IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 76 of 2006 and Cr. Appeal No. 207 of 2006 Reserved on: 16.9.2008/ 22.9.2008 Date of decision: 26.09.2008 1. Cr. Appeal No. 76 of 2006: Virender Singh alias Biru ... Appellant Versus State of H.P. … Respondent 2 Cr. Appeal No. 207 of 2006: State of H.P. ... Appellant Versus Virender Singh alias Biru … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. 1. Cr. Appeal No. 76 of 2006: For the appellant: Mr. T.R. Chandel and Mr. Vinay Thakur, Advocates. For the respondent: Mr. Rajesh Mandhotra, Deputy Advocate General. 2. Cr. Appeal No. 207 of 2006: For the appellant: Mr. R.M. Bisht, Deputy Advocate General. For the respondent: Mr. Vinay Thakur, Advocate. Per V.K. Ahuja , J.: This judgment shall dispose of an appeal filed by the appellant Virender Singh against the judgment of the Court of learned 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Sessions Judge, Hamirpur, dated 27.3.2006, vide which the appellant was held guilty under Section 304 Part-I of the Indian Penal Code and was sentenced to rigorous imprisonment for ten years and to pay fine of Rs.5,000/-. In default of payment of fine, the appellant was to undergo simple imprisonment for one year. This judgment shall also dispose of an appeal filed by the State of H.P. against the above mentioned judgment of the learned Sessions Judge, Hamirpur, convicting respondent Virender Singh under Section 304 Part-I I.P.C. and acquitting him of the charge under Section 302 I.P.C. Briefly stated, the facts of the case are that PW-1 Jeevan Lal was owner in possession of two light vehicles and he had given one of the vehicles to his younger brother Pawan Kumar and both the vehicles were being plied as taxis in the area. PW-6 Vijay Kumar had been working as driver of one of these vehicles. On 4.7.2005, at about 5.30/6.00PM, PW-1 Jeevan Lal, PW-6 Vijay Kumar and Pawan Kumar, now deceased, were present at Bus Stand Lambloo. One private bus which was on way from Hamirpur to Jahu via Lambloo came there being driven by PW-5 Dev Raj. Some passengers boarded the bus and PW-5 Dev Raj sounded horn for clearance of the highway, since the vehicle of respondent i.e. Tempo stood stopped in front of the bus. The appellant did not take away his Tempo, even though requested to do so by the bus driver and the appellant took up a quarrel with PW-5 Dev Raj. After some time when PW-5 Dev Raj had left the place, accused started kicking vehicles of PW-1 Jeevan Lal who asked him not to do so. The accused caught hold of Pawan Kumar and started beating him. Meanwhile, PW-1 Jeevan Lal intervened and saved his younger brother from the grip of the accused person. It is further alleged that the 3 accused picked up scissor from a nearby shop and inflicted one injury of scissor on the left side of the chest of Pawan Kumar who collapsed there. A report was lodged with the police and after investigation, the challan was filed before the learned Judicial Magistrate who committed the case to learned Sessions Judge for trial and the learned Sessions Judge framed the charge under Section 302 I.P.C. as against the appellant Virender Singh leading to his conviction under Section 304 Part-I as detailed above. We have heard the learned counsel for the parties and have gone through the record of the case. The learned counsel for the appellant during the course of arguments had not challenged the findings of learned trial Court holding the appellant guilty for having inflicted the blow on the person of the deceased, but he has pleaded that the case falls under Section 304 Part-II I.P.C. Thus, it was submitted that the jail punishment is not necessary since only one injury was caused. It was further submitted that there was no intention on the part of the appellant to cause the injury but it was caused due to the fact that the appellant was given beatings at that time by the deceased and his brother. It was submitted that reformatory theory can be adopted in the facts and circumstances of the case and it is not necessary to convict and sentence the appellant and ends of justice would be met if the appellant is sentenced to pay fine only. On the other hand, learned Deputy Advocate General had submitted that the sentence imposed by the learned trial Court deserves to be enhanced after holding the appellant guilty under Section 302 I.P.C. 4 Coming to the evidence led by the prosecution, it is lear that there is statement of PW-1 Jeevan Lal, brother of deceased Pawan Kumar who has stated that Pawan Kumar had been plying Tata Sumo as taxi. They were present at Bus Stand Lambloo and Tempo of the accused stood stopped at Bus Stand and accused was present in his Tempo. The Tempo had been stopped by the accused in front of the bus and accused ignored the repeated sound of the horn of the bus driver and a quarrel took place in between the accused and the bus driver. It is also in evidence that at that time some other persons, namely, Dev Raj, Vijay Kumar and Purshotam Chand were also present at the Bus Stand. He requested the accused not to pick up the quarrel with the bus driver. The accused picked up a quarrel with them and also used filthy language against them. He further stated that accused caught hold of his brother Pawan Kumar from neck and started giving beatings to him and he tried to rescue his brother and meanwhile, the accused turned furious, rushed to the shop of one Gopi, hair-dresser and picked up some instrument from the shop and inflicted injury with the said instrument against the chest of his younger brother, which instrument was a scissor. His brother fell down on the ground and the accused ran away and he followed him and his brother was sent to District Hospital and died thereafter. The statement of PW-1 Jeevan Lal in regard to the material particulars of occurrence and the fact that the injury was inflicted with a scissor by the accused stands corroborated by the statements of PW-2 Purshotam Chand, PW-3 Chhotu Ram, PW-6 Vijay Kumar and PW-8 Jaswant. A perusal of the FIR shows that the presence of the witnesses has been mentioned, namely, Jassu, Kaka, Vipan, Parma Nand 5 and others, who had witnessed the occurrence. The presence of these witnesses or the facts narrated by these witnesses have not been challenged during the course of the arguments by the learned counsel for the appellant since the occurrence is not disputed to have taken place at that time in which the appellant had inflicted a blow with a scissor on the chest of