HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 598 of 2001 Reserved on: 2.12.2008 Decided on: 24.12.2008 Jiya Lal ………Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.Vinay Thakur, Advocate. For the respondent: Ms.Shubh Mahajan, Deputy Advocate General. V.K. Ahuja, J (Oral): This is an appeal filed by the appellant Jiya Lal against the judgment of the court of learned Sessions Judge, Una, dated 8.10.2001, vide which the appellant was held guilty under Section 325 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.5,000/-. In default of payment of fine, the appellant was to undergo simple imprisonment for a further period of six months. Briefly stated the facts of the case are that on 8.1.2000, at about at about 4.40 p.m., one Pawan Kumar, came to Police Post Mehat Pur and lodged a rapat No.15 that his father Kishan Chand has been given beatings by one Jiya Lal near his house and his father has been sent to District Hospital, Una for treatment, whose condition is serious. On receipt of an information that some quarrel had taken place in Village Basdehra in the house of Pawan Kumar, ASI Ranjit Singh, Incharge Police Post Mehat Pur, proceeded to the spot and _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - recorded the statement of Pawan Kumar under Section 154 of the Cr.P.C. In this statement, the complainant Pawan Kumar alleged that he is posted in the Police Department in IR Battalion and now he has come on leave. Today at 3.45 p.m., when he was sitting on a cot in his courtyard and at a distance of about 30 yards, his father Kishan Chand was working in the fields/beds. The land of Ram Kishan, whose house is opposite to their house, adjoins their land and the dispute is going on in the court. It was alleged that the wife of said Ram Kishan, who was standing in the upper portion of her house, started giving abuses to his father and then went inside her house and when his father was coming back after working and reached in the metalled street, Jiya Lal appellant came there, caught hold of his father from the neck and started giving beatings to him with fists. It was further alleged that the appellant had caught hold of his father from the neck and started hitting his father against the wall forcibly. He and his wife Krishna went to the spot to rescue his father and the appellant pushed his father who fell down on the ground and the appellant ran away from the spot. It was alleged that on hearing the noise, one Smt.Shankutla Devi, Nurse, also reached the spot who had seen the appellant running from the spot and other persons from the locality also gathered there, who carried his unconscious father to their house. His father had suffered injuries on his ears, left side and on legs who was taken to district hospital and he died on reaching there. On this statement, a case was registered under Section 302 of the IPC and after investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the learned trial Court. The learned trial Court framed the charge under Section 302 of the IPC as against the appellant, but on conclusion of the trial, he was held guilty under Section 325 of the IPC and was convicted and sentenced, as detailed above. - 3 - I have heard the learned counsel for the appellant and the learned Deputy Advocate General for the State. I have also gone through the record of the case. The submissions made by the learned counsel for the appellant were that the deceased had himself fallen on the metalled portion since the road was sloppy and had suffered the injury which was not inflicted on the person of the deceased by the appellant. It was also submitted that the material witnesses have made improvements and as such, the statements of the prosecution witnesses become doubtful. It was also submitted that inspite of the injunction order, the deceased was working in the fields/beds and as such, it shows that he had taken the law in his own hands and since no injury in question was caused by the appellant on the person of the deceased, who had suffered a fall and received the injuries and as such the findings of the learned trial Court holding the appellant guilty under Section 325 of the IPC are liable to be set aside. On the other hand, the learned Deputy Advocate General has submitted that though there may be litigation between the parties, but that does not give a reason for the appellant to inflict the blows upon the person of the deceased. It was also submitted that there is direct evidence on record which establishes that the injury in question was caused as a result of the fist blow given by the appellant and, therefore, the findings the learned trial Court holding the appellant guilty and convicting and sentencing him call for no interference by this Court. On appraisal of the record of the case, it is clear that to substantiate their case, the prosecution had examined 10 witnesses in all. I may make a brief reference to the statements of the eye witnesses. The case was registered on the statement of PW-2 Pawan Kumar, son of the deceased Kishan Chand. He - 4 - has stated that his father was working in the fields/beds and at that time on 8.1.2000, at 3.45 p.m., he was sitting on a cot in the courtyard alongwith his wife. He stated that Smt.Swarni Devi was abusing his father by standing on the roof top of her house and his father was also replying in the same manner. He further stated that when his father was coming back to his house, the appellant came, caught hold of him from the neck and started beating him. The appellant pushed the head of his father against the danga/breast wall and his father fell down on the appellant. He rushed to the spot but the appellant ran away towards bazaar. He stated that his wife and son also reached there. Smt.Shankutla, a Nurse, also came to the spot from her nearby residence. He further stated that other persons namely Sanjay Kumar, Ram Kumar, Harish and women folk also came to the spot. They brought his father to their house who was unconscious. They tried to revive him by massaging, then lifted him on a cot, took him to the road side from where he was shifted in a Van to district hospital, Una, where he was declared as “brought dead”. Then they brought the dead body of his father back to his house. He also stated that while going to the hospital, he had lodged a report at Police Post Mehatpur Ext.PF and the police came to his house