Crl. Appeal No.212-DB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.212-DB of 1998 Date of Decision: January 09, 2008 Bhagmal son of Shri Hari Singh .......Appellant Versus The State of Haryana .......Respondent CORAM:- HON'BLE MR.JUSTICE ADARSH KUMAR GOEL HON'BLE MR.JUSTICE S. D. ANAND Present: Mr.Gorakh Nath, Advocate for the appellant. Mr.Kulvir Narwal, Additional Advocate General, Haryana. *** S. D. ANAND, J. Appellant Bhagmal was convicted by the learned Trial Judge for the offence under Sections 302 and 506 of the Indian Penal Code. Under the former head, he was sentenced to undergo Life Imprisonment and to pay a fine of Rs.500/-; while he was directed to undergo rigorous imprisonment for two years for the latter offence. The substantive sentences were ordered to run concurrently. The learned Trial Judge recorded the impugned finding of conviction by upholding the prosecution version indicated hereunder: PW6 Roshan Lal and PW11 Hanuman Parshad are real brothers inter se and are sons of deceased Jagdish Parshad. The former runs a shop Crl. Appeal No.212-DB of 1998 2 in the area of village Nangal. In the earlier part of the day on 23.1.1995, Bhagmal and his two brothers, namely Satbir and Tejpal stood in front of the shop run by Roshan Lal who requested them not to stand in front of the shop. The objection raised by him infuriated Bhagmal and his two brothers. Bhagmal gave a lathi blow and his two brothers gave fist blows to Roshan Lal. Shri Ram and Hanuman Parshad PWs appeared on the scene in the meantime and saved Roshan Lal from the clutches of Bhagmal and his two brothers. Later in the day, at about 9.30 A.M., Hanuman Parshad left for Ateli where his brother Rajinder Singh runs a shop. He and Rajinder Singh proceeded towards Ateli Mandi. At that point of time, Hanuman Parshad spotted his father Jagdish Parshad coming from the other side of Mandi Ateli. Appellant Bhagmal suddenly surfaced from out of the mustard fields when he was armed with an iron rod. He gave a blow with the iron rod on the right side of head of Jagdish Parshad who fell down on account of the impact and became unconscious. The appellant also held out a threat that in case any one tried to endeavour rescuing Jagdish Parshad, he (appellant ) would kill him. Even thereafter, the appellant fled the scene while taking away the weapon with which he had belaboured Jagdish Parshad. Initially, Jagdish Parshad was taken by his sons PW11 Hanuman Parshad and Rajinder Singh to PHC Ateli from where the Medical Officer referred him to General Hospital, Narnaul. The Medical Officer over there referred Jagdish Parshad to Rohtak as he could not be given the required treatment at Narnaul. Jagdish Parshad was referred to MCH, Rohtak where he died on 25.1.1995. Apart from the formal witnesses, the prosecution has examined PW6 Roshan Lal (in respect of the occurrence which had taken place earlier Crl. Appeal No.212-DB of 1998 3 in the day) and also PW11 Hanuman Parshad and PW13 Rajinder Singh sons of Jagdish Parshad, the latter due having witnessed the impugned occurrence. PW2 Dr.S.C.Goyal, Medical Officer, PW4 Dr.(Mrs.) Poonam Malhotra and PW10 Dr.Dinesh Podar, Medical Officer are the Doctor PWs examined at the trial. PW2 had medicolegally examined Roshan Lal PW6 and Hari Singh son of Mool Chand on 23.1.1995 and had found 2 and 4 injuries respectively on their person. Besides them, he had also referred Jagdish Parshad to Civil Hospital, Rohtak as his condition was serious. PW4 Dr.(Mrs.) Poonam Malhotra had conducted the post mortem examination on the dead body of Jagdish Parshad. PW10 Dr.Dinesh Podar had medicolegally examined Jagdish Parshad. Exhibit PO is the FSL report. An earlier incident in the course whereof Ashok Kumar son of Jagdish Parshad had attempted to outrage her modesty and the incident was followed by an altercation in the course whereof certain members belonging to the party of Jagdish Parshad had caused injuries to Hari Singh, father of Murti Devi. On a conjunctive appraisal of the prosecution and also defence presentation, the learned Trial Judge returned a finding of guilty against the appellant and directed him to undergo