IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 153 of 1999 alongwith Cr. Appeal No. 302 of 1999 Judgment Reserved on: 31.05.2010 Date of decision: 17.06.2010 ____________________________________________________________ 1. Criminal Appeal No. 153 of 1999: Shri Ishwar Dass .....Appellant. Versus State of H.P. .....Respondent. 2. Criminal Appeal No. 302 of 1999: State of H.P. .....Appellant. Versus Shri Ishwar Dass & others .....Respondents. Coram The Hon'ble Mr. Justice Deepak Gupta, J. The Hon'ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1 No. ___________________________________________________________ 1. Criminal Appeal No. 153 of 1999: For the appellant: Mr. Ajay Sharma, Advocate. For the respondent: Mr. Rajesh Mandhotra, Deputy Advocate General. 2. Criminal Appeal No. 302 of 1999: For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. Ajay Sharma, Advocate. ____________________________________________________________ Deepak Gupta, J . Both these appeals are being disposed of by one judgment as they arise out of the same judgment delivered by the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. -: 2 :- Additional Sessions Judge (I), Kangra at Dharamshala, dated 3.4.1999 in Sessions Case No. 16-G of 1998. Vide the impugned judgment, the learned Sessions Judge acquitted Kuldip Kumar, Ram Piari and Prabhi Devi, accused, of having committed offences punishable under Sections 323 and 302 read with Section 34 IPC. He, however, convicted accused Ishwar Dass of having committed an offence punishable under Section 304 Part-I and under Section 27 of the Arms Act, but acquitted him of the other offences of which he was charged i.e. under Sections 452, 323, 307 and 302 read with Section 34 IPC. Ishwar Dass was sentenced to undergo rigorous imprisonment for a period of five years and a fine of Rs. 3,000/- for commission of offence under Section 304 Part-I IPC. In default of payment of fine, he was directed to undergo rigorous imprisonment for a period of one year. Ishwar Dass was also sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- under Section 27 of the Arms Act and in default of payment of fine, to undergo further rigorous imprisonment for a period of two months. The substantive sentences were directed to run concurrently. 2. Aggrieved by the aforesaid judgment of the learned trial court, Criminal Appeal No. 153 of 1999 has been filed by Shri Ishwar Dass who has challenged the conviction and sentence imposed upon him. Criminal Appeal No. 302 of 1999 has been filed by the State in which it is alleged that the accused be convicted under Section 302 read with Section 34 IPC. -: 3 :- 3. Briefly stated the prosecution story is that on 11.12.1997 Ishwar Dass accused committed house trespass by entering into the house of one Shri Wazir Chand at village Waryal Behar at about 7.30 p.m. armed with a gun and having made preparation for causing hurt to Hans Raj and Purshotam Singh. It is further the prosecution case that all the accused had, in furtherance of their common intention to murder Purshotam Singh, voluntarily caused hurt to Hans Raj and fired at Hans Raj with the intention to kill him and further they beat and murdered Purshotam Singh and caused his death in furtherance of their common intention. 4. On 11.12.1997 at about 8.30 p.m. PW-16 ASI Shresta Devi, then working in Police Station Jawalamukhi, received a telephonic message from PW-8 Shri Bishamber Dass to the effect that accused Ishwar Dass had given beating to Hans Raj due to which Hans Raj has suffered injuries on his head and a gun shot has been fired in the air by accused Ishwar Dass. Ishwar Dass had inflicted injuries with the butt of the gun on the person of Hans Raj and another person had been confined in a room. The said information was recorded in the daily diary as Ex. PW-16/A. ASI Shresta Devi informed PW-12 Inspector Gobind Ram about the message received by her as soon as he reached the police station. Thereafter, a police party went to the house of PW-4 Hans Raj. Statement of PW-4 Hans Raj was recorded under Section 154 Cr.P.C.