IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.135 of 1998 Decided on : March 19, 2010 State of H.P. …Appellant. Versus Kulwant Singh …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Rajinder Dogra, Additional Advocate General. For the Respondent : Mr. Anoop Chitkara & Ms Nidhi Chawla, Advocates. Surjit Singh, J (Oral) State has appealed against the judgment, dated 4th December, 1997, of learned Sessions Court, whereby respondent Kulwant Singh, who was charged with and tried for the offence of murder, under Section 302 of the Indian Penal Code, for allegedly murdering his own brother Subhash Chand, has been convicted of offence, under Section 304 (second part) and sentenced to undergo imprisonment for 11 months and to pay fine of Rs.3,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of six months. 2. Respondent was sent up for trial on the following allegations. Deceased and the respondent were real brothers. They had a Taya (elder brother of father). Father Whether reporters of the local papers may be allowed to see the judgment? …2… of the deceased and the respondent as also their Taya were having landed property in equal measure. It appears that the Taya of the respondent and the deceased had no issue and he gave his entire land to the respondent, while the deceased was given his entire land by his father. The father of the deceased and the respondent divided his two roomed house between them. One room was occupied by the deceased and the other by the respondent. Deceased lived in the room with his wife PW-3 Sudesh Kumari and daughter PW-2 Salochana. The two brothers often quarreled with each other, because of the use of the land of the respondent by the deceased for approaching his land. 3. On 28th December, 1996, deceased, his wife and the daughter took their meals around 7 or 7.30 p.m. PW-2 Salochana, the daughter of the deceased, after taking meals, went to a neighbour’s house to watch movie on television. She returned around 10 p.m. and saw the respondent standing outside their room and hurling abuses. He was holding a piece of iron pipe measuring 49 cms. That piece of pipe is used as blower for making fire in the hearth. When PW-2 Salochana asked the respondent why he was hurling abuses at her father, he pushed her. In the meanwhile, the deceased came out. He also asked the respondent not to hurl abuses and that too of vulgar kind, when a young girl, i.e. PW-2 Salochana, was there. Respondent is alleged to have hit the deceased on his head, …3… resulting in fracture of the skull. The brain tissues were also found lacerated during the course of postmortem examination. After giving the blow with a piece of pipe on the head of the deceased, respondent withdrew to his house. It being night time, no medical aid could be provided. Next morning, it was found that deceased had succumbed to the injury. 4. Police was informed by Balwan Singh (PW-6), the Pradhan of the Panchayat. PW-6 Balwan Singh himself came to know about the incident, on being informed by the respondent and one Nathu Ram Chowkidar. Balwan Singh went to Police Station, Indora, and got entered the report to the effect that two brothers, namely the respondent and the deceased, had quarreled and in the course of that quarrel deceased sustained head injury and died. Since the area, in which the crime was committed, falls within the jurisdiction Police Station, Nurpur, officials of Police Station, Indora, telephonically informed SHO of Police Station Nurpur. A police party headed by PW-19 SI Jodha Mal reached the village in the evening. They inspected the spot. Around 10 p.m., statement, under Section 154 of the Code of Criminal Procedure, of PW-2 Salochana, the daughter of the deceased, was recorded. It was sent to the Police Station, where case was formally registered vide FIR Ex. PW-17/A at 10.45 p.m. Copy of the FIR was delivered …4… to the concerned Judicial Magistrate at his residence at 6 a.m., on 30th December, 1996. 5. Prosecution mainly relied upon the testimony of wife PW-3 Sudesh Kumari and daughter PW-2 Salochana of the deceased to prove the charge. Corroboration to the testimony of the above two witnesses was sought from the testimony of PW-1 Dr. Praveen Bhardwaj, who conducted the postmortem and PW-6 Balwan Singh. Prosecution also relied upon testimony of PW-6 Balwan Singh and PW-5 Karam Singh, to the effect that the respondent made disclosure statement and got recovered piece of pipe Ex. P-1, which was used as weapon of offence. 6. Learned trial Court concluded that since the respondent happened to give a blow of piece of iron pipe, in the course of quarrel and he gave just one blow, his act did not amount to murder, punishable under Section 302 of the Indian Penal Code, but only to the offence of culpable homicide, not amounting to murder, punishable under Section 304 (second part) of the Indian Penal Code. Trial Court accordingly convicted the respondent of the offence, under Section 304 (second part) of the Indian Penal Code and sentenced him as aforesaid. 