--------------------------------------------------------------------------------------- Whether reporters of the Local papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. A. No. 108 of 2011. Decided on: December 23, 2011. Pawan Chand son of Sh. Pratap Chand R/o Rajerh and Police Station Palampur District Kangra, H.P. …… Appellant. Versus State of Himachal Pradesh. …….Respondent. Appeal under Section 374 (2) Cr.P.C. against the judgment of conviction and sentence dated 21.1.2011 passed by the learned Additional Sessions Judge Kangra at Dharamshala, H.P. in RBT Sessions Case No. 75-P/VII/10/09 (Session Trial No. 1/2011) under Sections 449, 323, 302 and 506 Indian Penal Code. ________________________________________________________ Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? yes For the appellant : Ms. Kanta Thakur, Advocate. For the respondents : Mr. A.K. Bansal, Addl. Advocate General. Surinder Singh, J (oral): The appellant hereinafter referred as ‘the accused’ has laid challenge in this appeal against his conviction passed by the learned trial Court in Sessions Case No. 75-P/VII/10/09 Session Trial No. - 2 - 1/2011 under Sections 449, 323, 302 and 506 Indian Penal Code, decided on 21.1.2011, for the offences punishable under Sections 449, 323,302 & 506 Indian Penal Code whereby he was sentenced as under: Sr. No. Sections Sentence imposed. 1. 448 Indian Penal Code Imprisonment for a period of one yea and a fine of `5,00/-. In default of payment of fine to undergo further imprisonment of three months . 2. Section 323 Indian Penal Code Imprisonment for a period of one year and fine of `500/- in default of payment of which to further undergo imprisonment for a period of three months. 3. 304-II Indian Penal Code Rigorous imprisonment for a period of five years and to pay a fine of ` 10,000/-. In default of payment of fine to further undergo imprisonment for a period of one year. 4. Section 506 Indian Penal Code Imprisonment for a period two years and to pay a fine of `10000/-. In default of payment of fine, to further undergo imprisonment for a period of six months. All the sentences were ordered to run concurrently. The period of detention spent in custody during investigation and trial is ordered to be set-off against the substantive sentence, as per provisions of Section 428 of the Code of Criminal Procedure. - 3 - 2. Facts, shorn of all unnecessary details, can be stated thus. PW11 Guddi Devi @ Jagtamba and her deceased sister Vidya Devi, “kumha”r by caste, were unmarried and residing together in their village at Rajerh. They were having a house and landed property of about 28 Kanals on which the co- villagers were having an eye. It is alleged that on 18.10.2008 at about 4.30 p.m. complainant Guddi Devi aforesaid noticed accused loping beul tree for fodder belonging to he complainant. She asked the reason for doing so, but the accused took away the cut branches and threw rubbish and left over it in her field and left the place. But he returned after about half an hour. When both the sisters were taking their meals in the house, accused entered in their veranda and dealt a blow on the head of Vidya Devi with a ‘Y’ shape danda having nails on its head which caused deep wound and bleeding injury to the complainant and gave beating to her and complainant Guddi Devi when she tried to rescue her sister. None of them had provoked the accused but both were badly beaten and left the place - 4 - proclaiming that his uncle was a police officer, neither they could report to police not Panchayat and threatened them with dire consequences. The danda also got broken and few pieces fell on the spot and other longer part was taken by him. (ii) On account of injury on the head of Vidya Devi, she became unconscious. The complainant Guddi Devi informed the Pradhan of the Gram Panchayat (PW13) Amar Singh who advised her to report the matter to the police. She could not left Vidya Devi but mustered courage, got complaint Ext. PW11/A from her cousin and gave it to the police which culminated into FIR Ext. PW18/A in police Station Palampur. (iii) The injured was taken to the hospital in the vehicle by the complainant Guddi Devi where she was attended upon by PW1 Dr. S.K. Sood at that time she was in the same condition and not responding to the questions. The doctor on her medical examination noticed following injures: - 5 - 1. Contusion right parietal region red in colour with punctuate multiple abrasion overlying skins. Blood clot red in colour present. 2. Abrasion with dark blue purple colour over left wrist dorso lateral aspect 2 cm x0.5 cm in size. 3. Circular contusion 2 cm in diameter over posterior aspect of left forearm 3’ below olecranum process with abrasion circular 1 cm in diameter overlying skin. Red in colour. 4. Contusion 6 cm x 5 cm in size. Red in colour over posterior aspect of left forearm overlying abrasion with blood clot present. 5. Contusion 15 cm x 11 cm over right upper arm reddish in blue colour 2’ below right shoulder on lateral aspect. 