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ROMESH KUMAR & Anr v. STATE OF PUNJAB - CRA-D-385-1997  RD-P&H 207 (19 January 2006)
Criminal Appeal No. 385-DB of 1997
Date of decision:30.1.2006
Romesh Kumar and another ..Appellants
State of Punjab ...Respondent
CORAM: HON'BLE MR.JUSTICE AMAR DUTT
HON'BLE MR.JUSTICE BALDEV SINGH
Present: Mr.T.P.S.Mann, Advocate for the appellants.
Mr.Jayender S.Chandail, Assistant Advocate General, Punjab.
Amar Dutt, J.
Romesh Kumar and his brother Hem Raj sons of Nahar Singh have filed the present appeal to challenge the conviction and sentence imposed upon them by the Additional Sessions Judge, Gurdaspur on 20.3.1997.
Briefly stated, the facts of the prosecution case as brought out in the testimony of its witnesses are that the deceased Dr.Heera Lal was the brother of Hem Raj PW4 and Manohar Lal PW5. Hem Raj PW4 was running a battery repair shop on Gurdaspur-Pathankot Road. This shop was situated at a short distance from the clinic ****
of Dr.Heera Lal. At about 8.00 P.M., Hem Raj and Manohar Lal were sitting with Dr.Heera Lal in his shop and discussing some domestic affairs.
Dr.Heera Lal told them that as he had to go to see a patient and as law and order situation was not normal, therefore, they should accompany him. The three brothers after leaving the shop reached near Anand Ice Factory at about 8.30 P.M. At that time electric bulbs were on and in their light they saw Romesh Kumar appellant with a Chhura in his right hand and Hem Raj having a knife in his right hand coming from the opposite side. On seeing the three brothers, Romesh Kumar and Hem Raj raised a lalkara saying that Dr.Heera Lal should be taught a lesson for having made false allegations against Goldy and had started giving blows to Dr.Heera Lal, as a result whereof their brother fell down on the ground. Even after Dr.Heera Lal had fallen down, Hem Raj and Romesh Kumar gave blows to him with their respective weapons hitting him on his back, neck, chest, abdomen and on his forehead. When Hem Raj and Manohar Lal tried to step forward to save Dr.Heera Lal, Hem Raj threatened them that in case they did so, they would meet the same fate. Consequently, the brothers did not intervene but ****
only continued raising raula 'Na Maro Na Maro'. In the meantime, Narinder Kumar son of Chaman Lal Mahajan, resident of Gandhi Nagar, Pathankot also came there. He too witnessed the occurrence. Eventually, appellants fled away after inflicting a large number of injuries on the person of Dr.Heera Lal. Hem Raj and Manohar Lal removed Dr.Heera Lal in his car No.DAB-7925 to the Civil Hospital but on the way Dr.Heera Lal succumbed to the injuries. He was declared brought dead by Doctors of the Civil Hospital. Hem Raj then left for the Police Station and on the way near Post Office Chowk, he met SI Samund Singh of Police Station City, Pathankot and got recorded his statement Ex. PD. Ruqqa prepared at his instance was forwarded to the Police Station for recording of formal FIR, on the basis of which FIR Ex.PE was recorded. SI Samund Singh himself proceeded to the Civil Hospital for continuing with the investigation of the case.
On reaching Civil Hospital, SI Samund Singh prepared the inquest report Ex.PC in the presence of Hem Raj and Mohinder Pal witnesses. He submitted an application Ex.PB for conducting post-mortem ****
examination and searched for the accused. After post-mortem examination Jagdish Raj and Bhan Chand, Constables produced the clothes of the deceased, which were taken into possession through recovery memo Ex.PW9/A. Accused Hem Raj and Romesh Kumar surrendered in Court on 15.6.1992 where they were formally arrested. On completion of the investigation, a challan was presented against the appellants before the Illaqa Magistrate, who committed the same to the Court of Sessions for trial as offences disclosed therein were exclusively triable by that Court.
On going through the papers sent up with the challan, the trial Court found that prima facie a case was made out against the appellants under Sections 302/34 IPC and, accordingly, framed the charge under those Sections and when the appellants pleaded not guilty to the charge, the prosecution was called upon to lead its evidence.
