IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 37 of 1997 Date of decision: 12.08.2010 __________________________________________________________________ State of Himachal Pradesh … Appellant. Versus Prittam Chand … Respondent. __________________________________________________________________ Coram The Hon’ble Mr. R.B. Misra, J. The Hon’ble Mr. V.K. Sharma, J. Whether approved for reporting? __________________________________________________________________ For the Petitioner : Mr. Anil Jaswal, Deputy Advocate General, for the appellant. For respondent : Mr. Ashwani Pathak, Advocate __________________________________________________________________ Justice R.B. Misra, J. (Oral) The present Criminal Appeal has been filed under Section 377 of the Code of Criminal Procedure in reference to judgment dated 02.08.1996 passed in Sessions Case No. 9-K/VII-1996 by learned Sessions Judge, Kangra at Dharamshala, for the offence under Section 307 of the Indian Penal Code in FIR No. 575 of 1995 awarding sentence to the accused for a period already undergone by him and also to pay a fine of Rs.5000/- and in default of payment of fine, the accused was to further undergo rigorous imprisonment for a period of six months and the fine, if deposited, was to be paid to the injured through her husband Balwant Singh as she is not in a position to walk and talk. 2. The present Criminal Appeal in fact is to be adjudicated on the point of quantum of sentence awarded to the accused-respondent. On the basis of material on record, prosecution witnesses and 2 keeping in view the medical report, learned Sessions Judge has held the accused guilty of the offence, under Section 307 of the Indian Penal Code and in the prevailing circumstances, sentenced the accused for a period already undergone. It has been brought to our notice that the accused was in Jail for a period of eight months. 3. In order to adjudicate the present appeal, it is necessary to give the factual background of the case. 4. As per prosecution story, Smt. Sandla Devi (victim) is the wife of younger brother of accused Balwant Singh. On 09.11.1995 at about 8.15 p.m. Balwant Singh husband of Sandla Devi / victim gave a call to his daughter in order to milk to buffalo which was tethered in the lawn. In the meantime, accused (Prittam Chand) suddenly appeared and started quarreling with Balwant Singh. At this, Balwant Singh and his wife, both advised the accused not to abuse them unnecessarily. Balwant Singh was standing near Verandah where his wife Sandla Devi/ victim came and intervened, requesting the accused not to abuse but while returning to house the accused picked up an iron rod and gave blow on the head of Sandla Devi /victim. Resultantly, she fell down in the Verandah. She was taken to Hospital at Kangra where she was given first aid. Message was conveyed to the police station and the statement of Balwant Singh was recorded under Section 154 Cr. PC on the basis of which FIR was registered. The Investigating Officer moved an application to the doctor to record the statement of injured but she was declared unfit to make any statement. The injured was referred to Zonal Hospital Dharamshala and thereafter to PGI Chandigarh. The police moved various applications to record the statement of injured at Kangra, Dharamshala and PGI Chandigarh but every time she was declared unfit to make the statement. However, the accused was 3 charged for offence punishable under Section 307 of the Indian Penal Code. 5. Prosecution in support of its case examined as many as 13 witnesses, whereas accused-respondent in his statement under Section 313 Cr. PC denied the prosecution case. 6. PW-1, Dr. V.K. Mahajan examined Sandla Devi and his observations are as under:- “The patient was bleeding profusely from left side of scalp. The patient was un-conscious and in shock. Pulse 110 per minute. B.P. 60 mm systolic. Heart sounds feeble, respiration shallow. A communicated fracture left parietal region of scalp 2 ½ area of parietal bone broken into small pieces. It is 2” from the mid line and just behind the frontal parietal region. The brain matter was flowing out of the wound. Fresh blood was flowing out of the wound. Multiple small pieces of bone seen in and around the wound. No other injury was seen. The patient was admitted and treatment was started. The photocopy of Bed head ticket is Ex.PW1/A dated 9.11.1995. The patient was referred to Zonal Hospital Dharamshala at 9 p.m. on the same day. I have seen the injured today present in court. She is the same lady whom I had medically examined. The injury sustained by the injured was grievous and dangerous to life. The probable duration of injury was within two hours from my examination. The injury sustained by the injured is possible with iron rod Ex.P1, if hit by direct force. I have seen the injured today in the Court who is not fit to make statement till today. As per the record of the PGI the patient has developed motoraphonea and right hemiplegia, which means that muscles for speech had been impaired. 