- IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 271 of 2004 Judgment Reserved on 20.12.2010 Date of Decision 22nd February,2011 __________________________________________________________ Tilak Raj ….Appellant. Versus State of H.P. ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes ___________________________________________________________ For the Appellant: Mr. H.S. Upadhyay, Advocate. For the Respondent: Ms. Shubh Mahajan, Deputy A.G. __________________________________________________________________ Dev Darshan Sud, J The appellant has chellenged his conviction under Section 308 of the Indian Penal Code (hereinafter referred to as IPC) whereby he has been sentenced to undergo three years rigorous imprisonment and to pay a fine of ` 2000/-, in default of payment of fine to further undergo simple imprisonment for six months. 2. The prosecution case in brief is that the appellant-accused on 27.10.2000 at around 5.45 p.m. caused 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 injuries to PW5 Salig Ram by pelting and hitting him with a stone which resulted in fracture of his skull and consequent hospitalisation at Chamba and thereafter at Dr. Rajender Prashad Medical College, Dharamshala. The injuries were serious in nature and were such which could result in his death. 3. The case of the prosecution which unfolds from the witnesses is that on 27.10.2000 at around 5.45 p.m. in the evening the injured PW5 Salig Ram was taking tea in village Loha. He saw the accused forcing Suresh Kumar to play cards. When he (Suresh) refused to do so, the accused started dragging him on which the injured intervened. The matter seems to have been sorted. Thereafter, the injured, Suresh Kumar PW10, Kehar Singh PW6 and Naresh Kumar PW7, who were also present, started to proceed towards their houses/villages. At this time the accused picked up a stone and hurled it at the injured causing injuries on his scalp. He fell down and became unconscious. He regained consciousness after 20/22 days. The prosecution examined 10 witnesses in support of its case. The case of the accused is one of the total denial. 4. On the evidence on record more especially PW5 injured Salig Ram, PW10 Suresh Kumar, PW1 Dr. Subhash Chauhan, PW9 Dr. Anupama Kapoor and PW2 Dr. V.K. Pathak, the accused was found guilty and sentenced as noticed. 5. Learned counsel appearing for the appellant urges that no offence under Section 308 IPC has been made out. He submits that there are material and major contradictions in the evidence of the witnesses which do not support the case of prosecution. There is also unexplained delay in lodging the First 3 Information Report. The ingredients of Section 308 IPC are not proved and the evidence supports the possibility that PW5 Salig Ram had sustained injuries by falling. In these circumstances, judgment of the trial Court deserves to be set aside. 6. Adverting to the two circumstances that the First Information Report Ext.PW3/A has been lodged on 28.10.2000 at around 11.35 a.m., the evidence on record especially that of PW4 Smt. Sheela Devi wife of injured and PW3 Chain Singh shows that the injured was brought home at night. PW3 says that injured was unconscious, there was no arragement for taking him to the hospital and therefore, he was taken next day in the morning and the First Information Report was lodged. In these circumstances, I do not find that there is any delay, and that the injured, his wife and his brother had ample time to manipulate any facts against the accused. In such a situation, where a person has been injured, the first priority is to have the injured treated and to make the arrangement for hospitalisation etc. Moreover, the evidence on record does not suggest that there was any enmity between the accused and the injured. This submission requires to be rejected outright. 7. On the second aspect of material contradictions etc., the evidence of witnesses may be considered. The injured has appeared as PW5 and has stated in clear and unequivocal terms that it was the accused, who pelted the stone at him. PW10 Suresh Kumar also corroborates his testimony. He says that on 27.10.2000 he alongwith Kehar Singh PW6 and Naresh Kumar PW7, was going from Gaila to Chhau. In village Loha, he noticed that 5 or 7 people were gambling. He stopped for tea when the 4 accused who was in drunken state asked him to join the gambling session. When he refused he started dragging him upon which Kehar Singh and Naresh Kumar intervened. Injured Salig Ram was also present there. Thereafter, they started going to their houses when the accused hurled a stone at Salig Ram, he became unconscious and fell down. PW6 Kehar Singh also supports the case of prosecution but says that he did not see the accused pelting the stone. He says in his examination in chief that a number of persons who were present on the spot were saying that accused had hit PW5 Salig Ram with a stone. PW7 was declared hostile. He has resiled from his statement under Section 161 of Cr.P.C. and states that at a distance of 50/60 metres from the shop of Chamaru, 5/6 persons were sitting . He was told by Kehar Singh that someone had hit Salig Ram with a stone. He did not see the accused present at the spot neither he saw the accused pelting the stone etc. The other witnesses are subsequent to this incident. 8. Looking to the entirety of the evidence, I find that the statement of Salig Ram is corroborated in all material particulars than that of PW10 who was asked by the accused to play cards. Although PW6 Kehar Singh does not support the case of prosecution that he saw the accused actually hitting PW5 Salig Ram with a stone, yet he corroborates the case in other material particulars. So far as the statement of PW7 Naresh Kumar is concenred, he does not support the case of the prosecution. It is a notorious fact that all the witnesses resile from their previous statements in Court. However, what I need to say is that the 5 incident has been supported on all material particulars by injured and two other witnesses. 