Crl.Appeal No.816-DB of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.816-DB of 2002 Date of decision:15.2.2010 Rama Kant ... Appellant versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Dr.Deepia Singh, Advocate, Amicus Curiae, for the appellant. Ms.Gurveen H.Singh, Addl.AG, Punjab. ... JORA SINGH, J. Rama Kant son of Dev Raj Bhawar filed this appeal to impugn the judgment dated 14.8.2002 rendered by Additional Sessions Judge, Ludhiana, arising out of FIR No.221 dated 23.12.1998 under Sections 302/34 IPC Police Station Focal Point, Ludhiana. By the said judgment, he was convicted under Sections 302/34 IPC and sentenced to undergo RI for life and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo RI for two years under Sections 302/34 IPC. Case of the prosecution, in brief, is that Kuldip Singh, complainant, is the resident of Gobindgarh. He had constructed number of rooms on his plot for rental purposes. One room was rented out to Vimlesh Kumar, Sanjay Parshad, Rama Kant and his brother Manoj Kumar about Crl.Appeal No.816-DB of 2002 2 three months ago. On 22.12.1998, Vimlesh Kumar contacted Kuldip Singh in the evening and stated that some amount was due from Sanjay Parshad and Rama Kant. Payment was demanded from them, but they are not agreeing to make the payment and used to quarrel with him. Today again, he had demanded the payment from Sanjay Parshad and Rama Kant. Instead of making payment, they started quarrelling with him. Sanjay Parshad also slapped him. As per request of Vimlesh Kumar, today, i.e., 23.12.1998 at about 3.00 PM, he along with Thakur Singh had gone to the room on rent with Vimlesh Kumar and others. They were in the courtyard, then heard raulla coming out of the room of Vimlesh Kumar. They had gone inside the room, then sighted Sanjay Parshad armed with iron karad. Rama Kant had caught hold Vimlesh Kumar from his arm. Sanjay Parshad gave karad blow on the neck of Vimlesh Kumar. On receipt of injury, he became unconscious while lying on the ground. He along with Thakur Singh tried to save Vimlesh Kumar, then accused had fled away from the spot with karad. Thakur Singh was sent to arrange a vehicle to shift Vimlesh Kumar to the hospital for his treatment. After some time, Thakur Singh came back with vehicle, but in the meantime, Vimlesh Kumar had succumbed to his injury. Thakur Singh was deputed to guard the dead body. Kuldip Singh, complainant, had gone to lodge a report. Near old Octroi, Jugiana, police party headed by SI/SHO Nirabjit Singh had met the complainant. Statement of Kuldip Singh was recorded by SI Nirabjit Singh. Kuldip Singh had signed the statement in token of its correctness. After making endorsement at 5.15 PM, statement was sent to the Police Station, on the basis of which, formal FIR was recorded. SI Nirabjit Singh along with complainant had gone to the spot. Rough site plan with correct Crl.Appeal No.816-DB of 2002 3 marginal notes was prepared. Inquest report was also prepared. Blood stained earth was lifted from the spot and the same was made into sealed parcel, which was taken into police possession vide separate memo (Ex.PB) attested by the witnesses. Dead body was handed over to the police officials for postmortem examination. On the next day, ASI Sohan Singh had produced postmortem report along with clothes of the deceased before SI Nirabjit Singh. Clothes were made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo (Ex.PW3/A) attested by the witnesses. On return to the police station, case property was deposited with the MHC. On 28.12.1998, Rama Kant was arrested in this case and was interrogated. He suffered disclosure statement (Ex.PC) and in pursuance thereof, he got recovered karad from the specified place. Sketch of the weapon was prepared and the same was made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo (Ex.PD) attested by the witnesses. Second accused Sanjay Parshad was got declared proclaimed offender because police party failed to arrest him in this case. After completion of investigation, challan was presented in the Court. Accused was charged under Sections 302/34 IPC, to which he pleaded to be innocent and claimed trial. To prove its case, prosecution examined PW1 Kuldip Singh, complainant, and PW2 Thakur Singh, eye witness. Both of them supported the prosecution story by saying that in their presence, Sanjay