and recorded his statement Ext.PG. He admitted that he had not mentioned in his first report that NAC workers had thrown the stones in the beds which were being picked up by his father. He also admitted that he had not given the details of the occurrence in the rapat Ext.PF. He stated that the accused gave 2-4 fist blows to his father, which were given on the face with force. He admitted that he did not mention the names of his wife and son and that of the witnesses who have witnessed the occurrence, but he did use the word that his wife Krishna reached the spot and had also mentioned the name of Shakuntla Devi having come to the spot and that several persons from the - 5 - locality came to the spot, but they were not named as now named by him in his statement in court. He admitted in cross examination that the land in which his father was working is in dispute and the case is pending in the court at Una in which they have been restrained to interfere in that land in any manner. He admitted that the mother of the accused was complaining that despite the stay from the court, his father was interfering in that land. He denied that due to the land dispute, a false case has been cooked up to pressurize the opposite party to settle the land dispute. PW-3 Krishna Devi, wife of the complainant PW-2 Pawan Kumar, has materially corroborated the statement of her husband PW-2 Pawan Kumar. She also stated that the accused gave fist blows to her father-in-law, who was caught hold of by neck and his head was struck against the danga and her father-in-law fell down on the accused. She admitted that 3-4 blows were given to her father- in-law and one push was given against the wall. PW-4 Shakuntla Devi, a Mid-wife, has stated that she was present in her house at about 4.00 p.m. when she heard some noise outside. The mother of the accused was standing on the roof of her house and was talking loudly regarding some land dispute with the complainant party. She came out and saw that the deceased was lying on the ground in the street. PW-2 Pawan Kumar and PW-3 Krishna Devi also came there and they lifted Kishan Chand and took him to their house. She stated that she was not told by any one as to what had happened to Kishan Chand on the spot. She was declared as hostile since she did not support the prosecution story fully. However, in cross examination, she admitted the presence of the accused at that time and stated that she did not notice whether he was going to his house or coming from his house. She denied the suggestion that fist blows were given to Kishan Chand and his head was - 6 - pushed against the breast wall by the appellant. She stated that she does not know till today as to how Kishan Chand died, which clearly shows that she has avoided being involved in this dispute in between two neighbours and that may be the reason for her not supporting the prosecution story. She stated that when she went for the mourning to the house of the complainant, she did not learn the cause of the death and gave the reason that she was not in the habit of entering into irrelevant talks. She admitted that the deceased was in good physical condition, though aged but had no permanent disease. Her statement reiterates my view that she has tried to avoid herself to getting involved in this controversy since both the parties are her neighbours. PW-5 Sanjeev Kumar has simply stated that on hearing of a verbal wrangle, he came from his house and noticed that Kishan Chand had fallen down in the street. He proved the presence of PW-2 Pawan Kumar, PW-4 Shakuntla Devi and other persons and that they brought Kishan Chand to district hospital, Una. He admitted that Pawan Kumar had told him that accused Jiya Lal had killed his father by pushing him. He also noticed injury on the left temporal region of the deceased. PW-7 Prem Chand, Secretary Nagar Panchayat, has stated about the dispute and the injunction procured by the other party against the Nagar Panchayat including the complainant party and they stopped the work there. PW-1 Dr.S.P. Kanwar had conducted the post mortem and gave his report Ext.PE and found the following injuries on the person of the deceased: “1. Bruise 3 cm x 1 cm on left side of forehead 1 cm above left eye brow, transversely placed reddish in colour. 2. Abrasion 4 cm x 2 cm on left cheek and zygometic arch, 1.5 cm away from outer canthus of left eye transvorsely placed, brownish reddish in colour. 3. Abrasion 1.5 cm x 1.5 cm on left knee cap, anterior aspect brownish reddish in colour. - 7 - 4. Abrasion 1 cm x 1 cm on left knee cap anterior aspect brownish reddish in colour. 5. Abrasion 1.5 cm x 1 cm on anterior aspect of left knee on head of fibula, reddish brownish in colour. Scalp On opening the skull there is subdurial haemotoma on left side of fronto temporal region and there is fracture of right temporal bone.” The probable period between injury and death was stated to be 0 to 3 hours. The doctor PW-1 admitted that in case the head of the person is pushed against the pucca wall, death is possible. He also stated that head injury was sufficient, in ordinary course of nature, to cause death, which injuries are also possible by fall on hard sloppy surface. From the above detailed discussion of evidence led by the prosecution, it is clear that there was a civil dispute in between the parties in regard to the land and the complainant party had also obtained an injunction order, as per the oral evidence, though no copy of the injunction order was placed on record. There is no specific evidence in regard to stay, if it was in regard to the land in question or the terms and conditions of the stay order. It is also clear that the mother of the appellant gave abuses to the deceased, who also retaliated by giving abuses and when the deceased was returning back to his house, he was given fist blows by the appellant and was pushed against a wall, which ultimately resulted in the death of the deceased. The details of the occurrence have been clearly stated by PW-2 Pawan Kumar, son of the deceased and his wife PW-3 Krishna Devi, and there are no material contradictions or infirmities in their statements in regard to the manner in which the blows were given or the push was given against the breast wall resulting in the death of the deceased. These statements have been further corroborated by other evidence, as discussed above, which