9. Learned counsel then submits that cross examination of PW4 Sheela Devi has been ignored where she admits that her husband used to drink. This submission requires to be rejected in view of the medical evidence on record. Adverting to the medical evidence, PW1 Dr. Subhash Chauhan has proved on record Ext.PW1/A request for medical examination of the injured. He examined the injured on 28.1.2000 and found that his face was swollen on both sides and it was bluish. He was unable to talk and was referred to a Surgeon for management. According to the report of the Radiologist, the fracture of skull was noticed by him and the first injury as described was opined by him to be grevious in nature. He states that Dr. Naresh Verma had opined on Ext.PW1/B that Salig Ram was having aphexia and he needed C.T. scan for which he was referred to the Medical College Dharamshala. The injured remained admitted in Zonal Hospital, Chamba from 28.10.2000 to 1.11.2000 and during this period, he could not speak. In his cross examination, he says that in his opinion the injury was grevious in nature. 10. PW9 Dr. Anupama Kapoor proved on record X-ray film Ext.PW9/A. After scanning the X-ray film, she noticed fracture of the left parital bone alongwith epidural haematoma right parital lobe and haemorrhagic contusion left parital bone. According to her, the injury can be caused by stone Ext.P1 and can be dangerous to life. She admits that the injury can be caused to a person if he falls from a height, but in that situation, 6 there would be other injuries on the body. In these circumstances, there is no manner of doubt that injury having been caused to the injured was serious in nature. On the suggestion that the injured was drunk, there was no evidence on record. This suggestion has probably been given to establish that the injury could have been sustained when the injured was drunk. This is also negatived by the evidence of PW9 Dr. Anupama Kapoor. 11. Section 308 IPC provides for punishment for an act caused with intention or knowledge and under such circumstance that, if a person by that act caused death, he would be guilty of culpable homicide not amounting to murder. In Sunil Kumar vs. N.C.T. of Delhi and others, (1998) 8 SCC 557 the Supreme Court held: “3. The dispute is between the tenants and landlords of a premises in Delhi. On 27.9.192, there was a clash between the two sides. Both sides allegedly were injured. The landlods are the accused in the instant case. Sunil Kumar is the victim of the crime. After the matter was reported to the police, his medico-legal examination was conducted by the doctor-in-charge, who after enumerating the injuries opined them to be grievuous. Dr. Dabbas, whom we have summoned today to explain the medico-legal report, was the doctor who supervised and endorsed the report. According to him, the injuries have been termed grevuous because of them were lacerated wounds and one was a haematoma and since the blows were aimed at the head, they had endangered life. The learned Additional Sessions Judge to whom the case was copmmitted had framed charges against the respopndents under Sections 308-34 IPC, the 7 gravamen of the charge being that an attempt to cause culpable homicide not amounting to murder had been made. Whether the injury was grievous or simple deserved a back seat in face of the charge under Sections 308-34 IPC. Yet the High Court when approached in its revisional power under Section 439 of the Code of Criminal Procedue quahsed the charge in finding room in the medico-lagal report to opine that the injuries were simple……….. 4. The view taken by the High Court is obviously erroneous because offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308 IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 IPC. Qualitatively, these offences are different. The High Court was thus not well advised to take the view as afore-extracted to bring down the offence to be under Sections 323/34 IPC and then in turn to hold that since that offence was investigated by the police without permission of the magistrate, the proceedings under that provision be quahsed. For the view afore-taken as to the commission of the offence under Sections 308/34 IPC, it is not necessary to dwell on the correctness of the second part of the order relating to quahsing of proceedings under Sections 323/34 IPC. Thus, the entire order of the High Court deserves to be and is hereby quashed, restoring the status quo ante of the 8 trial remaining with the Additional Sessions Judge to proceed in accordance with law.” (at p. 557-559) (Emphasis supplied) 12. Learned counsel for the appellant urges that the acts if any attributed are not such as to impute knowledge to the appeallant that his act would result in culpable homicide not amount to murder. He refers to the decision of the Supreme Court in Shamsher Khan vs. State (NCT of Delhi) AIR 2000 SC 3662. The facts of the case were that on 2.11.1989 there was shuddering bomb explosion in Shakurpur (Delhi). Three persons died in explosion and 19 others were injured and the impact of the explosion was that four adjoining multi storeyed houses collapsed. The Investigating Agency arrested Shamsher Khan, who was charged for various offences and he was sentenced to undergo rigorous imprisonment for seven yeas. For offence under Section 308 IPC, he was sentenced to rigorous imprisonment for five years. The prosecution case was that the appellant therein and other persons were manufactuing bombs for the purpose of attacking