IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 77 of 2002 Puran Singh (In Jail) S/o Dhan Singh R/o Village Daili Patwari Circle Jalna, District Almora. ……Appellant. Versus State of Uttaranchal. .……….Respondent. Shri M.S. Pal, Sr. Advocate, assisted by Shri D.N. Sharma and Shri Sukhdev Singh, Advocates for the appellant. Shri Tanuj Semwal, A.G.A. for the State. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Oral:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 05.03.2002, passed by learned Sessions Judge, Almora, in Sessions Trial No. 37of 1998, whereby accused/appellant Puran Singh, has been convicted under Section 302 of Indian Penal Code, 1860 (herein after referred as I.P.C.) and sentenced to imprisonment for life. He is further directed to pay fine of Rs. 5,000/- in default of payment of which he is further required to undergo rigorous imprisonment for a period of one year. 2. Heard learned counsel for the parties and perused the lower court record. 2 3. Prosecution story in brief is that on 22.01.1998, at about 8:00 a.m., Bacchi Singh (deceased) was doing some construction work in his house in Village Daili, and raising wall adjoining to the house of accused/appellant Puran Singh to which accused/appellant protested. This led the two in heated exchange of words. Thereafter Puran Singh gave 3-4 blows with a hammer on the head of Bacchi Singh, who fell down and died of the injuries. The First Information Report (Ext. A-1) was lodged by P.W. 1 Balam Singh (brother of the deceased) on the very day i.e. 22.01.1998 at 11:45 a.m. with Patwari Jalna. (In the interior hills of Uttarakhand revenue officials are given police powers under U.P. Government Notification No. 494/VIII-418-16, dated 07.03.1916). P.W. 6 Bhuwan Chandra Kandpal, Patwari, prepared check report (Ext. A-3) on the basis of First Information Report (Ext. A-1) lodged by Balam Singh (P.W. 1), and registered crime No. 01 of 1998, against accused Puran Singh relating to offence punishable under Section 302 I.P.C. Thereafter Investigating Officer (P.W. 6) Bhuwan Chandra Kandpal, proceeded to Village Daili, where the incident had taken place and took the dead body of Bacchi Singh in his possession and prepared inquest report (Ext. A-5) on the very date i.e. 22.01.1998 at 1:00 p.m. He also prepared sketch of the dead body (Ext. A-9), sample seal (Ext. A-7), and other necessary papers and sent the dead body in a sealed condition for post mortem examination. P.W. 5 Dr. G.C. Pandey, conducted post mortem examination on 3 the dead body of Bacchi Singh on 23.01.1998 at 12:45 p.m. He recorded as many as 9 ante mortem injuries on the body, and prepared autopsy report (Ext. A-2). The medical officer opined that the deceased had died on account of coma and shock due to ante mortem injuries. The Investigating Officer recovered the hammer and other articles (generally used by mason) found on the spot and prepared memorandum (Ext. A- 6). He also collected blood stained clothes of the deceased Bacchi Singh and prepared memorandum (Ext. A-10). The articles recovered from the spot were sent for chemical examination to the Forensic Laboratory, Agra, from where report (Ext. A-12) was received in which it has been found that in the articles and clothes sent for post mortem examination contained human blood. After interrogating the witnesses, and completing the investigation, the Investigating Officer submitted charge sheet (Ext. A- 11) for trial of accused Puran Singh relating to offence punishable under Section 302 I.P.C. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the Court of Sessions, for trial. Learned Sessions Judge, Almora, after hearing the parties on 04.08.1999, framed charge of offence punishable under Section 302 I.P.C. against the accused Puran Singh, who pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Balam Singh (informant and brother of the deceased), P.W. 2 4 Chatur Singh (who reached at the spot after the incident), P.W. 3 Sundar Singh (eye-witness and son of the deceased), P.W. 4 Pratap Singh (who also reached at the spot after the incident), P.W. 5 Dr. G.C. Pandey (who conducted post mortem examination on the dead body of the deceased) and P.W. 6 B. C. Kandpal (Patwari, who investigated the crime). All the oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which he alleged the same to be false. While replying the questions, under Section 313 Cr.P.C., accused Puran Singh submitted that infact at the time of incident when he protested against Bacchi Singh (deceased) as to why he is letting the stones fall from his side towards his (Puran Singh’s) house, deceased Bacchi Singh gave a blow with BASULA (carpenter’s axe) on the head of the accused, and