(the copy of which is Ex.PW-4/A) on 12.12.1997 at 12.15 a.m. -: 4 :- 5. According to PW-4 Hans Raj, his land adjoins the land of the accused. Hans Raj was serving in the Police at Chandigarh. Accused used to cut the grass and leaves of the trees from his land. While Hans Raj was in Chandigarh, he came to know that Ishwar Dass had quarreled with his mother Leela Devi, PW-5, and inflicted injuries on her arms with a sickle. When he received such news, he came home to enquire about the welfare of his mother. He reached his village at 10.12.1997. On coming home, he came to know that at the instance of his mother, FIR No. 197 of 1997 had been recorded by the police on 6.12.1997 and a case under Sections 324 and 506 had been lodged against the accused Ishwar Dass. Hans Raj was on short leave and, therefore, he wanted to settle the matter with accused Ishwar Dass. He searched for the Pradhan and Panch of the Panchayat, but he could not find them. He, then, accompanied by his Massad (mother's sister's husband), Purshotam Singh, went to the house of PW-10, Wazir Chand, who was the Chowkidar of the area. He wanted Wazir Chand to intervene and request accused Ishwar Dass not to quarrel in future. Hans Raj and Purshotam Singh reached the house of Wazir Singh at about 6.30 p.m. Wazir Chand was not at home. Hans Raj was informed that Wazir Chand had gone to the Patwarkhana and would be returning shortly. Therefore, Hans Raj and Purshotam Singh sat on a bed in a room in the house of Wazir Chand. The children of Wazir Chand were sitting in the same room watching television. At about 7.30 p.m. accused Ishwar Dass, who lives close -: 5 :- to the house of Wazir Chand, came into the said room. He was armed with a gun and a belt with cartridges was tied around his waist. Ishwar Dass threatened Hans Raj and objected to Hans Raj's mother having registered a case against him. He threatened to kill the whole of the family one by one. Ishwar Dass pointed the gun towards Hans Raj, but Hans Raj somehow caught hold of the gun and pushed the same towards the roof of the room. While they were grappling, accused Ishwar Dass fired the gun and the shot hit the roof of the room. Purshotam Singh and Hans Raj tried to snatch the gun from the accused Ishwar Dass and in this process, they first went into the courtyard and then into the mustard field. Malkiat Singh, son of Wazir Chand, raised an alarm. In the meantime the three other accused reached there and started giving beatings with dandas, kicks and fists to Hans Raj and Purshotam Singh. Ishwar Dass inflicted injuries with the butt of the gun on the head of Hans Raj and on the head, mouth and chest of Purshotam Singh. Ram Piari, wife of Ishwar Dass, inflicted injuries on the head and arms of Hans Raj with a danda. Accused Prabhi Devi gave shoe beatings to Hans Raj and Purshotam Singh and accused Kuldip Kumar gave kick and fist blows to both of them. In the courtyard, Ishwar Dass pointed the gun towards Purshotam Singh and was about to fire it, but Hans Raj managed to push the gun upwards due to which the bullet went into the air. Thereafter, Purshotam Singh was given more beatings and all the accused persons threw him on the bench kept in the verandah. -: 6 :- Purshotam Singh fell down from the bench and died. Hans Raj managed to escape and reach home. According to the prosecution, the occurrence was witnessed by PW-10 Wazir Chand, his wife Kanta Devi, his son Malkiat Singh and daughter Radha Devi, PW-9. 6. After recording the statement of Hans Raj, further investigation in the matter was carried out and after completion of investigation, report under Section 153 Cr.P.C. was filed in the court of the concerned Magistrate. Since the offences were exclusively triable by the Court of Sessions, the case was committed to Sessions Court. The accused were charged with having committed offences as detailed hereinabove. They pleaded not guilty and claimed trial. After trial, accused Ishwar Dass was found guilty and sentenced as detailed above, whereas the other three accused were acquitted. This has given rise to these two appeals. 7. We have heard Shri Ajay Sharma, learned counsel for Shri Ishwar Dass and the other three accused and Shri Rajesh Mandhotra, Deputy Advocate General, for the State. 8. It is not necessary to deal with the entire evidence in detail since the stand of Ishwar Dass is clear from his statement made under Section 313 Cr.P.C. The witnesses have also been cross-examined on the same lines. The stand of Ishwar Dass is that on 11.12.1997, he had returned from his fields. He used to take his gun to the fields for his own protection to protect himself -: 7 :- from the wild animals. He went to the house of Wazir Chand as said Wazir Chand had to go to Dehra with him for some work. He admits that he went into the room where the children of Wazir Chand were sitting. According to him, the room was dark. After sometime Hans Raj and Purshotam Singh reached there and sat down next to him. They were armed with dandas. According to Ishwar Dass, when these two persons recognized him, they attempted to snatch his gun and threatened him that they would settle score with him and would kill him. He admits that a scuffle took place when these two persons tried to snatch the gun from him and during this process, he did fire a gun shot in the air inside the room. Then he ran out towards the verandah, but again Hans Raj and Purshotam Singh followed him and tried to snatch the gun in the courtyard and, thereafter, in the sarson field. Another shot in the air was also fired by him and during the struggle, the gun fell down and broke into pieces. According to him, his wife Ram Piari came there and took him home. His version is that his mother Prabhi Devi and son Kuldip Kumar never came to the place. 