also proves the presence of the appellant at the time of occurrence and the fact that the appellant was present at the spot at that time and he objected to Kishan Chand - 8 - giving abuses to his mother has been specifically admitted by the accused in his statement under Section 313 of the Cr.P.C. In his statement under Section 313 of the Cr.P.C., he specifically stated in regard to the interference by the deceased inspite of the stay order, giving of filthy abuses and his objection to the same and he took up the plea that the deceased was standing on a sloppy road and in a fit of rage was giving vulgar abuses and became unstable resulting in his fall on the ground. He stated that he had not pushed the deceased at that time, but the evidence led by the prosecution clearly proves the fact that the deceased was given fist blows and pushed against a retaining wall, who fell down and accordingly the injury was caused to him. The defence plea taken by the appellant is not sufficient to raise even a doubt in the mind of the court that the blows were not given by the appellant resulting in the death of the deceased. During the course of arguments, a plea was sought to be raised that the first report lodged with the police vide rapat of PW-2 Pawan Kumar has to be taken as FIR and subsequent statement under Section 154 of the Cr.P.C. has to be taken as statement under Section 161 of the Cr.P.C. It was submitted that complete details were not mentioned in the first report lodged with the police, which makes the prosecution story doubtful. In my view, no benefit can be taken by the appellant that the whole occurrence was not mentioned in the first report lodged with the police since the appellant, in abundant caution, had lodged the report with the police while going to the hospital to get his father treated, which was more urgent than the lodging of the report. The complete facts were given immediately after his father died and when the Investigating Officer reached his house and there has been no delay in lodging the FIR and mentioning the names of the witnesses present or having witnessed the occurrence. This assumes more significance, particularly, when the appellant - 9 - has not disputed his presence at the spot in his statement under Section 313 of the Cr.P.C. when he has admitted the occurrence almost fully except the part implicating him for the injuries or the push given to the deceased. From whichever angle the evidence of the prosecution is looked into i.e. from the point of lodging of the FIR, which was lodged with promptitude mentioning the complete details, and there are no material contradictions in the statements of the complainant and his wife who were the natural witnesses to the occurrence, which had taken place just in front of their house and being present at the spot, they were the natural witnesses and their statements cannot be ignored terming them as interested witnesses. The relatives of the deceased could have been the best witnesses and the natural witnesses since the occurrence had taken place in front of their house and their presence stands established from the evidence. In view of the above discussion, it follows that the prosecution has been able to prove that the grievous injury in question was caused by the appellant and as such he was liable for the offence committed by him. The next question which arises for consideration is as to whether the guilt of the appellant was established under Section 325 of the IPC or it stood established under Section 302 of the IPC or under Section 304 of the IPC since the charge was framed under Section 302 of the IPC. However, it is clear that the State has not come up in appeal against the findings of the learned trial Court holding the appellant guilty under Section 325 of the IPC in place of Section 302 of the IPC. No such cross appeal was filed against the findings of the learned trial Court or no such plea was taken that the offence under Section 304 IPC was made out or may be under Section 302 IPC. Therefore, this point is not open for consideration since the findings of the learned trial Court were not - 10 - challenged by way of any cross appeal or raising the plea during the course of arguments. I, therefore, hold that the findings of the learned trial Court holding the appellant guilty under Section 325 of the IPC, in such circumstances, are liable to be affirmed and are affirmed accordingly. During the course of arguments, on the point of sentence, the learned counsel for the appellant had submitted that the appellant was a young man and some lenient view may be taken against the appellant and the sentence imposed may be reduced or he may be released under Section 4 of the Probation of Offenders Act. Keeping in view the fact that the appellant had been held guilty under Section 325 of the IPC, the report of the Probation Officer was called, in abundant caution, to be considered, if necessary, in view of the facts of the case. However, the report of the Probation Officer is not required to be considered since I am of the opinion that the benefit of probation cannot be given in such circumstances, when the deceased, a man of 73 years, was given grievous injury resulting in his death. The age of the appellant has been given as 27 years and keeping in view the facts and the circumstances of the case, I am of the opinion that no benefit of Probation of Offenders Act can be given to the appellant and, therefore, the said report of the Probation Officer is not being considered. However, no case is made out for reduction of the sentence imposed upon the appellant by the learned trial court, which has already taken a lenient view and sentenced the appellant to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.5,000/-, which findings do not call for an interference by this Court and the sentence imposed does not deserve to be reduced accordingly. I, therefore, hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The record of the case alongwith the - 11 - copy of the judgment shall be sent back to the learned trial Court, who shall issue warrants of arrest against the appellant and shall send him to jail to serve the sentence imposed upon him. Information in this regard shall be sent to this Court as and when the appellant is sent to jail. The appeal stands disposed of accordingly. December 24, 2008. (V.K. Ahuja), (TILAK) Judge.