in private defence, the accused retorted by giving blows with a hammer on the person of Bacchi Singh. As such, the accused has come up with a clear case of private defence. Not only this, the accused has adduced evidence in defence by producing three witnesses D.W. 1 Dr. K.P. Kaniyal (a medical officer of a government hospital, who examined the injuries of the accused and prepared report-Ext. B-1), D.W. 2 Puran Singh (accused himself) after seeking permission under Section 315 Cr.P.C. and D.W. 3 Dev Singh. The trial court after hearing the parties, found accused Puran Singh guilty of charge of offence punishable under Section 302 I.P.C. After hearing on sentence, the trial court sentenced the convict to imprisonment for life 5 and also directed to pay fine of Rs. 5,000/- in default of payment of which convict was required to undergo rigorous imprisonment for a period of one year. Aggrieved by said judgment and order dated 05.03.2002, passed by learned Sessions Judge, Almora, in Sessions Trial No. 37 of 1998, this appeal is preferred by the appellant. 5. Before further discussion, we think it just and proper to mention here the injuries suffered by the accused Puran Singh, which are proved by D.W. 1 Dr. K.P. Kaniyal, medical officer of District Hospital Almora, who prepared injury report on 22.01.1998 (Ext. B-1). The injuries suffered by the accused in the incident are being reproduced below:- Multiple lacerated wounds on head in an area of 20cm X 14 cm dimension. Hairs matted with blood. And clotted blood in head and face and hands. The Medical Officer (D.W. 1) opined that the injury had been caused by blunt object and duration of injury was 6 hours. The statement of D.W. 1 Puran Singh (accused) read with the injury report (Ext. B-1), quoted above clearly establishes that in the incident in question accused has suffered head injury. That being so, we are of the view that the trial court should have examined the evidence on record from the angle whether causing of death of Bacchi Singh by Puran Singh (accused) amounts to culpable homicide amounting to murder or not. 6 6. Now we come to the ante mortem injuries, recorded in the post mortem examination report (Ext. A-2) on the dead body of Bacchi Singh, by P.W. 5 Dr. G.C. Pandey on 23.01.1998. The same are being reproduced below:- 1. Incised wound over left side of forehead 4cm X 2cm X bone deep running horizontally from 2cm from tegus towards left eye. 2. Lacerated wound 5cm X 2cm running horizontally between left supraorbital margin and eye ball, bone deep. 3. Incised wound 5cm X 2cm running across the bridge of nose to 2cm below right eyelid. 3cm deep. Underlying bones are cut in the line of wound. 4. Incised wound 6cm X 3cm bone deep 8 cm above the left mastoid process underlying bone is fractured and brain tissue is exposed. 5. Incised wound 6cm X 2cm X bone deep running across the midline of body in the occipital area. 3cm below injury No. 4. 6. Incised wound 5cm X 3cm X bone deep in the occipital area. 5cm below injury No. 5. 7 7. Incised wound 6cm X 2cm X bone deep over parietal region, 11 cm lateral to midline of body running vertically downwards. 4 cm away from right mastoid process. 8. Incised wound 3cm X 2cm X bone deep 25cm from root of nose and 3cm right to midline of body. 9. Lacerated wound 5cm X 2cm, 6cm above tip of lateral malleolus, bone deep, underlying tibia and fibula (right) is fractured. On the internal examination, the medical officer found parietoccipital bone and parieto mastoid bone are fractured. There was laceration in the parietal lobe in an area 4.5cm X 1cm. The medical officer (P.W. 5) Dr. G.C. Pandey, has opined that Bacchi Singh has died on account of coma and shock due to ante mortem injuries. The above report read with the statement of P.W. 5 Dr. G. C. Pandey, shows that Bacchi Singh (deceased) has died a homicidal death. Still the question remains whether accused has committed murder of Bacchi Singh and punishable under Section 302 I.P.C. or not. 7. P.W. 1 Balam Singh is an informant of the incident. He is not an eye-witness. He has lodged First Information Report (Ext. A-1) with Patwari, 8 Jalna. According to this witness, he was told about the incident of death of his brother, by Lacchan Singh of his village. 8. P.W. 2 Chatur Singh has stated that he knows both the accused-Puran Singh and deceased Bacchi Singh. This witness has stated that on the day of the incident, accused was doing some construction work adjoining to the house of the accused. He saw children of Bacchi Singh coming out and crying for help. However, this witness did not support the prosecution story further and got declared hostile. 