6. Contusion 1 cm over right hand at base of thumb with one punctuate abrasion injury overlying it. Red in colour. Injuries No. 2 to 5 aforesaid were simple in nature but injury No. 1 was opined to be grievous. He issued MLC Ext. PW1/A. In his opinion, the blow on the head could be caused with a wooden danda shown to him. She was treated as an indoor patient. - 6 - Treatment slip is Ext. P4 and the prescription slip is Ext. PW6/A. Said doctor also medically examined the complainant Guddi Devi. Some simple injuries on her person were also noticed as mentioned in her medico legal certificate Ext. P2, relatable to the time of incident. (iv) PW5 Dr. R.K. Ahulwalia attended upon Vidya Devi and treatment slip is Ext. PW5/A. But she could not survive and ultimately died on 20.10.2008 around 7.30 a.m. (Ext. PW5/B). The death was reported to the police by the said doctor also. (v) Police prepared the inquest papers. Thereafter police conducted the investigation. Police party led by SHO proceeded to the spot. Later PW15 ASI Sham Lal was also called. One Kuldeep Sharma and Jaswant Chand, Up- Pradhan of the Gram Panchayat were on the spot. Police also took into possession the piece of bangle Ext. A4, broken pieces of danda A2 vide memo Ext. PW11/B and also broken pieces of Danda A6. - 7 - (vi) Post-mortem of the dead body of Vidya Devi was performed by PW6 Dr. K.L. Kapoor. The report is Ext. PW6/A. The doctor noticed subcutaneous haemorrhage over right fronto temporal region underlying skull showed fracture over right parietal bone expending to right temporal bone involving both tables underlying dura lacerated temporal lobe showed laceration with contusion and other ante-mortem injuries were as noticed by PW1 Dr. S.K. Sood. In the opinion of the doctor deceased had died due to head injury which could be caused by the blow of danda struck repeatedly. (vii) The accused was arrested. He made disclosure statement Ext. PW13/A on 21.10.2008 to the police pursuant to which 21 inch long wooden danda was got recovered vide memo Ext. PW15/A. (viii) Police had also taken the photographs of the dead-body besides preparing site plant Ext. PW15/B of the place of alleged incident. Blood stained clothes of the deceased were sent for - 8 - forensic examination and the report is Ext. PW18/F. 3. After completing investigation, challan was presented in the Court for the trial of the accused. Accused was charge sheeted for the offence aforesaid to which he pleaded not guilty and claimed trial. 4. To prove its case, prosecution examined complainant PW11 Guddi Devi besides examining doctors, Pradhan Amar Singh, who did not support the case of the prosecution, the Investigating Officer PW18 Dy. S.P. Badri Singh and other formal witnesses. Accused was also examined under Section 313 of the Code of Criminal Procedure. He admitted that he was resident of the same village and his house situate nearer to the house of the complainant but denied about the incident. According to him, the complainant only deposed against him due to enmity. 5. When called upon to enter into his defence no evidence in defence was led. 6. The learned trial Court disbelieved his defence and on going through the record, it did not - 9 - find it a case of murder but a case of ‘culpable homicide not amounting to murder’ and qua other offences charged, hence, he was convicted and sentenced aforesaid. 7. Ms. Kanta Thakur, learned counsel for the accused forcefully argued that the statement of the complainant is unworthy of credence. Her sister Vidya Devi died because of negligence on her part as the prompt medical-aid was not provided to her. She also submitted that Vidya Devi had a fall and the complainant while picking her up also sustained injuries. The complainant party nourished ill-will against the accused as such he was falsely implicated in this case. Further that the witnesses of disclosure and recovery did not support the case of the prosecution and there is no other evidence against the accused. 8. Contra Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence. 9. I have given my thoughtful consideration to the rival contentions of the learned counsel for the - 10 - parties and have carefully scanned the evidence on record. 10. In the instant case, the accused was very well known to the complainant and injured witness, therefore, there is no question of even a mistaken identity. Being injured, she is the best witness of the incident. Her testimony corroborated by the medical evidence is sufficient to sustain conviction of the accused as it is confidence inspiring. She unfolds the prosecution story as PW11 testifying that on 18.10.2008 she along with her sister Vidya Devi (deceased) had gone to harvest paddy crop. Vidya Devi had asked her to go home. On the way, she noticed the accused loping their beul tree for fodder. The accused took away the loped branches. She reached home around 3 p.m. and prepared food. In the meantime, her sister also found her and advised her to sow wheat in their 26 canals out of 28 kanals of the land. They took meals, Vidya Devi lifted the plough, the accused came from behind and dealt a danda blow on her head and gave repeated blows to her and Danda broke into pieces. She (PW11) raised alarm but she was