Mohinder Pal vs The State Of Jammu And Kashmir

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)

JUDGMENT

B.R. GAVAI, J.

1. Present appeal challenges the judgment and order dated

5th 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

conviction and sentence awarded on 23 rd 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: 1

2. The facts leading to present appeal are as under:

i. On 16th 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

2 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

4 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

deceased). On 16th 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.

6 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

5th 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

8 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

10 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

11 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

12 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

13 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

14 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

15 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

16 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

17 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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