Criminal Appeal No.15-DB of 2002. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.15-DB of 2002. Date of Decision : 6.8.2010. Roshan Lal alias Anil Kumar alias Lila ......Appellant Versus The State of Haryana ......Respondent CORAM : HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. Manjeet Singh, Advocate, for the appellant. Mr. Pardeep Singh Punia, Addl. AG Haryana, for the respondent-State. NAWAB SINGH J. This appeal is directed against the judgment of conviction dated November 19th, 2001 and order of sentence dated November 20th, 2001 passed by Additional Sessions Judge, Kaithal, whereby, the accused-appellant was convicted and sentenced as under:- Offence Sentence Fine In default U/S 302 IPC Imprisonment for Rs.1000/- RI for 3 months Life 324 IPC RI for 2 years Rs.500/- RI for 1 month Both the sentences were ordered to run concurrently. 2. On September 4th, 1997 at about 8.30 PM, Mai Lal- author of First Information Report (PW-7), his son Sher Singh (deceased), daughter-in-law Rani and wife Ram Piari were present in Criminal Appeal No.15-DB of 2002. 2 their house situated in Mohalla Siwan Gate Kaithal. Roshan Lal alias Anil Kumar alias Lila (here-in-after referred to as the accused- appellant) along with his mother Smt. Devi entered the house of Mai Lal and started hurling abuses stating that they had got illicit liquor recovered from them. The accused-appellant caused a knife blow on the back of Mai Lal. Mai Lal fell down. Sher Singh (deceased) intervened to rescue his father. The accused-appellant caused a blow to him also which hit on his chest. An alarm was raised. Narata Ram (PW-1), Mamu and other residents of the locality reached the spot. Mai Lal and Sher Singh were brought to Civil Hospital, Kaithal on a rickshaw. Sher Singh succumbed to injuries in the hospital. The complainant party also caused injuries to the accused-appellant and his mother Smt. Devi in their self defence. 3. The Medical Officer of the Civil Hospital sent information with regard to admission and death of Sher Singh. Tara Chand, Sub-Inspector (since deceased) along with other Police officials reached the hospital. He recorded the statement of Mai Lal (Exhibit PQ) and made his endorsement . First Information Report (Exhibit PR) was recorded. 4. Dr. Ghansham Goyal (PW-2) medically examined Sher Singh (deceased), Mai Lal (PW-1), accused-appellant and his mother Devi. Dr. Jasmer Singh (PW-5) conducted post-mortem examination on the dead body of Sher Singh (deceased). 5. Devi was arrested on September 13th, 1997. The accused-appellant fled away from the hospital and was arrested on July 16th, 1998 by Karan Singh, Assistant Sub-Inspector (PW-11). He was interrogated. He made disclosure statement (Exhibit PA) which led to recovery of knife (Exhibit P-1) kept concealed in the bushes near Mata Gate, Kaithal. 6. The accused-appellant was charged under Section 302 and 324 IPC. He pleaded not guilty and claimed trial. 7. Trial commenced. In order to prove its case, prosecution examined thirteen witnesses viz. Norata Ram (PW-1), Dr. Ghanshyam Goyal (PW-2), Pawan Kumar Photographer (PW-3), Criminal Appeal No.15-DB of 2002. 3 Ram Niwas, Draftsman (PW-4), Dr. Jasmer Singh (PW-5), Ram Niwas (PW-6), Mai Lal (PW-7), Narrudin (PW-8), Abhey Ram (PW- 10), Karan Singh (PW-11), Sant Ram, Inspector (PW-12) and Gurmeet Singh (PW-13). 8. In his examination recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the allegations and pleaded his innocence. He stated that he and Mai Lal used to deal in sale of liquor. On the day of occurrence, at about 8 PM, Mai Lal called him at his house. Both of them started consuming liquor. He also brought some salad and a knife to cut the same. Mai Lal became tipsy and started abusing him. On hearing, Devi his mother reached the house of Mai Lal and requested Mai Lal not to hurl abuses. Meanwhile, Sher Singh (deceased) armed with kirpan also came from the first storey of the house and caused injuries to him. Devi again requested him not to beat him (Roshan Lal) and tried to rescue him but he also inflicted kirpan blows to her. Thereafter, he took the knife lying on the table and caused injuries to Sher Singh and Mai Lal in their self-defence. He and his mother were brought to Civil Hospital, Kaithal. His mother remained in the hospital. He was referred to Chandigarh. He came to Chandigarh for the treatment. 9. In defence, accused-appellant examined Dr. Ghansham Goyal (DW-1) who proved the medico-legal report (Exhibit DA and DC) of accused-appellant and Devi. 10. On conclusion of the trial, learned trial Judge acquitted Devi and convicted Roshan Lal as described in the opening paragraph of the judgment. 11. Learned counsel for the accused-appellant has not challenged the findings on merits, that is, regarding the causing of fatal injuries, rather, has submitted that the accused-appellant had not committed the offence of murder punishable under Section 302 IPC because the death was caused by doing an act with knowledge that it was likely to cause death but there was no intention on the part of the accused-appellant either to cause death or to cause such bodily injury as was sufficient to cause death in the ordinary course Criminal Appeal No.15-DB of 2002. 4 of nature and as such, the case would fall under Section 304 Part II IPC. 12. The eye witness account has been rendered by Narata Ram (PW-1) and Mai Lal (PW-7). The place of occurrence is residence of the deceased. The accused-appellant and Sher Singh (deceased) were close friends as is gleaned from the fact that 6/7 months prior to the occurrence, accused-appellant received an injury and Sher Singh (deceased) had given his blood to him for transfusion as deposed by Narata Ram (PW-1). It also emerges from the statement of Narata Ram (PW-1) that Sher Singh firstly attacked with his kirpan/khoncha and gave blows to the accused-appellant and his mother, thereafter, the accused-appellant caused injuries to him. The parties are neighbours. 