IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 394 of 2004. Decided on: June 30, 2011. ___________________________________________________________ Sardar Singh …. Appellant. Versus State of Himachal Pradesh. ….. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?No. For the appellant : Mr. N.K.Thakur, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General. _______________________________________________________ SURINDER SINGH, J (oral): The appellant has challenged his conviction and sentence passed by the learned trial Court, in Sessions trial No.23/2003/2002, on 20/21-8-2004, for the offence punishable under Section 323 of the Indian Penal Code, whereby he was sentenced to under simple imprisonment for six months and to pay a fine of `1,000/-. In default of payment of fine, the appellant was ordered to undergo further simple imprisonment for a period of two months. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. The facts in short as emerges from the evidence on record can be stated thus. On 13.5.2000, PW1 Sukho Devi daughter of PW11 Purni Devi, grand-daughter of deceased Kamla Devi @ Kamli, was studying in matriculation and she had to take her annual examination in May, 2000. 3. On the date aforesaid at about 6 p.m., the appellant, hereafter to be referred to as ‘the accused’ was quarreling with his wife Sudershna Devi. At that time, he was outside in the courtyard of his house. Sudershna Devi took shelter behind deceased Kamla Devi. The accused in order to hit his wife with his belt Ext.P1 waived the belt which instead struck against the neck of deceased causing injury on the back of her neck. The injury got swollen. Thereafter, the deceased taken behind the house to pass stool, where she fell down. Again, she was taken inside the house, where she was provided herbal tea, but at about 7 p.m., she breathed her last. 4. The matter was reported the police. PW1 Sukho Devi made a statement Ext.PA under Section 154 of the Code of Criminal Procedure, which culminated into FIR Ext.PW10/A under Section 304 of the Indian Penal Code. The police took photographs of the deceased, prepared - 3 - site plan Ext.PW14/A of the place of alleged incident and the inquest papers Exts.PC and PD were prepared. Autopsy of the dead- body was conducted at the request of the police by PW4 Dr. Raghweshwar Jyoti and PW15 Dr. Suresh Sankhyan. Doctors noticed abrasion marked on the inter-scapular region, which is consistent with the history of having been struck with belt, but in the opinion of the doctor in the normal course of nature, it was not sufficient to cause death. Postmortem report is Ext.PW4/C. Viscera of the dead body was also sent for the forensic examination. No poison or alcohol was detected. 5. After completing the investigation, the challan was presented in the Court for the trial of the accused. Finding a prima-facie case under Section 304 of the Indian Penal Code against the accused, he was accordingly charge- sheeted for the said offence. He abjured his guilt and claimed trial. 6. To prove its case, prosecution examined PW1 Sukho Devi and PW11 Smt. Purni Devi, who were the alleged eye witnesses and also the recovery witness PW2 Parkash Chand with respect to the belt Ext.P1 from the possession of the accused, besides examining the doctors - 4 - and other formal witnesses including the Investigating Officer. 7. The accused was also examined under Section 313 of the Code of Criminal procedure. He took up the stand that the prosecution witnesses aforesaid have deposed against him falsely due to enmity, however, he did not explain as to what was the enmity against him. He was called upon to enter into his defence, but he did not lead any evidence in defence. 8. At the end of trial, accused was acquitted for the offence under Section 304, but convicted and sentenced under Section 323 of the Indian Penal Code, as aforesaid. 9. Shri N.K. Thakur, learned counsel for the accused, vehemently argued that the statement of PW1 Sukho Devi stands contradicted by the statement of PW11 Purni Devi, her mother. It is ventilated that the recovery of the belt from the accused is doubtful. He further pointed out the medical evidence whereby the doctors admitted that the injury in question can be caused to the deceased on account of fall. 10. On the other hand, Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence and further - 5 - ventilated that the statements of PW1 and 11 aforesaid proved the case of the prosecution and there are no material contradictions in their statements. They were the natural witnesses and rightly believed by the learned trial Court. He further argued that it stands proved that the accused had hit the deceased with his belt Ext.P1, which is a case of voluntarily causing simple hurt to the deceased. 11. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. 12. PW1 Sukho Devi testified the prosecution case with respect to hitting the deceased with his belt Ext.P1 on backside of her neck. The statement of PW11 Smt. Purni Devi her mother is consistent with the statement of PW1 and lends corroboration to the prosecution case. She stated that after getting hurt, deceased intended to ease herself and she was taken to back side of the house. She later passed stool there and then fell down on her back. Even she could not tie her trouser, from where, she was lifted by her daughter PW1 Sukho Devi and brought in the house, where she was provided herbal tea, but she died. Both the witnesses were meticulously cross-examined on - 6 - behalf of the accused, but they were consistent on the fact that it was the accused, who had given the blow of his belt, though aimed his wife, but it got struck against the neck of the deceased. Thus, it is a case of voluntarily causing hurt to the deceased Kamla Devi. According to the doctor, the injury in question was simple in nature, therefore, in these circumstances, the offence under Section 323 of the Indian Penal Code stands proved against the accused. 13. The contradictions pointed out by the learned counsel for the accused are not very material, which goes to the root of the case and further the recovery of the belt Ext.P1 is only corroborative in nature. Since the accused could not probablise the defence and the alleged eye witnesses are natural and consistent in the statements, the learned trial Court rightly believed them and I find no fault in the conviction passed by the learned trial Court for the offence under Section 323 of the Indian Penal Code. 14. Insofar as the sentence is concerned, learned counsel for the accused has argued that the accused was already in custody for about one month before commencement of the trial and he had also deposited the fine amount and further that at the time of alleged - 7 - incident, he was aged about 28 years. Now he has a family to support having father and two children. He is working as a Waiter in a hotel at Goa where he is earning his livelihood and maintaining his family. 15. Keeping in view the overall aspect of the case and also the extenuating and mitigating circumstances, in my opinion, without disturbing the find amount, the period already undergone would meet the ends of justice. Thus ordered accordingly. With this modification in sentence, the appeal is disposed of. 16. The respondent is discharged of his bail bonds entered upon by him during the proceedings of this case. 17. Send down the records. June 30, 2011. (Surinder Singh), (Pds) Judge.