IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.331 of 2006 Decided on : October 13, 2009 Sushil Kumar @ Shashi …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. H.K. Bhardwaj & Mr. Y. Paul, Advocates. For the Respondent : Mr. P.M. Negi, Deputy Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J (Oral) Appellant Sushil Kumar @ Shashi has appealed against the judgment dated 26th August, 2006, of learned Additional Sessions Judge (Fast Track Court), Dharamshala, whereby he alongwith one Vijay Kumar @ Kala has been convicted of offence, under Sections 302, read with Section 34 of the Indian Penal Code, and sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/-; in default of payment of fine to undergo imprisonment for a further period of one year. 2. Four persons, including the appellant and his co- convict Vijay Kumar, were sent up for trial, for offence, Whether reporters of the local papers may be allowed to see the judgment? …2… under Section 302, read with Section 34 of the Indian Penal Code, on the following allegations. On 6th March, 2004, it was Holi. People of village Thandol had been celebrating the festival, by throwing coloured powder and coloured water on each other. Around 1.30 p.m., deceased Anil Kumar, after playing Holi, started for village Khaira, in the company of his friend Vinod Kumar (PW-5), on a scooter. They had hardly gone only 10-15 yards, when the appellant, his co-convict Vijay Kumar alias Kala and two other persons, namely Kanshi Ram and Brahma Nand, who were co-accused with the appellant affronted them. They started hurling abuses at deceased Anil Kumar. Deceased Anil Kumar also retorted by abusive language. PW-5 Vinod Kumar tried to pacify both the sides. In the meanwhile, appellant and his co-convict Vijay Kumar went to a nearby Bamboo grove and picked up Bamboo dandas from that grove and returned to the spot. Appellant Sushil Kumar dealt a Bamboo blow on the head of deceased Anil Kumar and Vijay Kumar dealt a blow of Bamboo on the neck of deceased Anil Kumar. Other two co-accused of the appellant pelted stones at deceased Anil Kumar. Parshotam (PW-6), who has his green-grocery shop nearby, saw the occurrence. He rushed to the spot and rescued deceased Anil Kumar with the help of Vinod Kumar and two uncles of the deceased, namely PW-2 Dinesh Chand and PW-3 Suresh Katoch, who also reached the spot on hearing commotion. …3… 3. Deceased Anil Kumar was taken to Family Health Centre, Panchrukhi. He had been talking, though he did complain of pain in the head. Since he had been talking and the doctor at Panchrukhi was also not available, he was brought back to the village. Around 9 or 9.30 p.m., deceased Anil Kumar developed severe pain in the head and informed PW-2 Dinesh Chand PW-3 Suresh Katoch about the same. The later named two witnesses are the real brothers (younger) of the father of deceased Anil Kumar. They rushed him to Sub Divisional Hospital at Palampur, where the doctor declared that he was dead. 4. Matter was reported to the police at 2.30 a.m., on 7th March, 2004, soon after the death of Anil Kumar. Police conducted inquest and filled in the forms Ex. PW-3/B and Ex. PW-3/C. Postmortem examination was conducted by PW-1 Dr. Veena Sharma, who noticed haemotoma over left parieto temporal region of head, measuring 4” x 4” approximately. After dissection of the site of haemotoma, she noticed that sub-coetaneous issues and muscles were ecchymosed and contained dark colour blood. She opined that the injury could have been caused by a blow of a bamboo danda, like Ex. P-5 and Ex. P-6. She ruled out the possibility of the injury having been sustained, on account of striking of the site of the injury against any wall or hard surface. …4… 5. During the course of investigation, appellant and his co-convict made disclosure statements, leading to the discovery of dandas, Ex. P-5 and Ex. P-6. 6. Appellant and other accused took the plea that the deceased had consumed liquor in good measure, while playing Holi and because of that he got highly intoxicated and lost balance and his head struck against a wall. This plea was suggested to PW-6 Parshotam Singh. He denied the suggestion. Doctor, namely PW-1 Veena Sharma, also ruled out the possibility of the injury having been sustained, on account of striking of the head against a wall or any other hard surface. 7. Trial Court believed the prosecution version and convicted the appellant and Vijay Kumar @ Kala and sentenced them, as aforesaid. The other co-accused were acquitted. State does not appear to have filed any appeal against the order of acquittal of the other two co-accused. 8. Learned Deputy Advocate General, Mr. P.M. Negi, after verifying from the Superintendent of Kanda Jail, has brought to our notice that Vijay Kumar @ Kala, who was convicted and sentenced alongwith the appellant, died when he went on parole. 9. We have heard the learned counsel for the appellant as also the learned Deputy Advocate General and perused the record. …5… 10. Testimony of PW-2 Dinesh Chand, PW-3 Suresh Katoch, PW-5 Vinod Kumar and PW-6 Parshotam Singh, proves the occurrence. All of them have narrated the incident, claiming that they were witnesses to the hitting of the deceased by the appellant on his head with a bamboo. Of course, PW-2 Dinesh Chand and PW-3 Suresh Katoch are the real uncles of the deceased and also they are on inimical terms with the appellant, as admitted by them, but that by itself is no reason to disbelieve their testimony, especially when it is corroborated by the testimony of PW-5 Vinod Kumar, who was accompanying the deceased, as also PW-6 Parshotam Singh, who had his vegetable shop near the place of occurrence. Neither PW-5 Vinod Kumar nor PW-6 Parshotam had any axe to grind, by making false statements against the appellant. PW-6 Parshotam Singh very categorically stated that the appellant and his co- convict Vijay Kumar @ Kala (now dead) came to a bamboo grove, near his shop, picked up two bamboos and then returned to the place where the appellant was present and the appellant hit the deceased on his head. PW-1 Dr. Veena Sharma testified that the cause of death was the haemotoma of the head, which, according to her, could have been caused due to a blow of one of the two bamboos, i.e. Ex. P-5 and Ex. P-6, which the appellant and his co- convict Vijay Kumar @ Kala got recovered during …6… investigation of the case, per testimony of PW-7 Sansar Chand and PW-14 ASI Tilak Raj. 11. However, it is made out from the evidence that the offence was not committed by the appellant in a premeditated manner. The appellant and his accomplice Vijay Kumar @ Kala on one side and the deceased on the other exchanged abusive language, soon after they had finished playing Holi. This led to a sudden quarrel and fight and in that process the appellant picked up a bamboo stick from a nearby bamboo grove and dealt only one blow on the head of the deceased. The appellant and his accomplice are not shown to have taken any undue advantage or to have acted with cruelty. Only one bamboo blow was given on the head, which caused haemotoma and proved fatal. Thus, in our considered view, this is not a case of culpable homicide amounting to murder, punishable under Section 302 of the Indian Penal Code, but a case of culpable homicide not amounting to murder, punishable under Section 304 of the Indian Penal Code. The case falls in the first part of Section 304 of the Indian Penal Code, because the blow was dealt on the temporo parietal region of the deceased, which is very vital. Consequently, appeal is partly accepted, conviction and sentence of the appellant for offence, under Section 302, read with Section 34 of the Indian Penal Code, are set aside. Instead he is convicted of the offence, under Section 304 (first part) of the Indian …7… Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-; in default of payment of fine to undergo rigorous imprisonment for a further period of one year. Appeal stands disposed of accordingly. ( Surjit Singh ), J October 13, 2009(sd) ( Surinder Singh ), J