13. Dr. Ghansham Goyal examined the accused- appellant and found following injuries on his person:- 1. An incised wound of about 4 cm x c.cm scalp deep on the frontal region of skull, just close to mid line and close to hair line. Corresponding hair cut wound was bleeding. 2. An incised wound of about 6.5 cm x 4.5 cm x 2 cm on the back of left fore-arm close to elbow. Wound was bleeding. 3. There were three incised wounds of about 3.5 cm x .5 cm x 2.5 cm, 2 cm x .25 x .25 and 2 cm x .25 cm x .25cm placed one cm. apart each close to left wrist. Oozing of blood was present. 4. An incised wound of about 3 cm x .5 cm x 1 cm on the front of left palm. Bleeding was present. Devi mother of the accused-appellant was also examined by Dr. Ghan Sham Goyal who found two injuries on her person- (i) An incised wound having dimensions of 12 x 4 cm on the right fore arm which was found to be fractured in the x-ray examination report (Exhibit DC) and; (ii) complaint of pain in the Criminal Appeal No.15-DB of 2002. 5 chest. She remained hospitalized upto September 13th, 1997. He proved the medico-legal reports of accused- appellant and Devi Exhibits DA and DB respectively. 14. On the other hand, Sher Singh received stab injury on the right side of the chest having dimension of 3 x 2 CM and Mai Lal received incised wound on the middle of back having dimension of 4 x 5 CM vide Medico-legal reports (Exhibit PE and PF). Mai Lal and accused-appellant were drinking (liquor) together prior to the occurrence as on their medical check-up, smell of alcohol was coming as mentioned in their Medico-Legal Reports (Exhibits DA and PF). Sher Singh (deceased) caused injuries to accused-appellant and his mother and in the sudden fight, accused-appellant took knife from the table which was kept by Mai Lal for cutting the salad and caused an injury to the deceased. Under these circumstances, the question arising for consideration is whether the accused-appellant could be said to have caused injury to the deceased with the intention of causing death of the deceased. As the totality of the established facts do show that the occurrence had taken place rather unexpectedly in a sudden quarrel and without pre-meditation during the course of which accused-appellant gave a solitary injury on the chest of the deceased which proved fatal as opined by the Medical Officer. Since there was solitary injury caused by the accused- appellant and that too, with kitchen knife, it cannot be said that there was any intention to kill or to inflict an injury of an extreme degree of seriousness. Records clearly establish that there was indeed a scuffle between the parties, a drunken brawl to be precise and during the course of scuffle, the accused-appellant and his mother also received multiple injuries at the hands of the deceased before the actual incident of stabbing took place. In this view of the matter, this Court is of the opinion that the present case does not fall within the mischief of Section 302 IPC but it is a case falling under Section 304- II IPC. There is catena of judicial pronouncements in support of the view taken by this Court but it would be appropriate to refer to three decisions of the Hon'ble Supreme Court.(i) Kulwant Rai vs. State of Criminal Appeal No.15-DB of 2002. 6 Punjab AIR 1982 SC 126; (ii) Om Parkash vs. State of Haryana, 1981 Criminal Law Journal 30 and; (iii) Satish Narayan Sawant vs. State of Goa 2009(4) RCR (Criminal) 327. 15. In Kulwant Rai's case (supra), preceding attack, there was a quarrel. The accused had given the deceased one blow with a dagger. There was complete absence of prior enmity and a finding has been recorded that there was no intention on the part of the accused to cause the injury in question. Hon'ble Supreme Court altered the conviction from one Section 302 to Section 304-II IPC. 16. In Om Parkash's case (supra), preceding an attack on the victim, there was a quarrel. The accused incensed by situation had given blow on vulnerable part of the victim's body resulting in his death. This Court convicted the appellant under Section 302 IPC but Hon'ble Supreme Court found him guilty under Section 304 Part-II IPC. 17. In Satish Narayan Sawant's case (supra), there was an altercation preceding the incident. Initially, the accused also did not have any weapon with him but during the course of incident, he went inside and got a knife with the help of which he stabbed the deceased. It was held that the offence would fall under Section 304 Part-II and not under Section 302 IPC. 18. Learned counsel for the accused-appellant and learned Additional Advocate General, Haryana informed this Court that the accused-appellant had already undergone Rigorous Imprisonment for a period of about seven years. Thus, the ends of justice shall be met squarely, if the accused-appellant is sentenced for the period already undergone by him. The sentence, therefore, is reduced to the term already undergone. However, the amount of fine is enhanced to Rs.25,000/- and in default of payment of fine to undergo Rigorous Imprisonment for a period of two years more. The fine would be paid as compensation to the widow of the deceased as and when it is recovered or deposited in the Court of Chief Judicial Magistrate, Kaithal who shall issue notice to the widow after taking her address from the impugned judgment and disburse the amount to Criminal Appeal No.15-DB of 2002. 7 her after due identification and verification under intimation to this Court. 19. The appeal is accepted partly as indicated above. (ASHUTOSH MOHUNTA) (NAWAB SINGH) JUDGE JUDGE 6.8.2010. SN