Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.50 of 2004. Judgment reserved on: 16.9.2010. Date of Decision: September 22nd, 2010. ------------------------------------------------------------------------------------------------------------- Hari 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. Anup Chitkara, Advocate, For the Respondent : Mr. J.S. Rana, Asstt. Advocate General. Surinder Singh, J : The appellant has challenged the judgment of his conviction and sentence in this appeal, passed under Section 307 of the Indian Penal Code in Sessions Trial No.29 of 1999 dated 28.7.2003, whereby he was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.20,000/-, in default of payment of fine, he was further sentenced to undergo imprisonment for a period of one year. The fine amount if realized, was ordered to be paid to the victim Jai Singh (PW2). - 2 - 2. In brief, the prosecution story can be stated thus. (i) The appellant was married to Smt. Dhani Devi, real sister of Jai Singh injured. The appellant had a dispute with respect to the share of the property with his sister and it led bitterness inter-se said Jai Singh and Hari Singh appellant. (ii) On 23rd April, 1998 at 9.30 p.m., after returning from his work, PW2 Jai Singh while passing through the house of the appellant, was caught hold from his neck by the appellant and given beatings with Danda Ex.P1 by which one blow was given on the head and also inflicted injuries on the chest and leg. Jai Singh raised hue and cry. PW3 Devi Singh, son, PW4 Durgi Devi, his wife and one Som Dev (not examined) got attracted by the noise. Jai Singh was allegedly thrown by the appellant, from the Danga and he became unconscious. Durgi Devi and - 3 - Devi Singh had witnessed the occurrence. They reached the spot and found Jai Singh unconscious. He was removed to Zonal Hospital, Mandi, even there he remained unconscious. (iii) On 24.4.98 at 10.15 a.m., PW4 Durgi Devi lodged report in the Police Station, which was recorded in daily diary Ex.PF which later culminated into FIR Ex.PD. The injured was serious, hence referred to IGMC, Shimla. 3. PW8 Dr. Gopal Sharma, Zonal Hospital, Mandi observed the multiple lacerated wound on the scalp on occipital and both parietal region, also abrasion over right ankle and a blunt injury on the right side of the chest. The aforesaid injuries were got x-rayed. The doctor opined that there was fracture of 7th, 8th and 9th ribs of the right side of the chest. With respect to injury No.1, he was referred to the Surgical Specialist, IGMC Shimla, for its management and opinion. The doctor in IGMC found linear fracture over left tempo frontal region with contusion and this injury was opined fatal to life. Police - 4 - took into possession MLC Ex.PH. In the opinion of the doctor, injury Nos.1 and 2 could be caused with Danda Ex.P1, whereas injury caused on the right side of the chest which caused fracture, could be possible by having thrown on the hard and rough surface. The X-ray Ex.PA of the injured were taken by PW1 Dr. G.D. Gaud, Radiologist of Zonal Hospital, Mandi and his opinion is Ex.PB. 4. Police visited the spot, prepared the site plan Ex.PJ, recorded the statements of the witnesses. The injured was not able to speak for about six months, therefore his statement under Section 161 Cr.P.C. was recorded when he was found to be fit to speak. After completion of the investigation, the challan was presented in the Court for the trial of the appellant. 5. On the examination of the record and documents appended thereto, the learned trial Court prima-facie found it a case punishable under Section 307 and 506 Part-II of the Indian Penal Code, as such charges under the aforesaid sections were framed, to which the appellant pleaded not guilty and claimed trial. 6. The prosecution examined the witnesses to prove its case. The appellant was also examined under Section 313 of the Code of Criminal Procedure. His case - 5 - was denial simplicitor and pleaded innocence. No evidence in defence was led. At the end of trial, the appellant was held guilty only for the offence under Section 307 of the Indian Penal Code, as such he was sentenced as aforesaid, which has been assailed by the appellant in this appeal. 7. Shri Anup Chitkara, learned counsel for the appellant vehemently argued that the FIR against the appellant was a result of deliberation and concoction there was also a delay of about six months in recording the statement of the injured which has to be weighed with suspicion, particularly against the background that their relations inter-se were strained. It is also argued that the evidence brought on record is not trustworthy and is mutually destructive making the prosecution case highly improbable and also that the ingredients of the offence for which he was convicted were missing, therefore, the appellant could not have been convicted and sentenced. 