9. Therefore, the fact that a quarrel took place was not denied. It is also not denied that two shots were fired in the air with the gun. The only question to be decided is whether Ishwar Dass was the aggressor or whether it was Hans Raj and Purshotam who had attacked him. As far as the other three accused are concerned, there is no evidence worth the name to link them with the offence. Hans Raj, PW-4, has, however, named these persons -: 8 :- and has also stated that these three accused beat Purshotam Singh and him. 10. PW-8, Bishamber Dass, lives close to PW-4, Hans Raj. According to him on the ill-fated day, while he was having his meals, he heard cries from the house of Hans Raj. He, then, went to the house of Hans Raj and Hans Raj told him that a quarrel had taken place between him and Ishwar Dass accused in the house of Wazir Chand. Hans Raj also informed that his Massad had been confined in the house of Wazir Chand by Ishwar Dass and his family members. Thereafter, Bishamber Dass telephoned the police. In the first report lodged with the police, there is no allegation against the other three accused that they had taken any active role in the fight which took place. The only allegation against them was that they along with Ishwar Dass had confined Purshotam Singh in the house of Wazir Chand. 11. PW-9, Radha Devi, is the daughter of Wazir Chand. According to both sides, she was sitting in the room alongwith her brother Malkiat Singh watching television when the fight took place. Therefore, she is a very important witness. According to her, first Hans Raj alongwith another person came to their house and enquired about her father Wazir Chand. When Hans Raj was informed that her father had gone to Patwarkhana, these two persons sat down in the room waiting for her father. After sometime, accused Ishwar Dass came into the room. He was armed with a gun. He also sat down in the same room. A little -: 9 :- while later, she saw that Ishwar Dass, Hans Raj and the person, who died later on, were grappling with each other. She along with her brother came out of the room and then heard the sound of a gun shot. She and her brother, then, raised an alarm. After sometime, Ram Piari, Prabhi Devi and Kuldip Kumar also came there. They were fighting in the field with Hans Raj and the other person. After sometime, her father came. When she came to her house, she saw that Purshotam Singh had been thrown by the accused in the varendah and he was bleeding from his mouth and nose. Thereafter, accused persons left the spot. She, however, did not see the other three accused giving beatings to Hans Raj and Purshotam Singh. The witness was declared hostile and cross- examined by the prosecution, but to no avail. From her evidence, it is apparent that she saw the fight only between Ishwar Dass and Hans Raj and Purshotam Singh and not with the other three accused. 12. As far as Wazir Chand, PW-10, is concerned, by the time when he reached house, all the three accused persons were present there, but the fight was over. He was also declared hostile but did not support the prosecution. There is no material evidence to connect Kuldip Kumar, Ram Piari and Prabhi Devi with the offence other than the statement of Hans Raj. 13. There is, however, no evidence, whatsoever, to show that there was any meeting of minds between Ishwar Dass and other three accused or that they had planned to kill Hans Raj or his -: 10 :- Massad Purshotam Singh. If such a plan had been there, all the four would have come together, but the fact is that the wife, mother and son of Ishwar Dass came only after the fight between him and Hans Raj and Purshotam Singh had reached an advanced stage. Radha Devi and Wazir Chand have not supported the prosecution and in the absence of any cogent evidence, the learned trial court was justified in acquitting these three accused. We find no merit in the appeal of the State, as far as these three accused are concerned. Even, with regard to Ishwar Dass, we are of the considered view that he had not come with the intention of killing anybody. This is apparent from the fact that shots were fired in the air and not at the person of any of Hans Raj and Purshotam Singh. Therefore, the appeal filed by the State is totally without merit. 