- (1.) Through the instant appeal the accused/appellant Sunil Kumar @ Kala has impugned the judgement rendered by the Additional Sessions Judge, Ambala, in Sessions Case No.15 of 1997, on 22.8.1998, by which the accused/appellant Sunil Kumar @ Kala has been convicted for the offence, under Section 302 of the Indian Penal Code for having intentionally committed the murder of Parmil Kumar. Additionally, the accused/appellant Sunil Kumar @ Kala has been convicted under Sections 323 read with Section 34 of the Indian Penal Code, as well as, 506(1) read with Section 34 of the Indian Penal Code. The accused/appellant Sunil Kumar @ Kala has also impugned the order passed by the Additional Sessions Judge, Ambala, on 25.8.1998 whereby, the accused/appellant Sunil Kumar @ Kala has been sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, under Section 302 of the Indian Penal Code. In case of default in payment of fine, he has been ordered to undergo further rigorous imprisonment for one year. Additionally, he has been been sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.500/-, for the offence under Section 323 read with Section 34 of the Indian Penal Code. In case of default in payment of fine, he has been sentenced to undergo further rigorous imprisonment for two months. For the offence under Section 506(1) read with Section 34 of the Indian Penal Code, the accused/appellant Sunil Kumar @ Kala has been sentenced to undergo imprisonment for six months and to pay a fine of Rs.500/-, under Section 302 of the Indian Penal Code. In case of default in payment of fine, he has been ordered to undergo further rigorous imprisonment for two months.
(2.) The prosecution version of the incident emerges from the complaint made by the complainant Mohan Lal PW5 to ASI Puran Chand PW7, on 8.9.1995. In his complaint, Mohan Lal PW5 stated that he was a resident of village Shahazadpur under Police Station, Naraingarh, and was engaged in agriculture. He stated that on the evening of 8.9.1995, he had gone to a "mela" of the "basera at Guga Mari" at Shahazadpur, and after paying obeisance at the "Guga Mari", he had returned to his residence alongwith his children, and had gone to sleep at about 8/9 PM. His nephew i.e. the deceased Parmil Kumar came to his residence at about 1.00 AM on the night intervening 8/9.9.1995, and after waking him, told him, that the accused Pawan Kumar, Parmod Kumar @ Tori, Vinod Kumar @ Pinki and two other persons, namely, Sham Singh and Sonu, all residents of Shahazadpur, had given him a beating at the "basera at Guga Mari". The complainant Mohan Lal PW5 got up so as to get his nephew i.e. the deceased Parmil Kumar treated from a doctor. While he was on his way to the doctor, Pawan Kumar, Parmod Kumar @ Tori, Vinod Kumar @ Pinki, Sham Singh, Sunil Kumar @ Kala and Sonu, armed with "lathis" and hockey sticks, confronted them on the road in front of the flour mill of Gian Chand, blacksmith. Ram Kumar raised a "lalkara" that Parmil Kumar had escaped previously after picking a quarrel with them, now he should be taught a lesson. On hearing the "lalkara" of Ram Kumar, the complainant Mohan Lal PW5 requested all the accused that they had already injured Parmil Kumar, and that, he was taking him to a doctor for treatment, and further that, it was not good for them to quarrel. On hearing the complainant Mohan Lal PW5. Pawan Kumar told his companions, that the complainant Mohan Lal PW5 should be taught a lesson first. Thereafter, Pawan Kumar gave a "lathi" blow on the head of the complainant Mohan Lal PW5, and Parmod Kumar @ Tori gave a "lathi" blow on the right shoulder of the complainant Mohan Lal PW5. Whereas, the accused/appellant Sunil Kumar @ Kala gave a "lathi" blow on the head of Parmil Kumar. On being assaulted, the complainant Mohan Lal PW5, as well as, Parmil Kumar raised an alarm "bachao-bachao" (help-help). At that stage, Dharam Pal, Satish, Raju and Shiv, who were following them, reached the place of occurrence. Despite the arrival of the aforesaid persons, Vinod Kumar gave a "lathi" blow on the head of the complainant Mohan Lal PW5, which he tried to evade of by raising his hand, and as such, the "lathi" blow hit the complainant Mohan Lal PW5 on the thumb of his right hand. Even at that juncture, Sham Singh and Sonu continued to give fist blows to the complainant Mohan Lal PW5, as also, to Parmil Kumar. While both, the complainant Mohan Lal PW5, as well as, Parmil Kumar were lying on the ground, persons who had arrived at the place of occurrence, namely, Dharam Pal, Satish, Raju and Shiv, according to the complainant Mohan Lal PW5, saved them. All the aforesaid six persons involved in the assault, left the place of occurrence alongwith their "lathis" and hockey sticks. Thereafter, the complainant's father and other persons, who had gathered at the place of occurrence, took the complainant Mohan Lal PW5 and the deceased Parmil Kumar to the Civil Hospital, Shahazadpur, for treatment. Parmil Kumar, according to the complainant Mohan Lal PW5, had become unconscious when they had reached the Primary Health Centre, Shahazadpur. He was, accordingly, referred to the General Hospital by the attending doctor. In his complaint, the complainant Mohan Lal PW5 asserted that legal action be taken against Pawan Kumar, Parmod Kumar @ Tori, Vinod Kumar @ Pinki, the accused/appellant Sunil Kumar @ Kala, Sham Singh and Sonu.
(3.) On the basis of the statement made by the complainant Mohan Lal PW5, First Information Report bearing No.115 was registered at Police Station, Naraingarh, at 4.15 AM on 8.9.1995. A special report in respect thereof was signed by the Ilaqa Magistrate at 7.00 AM on 9.9.1995. It would be pertinent to mention, that the aforesaid special report was sent to the Ilaqa Magistrate through "dak" on account of the fact, that the First Information Report, as it was originally recorded, was in respect of offences under Sections 323, 506, 148 and 149 of the Indian Penal Code.;