8. Shri J.S.Rana, learned Assistant Advocate General for the State has supported the impugned judgment and further argued that the wife of the victim had immediately lodged the report to the police with - 6 - respect to the incident naming the assailant. She corroborated the prosecution case and the injured has also stated about the attempted murderous assault upon him by the appellant, which is duly supported by the medical evidence. 9. I have thoughtfully considered the points raised by both the parties and have legally scanned and reappraised the evidence on record closely and with caution. 10. PW4 Durgi Devi, in her report Ex.PF lodged on 24th April, 1998 categorically stated that on the previous night around 9.30 p.m. she was in her house alongwith her son PW3 Devi Singh. They heard the cries of her husband. On hearing, both of them came out and went to the spot, from where the cries were emanating and saw that the appellant was giving beatings to her husband just below his house on the path. She alongwith her son Devi Singh intervened and relieved him from his clutches. When examined in the Court as PW4, she corroborated the above version and further stated that when they had reached near the place of occurrence, the appellant had pushed her husband from Danga, as a result of which he sustained bleeding injuries on his head and leg. The - 7 - appellant went inside his house, thereafter they took the injured to their house, but could not immediately shift the injured to the hospital and report the matter to the police for want of transport facility. Next day, the report was lodged and the injured was taken to the Zonal Hospital, Mandi. Her husband was not in a position to talk. He remained admitted in the hospital for 6-7 days, thereafter he was referred to IGMC, Shimla, where he was hospitalized for 17 days. After the discharge from the hospital for about 6/7 months, he was unable to speak. In cross-examination, she admitted that her husband used to remain sick and was earlier operated for the leg injury. She also admitted that seldom he had been taking liquor. She also admitted that there was a dispute of land between her husband and his sister. She stated that she had brought her husband to the hospital in the night of the occurrence, but according to her, hospital people did not take any care. 11. PW3 Devi Singh also made the similar version in his examination-in-chief and in cross-examination admitted that his father was physically handicapped because of the surgical operation of his one of the legs. He admitted pendency of the land dispute in the revenue - 8 - Court after the alleged occurrence. He denied that his father under intoxication sustained injuries by fall. 12. PW2 Jai Singh is an injured witness. He testified that around 9.30 p.m. on 23.4.1998, when he reached near the house of appellant Hari Singh alias Mali, he caught hold him from the neck and gave beatings with hand. On this, he raised hue and cry. Thereafter, he caught hold of him from the collar of his shirt and dragged him towards his house. He inflicted Danda blows on his head, chest and legs. On hearing his cries, his son PW3 Devi Singh, wife PW4 Durgi Devi and one Som Dev (not examined) came to the spot. On seeing them, he was thrown down from the Danga and he became unconscious. He regained consciousness in IGMC, Shimla, where he remained admitted for about 15 days but could speak only after 6/7 months. Though police visited him for recording his statement twice or thrice but they could record his statement only when he was able to speak. He identified the Danda Ex.P1, which was used for beating, by the appellant. In cross-examination, he also admitted the pendency of land dispute with his sister. He admitted the suggestion that he first of all spoke about the occurrence to his wife after about six months when he could speak. - 9 - 13. PW6 HC Bhup Singh had recorded the rapat Ex.PF at the instance of PW4 Durgi Devi. According to him, PW4 Durgi Devi did not visit the Police Station on 3.4.1998. He denied that injured had taken liquor and had asked them to come to Police Station next day. 14. On the critical examination of the evidence aforesaid, I find some minor discrepancies qua witnessing the alleged incident, in the statement made by PW4 Durgi Devi and the earlier report Ex.PF lodged by her, but she was categoric in her deposition about seeing the appellant assaulting her husband at 9.30 p.m. on 23.4.1998. Her testimony is duly corroborated by her son PW3 Devi Singh in material particulars. Insofar as the injured PW2 Jai Singh is concerned, he stated that he was given beatings with a danda by the appellant and he had sustained injuries on his head, chest and leg. Further PWs 3 and 4 have stated when they reached on the spot, the appellant after having been given beating, gave a push to him from the Danga. This fact has been corroborated by the victim in his statement. Although, in the rapat Ex.PF Durgi Devi got mentioned that when she alongwith her son Devi Singh reached the spot, they had relieved Jai Singh from the clutches of