Criminal Appeal No.253-DB of 2000 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Mahanda APPELLANT VERSUS State of Punjab RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE JUSTICE (MRS.) DAYA CHAUDHARY Present:- Shri D.S.Sandhu, Advocate for the appellant. Shri S.S.Gill, Additional A.G. Punjab. MEHTAB S.GILL, J. This is an appeal against the judgment/order dated 7.5.1999 of the learned Additional Sessions Judge, Ferozepur whereby he convicted Mahanda son of Charag under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2000/-, in default, to further undergo RI for one year. Both Mahanda son of Charag and Tarsem Masih son of Mahanda Masih were charged under Sections 302/34 I.P.C., but the learned trial Court in its wisdom acquitted Tarsem Masih. The State has not filed any appeal against the acquittal. We are now left with the appeal of Mahanda. Criminal Appeal No.253-DB of 2000 -2- The case of the prosecution is unfolded by the statement Ex.P10 of Surmukh Singh PW-4 given to ASI Des Raj PW-8 in Civil Hospital, Ferozepur. Surmukh Singh stated that he is a resident of Naurangke Sial and does labour work. On 30.10.1996 at about 3 a.m. he and Joginder Singh son of Gurdial Singh resident of the same village were walking on the Phirni (outer road), when they reached near the turning of the street, they saw Paramjit Singh son of Surmukh Singh crossing the street. When he went near the house of Mahanda Masih, then Tarsem Masih son of Mahanda Masih armed with a salt- grinder (Noon Ghotna) and Mahanda Masih armed with a Killa (wooden peg) came in the street from their house and thereafter Mahanda Masih gave a blow with his wooden peg on the head of Paramjit Singh who fell down. Tarsem Masih then gave a blow with the salt grinder on the right shoulder of Paramjit Singh. Surmukh Singh and Joginder Singh raised a hue and cry. Thereafter both Mahanda Masih and Tarsem Masih dragged Paramjit Singh and took him inside their house. After taking Paramjit Singh into their house, Tarsem Masih gave one more salt grinder blow to Paramjit Singh which hit on his left hand. Thereafter both Mahanda Masih and Tarsem Masih ran away with their weapons. The cause of enmity is that they were suspecting that Paramjit Singh was having illicit relations with Pinki daughter of Mahanda Masih. On the basis of this statement F.I.R. Ex.P18 was registered on 30.10.1996 at 5.15 a.m .and the special report reached the C.J.M., Ferozepur on the same day at 10.15 a.m. The prosecution to prove its case, brought into the witness-box Dr.Baldev Raj Arora PW-1, Sunder Singh PW-2, Dr.Ramesh Bhargav PW-3, Surmukh Singh PW-4, Constable Madan Lal PW-5, Meet Kaur PW-6, Baljinder Singh PW-7, ASI Des Raj PW-8 and SI Jalaur Singh PW-9. Learned counsel for the appellant has argued that there is an unexplained delay in lodging of the F.I.R. Death had taken place 26 hours after Criminal Appeal No.253-DB of 2000 -3- Paramjit Singh was brought to the Civil Hospital, Ferozepur. He was conscious and as per the statement of Dr.Baldev Raj Arora PW-1, the patient was conscious, he was well oriented, he signed on the medico-legal report Ex.P1. Initially, the police registered a case under Sections 323/34 I.P.C., but at a later stage after a gap of 26 hours, Paramjit Singh died and a case under Section 302/34 I.P.C. was registered. It has come in evidence of ASI Des Raj PW-8 that the deceased was not wearing a Pajama, shirt or turban. As per the prosecution story, the deceased was dragged into the house, but there are no injuries to this effect on the deceased. It clearly shows that the prosecution is suppressing the truth and the genesis of the occurrence. No blood was lifted from the place of occurrence as there was no blood. Nothing has come on record as to what Surmukh Singh PW-4 was doing at 3 a.m. on 30.10.1996. In fact, he has not seen the occurrence and is a planted witness. Learned counsel has argued that Paramjit Singh died due to the negligence on the part of the doctors who were attending on him in Civil Hospital, Ferozepur, as the occurrence had taken place at 3 a.m. on 30.10.1996 and the deceased died on 31.10.1996 at 5 a.m. i.e. after a gap of 26 hours. If the injuries had been serious, he should have been referred to a specialty hospital so that he could get better medical care. Learned counsel for the State has argued, that the F.I.R. is prompt, name of the accused is given, the weapon of offence and the nature of injuries, the motive for the commission of offence is also given. Deceased had an evil eye on the daughter of the appellant. This is an eye-witness account. There was no need for the complainant to falsely implicate the appellant for the death of his own son and let the actual culprit go scot free. The cause of death as per the post- mortem Criminal Appeal No.253-DB of 2000 -4- report Ex.P5 is due to shock and haemorrhage as a result of injury No.1 i.e. the head injury. We have heard the learned counsel for the parties and perused the record with their assistance. The main thrust of the argument of the learned counsel for the appellant is that the prosecution is suppressing the genesis of the occurrence. ASI Des Raj PW-8 has stated that the Pajama, shirt and turban of the deceased were not taken into possession, meaning thereby that the appellant was not wearing these clothes. The occurrence had taken place at 3 a.m. on 30.10.1996. Though Dr.Baldev Raj Arora PW-1 declared Paramjit Singh unfit to make statement, but the statement of Surmukh Singh PW-4 was not recorded till 5.15 a.m. on 31.10.1996. Why the police kept waiting for such a long time, i.e. nearly 26 hours has not been adequately explained by the prosecution. In fact, this time was being utilised for consultations and confabulations as to how to falsely implicate the appellant. This argument of the learned counsel for the appellant does not cut much ice. The occurrence had taken place at 3 a.m. on 30.10.1996 and the F.I.R. Ex.P18 came into existence at 5.15 a.m. on 31.10.1996. It cannot be overlooked that the police was working at night time. The delay, if any, was only administrative delay. From the statement of Dr.Baldev Raj Arora PW-1, it is clear that Paramjit Singh was conscious, well-oriented and he signed on the medico- legal report Ex.P1. If he knew what he was signing, it is strange as to why Dr.Baldev Raj Arora PW-1 gave the report Ex.P3 that he was not in a position to make a statement. In fact, it seems proper medical treatment was not given to him. He should have referred him to a specialty hospital for better medical care. Delay of 26 hours from the time he got the head injury till his death was fatal for him. Criminal Appeal No.253-DB of 2000 -5- As per the prosecution evidence appellant has given one injury on the head of the deceased with a Killa (a wooden piece dug in the ground for tying cattle). These wooden pieces are not made of hard solid wood, but by hitting the head, appellant knew that it could be fatal. Once Paramjit Singh was dragged into the house by the appellant as per the prosecution version, appellant could have inflicted more serious injuries all over the body of the deceased, as then he was under the total control of the appellant, but the blow on the head proved fatal. We are of the considered opinion that the case of the appellant falls within the parameters of Section 304 Part-I I.P.C. Conviction of the appellant is modified from Section 302 I.P.C. to Section 304 Part-I I.P.C. and he is sentenced to undergo RI for 10 years. Fine shall remain intact as already awarded by the learned trial Court. With the above modification in conviction and sentence, appeal is dismissed. ( MEHTAB S.GILL ) JUDGE ( DAYA CHAUDHARY ) April 15, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO