Crl. Appeal No. 382-DBA of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 382-DBA of 1999 Date of Decision : May 12, 2008. State of Punjab .... Appellant Vs. Sukhdev Singh .... Respondent CORAM : HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. D.S.Brar, DAG, Punjab for the appellant. None for the respondent. * * * L.N.MITTAL, J. : State of Punjab has preferred the instant appeal to impugn judgment and order dated 23.12.1998 of learned Additional Sessions Judge, Barnala, whereby respondent Sukhdev Singh stands convicted under Section 304-I of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.1,000/- and in default, to undergo further rigorous imprisonment for three months. According to the prosecution version, on 15.11.1995, complainant's son Major Singh and complainant's brother Sukhdev Singh accused had gone to the fields. Complainant Gurdev Singh and Jarnail Crl. Appeal No. 382-DBA of 1999 2 Singh went to give meals to Major Singh. When they reached just near the fields, they saw that Major Singh and Sukhdev Singh were abusing each other. Sukhdev Singh, who was having a kasia, inflicted 3-4 blows on the head, neck and left hand of Major Singh, who fell down. Accused Sukhdev Singh ran away. Major Singh died at the spot. The motive was that the respondent, who was having joint cultivation with the complainant, wanted separate cultivation, whereas the deceased wanted joint cultivation. After necessary investigation, police sent the respondent for trial under Section 302 of the Indian Penal Code. Charge under Section 302 of the Indian Penal Code was framed against the respondent, who pleaded not guilty and claimed trial. Dr. Ravinder Bansal (PW-1) stated that he medically examined the respondent on 01.12.1995. Dr. Rajesh Kumar Garg (PW-2) stated that he conducted post mortem examination on the dead body of Major Singh and five injuries were found on his body. Except injury no.4, all other injuries could be caused with kasia used from blunt side. In his opinion, cause of death was shock and hemorrhage and injuries no.1 to 3 to vital organs. The injuries were ante mortem and sufficient to cause death in ordinary course of nature. Darshan Singh (PW-3) stated that the respondent had told him that respondent's nephew was injured and the witness should inform at their house. Jagtar Singh Patwari (PW-4) stated that he prepared site plan. Head Constable Jagtar Singh (PW-5) stated that he delivered special report in the case to learned Illaqa Magistrate and other officers. Head Constable Tarsem Singh (PW-6), being formal witness, tendered his affidavit in evidence. Manjit Singh (PW-7) identified the dead body at the time of inquest report. ASI Jaswant Singh (PW-8) stated about lifting of blood stained earth from the spot by SI Nahar Singh. He also told that on 01.12.1995, respondent was arrested by SI Nahar Singh on being produced Crl. Appeal No. 382-DBA of 1999 3 by Gurmail Singh – Sarpanch. Respondent was having a kasia which was seized vide Memo Ex.P-K. Constable Hardev Singh (PW-9) tendered his affidavit Ex.P-L being formal witness. Gurdev Singh – complainant (PW- 10) initially turned hostile. He stated that Major Singh alone had gone to the fields and when the witness accompanied by Jarnail Singh went there, they found Major Singh lying dead. The complainant stated that Major Singh was killed by Darshan Singh – son of Sukhdev Singh. Gurdev Singh was declared hostile and was cross-examined by the Prosecutor, when the witness admitted that he had stated before the police that respondent no.1 inflicted three kasia blows to Major Singh with intention to kill. The witness also admitted the other prosecution version as stated by the witness in the FIR lodged by him. The complainant admitted that his statement Ex.P-M made to the police is correct. Jarnail Singh (PW-11) has broadly supported the prosecution case by deposing that the respondent inflicted 3-4 kasia blows to Major Singh, who fell down and died. He also stated that the police seized the blood stained earth from the spot. SI Nahar Singh (PW- 12) stated about investigation of the case conducted by him. The respondent in his examination under Section 313 of the Code of Criminal Procedure denied the prosecution version and claimed to be innocent. He alleged that his both legs got fractured prior to the occurrence and he could not move without crutches. He also stated that he had never gone to the fields, nor caused any injuries to anyone. No evidence was led by the respondent in his defence. The learned trial court, vide impugned judgment dated 23.12.1998, convicted the respondent under Section 304-I of the Indian Penal Code instead of Section 302 of the Indian Penal Code and sentenced him vide order of even date as already noticed herein above. Feeling aggrieved, the State has preferred the instant appeal seeking conviction of Crl. Appeal No. 382-DBA of 1999 4 the respondent under Section 302 of the Indian Penal Code. We have heard learned State counsel for the appellant-State and perused the case file. The only question to be determined in the instant appeal is whether respondent has been rightly convicted under Section 304-I of the Indian Penal Code or the respondent is liable to be convicted under Section 302 of the Indian Penal Code. Learned State counsel for the appellant contended that the respondent had inflicted kasia blows to the deceased resulting in his death and therefore, offence under Section 302 of the Indian Penal Code is made out. However, we find ourselves unable to accept this contention. The deceased was real nephew of the respondent. The respondent was having joint cultivation of land with the complainant party, but wanted to have separate cultivation, whereas the deceased wanted joint cultivation to continue, according to the prosecution version. The respondent was not having any pre-meditation to kill his own nephew. It was on account of the dispute relating to joint cultivation or separation thereof that the respondent inflicted blows to the deceased resulting in his death. It is own case of the prosecution that prior to infliction of blows by the respondent, the respondent and the deceased were abusing each other. It was thus in the heat of passion on account of the aforesaid quarrel that the respondent inflicted 3-4 blows to the deceased. However, it has to be noticed that the blows were not inflicted from sharp side of the weapon. Only lacerated wounds were found on the body of the deceased and Dr. R.K.Garg, who conducted post mortem examination, has opined that the said injuries, except injury no.4, were possible with kasia, if used from blunt side. Thus, the respondent did not use the weapon from sharp side. The respondent also did not act in a cruel manner. It was on account of heat of passion and Crl. Appeal No. 382-DBA of 1999 5 sudden quarrel that the respondent inflicted blows to the deceased. Keeping in view all these circumstances, the view taken by the trial court, that the case falls under Section 304-I of the Indian Penal Code being culpable homicide not amounting to murder, is a reasonable view, which does not warrant interference in the instant appeal, preferred by the State. The aforesaid view taken by the trial court cannot be said to be perverse or completely untenable. Accordingly, we are not inclined to interfere with the impugned judgment in the instant appeal. The appeal is, accordingly, dismissed. ( L.N.MITTAL ) JUDGE May 12, 2008 ( ADARSH KUMAR GOEL) monika JUDGE