the deceased. A perusal of the statement of the appellant under Section 313 Cr.P.C. clearly shows that the fact that this injury was caused by the appellant was clearly admitted by him in this statement. He has also not denied his presence and that of other persons at the spot or that some quarrel took place. However, the plea taken by the accused was that he was given blows by the deceased and his elder brother PW-1 Jeevan Lal and he has proved his MLC Ext. PW11/C in this regard, which shows that injuries on his person were simple in nature. He had taken the plea in his statement under Section 313 Cr.P.C. that he was deprived of the power of self control by grave and sudden provocation by the acts of deceased and Jeevan. The post mortem on the body of the deceased was conducted by PW-11 Dr. Kultar Dogra who had found one injury on the person of the deceased which was a incized wound on the left side of the chest below the nipple medial to interior axillary line. He also stated that pleura of the left side was ruptured. He also gave the cause of death as ante mortem injury to heart leading to haemorrhagic shock and death. The probable time of death after injury was almost instantaneous i.e. within half an hour. He proved the post mortem report Ext. PW11/B in this regard. He has also proved the MLC of the accused Ext. PW11/C which shows that there were two abrasions present on the person of the accused and the patient had complained of bleeding from right ear. 6 We need not discuss the other evidence led by the prosecution since this fact stands established from oral evidence duly corroborated by the medical evidence that the appellant had caused injury with a scissor on the person of the deceased which fact rather was admitted in his statement by accused under Section 313 Cr.P.C. But this fact stands established very clearly from the evidence itself. The Medical Officer clearly opined that the cause of death was the said injury on the person of the deceased. Coming to the main plea raised by the learned counsel for the appellant that reformatory theory should be adopted and the sentence of fine should only be imposed. The question to be considered is as to whether the case falls under Section 304 Part-I, as held by the learned trial Court or it falls under Section 304 Part-II, as submitted by the learned counsel for the appellant. To substantiate his point that the case falls under Part-II of Section 304 I.P.C., the learned counsel for the appellant had relied upon the following decisions to submit that the appellant deserves reduced sentence:- The decision in State of Punjab Vs. Prem Sagar and others, (2008) 7 Supreme Court Cases 550 was relied upon, in which though the case was under Punjab Excise Act and the respondent had been convicted for carrying 2000 litres of rectified spirit, the Apex Court had observed that whether the sentence should be deterrent, reformative or proportional, depends upon the facts and circumstances of a case. It was also observed that there are certain offences which touch the social fabric or affect public health and they have to be dealt with sternly. 7 Reliance was placed upon the decision in Shingara Singh Vs. State of Haryana and another, AIR 2004 Supreme Court 124. In that case, the appellant had taken the plea of private defence that the deceased threw bricks upon him, whereupon he went inside his house brought gun and fired shots in self defence. It was held that there was no occasion for the accused to use gun. Accused exceeded his right of private defence and was liable to be convicted under Section 304 Part-I and he was sentenced to rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/-. Reliance was also placed upon the decision in Bagdi Ram Vs. State of Madhya Pradesh, AIR 2004 Supreme Court 387, in which there was only one injury caused on the head of the deceased with axe. It was held that the accused cannot plead right of private defence. However, since only one injury was caused and blow was not repeated, the accused was held guilty under Section 304 Part-I and the sentence of eight years rigorous imprisonment imposed upon the accused was reduced to rigorous imprisonment for a period of three years and a fine of Rs.5,000/-. Coming to the findings of the learned trial Court holding the appellant guilty under Section 304 Part-I, it cannot be said that the appellant had the intention of causing death or of causing of such bodily injury as is likely to cause death. However, it can be assumed that the accused had the knowledge that this was likely to cause death and accordingly, the case falls under Section 304 Part-II. The provisions of Section 304 Part-II are attracted when it is proved that even if the accused had no intention to cause such bodily injury as was likely to cause death but had the knowledge that the injury was likely to cause 8 death. The learned trial Court had not referred to the defence plea set up by the accused in his statement under Section 313 Cr.P.C. in which he has pleaded that he had suffered simply injuries at that time and he lost control of his mind and inflicted the blow on the person of the deceased which proved to be fatal. Keeping in view the facts and circumstances of the case and the fact that only one injury was inflicted, we accordingly hold that the appellant was liable to be held guilty under Section 304 Part-II I.P.C. To substantiate his plea that the appellant deserves lesser punishment, he took up the plea that the appellant has taken loan from the bank for running the vehicle and he is the only bread earner in the family and, therefore, he deserves leniency of the Court. Coming to the sentence, the appellant does not deserve the sentence of fine only and deserves substantive sentence and keeping in view the above decisions relied upon by the learned counsel for the appellant, we accordingly hold the appellant guilty under Section 304 Part-II and he is sentenced to rigorous imprisonment for a period of four years. He is also held liable to pay a fine of Rs.50,000/-, which shall be payable to the heirs of the deceased. In default of payment of fine, the appellant shall further undergo rigorous imprisonment for a period of one year. The appeal filed by the appellant Virender Singh is partly allowed, while the appeal filed by the State of H.P. for enhancement is dismissed accordingly. Fresh jail warrants be issued by the Registry of this Court. ( Deepak Gupta ), Judge ( V.K. Ahuja ), September 26, 2008(BSS) Judge 9