4 PW-1, Dr. V.K. Mahajan also issued MLC Ex. PW1/C. He admitted that injury on the head or fracture of skull may not cause death immediately. He also admitted that if iron rod Ex.P1 is thrown from a distance of 15-20 feet such type of injury would not have been casual and not sufficient in the ordinary course of nature to cause death, and it is difficult to aim on the head if Ex. P1 is thrown from a distance of 15 to 20 feet. He identified the weapon of offence Ex. P1, which was shown to him by the police. 7. P.W-2, Dr. P.P. Vaishnav from PGI Chandigarh, who also attended the injured and treated her medically, noticed as under:- “Left frontoparietal area contused lacerated wound with depressed fracture with brain matter coming out. The patient has been operated for left frontoparietal craniectomy, dural repair and duraplasty plus evacuation of contused brain and flap moblisation for closure. The condition of the patient at the time of discharge was having spontaneous eye opening, localizing pain with limbs, occasionally, obeying commands. Not able to express herself by means of speech. Weakness of right side of the body. The injury was dangerous to life.” PW-2, also issued the medical legal case history of the injured, Ex. PW2/A. Applications Ex. P10 to P13 were moved by the police at PGI Chandigarh for recording the statement of injured but she was declared unfit to make any statement. According to him it is impossible to restore the normal speech and injury described in Ex. PW2/A is grievous and dangerous to life. 8. PW-3, husband of the Sandla Devi (victim) has stated in support of prosecution case on 9.11.1985, at about 8.15 p.m., he asked his daughter to milk the buffalo (tethered in the lawn). She could not hear the voice so he again called her a bit loudly. At this 5 the accused came out of his room and unnecessarily started quarreling and abusing as to why calls were given. In the meanwhile, the victim came out and her daughter also came there. The victim advised the accused not to abuse. The victim tried to take PW-3 inside the room. The moment they were about to go inside the room, the accused picked up an iron rod (Dye) and hit the same on the head of victim / Sandla Devi, who fell down in the verandah and blood started oozing out. PW-3, as well as his daughter started weeping and on this, three persons, namely Sarvjeet, Manohar Lal and Smt. Sahni Devi came there. Before this, the daughter of victim retained the iron rod (Dye) in the verandah. The victim had been taken to the hospital by her family members only. 9. PW-4, Sudershna Devi, daughter of PW-3, Balwant Singh (daughter of victim) has also supported the prosecution case and reiterated as the same way as PW-3. The weapon of offence was Dye (iron used to mould the rod) was taken by the police. As per the testimony of PW-4, she disclosed that the accused on the alleged day had gone to attend some party. However, she denied that her father asked the accused to slow down the sound of stereo. She further denied that the accused threw the iron rod Ex.P1 from a distance of 15-20 feet in order to scare away her parents. 10. The victim / Sandla Devi was produced before the learned Trial Court but she was unable to speak and even the doctors, that is PW-1 and PW-2, after seeing her in Court, declared her unfit to make statement because she had lost her speech. 11. PW-5, Bishambhar stated that in his presence the police took into possession the blood stained earth vide Memo Ex.PW5/A. 6 Dupatta and iron rod were also taken into possession in his presence vide memo Ex.PW4/A. 12. PW-6, Subhash Chand, Investigating Officer; PW-7 Constable, Ajit Singh; PW-8, Head Constable, Onkar Singh; PW-9, Head Constable, Jagdish Chand; PW-10, Head Constable; Chuni Lal and PW-11, Head Constable, Anup Singh in discharge of their official duties, have endeavoured to support the prosecution case to the extent role assigned to them, however, nothing substantial could be derived from their testimonies in favour of the prosecution. 13. PW-12, ASI Duni Chand, in support prosecution case, has stated that he reduced the message in writing vide Rapat No. 44 dated 9.11.1995, Ex. PW-12/A. Thereafter, he went to the hospital and moved an application Ex. PW-1/B to the doctor for recording the statement of Sandla Devi (victim). She was declared unfit to make statement and at this recorded the statement of PW-3 (Balwant Singh) Ex.PW-3/A and sent the same for registration of FIR to the Police Station. PW-12, also recorded the statements of Sarvjeet, Manohar Lal, Sahni Devi and Sudershna Kumar. On 10.11.1995, PW-12, visited the spot of occurrence and prepared site plan Ex. PW-12/B and took into possession the blood stained earth from the verandah, vide memo Ex.PW5/A. Dupatta was also taken into possession vide Ex. PW-14, belonging to the injured vide memo Ex.PW-4/A. Weapon of offence Ex.P-1 (iron rod) which was sealed and was taken into possession vide memo Ex. PW-4/A and after investigation challan was submitted. 