IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.81-DB of 1999 Date of decision: 13.02.2008 Resham Lal. -----Appellant. Vs. The State of Punjab. -----Respondent. CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE S. D. ANAND Present: Mr. Joginder Sharma. Advocate for the appellant. Mr. R.K. Lamba, Advocate Mr. Rajesh Bhardwaj, DAG, Punjab. ----- Adarsh Kumar Goel, J. The appellant challenges his conviction under Section 302 IPC for which he has been sentenced to undergo life imprisonment and to pay fine of Rs.500/-, in default, to undergo rigorous imprisonment for six months. Case of the prosecution is that on 26.5.1996 at 9-30 P.M., Kopa @ Bhola Ram deceased was watching a movie on VCR in his house alongwith his brother Sukhdev Singh PW-1 and brother-in-law Jarnail Singh PW-2. The deceased was working as Criminal Appeal No.81-DB of 1999 Palledar (labourer). The accused-appellant Resham Lal was also a labourer. He came with an iron rod in his hand and objected to the playing of VCR. Sukhdev Singh and Jarnail Singh tried to pacify him. The deceased also went near the accused. The accused gave him two blows with iron rod on the head and left temple with intention to kill. The deceased fell down on the ground. Sukhdev Singh and Jarnail Singh raised alarm “Don’t kill, Don’t kill”. The accused ran away with the iron rod. The injured was taken to the hospital in the night. He remained unconscious. On receiving message from the hospital, ASI Narottam Kumar PW- 7 came to the hospital and sought opinion of the doctor about fitness of the injured to make a statement. The doctor gave opinion at 7-30 A.M. that the injured cannot give statement. At this, statement of Sukhdev Singh PW-1, Ex.PA, was recorded, leading to registration of FIR. PW-7 Narotam Kumar went to the place of occurrence, prepared rough site plan, recorded statements of Jarnail Singh and other respectables. The injured was taken to CMC Hospital, Ludhiana where he died on 27.5.1996. PW-4 Amrik Singh, Inspector received wireless message from the hospital. He went to the hospital and prepared inquest report. The accused was arrested on 3.6.1996 and made a disclosure- statement, leading to recovery of iron rod Ex.P1. After investigation, the accused was challaned. The prosecution examined PW-1 Sukhdev Singh, PW- 2 Jarnail Singh, PW-3 Gursewak Singh, Draftsman, PW-4 Amrik 2 Criminal Appeal No.81-DB of 1999 Singh, Inspector, PW-5 Dr. Ajit G..Varghese, PW-6 Dr. Vikram David, PW-7 Narotam Kumar, ASI, PW-8 Iqbal Singh, Constable, PW-9 Dr. Mohinder Pal and PW-10 Jai Paul. The accused denied the prosecution allegations and stated that the deceased had fallen in drunken condition and received injury, on account of which he died. After considering the evidence on record, the trial Court held the case of the prosecution to be proved beyond reasonable doubt. We have heard learned counsel for the parties and perused the record. Learned counsel for the appellant submitted that there was delay in lodging of the FIR. The occurrence took place on 26.5.1996 at 9-30 P.M. The FIR was recorded at 8-15 A.M. on 27.5.1996 and the special report reached the Magistrate on 28.5.1996 at 6-30 P.M. It was next submitted that evidence of PW-9 Dr. Mohinder Pal showed that the deceased was smelling of alcohol, which was not explained by PW-1 Sukhdev Singh and PW-2 Jarnail Singh. Injury was possible by a fall. The version given by eyewitnesses was not reliable. Alternatively, it was submitted that since there was no intention to cause death or the particular injury found on the deceased, the offence would fall under Section 304-II IPC. Reliance has been placed on judgments of the Hon’ble Supreme Court in Mirza Hidayatullah Baig v. State of Maharashtra AIR 1979 SC 1525, Shankar v. State of 3 Criminal Appeal No.81-DB of 1999 M.P. AIR 1979 SC 1532, Mavila Thamban Nambiar v. State of Kerala AIR 1997 SC 687. We do not find any merit in the contentions raised. We have gone through the version given by PW-1 Sukhdev Singh and PW-2 Jarnail Singh, both of whom are eyewitnesses. Sukhdev Singh is brother of the deceased and Jarnail Singh is his brother-in-law i.e. wife’s brother. There presence at the place of occurrence is natural. Their being relations of the deceased, does not make their testimony partisan. There is no dispute about identity of the accused. Delay in lodging of the FIR may be a ground to closely scrutinise the version of the prosecution but cannot be a ground to discard the prosecution version, if the same was otherwise reliable. Some delay is bound to take place as the grief stricken family members do not immediately rush to report the matter to the police. Their priority is to first save the injured. The injured was immediately taken to the hospital. He was not in a condition to make a statement. The police arrived in the hospital in the early morning hours and recorded statement of Sukhdev Singh PW-1. Delay in sending a copy of the FIR to the Magistrate may be a discrepancy in the investigation but is not by itself enough, in the circumstances of the case, to hold that the FIR was ante-timed to falsely implicate the appellant. Close relatives of the deceased would be last persons to substitute the real accused by some one else. Version given by PW-1 Sukhdev Singh PW-2 Jarnail Singh is reliable. They have 4 Criminal Appeal No.81-DB of 1999 faced long and searching cross-examination and their testimony has remained unshaken. There is no major contradiction or discrepancy in the statements of PW-1 Sukhdev Singh and PW-2 Jarnail Singh. We hold that version given by PW-1 Sukhdev Singh and PW-2 Jarnail Singh is reliable and connects the accused with the occurrence. The deceased having smell of alcohol, does not falsify the case of the prosecution. The testimony of Dr. Mohinder Pal PW-9, who conducted the post-mortem examination, is as under:- “1. A diffused swallowing of the size of 10 x 10 cm placed on the cheek and head. 6 cm right of midline. It was extending along the temporal region. On dissection, the underlying muscles were lacerated. Underlying bone was fractured. (Cruciform depressed fracture). The under lying meninges and brain matter were lacerated. Clotted blood was present. 2. Left eye was black.” “..... In my opinion, cause of death in this case was damage to the brain as a result of injury No.1 which was ante mortem in nature and sufficient to cause death in an ordinary course of nature...” There is nothing to show that the fatal injury on the head with iron rod, was accidental. Even in absence of intention to cause death if intention to cause the fatal injury is inferred, the case will fall under Clause IIIrdly of Section 300 IPC and offence will fall under Section 302 IPC only. Reference may be made to 5 Criminal Appeal No.81-DB of 1999 law laid down by the Hon’ble Supreme Court in Virsa Singh v. State of Punjab AIR 1958 SC 465, Anda v. State of Rajasthan AIR 1966 SC 148, Rajwant Singh v. State of Kerala AIR 1966 SC 1874, State of A.P. v. Rayavarapu Punnayya AIR 1977 SC 45 and State of Rajasthan v. Dhool Singh AIR 2004 SC 1264. The judgments relied upon by learned counsel for the appellant, are distinguishable, being on peculiar set of facts. Accordingly, we do not find any ground to interfere with the conviction and sentence of the appellant. The appeal is dismissed. ( ADARSH KUMAR GOEL ) JUDGE February 13, 2008 ( S. D. ANAND ) ashwani JUDGE 6