Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1863 OF 2010
MOHINDER PAL AND OTHERS ...APPELLANT (S)
VERSUS
STATE OF J & K ...RESPONDENT (S)
J U D G M E N T
B.R. GAVAI, J.
1. Present appeal challenges the judgment and order dated
th
5 June, 2009, passed by the Division Bench of the High Court
of Jammu and Kashmir at Jammu (‘High Court’ for short) in
Criminal Appeal No. 09 of 1991, thereby dismissing the appeal
filed by Appellants-accused and confirming the order of
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conviction and sentence awarded on 23 March, 1991 by
learned Sessions Judge, Kathua (‘Sessions Judge’ for short) in
Trial Case No. 89/1990.
Signature Not Verified
Digitally signed by
Narendra Prasad
Date: 2023.01.19
18:49:47 IST
Reason:
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2. The facts leading to present appeal are as under:
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i. On 16 May, 1990, Police Station, Kathua (‘Police
Station’ for short) at about 12 noon received reliable
information that accused No.1-Lal Chand (since
deceased) and his sons were assaulting two young
persons, who were forcibly detained by them in their
house situated in Jagatpur, Tehsil Kathua. An entry
was made regarding the same in Daily Diary Register.
On receipt of said information, Head Constable-Raj Mal
accompanied by constable Chaman Lal and Tirath
Singh reached the house of the accused-appellants,
they found that Manjit Kumar and Jaswinder were
seriously injured and were found lying unconscious in
one of the rooms. They were moved to District Hospital,
Kathua for providing them immediate medical aid. Sub-
Inspector Basant Singh reached the hospital and
recorded the statement (Exh.PW-BS) of Jaswinder in
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presence of Dr Renu Jamwal, who declared him fit to
give the statement. On the basis of statement of
Jaswinder (EX.PW-BS) First Information Report (‘FIR’
for short) No. 213/90 was registered under section
307/382/342/148/149 of the Jammu and Kashmir
State Ranbir Penal Code (‘RPC’ for short) at the Police
Station. Later, Manjit Kumar and Jaswinder both
succumbed to their injuries. Thereafter, Section 302 of
RPC was added.
ii. In the statement (EX.PW-BS) of deceased Jaswinder it
is stated that, he and Manjit Kumar had gone to village
Jagatpur to get fodder. When they were walking in the
street abutting the house of the accused party, accused
Lal Chand, Bias, Sant Kumar, Roshan, Madan Lal
along with other sons of accused No.1-Lal Chand (since
deceased) dragged them inside the house and assaulted
them with iron rods (Sariya), sickle (drat) and sticks.
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They were provided water which was
undrinkable/tasteless. Further, accused-Sant Kumar
stole Rs 300 from the deceased’s pocket.
iii. The prosecution’s case, in a nutshell, is that accused
No.2-Bias Raj had borrowed a sum of Rs 50 from the
brother of the deceased-Jaswinder i.e. P.W.1-Praveen
Kumar and P.W.1-Praveen Kumar had demanded the
sum 3-4 days prior to occurrence of the incident. On
the day of the incident P.W.1-Praveen Kumar had gone
to village to get labourers. When he was close to the
house of the Appellants, he was dragged inside and
assaulted. Thereafter, they confined him to fodder room
and assaulted Manjit Kumar and Jaswinder. P.W.1-
Praveen Kumar managed to escape the place of
occurrence. P.W.1-Praveen Kumar was also
accompanied by P.W.2-Hardev Singh and the
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occurrence of the above incident was narrated to P.W.3-
Chajju Ram and Krishan Chand Lambardar.
iv. The Investigating Officer (‘IO’ for short) submitted final
report wherein it is stated that the above-mentioned
incident was preceded by assault and wrongful
confinement of P.W.1-Praveen Kumar by the Appellants
when he had come in search of labourers.
v. Accused No.1-Lal Chand (since deceased), Accused
No.2-Bias Raj, Accused No.3-Mohinder Pal alias
Roshan, Accused No.4-Basant Kumar, Accused No.5-
Om Prakash alias Doctor, Accused No.6-Kishan Chand
and Accused No.7-Madan Lal were tried. Accused Nos.
2 to 6 are sons of Accused No.1-Lal Chand (since
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deceased). On 16 August 1990, charges came to be
framed by the Sessions Judge for offences punishable
under section 302, 148 and 149 of the RPC.
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vi. The Appellants pleaded not guilty and claimed to be
tried. The prosecution examined as many as 19
witnesses to bring home the guilt of accused-
appellants. Their defence was that the Appellants
exercised the right of private defence as Accused No.1-
Lal Chand (since deceased) was assaulted by both the
deceased who were hired as there was litigation pending
between the parties. At the conclusion of the trial, the
Sessions Judge acquitted Accused No.5-Om Prakash
and Accused No.6-Kishan Chand and convicted
Accused Nos. 1 to 4 and 7 under section 302, 148 and
149 of the RPC and sentenced them to life
imprisonment with a fine of Rs. 500 each and three
months simple imprisonment in case of default in
payment of fine.
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vii. Being aggrieved thereby, Appellants-accused filed an
appeal before the High Court. Accused No.1- Lal Chand
died during the pendency of the appeal. Accused No.2-
Bias Raj was absconding and his presence could not be
secured even after issuing Non-Bailable Warrant. On
th
5 June, 2009, High Court vide impugned judgment,
dismissed the appeal filed by the Appellants and upheld
their conviction and confirmed the sentence awarded to
them by the Sessions Judge.
3. Being aggrieved thereby the present Appeal was filed by
Accused No.3-Mohinder Pal, Accused No.7-Madan Lal and
Accused No.4-Basant Kumar.
4. We have heard Mr. Tripurari Ray, learned counsel
appearing for the Appellants-Accused and Mr. Shailesh
Madiyal, learned counsel appearing on behalf of respondent-
State of Jammu and Kashmir.
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5. Mr. Tripurari Ray submits that the High Court and the
Sessions Judge have grossly erred in convicting the appellants-
accused. Mr. Ray submits that it was the deceased-Manjeet
Kumar and Jaswinder who trespassed into the house of the
Appellants and assaulted Accused No.1- Lal Chand (since
deceased). Thereafter, the appellants exercised their right of
private defence and assaulted the deceased. Further, most of
the injuries that were caused to the deceased were on their legs
and not with an intention to cause severe harm.
6. Mr. Ray further submits that on a perusal of the dying
declaration i.e. statement of deceased Jaswinder it would reveal
that Dr. Renu Jamwal stated that the patient was not in a
condition to sign the statement due to swelling. The said
statement does not state any details regarding the
mental/physical state of the patient whether he is of sound
mind and consciousness. Further, Dr. Renu Jamwal admitted
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that the patient was ‘minimum conscious and not fully oriented
to place’.
7. Mr. Ray urged that the evidence of P.W.1-Praveen Kumar
and P.W.3-Chhajju Ram contradict the dying declaration on
several points. The dying declaration does not state that P.W.1-
Praveen Kumar was assaulted and confined in the house of the
Appellants which is why both the deceased went to the house of
the Appellants instead it just states that they were finishing
their work and were assaulted by the Appellants.
8. Mr. Shailesh Madiyal appearing on behalf of the
respondent-state submits that the Sessions Judge and High
Court have concurrently held that dying declaration is a
substantive piece of evidence. The same is attested by PW-SI
Basant Singh and Dr. Renu Jamwal. It is also corroborated by
the evidence of the P.W.1-Praveen Kumar and P.W.2-Hardev
Singh. Thus, it cannot be simply brushed aside.
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9. Mr. Madiyal further submitted that the right of private
defence should be exercised in reasonable manner. The nature
of injuries would reveal multiple fractures and the weapons
used would indicate that the Appellants assaulted the deceased
with intention to kill them.
10. We have perused the materials placed on record. From the
materials placed on record, particularly, the Post-Mortem
Report, it cannot be disputed that the death of the deceased
was homicidal.
11. Insofar as the incident is concerned, the prosecution
mainly relies on the dying declaration of deceased-Jaswinder as
well as the oral testimony of P.W.1- Praveen Kumar, the brother
of deceased-Jaswinder and P.W.2-Hardev Singh. The dying
declaration of deceased-Jaswinder implicates accused No.1-Lal
Chand (since deceased) as well as the accused-appellants. It is
to be noted that though in the dying declaration it is stated that
there was no previous enmity between deceased-Jaswinder and
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the accused appellants, from the evidence of P.W.1-Praveen
Kumar, it would reveal that an amount of Rs.50/- was taken by
accused Bias from P.W.1-Praveen Kumar and the dispute was
with regard to non-payment of the same.
12. Though P.W.1-Praveen Kumar states that he went to
village Jagatpur to fetch labourers and the accused appellants
caught him and started beating him and thereafter tied him and
confined him in a verandah, there is no mention with regard to
the same in the dying declaration of deceased-Jaswinder.
P.W.1-Praveen Kumar states in his evidence that after some
time, when his brothers Manjit and Jaswinder were going in the
lane abutting the house of accused persons, the accused
persons assaulted them with Drat and Iron rod. According to
him, when they, on account of injuries, became unconscious,
the accused persons dragged them into the house. He states
that he untied the rope and managed to escape. He further
states that when he reached Teli More, he revealed the
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occurrence of the incident to Kewal Krishna and thereafter they
went to Police chowki to lodge a report.
13. P.W.2- Hardev Singh in his evidence states that on the day
of the incident he was working on thresher, which was set near
Jagatpur and when he was going to buy bidis , he met P.W.1-
Praveen Kumar on the way. He states that when they reached
in Gali near the house of accused persons, accused
Omprakash, Mahendra, Madi, Bias, Sant, Kashi and Gar
caught P.W.1-Praveen Kumar and took him into the house by
giving him beatings. It is however to be noted that in the
evidence of P.W.1-Praveen Kumar, there is no mention with
regard to the presence of P.W.2-Hardev Singh.