14. Coming to the appeal filed by accused Ishwar Dass, we find that the story set up by him is not plausible. The incident took place in the month of December at about 7.30 p.m. The sun sets by 5.30 p.m. in December. There is no reason why Ishwar Dass would have been in the fields till 7.30 p.m. Therefore, his story that he was returning from his fields does not appear to be true. His version that he used to carry his gun to the fields as a matter of security also does not appear to be true since, even, PW-10, Wazir Chand, who otherwise turned hostile, has clearly stated that there is no forest near the fields of the accused and the nearest forest is at a distance of one kilometer from the land of Ishwar Dass. He -: 11 :- has also stated that very rarely pigs used to enter into the fields. 15. Another reason not to accept the explanation of Ishwar Dass is that whereas according to him he had reached the house of Wazir Chand first, PW-9, Radha Devi, has clearly stated that it was Hans Raj and Purshotam Singh who came first and Ishwar Dass came later. It was Ishwar Dass who was armed with the gun. It was he who came later. Therefore, it is apparent that he had come with the intention for settling score with Hans Raj, since Hans Raj's mother had filed a complaint against him with the police. 16. From the statement of Hans Raj and from the medical evidence on record, it is obvious that many injuries were caused to Hans Raj as well as Purshotam Singh with the butt of the gun. This may show that the accused Ishwar Dass did not have any intention to kill any of these persons, but his act of hitting them on the head with the butt of the gun was such an act which would bring the case within the purview of Section 304 Part-I IPC. The accused came armed with a gun. He was also carrying extra cartridges. It appears that when the fight took place, he tried to use the gun and then a scuffle took place and Hans Raj and deceased Purshotam tried to grab the gun. Hans Raj and Purshotam Singh were unarmed whereas Ishwar Dass was armed with gun. He fired once in the room and once in the field. It also stands proved that accused Ram Piari, Prabhi Devi and Kuldip Kumar did reach the spot, but it is not clear at what stage they came. -: 12 :- 17. The accused Ishwar Dass tried to make out a case that he acted in self-defence. This version cannot be accepted since no serious injures were found on the person of Ishwar Dass. Hans Raj and Purshotam Singh were unarmed and there is only one minor injury on Ishwar Dass, therefore, the question of his acting in self- defence did not arise. Even if it is assumed that he was attacked by Hans Raj and Purshotam Singh in view of the nature of injuries suffered by him, the learned trial court was right in holding that Ishwar Dass exceeded the right of private defence. Therefore, he was rightly convicted under Section 304 Part-I IPC. 18. We, therefore, uphold the conviction of Ishwar Dass. Coming to the sentences, the only redeeming feature in favour of the accused is that the incident in question took place in the year 1997 and thirteen years have expired. We, therefore, feel that the period of incarceration should be reduced and the fine should be suitably enhanced and paid to the heirs of Purshotam Singh. 19. Keeping these facts in view, we reduce the sentence under Section 304 Part-I IPC to three years' rigorous imprisonment but enhance the fine from Rs. 3,000/- to Rs. 50,000/-. In case of payment of fine, the same shall be paid to the heirs of Purshotam Singh. In case, fine is not deposited, the accused shall undergo further rigorous imprisonment for a period of two years. As far as the conviction and sentence under Section 27 of the Arms Act is concerned, since Ishwar Dass has used a gun in violation of the provisions of the Arms Act, conviction and -: 13 :- sentence under Section 27 of the Arms Act is upheld. 20. In view of the above discussion, appeal filed by the State, being without merit, is dismissed and the appeal filed by the accused Ishwar Dass is partly allowed. His conviction under Section 304 Part-I IPC and Section 27 of the Arms Act is upheld, but his sentence under Section 304 Part-I IPC is reduced, as aforesaid. The case property be disposed of as per the directions of the learned Sessions Court. The accused is directed to surrender within one week from today, failing which the learned trial court shall take steps to ensure that the accused undergoes the sentence imposed upon him. (Deepak Gupta) Judge (Sanjay Karol) Judge 17th June, 2010 (rajni)