imprisonment indicated in the opening part of this judgment. Mr. Gorakh Nath, the learned counsel appearing on behalf of the appellant, raises the following points in order to obtain invalidation of the finding of conviction:- 1. The occurrence had not been witnessed by Hanuman Parshad – PW and he has been introduced into the case later on; 2. The prosecution version deserves to be discarded as the injuries Crl. Appeal No.212-DB of 1998 4 on the person of Hari Singh have not been explained; 3. The present is, at the most, a case of conviction for an offence under Section 304 of the Indian Penal Code in view of the fact that the appellant is alleged to have inflicted only one blow on the person of the deceased. The plea raised thereby is that if the appellant had the intention to cause death of Jagdish Parshad he would have been expected to give a larger number of blows to the latter. We have heard the learned counsel for the parties and perused the file. Item No.1. We find that the presence of Hanuman Parshad cannot at all be doubted on any valid count. Apart from the fact that the defence has not been able to impeach his credit in spite of lengthy and thorny cross- examination directed at him, it requires particular notice that the impugned occurrence had taken place somewhere around 9.30/9.45 A.M. and Hanuman Parshad is recorded to have accompanied Jagdish Parshad to PHC Ateli where they reached at 10 A.M. This fact would be evident from ruqqa Ex.PE which the Medical Officer, Ateli had sent to SHO, PS Ateli, intimating the arrival of injured Jagdish Parshad, along with his son Hamuman Parshad, at the PHC and the patient having been referred to Govt. Hospital, Narnaul. If Hanuman Parshad had not been witnessed the impugned occurrence, he just could not have been able to accompany his injured father to the hospital. Item No.2. There is no law to the effect that a prosecution plea must Crl. Appeal No.212-DB of 1998 5 compulsively fail just because the prosecution is not in a position to explain the injuries on the person of the accused or a member of accused party. In this particular case, no injuries are averred to have been found on the person of Bhagmal-appellant. Insofar as the injuries found on the person of Hari Singh are concerned, the matter had been the subject of a prosecution in case FIR No. 122 dated 13.12.1983, Police Station Ateli, under Sections 148/149/325/324/452/506 IPC. Jagdish Parshad deceased had been tried in that case along with his nephews namely Ramotar, Ram Niwas, Rohtas and Ashok, son of Jagdish Parshad itself and a brother of Hanuman Parshad. The allegation in that case was that they had caused injuries to Hari Singh (father of the appellant), Mool Chand (grandfather of the appellant) and some others. They were acquitted in that case. All these facts are apparent from the testimony of PW11-Hanuman Parshad. There is no challenge to those facts before this Court. Item No.3. The plea raised is devoid of merit. For determining the presence or absence of element of intention to cause death, the nature of weapon used and the seat of the injury would have very relevant bearing. As per the proven facts on the file, the appellant gave an iron rod blow on the right side of the head of Jagdish Parshad with great force. It was on account of the impact of the injury that Jagdish Parshad fell down and became unconscious. As a man of ordinary prudence, we would invest the appellant with the knowledge that a blow given with iron rod with great force and on head was likely to cause an injury which could result in the death of the injured individual. The present is, thus, not at all a case for the commission of an offence under Section 304 of the Indian Penal Code. It is a pure and Crl. Appeal No.212-DB of 1998 6 simple case of murder. Apart therefrom, it may be noticed that the medical evidence is completely in tandem with the ocular presentation at the trial. In the light of the foregoing discussion, the appeal is held to be devoid of force and is ordered to be dismissed. ( S. D. ANAND ) JUDGE ( ADARSH KUMAR GOEL ) JUDGE January 09, 2008 SRM/vkd Note: Whether to be referred to reporter ? Yes/No