Arijit Pasayat, J. - (1.) Challenge in this appeal is to the judgment of the Division Bench of the Himachal Pradesh High Court holding the appellant and one Surjit Singh guilty of offence punishable under S. 302 read with S. 34 of the Indian Penal Code, 1860 (in short the IPC) and each sentenced to imprisonment for life and to pay a fine of Rs. 5,000/- with default stipulation. By order dated 19-2-2001, the Special Leave Petition was dismissed qua Surjit Singh.
(2.) Prosecution version leading to the trial is as follows : Both the accused are brothers. They and Ravinder Kumar (hereinafter referred to as the 'deceased') were the residents of Village Nangal Jarialan, Tehsil Amb, District Una. On 17-1-1998, deceased had gone to Nangal Jarialan market for purchasing articles where he met Adesh Kumar (P.W. 14) and Raghubir Singh (P.W. 15). P.W. 14 told them that he wanted to go to some secluded place away from the market for excreting. P.W. 15 and deceased accompanied P.W. 14 on his scooter who drove it towards the rivulet. He stopped the scooter at the road side and went towards the shrubs in the nallah. The deceased and P.W. 15 remained standing near the scooter waiting for the arrival of P.W. 14 who returned after some time. In the meanwhile, both the accused happened to pass through the place on a tractor bearing registration No. PB-07-D-6173. They saw the deceased standing on the road side. They stopped the tractor and pounced upon the deceased by wielding a 'Drat' and 'Danda.' Surjit Singh hit the deceased on the head with the 'Drat' and Rajesh Kumar assaulted with 'Danda' and gave blows on other parts of the body. The deceased started wailing whereas P.Ws. 14 and 15 were bewildered. P.W. 14 was able to overpower Rajesh Kumar and in the process the deceased managed to get himself freed from the clutches of the accused. He ran towards the field in order to save his life with bleeding injuries. But he could manage to go upto a distance of few feet, and fell down and became unconscious. Both the accused fled away from the scene of the occurrence on the tractor before other persons could reach at the scene of occurrence. On hearing about the incident Shri Harnam Singh (P.W. 16), President, Gram Panchayat, Nangal Jarialan, came at the spot with numerous other persons. P.W. 14 informed the police at Police Station, Gagret about the incident. He also brought Dr. Baldev (P.W. 20) a private medical practitioner from the village who examined the deceased and advised that the deceased be immediately taken to the hospital. The deceased was thereafter taken to Civil Hospital, Gagret. The mother of the deceased Smt. Jamna Devi (P.W. 1) after being informed about the incident, reached at Civil Hospital, Gagret at about mid night. The deceased succumbed to his injuries on the same day. Dr. Bhardwaj (P.W. 11) medically examined the deceased on the same day at about 8.40 p.m., in Primary Health Centre, Gagret. He noticed that the deceased was unconscious and was not responding. He found the following injuries on the person of the deceased : 1. An incised wound on the scalp present on the occipital and parietal area 5 cms. long. The margins were regular and smooth. There was no fresh bleeding oozing out of the wound. This wound was 2 cms. deep. 2. Bruise mark 2 cm. x 2 cm. present on the mastoid area of right pinna. 3. Lacerated wound on left hand between the index finger and fourth finger. It was not bleeding. 4. Two lacerated injuries on the right leg. One injury was 1 cm. x 1/2 cm. with irregular margins. It was present 8 cms. below patella of right leg. Second injury was 1 cm. x 2 cm. with irregular margins present 6 cms. below the first one. 5. Lacerated wound 2 cm. long skin deep present on the forearm on the dorsal aspect of the hand. Dr. N. K. Bhardwaj advised shifting of the deceased to District Hospital, Una for X-ray and further treatment. He had stitched the wound on the head of the deceased and due to stitching the margins of the wound had become irregular. He issued medico legal certificate Ex. PF/1. According to the opinion of Dr. Bhardwaj the injury on the head of the deceased was sufficient to cause his death in ordinary course of the nature. Dr. Bhardwaj also opined that the injury on the head of the deceased could be caused by 'Drat' and other injuries found on the body of the deceased could have been inflicted by bamboo stick. Shri Kailash Chand (P.W. 22) who at the relevant time was posted as Station House Officer, Police Station, Gagret recorded the information received by him from P.W. 11 Dr. N. K. Bhardwaj in daily diary register, a copy of which was marked Ext. PQ. He immediately rushed to the hospital and recorded the statement (Ext. PJ) of P.W. 14 which was sent to Police Station, Gagret for registration of the case, on the basis of which First Information Report No. 12/98 came to be registered. The F.I.R. later on transferred to Police Station, Amb marked (Ext. PT) because during the investigation the place where the occurrence took place was found within the jurisdiction of Police Station, Amb. The post-mortem of the dead body of Ravinder Kumar was conducted by Dr. S. P. Kanwar (P.W. 13), Medical Officer, District Hospital, Una who found the following injuries on his body; 1. There was a lacerated wound 6 cm. x 2 cm. x bone deep on the vault of the skull. It was on the occipital-parietal region transversely placed. It was situated 6" from the left pinna and 5 1/2" from the right pinna and 9 1/2" posterior to the root of the nose. Underlying bone of the skull had sustained depressed fracture of the wound. 2. There was contused lacerated wound 2 cm. x 1 cm. x 1.5 cm. on anterior aspect of the right leg, 6" above the medial malleolus. 3. An abrasion 3 cm. x 1 cm. on the middle of the right leg on the anterio medial aspect. It was reddish brown in colour. 4. A contused lacerated wound 3 cm. x 2 cm. x 1 cm. on the cleft between the 4th and 5th fingers of the left hand. 5. There were multiple abrasions on the medial aspect of the left forearms and wrist, which were reddish in colour. 6. There was contused lacerated wound 1 cm. x 0.5 cm. x 0.5 cm. on the proximal 1/3rd of the right forearm on the medial aspect. After investigation charge-sheet was placed. Since the accused persons denied their involvement in the offence, trial was held. Twenty three witnesses were produced to further the prosecution version. The trial Court held that the evidence of the eye-witnesses, more particularly P.Ws. 14 and 15, clearly established that common intention of the accused persons was to cause death of the accused. Accordingly conviction was recorded. Before the High Court it was submitted that the evidence of P.Ws. 14 and 15 do not inspire confidence. In any event so far as the present appellant is concerned S. 34, I.P.C. has no application. The High Court did not find any substance in the aforesaid stand and dismissed the appeal. Both Surjit Singh and the present appellant filed special leave petition. Special leave petition was dismissed so far as the Surjit Singh is concerned, as noted above.
(3.) In support of the appeal Mr. Shiva Pujan Singh learned counsel for the appellant submitted that the prosecution version even if accepted in its totality does not make out a case for application of S. 302, I.P.C. read with S. 34, I.P.C.;