14. PW-13, Inspector Prem Singh, who partly investigated this case has stated that the Sandla Devi (Victim) was declared unfit to make statement by the Medical Officer. 7 15. Accused under Section 313 Cr. PC, has stated that he has been implicated at the instance of police. Accused has stated that on the day of occurrence, he had gone to attend a party and returned to his house at about 9.00 p.m. He switched on his stereo in order to listen the songs but the sound of the stereo was little bit high. PW-3, Balwant Singh, had given a call to slow down the volume of stereo to which he could not hear and on this PW-3 started abusing him from his lawn and at that time PW-3 (Balwant Singh) was having an agricultural implement (Khurpi) in his hand and he apprehended danger to his life. In the meantime, Sandla Devi / victim came out and stood by the side of PW-3 / Balwant Singh. Accused picked up an iron rod (Dye) and threw it towards them in order to scare them which unfortunately hit Smt. Sandla Devi / victim on her head, without any bad intention to hit the iron rod on her head because they were having cordial relations. 16. The prosecution evidence and medical report have not been disbelieved by the learned Sessions Judge. Learned District and Sessions Judge had construed the question whether the injury caused to the victim was intentionally or it was a by chance, in a spur of moment that the rod hit on the head of Sandla Devi / victim and caused grievous injuries on her head. 17. On the basis of materials on record, learned Sessions Judge arrived at a conclusion that the accused picked up an iron rod and intentionally hit the same on the head of the victim and caused grievous injuries which is fatal to her life. Keeping in view the facts and circumstances and considering that the accused-respondent is 60 years of age and the accused is only bread earner, doing manual work and there was no earlier instance of quarrel between two brother, i.e. accused and PW-3 Balwant Singh as well as Sandla 8 Devi / victim, as such awarded sentence to the extent period undergone while convicting the accused under Section 307 of the Indian Penal Code. 18. On the other hand learned counsel Mr. Ashwani Pathak, has relied upon (2009) 15 Supreme Court Cases 635 Gurmukh Singh versus State of Haryana, in case where single Lathi blow on the spur of the moment, resulting in death of victim and thereby considering entire evidence including medical evidence, Hon’ble Supreme Court has held that appellant-accused ought to have been convicted under Section 304 Pt. II, instead of under Section 302 of the Indian Penal Code and Hon’ble Supreme Court has given guidelines for taking into consideration while giving appropriate sentence. The relevant guidelines in para-23 reads as under:- “23 These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. Therese factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c ) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; 9 (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/ the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.” 19. Un-disputedly, the accused has not preferred Criminal Appeal against the order of learned Sessions Judge, as such, offence under Section 307 and conviction awarded against the accused not to be adjudicated for converting the offence in some other offence. Nothing has been brought before us that after the said incident the accused has taken care of the victim voluntarily to serve socially or monetarily. No indication has been made that the conduct and behaviour of the accused was helpful to the victim after the incident. In the facts and circumstances, we also hold the accused guilty of offence under Section 307 of the Indian Penal Code. 20. In the facts and circumstances, the sentence awarded under Section 307 by learned Sessions Judge is inadequate, therefore, while holding guilty of offence and affirming the verdict of the learned Sessions Judge, we sentence the accused for simple imprisonment for a period of seven years and to pay fine of 10 Rs.10,000/-. In case of default of fine, to suffer one year rigorous imprisonment. Subsequently, the impugned order dated 02.08.1996, in Sessions Case No. 9-K/VII-1996 is modified and accordingly accused respondent is to be apprehended/ arrested to undergo the sentence as indicated above. The learned trial Court shall proceed in the matter accordingly with due dispatch. The appeal is allowed, in the above terms. ( R.B. Misra ), J. (V.K. Sharma), J. August 12, 2010 Pritam