To bring home the charge, the prosecution examined Dr.A.S.Janwal as PW1, Constable Bhupinder Singh as PW2, Dr.Dharambir Pathnia as PW3, Hem Raj as PW4, Manohar Lal as PW5, DSP Balkar Singh as PW6, Gian Chand as PW7, Parshotam Lal as PW8, Inspector ****
Samund Singh as PW9 and Head Constable Bishan Dass as PW10.
After completion of the prosecution evidence, when the incriminating circumstances were put to the appellants, they denied all of them and asserted that they were innocent and had been falsely implicated in the case due to enmity.
In defence, appellants examined Mandeep Singh, Street Light Clerk, Municipal Committee, Pathankot as DW1, who asserted that in the street Mark-I as shown in the site plan, there was no street light in front of Anand Ice Factory, Pathankot.
After hearing the arguments, the trial Court came to the conclusion that the prosecution has been able to prove its case against the accused beyond all reasonable doubts and, accordingly, convicted them under Section 302 read with Section, 34 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs.2,000/- each. In default of payment of fine, they were ordered to undergo further rigorous imprisonment for six months. Hence, the present appeal.
We have heard Sh.T.P.S.Mann, learned counsel appearing on ****
behalf of the appellants and Mr.Jayender S.Chandail, learned Assistant Advocate General, Punjab.
On behalf of the appellants, the veracity of the prosecution case was sought to be challenged on the ground that on account of failure of the witnesses to make any effort to intervene and save the deceased is sufficient to disprove the prosecution case and renders the entire story doubtful. It was also submitted that at the time of occurrence curfew was in operation and, therefore, it is highly inconceivable that after dark the deceased would have dared to move around in the city. It was further submitted that the absence of light point as deposed by Mandeep Singh DW1 further belies the prosecution case and, therefore, the appellants deserve to be acquitted of the charge framed against them.
On behalf of the State, it was submitted that the trial Court has rightly relied upon the statements of witnesses with regard to the manner in which the occurrence took place. The challenge to the incident not having been witnessed on account of there being no street light cannot be accepted as from the site plan Ex.DW1/A and the testimony of witnesses, it is clear ****
that the area near place of occurrence was being lit up by electric bulb hanging outside on the wall of the house of one Jarnail Singh and this fact had not been challenged. The fact that the law and order situation was not good only strengthened the possibility of the deceased having requested his two brothers to accompany him when he wanted to go to see a patient. The attack about the presence of witnesses on the ground of failure to intervene during the incident too according to the learned counsel for the State cannot be accepted for it assumes that every one, who was witnessing an incident was bound to react in the manner suggested. The deceased was attacked brutally and the brutality of the assault can be determined from the number of injuries found on the person of the deceased. This according to the counsel for the State would be sufficient to deter a peaceful citizen from intervention in the incident for fear of inflicting injury on his own person and the relationship of the deceased with the witnesses would provide no premise in presuming that the re-action would be exceptional. In view of this, learned counsel for the State submits that there was no material, which would justify intervention in the case and therefore, the appeal should be ****
We have given our thoughtful consideration to the rival contentions and have perused the record with the assistance of learned counsel for the parties.
The incident in the present case was witnessed by Hem Raj PW4 and Manohar Lal PW5, who are the brothers of Dr.Heera Lal deceased. Both these witnesses have vividly described the details of the attack and apart from the fact that they happened to be related to the deceased, there is nothing on the record from which any special motive could be discerned for their having named the appellants as the persons responsible for causing injuries to their brother. Their presence is readily explained by the fact that owing to the law and order condition prevalent at the time of the occurrence, it was not conducive to move around the city of Pathankot after dark and, therefore, the deceased had asked his brothers to accompany him on the visit. On going through the testimony, we do not find any material on the basis of which we could infer that a visible dent had been made in their credibility. Their failure to intervene despite their ****
presence at the spot is easily attributed by the viciousness of the attack, which left about 41 injuries on the body of the deceased. In these circumstances, it would not be improbable that Hem Raj and Manohar Lal were paralysed into action by the brutality of the attack and, therefore, did not choose to intervene. No discrepancy worth the name has been brought out in cross-examination which would help us to discard the testimony of the two eye witnesses and in view thereof, we find it difficult to accept the premises on which the learned counsel for the appellants seeks to challenge the conclusions arrived at by the Court below.
For the reasons recorded above, the appeal fails and the same is hereby dismissed.
January 30,2006 (Baldev Singh)
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