7. We have heard the learned Additional Advocate General as also the learned counsel for the respondent and examined the record. …5… 8. Learned counsel for the respondent submits that he is entitled to seek acquittal of the respondent, because the State has filed the appeal not only for converting the conviction of the respondent from the offence of culpable homicide, not amounting to murder, to the offence of murder, but in the alternative for enhancement of punishment. 9. Learned counsel submits that there are contradictions in the testimony of the two eye witnesses and that also the statement of PW-2 Salochana is contradictory to the earliest version given by her to the police, vide statement Ex.PW-2/A. It is also submitted by him that statement Ex.PW-2/A was the result of deliberations, because the same was recorded more than six hours after the arrival of the police. Another submission made by him is that statement Ex. PW-2/A cannot be treated as FIR and that as a matter of fact the report, which PW-6 Balwan Singh made at Police Station, Indora, and which was entered in the Rochnamcha of that Police Station, is the FIR. Copy of the Rojnamcha entry is Ex. PW- 11/A. 10. We have considered the aforesaid submissions. We do not find any material contradiction. The contradiction pointed out by the learned counsel is with regard to the exact place in the house of the deceased where he and his wife PW-3 Sudesh Kumari were present, …6… when the respondent allegedly came hurling abuses. PW-2 Salochana has stated that her parents were present in the kitchen, while PW-3 Sudesh Kumari says that they were present in the room. In our considered view, the contradiction in no way dilutes the veracity of the testimony of the two eye-witnesses. The contradiction appears to be the result of perceptional error of PW-2 Salochana, who came from outside and was, therefore, not in a position to know exactly as to where her parents were present, when the respondent went there with Fookna (iron pipe) in his hand. 11. Also, we do not find any major contradiction in the testimony of PW-2 Salochana and the earliest version given by her to the police in statement Ex. PW-2/A. Entry made at Police Station, Indora, copy Ex. PW-11/A, cannot be treated as an FIR, because the information given by PW-6 Balwan Singh was too sketchy to indicate that any offence had been committed. He simply told the police that the two brothers had quarreled and in the course of that quarrel one brother had sustained head injury and expired. He did not state that the injury was sustained on account of any act of the other quarreling brother. 12. Defence plea that the respondent was not even present in the village, when the deceased sustained injury, cannot be believed, because it is disproved not only by the testimony of the wife and the daughter of the deceased, as …7… aforesaid, but also by the report, which PW-6 Balwan Singh got entered in the Rojnamcha at Police Station, Indora, which report the defence counsel wants to be used as FIR. 13. Coming to the plea of the State that this is a case of murder and not of culpable homicide, not amounting to murder, the evidence on record shows that the respondent was armed with a piece of iron pipe used as blower, measuring 49 cms. He gave just one blow of this small piece of pipe and when he saw that the deceased had fallen he immediately withdrew, meaning thereby that he never intended to cause the death of the deceased or to cause an injury which could have proved fatal. However, he can be said to have had the knowledge that the blow of Fookna on the head could have caused death and, therefore, his act falls within the four corners of Section 304 (second part) of the Indian Penal code. 14. Next part of the appeal of the State is that the trial Court has erred gravely by awarding inadequate sentence of just 11 months. We feel that the sentence of substantive imprisonment for the offence should have been for longer term, but now at this belated stage, that is to say about 15 years after the commission of the crime, it may not serve the interest of justice to send the respondent to jail once again. 15. We are of the considered view that the ends of justice would be squarely met in case the amount of fine is …8… increased and the entire amount, including the increase, is ordered to be paid to the legal heirs of the deceased, particularly his widow, if she be alive, as compensation. Consequently, we enhance the amount of fine from Rs.3,000/-, as awarded by the trial Court, to Rs.1,00,000/- and give six months time to the respondent to deposit the said amount of fine, failing which he shall undergo rigorous imprisonment for a period of six months. The entire amount of fine shall be paid to the widow of the deceased and in case she is no more it shall be paid to other legal heirs, in equal shares. The fine shall be deposited in the trial Court, within the aforesaid period. In case it is not deposited, the trial Court shall ensure that the respondent is sent to jail to serve the imprisonment awarded hereby. Appeal stands disposed of. ( Surjit Singh ), J March 19, 2010(sd) ( Rajiv Sharma ), J