the appellant but - 10 - there is no reference of giving a push to him from the Danga but in my opinion it is of no consequence which could render the prosecution case doubtful. I did not find any other material contradiction in the statements of the witnesses aforesaid with respect to launching of the attack by the appellant on PW2 Jai Singh with a Danda Ex.P1 and having been given beatings to him. The assault by the appellant stands proved on record beyond reasonable doubt. The injured was physically handicapped by one leg which was surgically operated earlier and the appellant has been at an advantageous position. He had a Danda with him which was used to assault him. Since the incident stands proved as alleged, now it has to be seen as to what offence has been committed by the appellant, in this behalf medical evidence assumes importance. 15. PW8 Dr. Gopal Sharma, had examined PW2 Jai Singh on 24.4.1998 at 11 a.m. and noticed the following injuries:- “1. There was multiple lacerated wound over scalp at occipital and both parietal region measuring about 4.5 x 1 x 1 cm approximately and occipital region and left side wound measuring - 11 - 1 x 1 x 1 cm approximately and other on the right side measuring about 2 x 1 x 1 cm approximately. 2. There was abrasion over right ankle at lateral malleous. 3. There was blunt injury over right side of chest.” He advised X-ray for injuries. Injury No.2 was opined to be simple but for injuries No.1 and 3 he was referred to the Surgical Specialist. 16. The X-ray examination was conducted by PW1 Dr. G.D. Gaur, Radiologist. The Skia-gram is Ex.PA. On its examination qua injury No.3, the doctor noticed fracture of 7th, 8th and 9th ribs on the right side of the chest. His report is Ex.PB. In his opinion, this injury could be caused with a Danda. He also identified the victim during the trial of the case. PW8 Dr. Gopal Sharma also testified that the injured was admitted in the hospital and later referred to IGMC, Shimla, for the management of injury No.1 and the opinion of injury, per report of IGMC, there was linear fracture over temporal frontal region with contusion and in the normal circumstances, this injury could be fatal. Pertinently, the doctor who treated the victim in IGMC, Shimla and who gave the opinion about the linear - 12 - fracture was not examined. There is also no evidence on record that injury No.1 was immediately dangerous to life. Therefore, the fracture on the occipital region with respect to injury No.1 stands not proved. PW8 Doctor Gopal Sharma further did not over rule the possibility of injury No.3 having been caused if a person is thrown on a hard and rough surface, but qua injury No.1 and 2, he was categoric that it could be caused by Danda Ex.P1 simultaneously. 17. On the critical analysis of the medical evidence, it stands proved on record that injury No.3 i.e. fracture of 7th, 8th and 9th ribs on the right side is grievous, whereas, injury No.1 is concerned, though it was on a vital portion of the body i.e. head where linear fracture over left tempo frontal region with contusion was found and there was multiple lacerated wound over scalp at occipital and both parietal region, yet the linear fracture as stated by the doctor could not be proved. However it was having contusion but doctor did not testify that in the normal circumstance, even this injury was imminently dangerous to life. 18. Against the aforesaid background, it has to be examined whether the act committed by the appellant - 13 - comes within the scope and ambit of Section 307 of the Indian Penal Code or under some other provision of the Penal Code. 19. It is well settled that if an accused does any act with such intention or knowledge, and under such circumstances that, if he, by that act, caused death, he would be guilty of murder, he shall be guilty of committing an offence punishable under Section 307, but if an accused did any act that he would be guilty of culpable homicide not amounting to murder, he shall be guilty of committing an act punishable under Section 308 of the Penal Code. Culpable homicide does not amount to murder: (a) if the act is done with the intention or knowledge referred to in Section 300 but under circumstances which would bring the case within one of the exceptions mentioned in that section or (b) if the act is done with the intention or knowledge referred to in Section 299 but not falling under clauses (2) (3) and (4) of Section 300 of the Penal Code. - 14 - 20. Thus, if an accused does not intend to cause death or any bodily injury, which he knows to be likely to cause death or even to cause such bodily injury as is sufficient, in the ordinary course of nature, to cause death, Section 308 of the Penal Code would apply and if the case is not covered by any of the exceptions if any, mentioned in Section 300 of the Penal Code. But however, before an act can be said to have been committed under Section 308 of the Penal Code, the existence of the mens rea of the appellant