persons of another community. The appeal was partly allowed when the Court reversed the judgment of conviction under Section 308 IPC. The Court held: “12. We may also point out that prosecution has not brought out any circumstance by which the Court could remotely attribute knowledge to the appellant that by manufacturing and possessing bombs death of any person was a likely consequence. By manufacturing a bomb, alone no one can normally think that it would explode without anything more done.Here something more would have happened which caused the explosion, what was that additional 9 act is unknown to us. At any rate there is no material to show that the appellant had done that additional act. 13. In view of the aforesaid legal position we find no scope to bring the proved facts within the ambit of S. 299 of the I.P.C. If so, the question of culpable homicide would stand at bay. We, therefore, find it legally difficult to confirm the conviction eithe for the offences under S. 304 or for S. 308 of the I.P.C. As a corollary we set aside the conviction and sentence passed on the appellant in regad to those two counts.” (at p. 3665) 13. Another decision relied upon by the learned counsel is Bishan Singh & another vs. The State AIR 2008 SC 131. In this case, the complainant had been assaulted by the accused with lathis etc. The accused was convicted for offence under Section 308 IPC. On the submission made before the Court, it held: “11. Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured. They had previous enmity. Although overt-act had been attributed against each of the accused who were having lathis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body. 12. The accused, therefore, in our opinion, could not be said to have committed any offence under Section 308 IPC. The same would fall under Sections 323 and 325 thereof.” (at p. 133) 10 14. Learned counsel submits that the prosecution case itself is that the appellant was drunk. In these circujmstances, there was no question about his having any knowledge or intention that his act would result in culpable homicide not amounting to murder. This submission cannot be accepted. Sections 85 & 86 of IPC provide: “85. Nothing is an offence which is done by a person who, at that time of doing it, is, by reason of intoxication incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law: provided that the thing which intoxicated him was administered to him without his knowledge or against his will. 86. In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing this intoxicated him was administered to him without his knowledge or against his will.” There is no evidence on record that the accused was actually administered liquor against his own will and was forced to do so. There is also no evidence that he was drunk to an extent which would have diminished his capacity to understand etc. 15. In Bablu vs. State of Rajasthan (2006) 13 SCC 116 the Supreme Court held: “(i) the insanity whether prodcued by drunkenness or otherwise is a defence to be crime charged; (ii) evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into 11 account with the other facts proved in order to determine whether or not he had this intent; and (iii) the evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that his mind is affected by drink so that he more readily gave to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.” Learned counsel then submits that sentence imposed is excessively harsh. On this aspect the learned Additional Advocate General submits that mere lapse of time would not condone the act and a lenient view cannot be taken. For this purpose, he relies upon the judgment of Allahabad High Court in State of U.P. vs. Ramesh & others, 2000 Cri. L.J. 1354. 16. The Supreme Court inSunil Kumar’s case (supra) held in clear terms that serious injury to the head is itself sufficient to attract the provisions of Section 308 IPC. The other decisions relied upon by the learned counsel for the appellant turn to their own facts. The medical evidence is also clear that the injury would have resulted in the death of injured PW5 Salig Ram. On the question of drunkness, there is no evidence. 17. What I notice in this case is that the assault is the result of sudden provocation. There is no evidence to establish any enmity, but at the same time there is no justification why the accused had pelted the injured with a stone. 18. So far as the intention is concerned, there is often very little direct evidence to establish that. It has to be gathered from the facts and cricumstances of the case. However, one important fact is the area of body on which the injury has been 12 caused and the object with which it has been caused. If a person is attacked on the vital part of the body with a sharp edged weapon/object resulting in grevious injuries, the inference would be that the accused intended to kill the deceased. (see State of Karnataka vs. Vedanayagam (1995) SCC 231 (Cri.)). 19. Looking to the toality of the facts and circumstances of the case, I deem it proper that substantive sentence of imprisonment is reduced. The accused is accordingly sentenced to undergo rigorous imprisonment for six month and pay a fine of ` 35,000/-, in addition to what has been imposed by the learned trial Court. Such fine shall be deposited by the accused/appellant within a period of three months from today with the learned Sessions Judge, Chamba. On such deposit being made, the amount shall be paid to the injured PW5 Salig Ram. In failure of such deposit of fine, the appellant shall undergo the sentence as imposed by the learned trial Court. Let a copy of this judgment be sent to the learned Sessions Judge, Chamba for due execution in accordance with law. February 22nd, 2011 (Dev Darshan Sud), ms Judge 13