9. P.W. 3 Sundar Singh, son of the deceased has narrated the prosecution story, as an eye-witness of the incident. He is a minor boy, who has narrated the entire incident. P.W. 3 states that on 22.01.1998, his father Bachi Singh was doing some construction work in his house when accused Puran Singh protested to Bacchi Singh as to why he is letting stones fall on the side of the accused. The witness further states that accused Puran Singh gave 3-4 hammer blows on the head of Bacchi Singh, who suffered injuries and fell down and died. This eye-witness is a trustworthy witness of the incident as his presence in his house is natural. He has no reason to falsely implicate the accused and protect the real culprit. 10. P.W. 4 Pratap Singh, a neighbour of the accused and deceased, corroborates the prosecution story that after hearing the cries of children of Bacchi Singh, he went to the spot and saw accused Puran Singh 9 standing at the spot with BASULA (Ext. 2), while Bacchi Singh was lying injured. 11. Testimony of the above two witnesses, P.W. 3 Sundar Singh and P.W. 4 Pratap Singh, proves the prosecution story to the extent that accused Puran Singh, who caused injuries on the person of Bacchi Singh (deceased), which resulted in his death. However, the question still remains to be seen by this Court is whether the act on the part of the accused Puran Singh amounts to commission of murder or commission of culpable homicide not amounting to murder. Accused Puran Singh has come with a fair stand that he was present at the spot. He did protest when stones fell towards his house. He got himself examined under Section 315 of Cr.P.C. and told the court that after the protest was made by him, it was deceased Bacchi Singh who first gave blow on his head with BASULA (carpenter’s axe) and it is only thereafter he (accused) gave blows with hammer on the person of the deceased. This stand taken up by the accused gets corroborated from the statement of D.W. 1 Dr. K.P. Kaniyal, who is medical officer of Government hospital, Almora and prepared injury report (Ext. B.-1) relating to the injuries suffered by the accused on the day of the incident i.e. 22.01.1998. Having considered the evidence adduced by both the sides, we are of clear view that there was a grave sudden provocation after the stones had fallen from the side of Bacchi Singh (deceased) towards the house of accused Puran Singh. Apart from this, we also find 10 that it was Bacchi Singh, who gave a blow on the head of Puran Singh (accused), which is evident from the statement of D.W. 1 Dr. K.P. Kaniyal read with the injury report (Ext. B-1). That being so the accused had every right of private defence to protect his person. However, merely by causing injury on the person of Bacchi Singh, he could have stopped and his right of private defence stood terminated at that stage. But accused continued to give one after another blows with hammer and thereafter with BASULA till Bacchi Singh died (the autopsy report shows that there are 9 ante mortem injuries out of which many of them are incised wounds). Therefore, it is a case of exceeding right of private defence and covered under Section exception II of Section 300 I.P.C. as such constitutes culpable homicide not amounting to murder, punishable under part I of Section 304 I.P.C. Therefore, we find that the trial court has erred in law in convicting the accused and sentencing him under Section 302 I.P.C. 12. For the reasons, as discussed above, this appeal deserves to be allowed partly. The appeal is partly allowed. The impugned judgment and order dated 05.03.2002, passed by learned Sessions Judge, Almora, in Sessions Trial No. 37 of 1998, is set aside to the extent the conviction and sentence of Puran Singh (appellant) is recorded under Section 302 I.P.C. Accused/appellant Puran Singh is acquitted of the charge of offence punishable under Section 302 I.P.C. instead he is convicted under Section 304 Part-I I.P.C. 11 We have heard learned counsel for the parties on sentence at the time of hearing of the appeal and we feel that rigorous imprisonment for a period of ten years would meet the ends of justice in the present case. Accordingly, we sentence the appellant-Puran Singh to rigorous imprisonment for a period of ten years under Section 304 Part-I I.P.C. The appellant- Puran Singh is in jail. He has already undergone period more than ten years in jail, during trial and period of this appeal. He shall be set at liberty if not wanted in connection with any other crime. Registry is directed to send back the lower court record. Also a copy of this judgment be sent to the Superintendent of jail, where the accused is detained. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt:30.04.2009 Sweta 12 13 14 15 16 17