at the time of the incident is sine qua non, for the reasons that criminal intention is one of the two essential elements of the offence of attempted murder. To constitute an offence of murder, there must be an act coupled with mens rea. 21. The appellant in the instant case appears to have been inspired to attack Jai Singh, because of the landed dispute between him and his sister, the wife of the appellant. The appellant wanted only to teach him a lesson. Had he nourished intention to kill, he would have been equipped with a lethal weapon and might have selected the site to finish him somewhere else in disguise not in front of the house of the victim or his house. The intention has been defined to consist of a desire that - 15 - certain consequences shall follow from the act or omission of the accused. In absence of the intention or knowledge, which is necessary to constitute murder, there cannot be a case of attempted murder. Even the intention can be proved by res gestae by acts or events, previous or subsequent to the occurrence. There are various other circumstances from which intention can be gathered. 22. In the case in hand, there was no premeditation or planning before the act, but it appears to be sudden flash of anger, which appears to have erupted on seeing or meeting the injured. The appellant did not go anywhere to pick up the Danda, which was allegedly used to beat him. Though, the parts of the body, which he selected to inflict the injuries was head and the chest, both are the vital parts. The appellant seems to be having the intention or knowledge to cause such bodily injuries that he would be guilty of culpable homicide not amounting to murder, had the injured died. Therefore, this act of the appellant fairly and squarely comes within the purview of Section 308 and not Section 307 of the Penal Code. { See Tukaram Gundu Naik v. State of Maharashtra (1994) 1 SCC 465 } - 16 - CONCLUSION AND FINAL ORDER. 23. Thus, having given my earnest consideration and regard to the age of the appellant and the suddenness in which the whole occurrence took place during the night, I am of the view that the offence is one punishable under Section 308 of the Indian Penal Code. Accordingly, I set aside the conviction of the appellant under Section 307 of the Indian Penal Code and substantive sentence of three years rigorous imprisonment and fine awarded there-under. Instead, I hold him guilty and convict under Section 308 of the Indian Penal Code. 24. In so far as the sentence is concerned, learned counsel for the appellant prayed for leniency on the ground of delay in disposal of the matter that the alleged incident had taken place in the year 1998 i.e. more than a decade ago. He was convicted and sentence and it took six years for disposal of the appeal and further that the appellant is an aged person, therefore, he may be released on probation. To support his point, he cited Gurdarshan Singh vs. State of Punjab [2003 (2) RCR (Criminal) 822]. 25. I have examined the above argument advanced by the learned counsel, but I am not in - 17 - agreement with him that the allowance of delay in this matter would in any way make the offender entitled for leniency. Gurdarshan Singh’s case supra cited by the learned counsel for the appellant does not support his version as in that case, there was a compromise effected inter se the complainant and the convict, which was considered for his enlargement on probation, considering also the long pendency. In the instant case, there is no compromise which could be weighed in favour of the appellant-convict while imposing the adequate sentence on him. 26. Keeping in view the age of the appellant and also the mitigating and extenuating circumstances appearing on record, the ends of justice would be met by imposing the sentence of Rigorous Imprisonment for a period of “six months” and to pay a fine of Rs.15,000/-, in default of payment of fine, the appellant shall further undergo simple imprisonment for a period of “one month” for the offence punishable under Section 308 of the Indian Penal Code. Thus, ordered accordingly. 27. The appeal stands partly allowed in the above terms. The appellant is on bail. He shall surrender before the learned trial Court on 22.10.2010 to serve out the - 18 - sentence, failing which the learned trial Court shall take coercive method to secure presence and commit Hari Singh convict-appellant to jail, to serve out the sentence in conformity with the judgment. Out of the fine of Rs.20,000/- as imposed by the learned trial Court for the offence of attempted murder under Section 307 of the Indian Penal Code, if stands deposited, Rs.15,000/- be deducted as fine imposed under Section 308 of the Indian Penal Code and shall remain deposited under the appropriate head of fine, balance of Rs.5,000/- shall be refunded to the appellant. 28. A copy of this judgment alongwith record be sent to learned trial Court forthwith. September 22, 2010. (Surinder Singh) (Pds) Judge.