to the  authenticity and  genuineness of  the signatures  of Rambhaj on Ex. PO. The condition of Rambhaj was continuously deteriorating and therefore the fact that his blood pressure was not  recordable at  about 4.20  p.m. cannot  lead to the inference that  he could  not have made the statement Ex. PO at about  3.45 p.m. We, therefore, do not find any reason to doubt the  genuineness of  the dying declaration Ex. PO. The deceased has  narrated clearly not only about the motive for the assault  on him  but also  about the manner in which the assault was  committed on him. The dying declaration coupled with the  evidence of  Chander Bhan.  PW5  and  the  medical evidence clearly connects the appellants with the crime.      Learned counsel  for the appellants then submitted that since Dr.  Juneja PW3,  had opined  that injury No. 1  could result in  death "if  sufficient and proper medical care was not given  in time",  therefore the  offence for  which  the appellants could  be convicted  would not fall under Section 302 IPC  Learned Counsel  in this  connection also submitted that there  was an  altercation  between  the  deceased  and appellant Paramjit  shortly before  the occurrence  in which Paramjit had  been reprimanded  by the  deceased and that on seeing Rambhaj,  the appellants  had shouted  that they were going to  teach him  a lesson  for becoming a Dada, implying thereby that  they wanted  to give  him some  beating and as such it  could not  be said  that  the  appellants  had  the requisite intention  to commit.  murder of the deceased. The argument is more attractive than sound.      A reference  to Explanation  II to  Section 299  IPC at this stage is relevant. It reads thus :      Explanation    2:  Where  death  is      caused by bodiily injury the person      who causes such bodily injury shall      be deemed to  have cased the death,      although  by  resorting  to  proper      remedies and  skilful treatment the      death might have been prevented."      This explanation is a complete answer to the submission of  the   learned  counsel  based  on  the  medical  opinion furnished by  Dr Juneja  PW3. The  offence committed  by the appellants was of culpable homicide as death of the deceased was a  direct consequence  of  their  act.  There  is  ample evidence  on  the  record  to  show  that  the  offence  was committed with  the requisite intention to case death of the deceased, squarely  bringing his  case within  the ambit  of Section 302  IPC. In  this connection,  it deserves a notice that the  deceased died  in less  than  4  hours  after  the receipt of  injuries though in less than 3 hours he had been administered medical  aid at  Sampla hospital.  The injuries found on   the  deceased were sufficient to cause his death.

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The weapon  with which  the  injuries  were  caused  on  the deceased is  a sharp  edged knife  with the blade. measuring 13-1/2 in  length.  It  is  a  formidable  weapon.  Paramjit appellant was  armed with this weapon when he rushed towards Rambhaj and  caused a  number of injuries on a vital part of the body  of the deceased. The nature of injury No.1 and the extent of  the damage it caused to the internal organs shows the  force  with  which  it  was  caused  on  the  deceased, apparently who had been taken unawares and was empty handed. All  these  established  facts  go  to  show  that  Paramjit appellant had  the requisite  intention to commit the murder of the  deceased and  his offence  therefore would  squarely fall under  Section 302  IPC,   as rightly held by the trial court.      The presence  of Inderj it appellant at the time of the assault in  also fully  established. The argument that since he caused  no injury to the deceased, therefore he could not be said  to have  shared the  common intention with Paramjit has no merits But, for the fact that Inderjit appellant took the deceased  in his  grip, perhaps  it may  not  have  been possible for  Paramjit appellant  to inflict the injuries on the deceased  who was a youngman. The action of Inderjit was obviously aimed  to render  the victim immobile and give him no chance to escape and thereby facilitate the inflication of injuries by his co-accused on the deceased. He, therefore definitely can  be said  to have shared the common intention with  Paramjit   appellant  to  commit  the  murder  of  the deceased. He  was not  merely present at the time of assault but had  actually taken  part in  the same the situation may have been somewhat different had appellant Inderjit not been aware that  Paramjit was  armed with  a knife when they went towards the  well but  the evidence on the record shows that Paramjit   came armed,  holding  the  knife,  alongwith  his cousin Inderjit to the place of occurrence and assaulted the deceased. His  conviction, therefore,  for an  offence under Section 302/34 IPC does not suffer from any error either.      After giving  our careful consideration to the evidence on the record and the submissions made at the bar, we are of the opinion  that the  conviction and  sentence of  both the appellants is  well merited  and  there  is  merit  in  this appeal. This  appeal, therefore  fails and is dismissed. The appellants  are  on  bail.  Their  bail  bonds  shall  stand cancelled and  they shall  be taken  into custody to undergo the remaining part of their sentences.