Parshad had given karad blow to the deceased, when the deceased had been caught hold by Rama Kant. Kuldip Singh further stated that in his presence, Rama Kant got recovered karad from the specified place and the same was made into a Crl.Appeal No.816-DB of 2002 4 sealed parcel. PW3 Dr. Gurcharan Singh stated that on 24.12.1998, he had conducted postmortem examination on the dead body of Vimlesh Kumar and found the following injury:- “1. Incised wound 3'' x 1'' on front of neck.” Cause of death was due to haemorrhage and shock, which was sufficient to cause death in ordinary course of nature. Injury noted was ante mortem in nature. The time elapsed between injury and death was instant. PW4 ASI Sohan Singh stated that on 23.12.1998, he was with the party headed by SI Nirabjit Singh. In his presence, statement of Kuldip Singh was recorded. Inquest report was prepared by SI/SHO Nirabjit Singh. After that, dead body was handed over to him for postmortem examination. After postmortem examination, he had produced postmortem report and the clothes worn by the deceased before the SHO. Clothes were made into a sealed parcel and the same was taken into police possession vide separate memo attested by him. On 28.12.1998, he was with the party headed by the SHO and in his presence, Rama Kant suffered disclosure statement. In pursuance of the statement suffered by Rama Kant, karad was got recovered by him from the specified place. PW5 Constable Varinder Singh tendered his affidavit (Ex.PW5/A). PW6 Constable Ram Kumar tendered his affidavit (Ex.PW6/A). PW7 SI Nirabjit Singh is the Investigating Officer. PW8 Harvinder Singh stated that he prepared site plan (Ex.PQ) with correct marginal notes. Crl.Appeal No.816-DB of 2002 5 PW9 HC Narinder Singh was serving as MHC on 23.12.1998, with whom case property was deposited by the Investigating Officer. PW10 Constable Sanjiv Kumar stated that on 23.12.1998, he had delivered special report to the Ilaqa Magistrate at 10.00 AM on 24.12.1998. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and claimed to be innocent. Defence version of accused Rama Kant is that Sanjay Parshad and the deceased were quarrelling with each other. He was stopping them, but in the meantime, Sanjay Parshad gave karad blow to Vimlesh Kumar and had fled away from the spot. He was taking care of the deceased when Thakur Singh and Kuldip Singh came. He was caught hold by them and took him to the police. False case was planted on him. Opportunity was given to lead evidence, but no defence was led. After hearing learned Public Prosecutor, defence counsel for the accused and from the perusal of evidence on the file, trial Court had convicted and sentenced the accused as stated aforesaid. We have heard learned counsel for the appellant, State counsel and gone through the evidence on the file. Learned amicus curiae for the appellant argued that one room of Kuldip Singh, complainant, was on rent with the appellant, his brother, Sanjay Parshad and the deceased. Price of house hold articles was due from Sanjay Parshad. Deceased was demanding payment from Sanjay Parshad, but he was not agreeing to make the payment. There was minor dispute Crl.Appeal No.816-DB of 2002 6 amongst the deceased and Sanjay Parshad. They both started quarrelling with each other. Appellant intervened with a request not to quarrel. In the meantime, Sanjay Parshad gave karad blow to the deceased. After that, Sanjay Parshad had fled away from the spot. Appellant was guarding the dead body, when Kuldip Singh and Thakur Singh came to the room. They produced the appellant before the police. Appellant was convicted under Sections 302/34 IPC, but Section 34 IPC is not applicable because there was no common intention amongst the appellant and main accused, namely, Sanjay Parshad. Appellant had no idea that when there is a minor dispute, then Sanjay Parshad is to give a karad blow. Karad was not in the hand of Sanjay Parshad when appellant was stopping the deceased and Sanjay Parshad not to quarrel. Then suddenly, Sanjay Parshad took the karad from the almirah and gave blow thrustwise as per PWs, but the doctor stated that blow was not given thrustwise. Blow was not repeated. On account of minor dispute regarding price of house hold articles, one blow was given. Appellant had no knowledge that while quarrelling, Sanjay Parshad is