also beaten by - 11 - the accused and sustained injuries on her left arm head and other parts of the body. Thereafter one Kamlesh came there and she complained to him that they were beaten by the accused. She alleged that accused wanted that they should leave the village so that he could possess their land. They also threatened the complainant that his uncle is SHO and if they would report the matter to the Panchayat or the police, they will not do anything and he also threatened her with dire consequences. Thereafter he made an escape. She further stated that she told about the incident to Amar Singh Pradhan who advised them to go to the police Station. Thus, she handed over complaint Ext. PW11/A to police. The following day she took Vidya Devi to Palampur hospital. The police was with them. Vidya Devi could not saved and died on 20.10.2008 in the hospital. She also stated that from the spot, police took, broken pieces of bangles and danda, into possession to which she identified during the trial. She was subjected to a lengthy cross examination but of no help to the accused. Though she stated that she had one brother and sister - 12 - leaving in the same village but they used to meet them only either in the morning or evening. Further according to her there is only one case relating to the land with her. She denied that she had many cases filed against the villagers with respect to the land and also that the people had burnt her fodder, she admitted the suggestion that there was no civil dispute with respect to the land with the accused in any court. She also stated that her complaint Ext. PW11/A was scribed by her nephew which was read over to her and there after she signed the same. Further, a fatal suggestion was put to her to which she admitted that she had identified the piece of wood found in the veranda with which Vidya Devi was beaten, but denied that the longer piece of wood Ext. A1 which was alleged to have recovered pursuant to the disclosure statement of the accused was lying in the veranda. She also stated that both of them i.e. she and her deceased sister were taken together to the hospital for medical examination. The learned trial Court also noticed the demnour of the witness. She was persistently weeping and was found to be rustic villager. She denied that her sister - 13 - sustained injuries by fall, while going from her house and she (PW11) got injured while helping to lift her. She also denied that she along with her relative did not provided timely medical aid to Vidya Devi. 11. PW12 Jharu Ram is elder brother of the deceased. According to him, he came to know about the incident on 20.10.2008 when police visited the spot and police took broken danda from the spot. During the trial, he also identified the articles recovered from the spot. 12. PW13 Amar Singh Pradhan of the Gram Panchayat though stated that he was informed about the quarrel having taken place with the complainant and Vidya Devi but denied other facts thus he was declared hostile. Though, he stated that in his presence, police also inspected the spot, took photographs, lifted broken piece of bangles from the spot, affords enough corroboration to the case of the testimony of the complainant. 13. PW15 ASI Shyam Lal stated about the recovery of 21” danda A6 at the behest of accused, pursuant to the disclosure statement. - 14 - 14. PW1 Dr. S.K. Sood has also proved various injuries on the person of the deceased, as stated above, as also on the complainant. The cause of death is clearly spelt out by PW6 Dr. K.L. Kapoor who performed the autopsy that the fatal injury was on the head and he did not rule out the possibility of causing such injury with danda blow given repeatedly. 15. The version of the complainant is totally corroborated by Pradhan Amar Singh and further substantiated in material particulars by the doctor aforesaid. There is no reason for her roping the accused in the present case falsely. I find the statement of the complainant worth inspiring confidence with respect to the assault by the accused and a consequence thereof. 16. In fact, every killing of a man by a man is “culpable homicide” if the killer intends to cause such bodily injury as is likely to cause death or if the killer does the act leading to the death with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that by such act he is likely to cause death, - 15 - per Section 299 IPC. In the following cases, culpable homicide would be murder: (a) if it is done with the intention of causing death; (b) if it is done with the intention of causing such bodily injury as the offender knows is likely to cause the death of the person to whom injury is caused; (c) If it is done with the intention of causing bodily injury to any person and the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; and (d) If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and there is no excuse for incurring the risk of causing death or injury of the aforesaid kind. 17. If the “culpable homicide” lacks the intention or the knowledge referred to in (a) to (d) above, it will not amount to murder, punishable under Section 302 IPC, but would be punishable under Section 304 IPC as ‘culpable homicide not amounting to murder’. 18. In the following situations even if the intention or knowledge referred to in (a) to (d) exists, the act of the offender will be punishable not under Section 302 IPC, but under Section 304 IPC: - 16 - (i) if the offender happens to cause the death on being deprived of the power of self control by grave and sudden provocation given by the deceased; (ii) if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and happens to cause the death of the person against whom such right of defence is exercised and does so without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence; (iii) If the offender is a public servant or is aiding a public servant acting for the advancement of public justice, exceeds the power given to him by law and does the act causing the death in good faith believing it (the act) to be lawful and necessary for due discharge of his duty and without ill-will towards the deceased; (iv) If the act is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and the offender does not take undue advantage or does not act in cruel or unusual manner; - 17 - (v) If the deceased being above the age of eighteen years suffers death or takes the risk of death with his own consent. 19. One of the arguments advanced by the learned counsel for the accused is that the deceased was not given immediate medical aid which caused her death but it is apparent from the evidence on record that on the receipt of the head injury, she became unconscious. The complainant was alone in the house and it was not possible for her even to lift the injured and to take her to the road. Thus she went to the Pradhan informed him about the incident but he also told her to report the matter to the police without any material help. Except these two sisters, there was no other available in the family to render immediate help as the other villagers were hostile to her. There is also no evidence that her brother and other relatives were in the village. As already stated above her brother came to know about the incident when Vidya Devi had died. Further, no suggestion on the lines as now contended was put either to the doctor that the delay in the treatment of the deceased - 18 - was fatal or by timely help, she could have survived. On the top of it, the threatening given by the accused became a curser and a dangerous proposition as well as to the complainant to travel with the injured to the hospital during the night and to report to the police. The evidence on record establishes the ingredients of Section 304 of the Indian Penal Code. 20. In fact Section 304-A is directed at offences outside the range of Sections 299 and 300 and obviously contemplates those cases into which neither intention nor knowledge enters. For the rash and negligent act which is declared to be a crime is one “not amounting to culpable homicide” and it must, therefore, be taken that intentionally or knowingly inflicted violence directly and willfully caused, is excluded. 21. Section 304 of the Code provides punishment for “culpable homicide not amounting to murder”, which reads as under:- “304. Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either - 19 - description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or causing such bodily injury as is likely to cause death: Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge and it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” [Emphasis mine] 22. The perusal of the above provision shows that there are two kinds of punishments applying to two different circumstances: (i) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine. (ii) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, - 20 - the punishment is imprisonment of either description for a term which may extend to ten years, or with fine, or with both.” 23. Thus the fine distinction in both the sections is that Section 304A IPC has no “intention” or “knowledge” to cause death whereas, in Section 304 IPC intention” and “knowledge” to cause death is sine quo non. [See: Bhupinder Singh versus State of H.P. 2009 (2) Shim.LC219] 24. Therefore, as a sequal of the above discussion and the evidence emerging from the record, the knowledge of death under Section 299 of the Indian Penal Code could be safely attributed to the accused when he had given a fatal blow on the head of the deceased and beatings to her and the complainant with a Danda which also broke into pieces. Therefore, he is liable under Section 304-II of the Indian Penal Code as such rightly convicted and sentenced by the learned trial Court for the said offence along with other offences charged against him. 26. Confronted with the above position, the learned counsel for the accused prayed for - 21 - leniency. But keeping in view the aforesaid peculiar circumstances that because of his act a poor woman met untimely death and also the impact of the incident on the society, no leniency can be shown to the accused. As such the appeal is devoid of any merit, accordingly dismissed. 24. Send down the records. (Surinder Singh ) Judge December 22, 2011. (cm)