14. P.W.2-Hardev Singh submitted that thereafter he went
back and when he reached near Jagatpur canal, he met Manjit
alias Babi and Jaswinder and he informed them about the
incident of P.W.1-Praveen Kumar meeting him and being
assaulted. He stated that thereafter he along with both Manjit
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and Jaswinder went to the place of occurrence. He stated that
he was at a short distance from them. He stated that when
they reached in the Gali of house of the accused persons, the
accused persons caught both the deceased as well and started
giving beatings. From there, he went to Lakhanpur and made a
telephone call to Parshotam Lal that deceased persons have
been detained in the house by accused persons. He states that
when they reached the house of accused persons, Police had
already reached there.
15. P.W.3-Chhajju Ram, who resides near the house of
accused persons has turned hostile.
16. It is to be noted that the place of occurrence is the house
of accused persons. The versions as to why the deceased-
Jaswinder and Manjit as well as P.W.1-Praveen Kumar went to
the house of the accused persons are varying. As per the
version of P.W.1-Praveen Kumar, he had gone there in search of
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labourers and thereafter he was caught by the accused persons
since there was a dispute with regard to loan amount of Rs.50/.
17. As per the dying declaration of deceased Jaswinder,
deceased Jaswinder and Manjit had gone there to collect grass
(fodder). Whereas as per the evidence of P.W.2-Hardev Singh,
when he was going to Jagatpur to buy bidis he met P.W.1-
Praveen Kumar and both of them went to the Gali of the
accused persons. He admitted that bidi shop was not in the
same Gali . According to him, after P.W.1-Praveen was
assaulted by the accused persons, he went from there and on
the way deceased Jaswinder and Manjit met him and he
informed them about the incident of P.W.1-Praveen Kumar
being assaulted and tied. After that, all three of them went to
the Gali where the house of the accused persons was situated.
There the accused persons assaulted Jaswinder and Manjit and
he went away from there. It is further to be noted that accused
No.1-Lal Chand (since deceased) had also received injuries in
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the said incident. The prosecution has failed to explain the
same. The I.O. has admitted that he did not make investigation
as to how accused No.1-Lal Chand (since deceased) had
received injuries. It is the specific defence taken by accused
No.1-Lal Chand (since deceased) that while he was lying on the
bed in his room, two persons entered his room and one of them
gave a lathi blow on his head as a result of which he started
bleeding and became unconscious because of the fracture.
18. From the materials placed on record, it appears that the
prosecution has not come with clean hands and has attempted
to suppress the genesis of the incident. There are
contradictions in the dying declaration as well as in the
evidence of P.W.1-Praveen Kumar and P.W.2-Hardev Singh as
to in what circumstances the deceased Jaswinder and Manjit
went to the house of the accused persons. The prosecution has
failed to explain the injury sustained by accused No.1-Lal
Chand (since deceased). A suggestion was also given by the
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accused persons that the accused were having enmity with
Mohan Lal and Kewal Krishna and deceased as well as P.W. 1-
Praveen Kumar and P.W.2-Hardev Singh were sent by them to
assault accused No.1-Lal Chand (since deceased). No doubt
that this is denied.
19. The defence of the accused appears to be that the
deceased-Jaswinder and Manjit as well as P.W.1-Praveen
Kumar and P.W.2-Hardev Singh were engaged by Mohan Lal
and Kewal Krishna to take revenge on account of previous
enmity.
20. As already discussed herein above, the place of occurrence
is the house of accused No.1-Lal Chand (since deceased). Out
of six remaining accused, 5 are his sons. There are material
contradictions as to how and in what circumstances the
deceased Jaswinder and Manjit went to the house of the
appellants. The version given in the dying declaration as well
as in the evidence of P.W.1-Praveen Kumar and P.W.2-Hardev
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Singh are totally different. The prosecution has failed to prove
the injuries sustained by the accused No.1-Lal Chand (since
deceased). It is the specific case of the accused No.1-Lal Chand
(since deceased) that two persons had come to his house and
they assaulted him with a lathi . The possibility that the
accused persons enraged by the assault on accused No.1-Lal
Chand (since deceased) whilst deprived of the power of self-
control, by grave and sudden provocation, attacked the
deceased-Jaswinder and Manjit resulting in their death cannot
be ruled out. We find that the appellants are entitled to benefit
of doubt in view of Exception I of Section 300 of the RPC. As
such, we are of the considered view that the prosecution has
failed to prove the case under Section 302 of the RPC beyond
reasonable doubt.
21. The conviction and sentence imposed upon the appellants
under Section 302 RPC is converted to the one under Part-I of
Section 304 of the RPC. The appellants have already served a
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sentence of about ten years, we, therefore, find that the
sentence already undergone would serve the purpose. The bail
bonds of the appellants shall stand discharged.
22. The appeal is partly allowed in the above terms.
…….........................J.
[B.R. GAVAI]
…….........................J.
[M.M. SUNDRESH]
NEW DELHI;
JANUARY 12, 2023
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