to give karad blow, lying in the almirah. Weapon used was concealed by Sanjay Parshad. Present appellant had only seen Sanjay Parshad while concealing the weapon, and later on, weapon was got recovered. If the appellant and Sanjay Parshad had common intention to murder, then present appellant could also cause injury. Blow should have been repeated. If prosecution story is taken to be correct one, then Sanjay Parshad and the appellant are liable for punishment under Section 304 Part-I IPC and not under Section 302 IPC. Learned State counsel argued that appellant and Sanjay Parshad along with deceased were residing in one room. There was a dispute Crl.Appeal No.816-DB of 2002 7 regarding price of house hold articles purchased. Money was due from the appellant and Sanjay Parshad, but they were not agreeing to make payment. Rama Kant had caught hold the deceased, then co-accused Sanjay Parshad gave karad blow. Blow was on the neck. If intention was not to murder, then appellant and Sanjay Parshad could easily give fist or kick blows. If appellant had no common intention, then there was no idea to fled away from the spot and get recovered the weapon used in pursuance of his disclosure statement. Kuldip Singh, complainant, had constructed number of rooms to let out the same to the labourers. One room was on rent with the deceased, Rama Kant, his brother and Sanjay Parshad. House hold articles were being purchased. Some amount was due from the appellant and Sanjay Parshad. Deceased was demanding payment but they were not agreeing to make the same. On the date of occurrence, again deceased had demanded payment. Then Vimlesh Kumar had reported the matter to the landlord. Kuldip Singh, landlord, assured the deceased to contact Sanjay Parshad and Rama Kant with a request to make the payment of house hold articles. As per request of the deceased, Kuldip Singh and Thakur Singh had gone to the room of the deceased, then sighted Vimlesh Kumar, Rama Kant and Sanjay Parshad. At that time, Rama Kant was seen when he had caught hold the deceased. In the meantime, Sanjay Kumar gave karad blow hitting the deceased on his neck. On receipt of injury, Vimlesh Kumar fell down. Rama Kant and Sanjay Parshad had fled away from the spot with karad. Deceased, Rama Kant and Sanjay Parshad are from Bihar. Four Crl.Appeal No.816-DB of 2002 8 labourers were residing in one room. Before the present occurrence, there was minor dispute regarding payment of price of house hold articles. Deceased was demanding payment but the appellant and Sanjay Parshad were not agreeing to make the payment. Then there was sudden quarrel amongst them. Rama Kant had no knowledge that Sanjay Parshad is to give karad blow after lifting the same from the almirah. When Rama Kant had caught hold the deceased, then suddenly Sanjay Parshad took out the karad lying in the almirah and gave blow. Blow was not repeated. After giving one blow, Rama Kant and Sanjay Parshad had fled away from the spot. If appellant Rama Kant and Sanjay Parshad had the common intention to murder, then there was no idea to give blow at 3.00 PM. During night time while sleeping as per planning, they could easily commit the crime. Rama Kant was empty handed and if he was to share the common intention with Sanjay Parshad, then he could also cause injury with danda, rod, spade or sickle lying in the room. But no injury was caused by Rama Kant with any house hold article lying in the room. As discussed earlier, if both the accused had common intention, then blow could easily be repeated. Rama Kant and Sanjay Kumar cannot foresee that death is possible with one blow. In fact regarding payment, there was a minor dispute amongst the deceased and appellant and Sanjay Parshad, sharing one room on rent. In the scuffle, suddenly karad blow was given after lifting the same from the almirah. Unnatural death is culpable homicide but not amounting to murder. That means, Rama Kant is liable for punishment under Section 304 Part-I IPC and not under Section 302 IPC. In the light of above discussion, instead of directing appellant Rama Kant to undergo RI for life under Sections 302/34 IPC, we order him Crl.Appeal No.816-DB of 2002 9 to undergo RI for ten years under Section 304 Part-I IPC. Fine is maintained. Appeal is partly allowed. ( JORA SINGH ) JUDGE 15.2.2010 ( SATISH KUMAR MITTAL ) pk JUDGE