Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.28 of 2010. Date of Decision: September 9, 2010. ------------------------------------------------------------------------------------------------- Rasal Singh. …… Appellant. Versus State of H.P. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. Ramakant Sharma, Advocate. For the Respondent : Mr.A.K.Bansal, Addl. Advocate General. Surinder Singh, J (oral) : The appellant was charge-sheeted and tried for the offence punishable under Section 302 of Indian Penal Code, for allegedly causing death of his co-villager Jamit Singh. At the end of trial, the appellant was convicted under Section 304 Part-II of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of five years. Feeling aggrieved and dissatisfied by the impugned judgment of conviction and sentence, the instant appeal has been filed. - 2 - 2. In short, the prosecution case can be stated thus. On 18th May, 2009, around 7 p.m., Deceased Jamit Singh (72) and his wife PW3 Nirmala Devi was clearing his field in his village Mewa near his residence alongwith their daughter- in-law PW1 Shashi Bala. In the meantime, appellant was on his way to his house with a pale of water from a water source nearby. He came across Jamit Singh and picked up a quarrel with him on the pretext as to why he was lopping the fence of his field. Upon this, Jamit Singh to avoid the altercation went to his another field, but he was followed by the appellant, who again picked up an altercation with him. PW-1 Shashi Bala shouted for PW3 her mother-in-law. PW3 Nirmala Devi told her to be there but she herself proceeded ahead and reached nearer to the place of incident. She witnessed the occurrence. Appellant kept the water vessel on the ground and fisticuffed him and caught hold from the neck, as a result of the blows, the deceased fell down unconscious. The appellant ran away from the spot. PW3 shouted for help. Des Raj, Ramjan and Swarna Devi (PW2) - 3 - reached the spot. Jamit Singh was removed to the hospital in a vehicle, but on the way, he breathed his last. A statement under Section 154 Cr.P.C. Ex.PW1/A was made to the police by PW1 Shashi Bala, which culminated into FIR Ex.PW12/A under Section 302 of the Indian Penal Code. 3. PW13 SI Som Nath proceeded to the spot, prepared the site plan Ex.PW13/B, inquest papers Ex.PW5/A and also took the photographs of the dead body, lying in Tanda hospital. He also took into possession a sickle Ex.P1 from the spot vide recovery memo Ex.PW1/B, which was identified to be that of the complainant Shashi Bala. 4. On the request of the police, the autopsy of the dead body was performed by PW4 Dr. Atul Gupta. The postmortem report is Ex.PW4/A. The viscera was sent for the forensic examination. As per report Ex.PX, there were traces of alcohol, which were found 133.75 m.g. % in the blood of the deceased. The final opinion given by the doctor is Ex.PW4/D. The doctor opined that the injury on the head found on the dead body could not be - 4 - caused due to fall in absence of external injury on the scalp tissues which otherwise should have been present in case of fall. Further the head injury in the form of moderate sub arachnoids haemorrhage was caused with blunt yielding force like that of fist blows. On the receipt of forensic result, the doctor categorically opined that the deceased had died due to asphyxia and neurogenic shock, as a result of ante mortem head injury caused with blunt yielding force. 5. After completing the investigation of the case, challan was presented in the court for the trial of the appellant. The appellant abjured the guilt, as such claimed to be tried. 6. The prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. When called upon to enter into his defence, no evidence in defence was led by him. At the end of trial, he was convicted and sentenced under Section 304 Part-II of the Indian Penal Code, as aforesaid. - 5 - 7. Shri Ramakant Sharma, learned counsel for the appellant has vehemently argued that the independent witnesses Des Raj and Ramjan were unnecessarily given up by the prosecution. Had they been examined, they could have thrown light in the manner the incident took place. He also pointed out that there are material contradictions in the statements of PW1 Shashi Bala, PW2 Swarna Devi and PW3 Nirmala Devi. He also referred to the statement of the Investigating Officer to this effect to highlight the contradictions and argued that in the aforesaid circumstances, when there is no evidence with respect to giving fist blows to the deceased by the appellant, a reasonable doubt has arisen as to how Jamit Singh had died, who otherwise had already consumed alcohol and was a heart patient. He also argued that in any case in the given circumstances, the sentence imposed by the learned trial Court is on the higher side, which requires to be reduced to meet the ends of justice. 8. On the other hand, Shri A.K.Bansal, learned Additional Advocate General supported the impugned judgment of conviction and - 6 - sentence. He also relied upon the statements of PW1 to 3 with respect to the incident in question and also referred to the statement of PW4 Dr.Atul Gupta, who categorically stated that the ante mortem injury on the head could only be caused by a fist blow resulting into the death of the appellant, especially in the circumstances, when the appellant was in the know of the fact that the deceased had already undergone the heart surgery and this court cause his death. Further that he knew that the deceased was aged about 72 years, whereas the appellant was a stout built person about half of his age. Therefore, no interference is called for in the impugned judgment of conviction and sentence. 9. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record in meticulous details. 10. The presence of the appellant on the spot is not disputed. It stands proved on record that the appellant had gone to fetch the water from a nearby water source and on his return, he - 7 - came across the deceased, who was lopping the fence and clearing his field. This is also an admitted fact that the appellant had objected to the lopping of fence of his field and he put down his water pot on the ground and started quarreling with the deceased. To avoid the quarrel, the deceased went towards his another field near the water channel (Chala). The appellant followed him and put the pot on the ground. In the meantime, PW1 Shashi Bala, daughter-in-law shouted for her mother-in-law PW3 Nirmala Devi, who in turn told he that she should stay where she was and she would herself go to the spot. 11. PW3 Nirmala Devi was also working nearby in the field. She proceeded to the spot. When examined in the Court, she categorically stated that when she reached the spot, she saw the appellant giving him fist blows, thereafter he ran away. Her husband was lying in the drain (Chala) on the spot. She also stated that when the appellant was beating her husband, she asked the reason for this, but he did not reply, in turn he ran away after picking up the pot. Thereafter Desh Raj, - 8 - Ramjan and his wife reached the spot consequent upon raising alarm by her. This fact has been corroborated by PW2 Swarna Devi who was also present nearby. Although in cross-examination, she stated that she could not hear the exact words, which the appellant used, but according to her the deceased as well as appellant were exchanging some hot words. She also admitted the presence of Shashi Bala (PW1) in the nearby field. She also admitted that after the incident, the deceased was lying in the drain. She stated that his wife Nirmala Devi had asked her to bring the water as Jamit Singh was unconscious. Her statement lends corroboration to the statement of PW3 Nirmala Devi and also to PW1 Shashi Bala, who had seen the occurrence from a distance. She admitted in her cross-examination to a question put to her in defence that the deceased had also undergone the heart surgery. 12. On the above analysis of evidence, I am of the view that it was the appellant and appellant alone who had fisticuffed the deceased knowing that he had undergone the heart surgery. - 9 - 13. PW4 Dr. Atul Gupta stated that though the deceased was well built, but he had undergone the heart surgery. He further stated that on examination of the viscera, the deceased had consumed alcohol, but he was not under the influence of alcohol. He further over-ruled the possibility of the injuries have been sustained by the deceased due to fall in absence of the associated injuries. He testified that sub-arachnoids haemorrhage on the head of the appellant could be possible by fist blows and this injury could be precipitated by consumption of alcohol by the deceased. He also stated that in absence of the alcohol, this injury should have lesser effect, but death would have taken after a longer duration. He also testified that the blows on the head could be the cause of death. Since the neurogenic shock was co-related with the head injuries sustained by the deceased, thus, his final opinion was that this was the cause of death. 14. On the critical examination of the aforesaid evidence and more specifically the suggestion put to PW1 in her cross-examination that - 10 - the appellant had a knowledge that the deceased had already undergone heart surgery, the appellant has also the knowledge that the blow given on his head could result into his death, fairly and squarely comes within the ambit of Section 304 Part-II of the Indian Penal Code and I find no fault in the conviction passed by the learned trial Court for the aforesaid offence. 15. Insofar as the sentence is concerned, keeping in view the age of the deceased and that of the appellant and also the fact that there was only one injury which was caused by the appellant with the fist blow as aforesaid, in my opinion the sentence of 5 years imprisonment passed by the learned trial Court is on higher side. Keeping in view the extenuating and mitigating circumstances on record, against the background aforesaid, in my opinion, the substantive sentence of imprisonment of 5 years deserves to be reduced to 1½ years with a sentence of fine to the tune of Rs.25,000/-. In default of payment of fine, the appellant shall further undergo simple imprisonment for a period of 6 months. Thus ordered accordingly. - 11 - 16. In case the fine amount is deposited/ realized, an amount of Rs.15,000/- shall be paid to PW3 Nirmala Devi, the widow of the deceased by the learned trial Court. 17. While maintaining the conviction, the sentence stands accordingly modified to the above extent. 18. The learned trial Court is hereby directed to send a modified warrant to the jail concerned, in conformity with the judgment passed by this court. 19. The appeal stands accordingly disposed of. Send down the records. September 9, 2010. (Surinder Singh) (Pds) Judge.