-1- Criminal Appeal No.371-SB of 1999. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.371-SB of 1999. Date of Decision: January 25, 2010. Deepak Singh ... Appellant. VERSUS State of Punjab ...Respondent 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? CORAM : HON'BLE MR. JUSTICE MOHINDER PAL. Present: Ms. Ranjana Salaria, Advocate, Amicus Curiae, for the appellants. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. Impugned in this appeal is the judgment of conviction and the sentence order passed by the trial Court whereby appellant Deepak Singh was convicted under Section 304 Part II of the Indian Penal Code (for short `the Code') and sentenced to -2- Criminal Appeal No.371-SB of 1999. undergo rigorous imprisonment for ten years and to pay fine of Rs.2,000/- in default whereof to undergo further rigorous imprisonment for one year. The instant case was registered at the instance of Harchand Singh (since deceased), who had made statement on 19.4.1996 before Sub Inspector Jasbir Singh wherein he had stated that appellant Deepak Singh, who was neighbour of Harchand Singh, often quarrelled in the street; that Harchand Singh prevented the appellant from doing so on many occasions; that on 17.4.1996 at about 1 P.M, the appellant appeared with a `Ghotna' (a wooden pestle used for grinding) and started abusing Harchand Singh while standing in the street; and that Harchand Singh came out of his house to stop the appellant from abusing, but to no effect. On hearing the noise, Surinderjit Singh son of Harchand Singh and Hardeep Singh son of Ajit Singh came in the street. The appellant gave a push to Harchand Singh, as a result of which he fell down on the ground and suffered injury in his right eye. Thereafter, the appellant gave a blow with `Ghotna' on the back side of the shoulder of Harchand Singh. Surinderjit Singh and Hardeep Singh saved Harchand Singh from the accused. The appellant ran away from the spot along with the `Ghotna'. The lower portion of the body of Harchand Singh had been paralyzed. Surinderjit Singh took Harchand Singh to hospital. The said statement of Harchand Singh had been recorded by the police at C.M.C, Ludhiana, where he had been admitted. Harchand Singh succumbed to the injuries on 7.6.1996. -3- Criminal Appeal No.371-SB of 1999. On completion of investigation and compliance of due formalities, challan was put in Court against the appellants. The appellant was charged under Section 302 of the Code. He did not plead guilty to the charge and claimed a trial. At the trial, the prosecution examined six witnesses, including Dr. Iqbal Singh (P.W.2), Dr. Sandhya Sabastin (P.W.4), eye-witness Surinderjit Singh (P.W.5) and Sub Inspector Jasbir Singh, Investigating Officer (P.W.6). In his statement recorded under Section 313 of the Code of Criminal Procedure, the appellant denied the prosecution allegations against him and pleaded innocence. He further stated that he was a patient of mental disorder before the occurrence and used to become violent unintentionally. He further stated that he had no enmity with Harchand Singh (deceased). However, no evidence was led by the appellant in defence. I have heard the learned counsel for the parties and have gone through the records of the case. Dr. Sandhya Sabastin (P.W.4), who had medico-legally examined Harchand Singh had observed traumatic quardiplogid 3-4 compression fracture and an injury on right eye. She opined that the compression fracture i.e injury No.1 was dangerous to life whereas injury on the right eye i.e injury No.2 was simple in nature. Dr. Iqbal Singh (P.W.2), who had conducted autopsy on the dead body of Harchand Singh had observed contusion around right eye, multiple bedsores of different sizes on the lower back, bed sores on the back of both heels, a large subcut on scalp, -4- Criminal Appeal No.371-SB of 1999. haemorrhage on the right frontal region and abnormal motility of neck. On dissection, fracture of multiple vertebrae in lower neck was seen. The spinal cord was atrophied in the region of neck. On the abdomen 2 cms x 2 cms punctured wound in the suprapubic region was present. Pus was coming out. The wound continued with the bladder. Pus was oozing from the calyces of the kidneys. There was pus in the bladder and catheter. In the opinion of Dr. Iqbal Singh (P.W.2), death in the case was due to septicemia as a result of pus in the bladder and kidneys which were the result of injury to cervical spine and described as injury No.5 i.e “ there was abnormal motility of neck. On dissection, fracture of multiple vertebrae in lower neck was seen. The spinal cord was atrophied in the region of neck.” No doubt the statement (Exhibit P.F/1) of Harchand Singh, on the basis of which the instant case was registered against the accused, cannot be termed as a Dying Declaration, but the authenticity of the said statement cannot at all be doubted. The statement made by Harchand Singh gets complete corroboration from the statement of Surinderjit Singh (P.W.5). The accused in this case was arrested on 28.4.1996 i.e after ten days of the occurrence which had taken place on 17.4.1996. Sub Inspector Jasbir Singh (P.W.6) stated that the appellant had been able to evade arrest prior to 28.4.1996. This is another circumstance pointing towards the guilt of the accused. In a way, the appellant in his statement recorded under Section 313 of the Code of Criminal Procedure has admitted the occurrence when he -5- Criminal Appeal No.371-SB of 1999. stated that he was a patient of mental disorder before the occurrence and used to become violent unintentionally. At the same time, he stated that he had no enmity with Harchand Singh (deceased). There, thus, remains no doubt that it was the appellant who had conducted the blow with `Ghotna' to Harchand Singh causing fracture of multiple vertebrae in lower neck. As discussed above, Dr. Iqbal Singh (P.W.2), who had conducted post mortem on the dead body of Harchand Singh, had opined that the death in the case was due to septicemia as a result of pus in the bladder and kidneys which were the result of injury to cervical spine. Only one blow with `Ghotna' was given by the accused on the backside of shoulder of Harchand Singh (deceased) which resulted in fracture of multiple vertebrae in lower neck of Harchand Singh. The blow was not repeated by the appellant. The motive for the accused was also not so strong as to prompt him to commit the murder of Harchand Singh. The circumstances of the case show that the accused had no intention to cause the death of Harchand Singh. In the case of Om Parkash v. State of Haryana, AIR 1981 Supreme Court 642, the Sessions Judge convicted the appellant under Section 304 of the Code and sentenced him to undergo rigorous imprisonment for 5-1/2 years. The High Court took a different view. It convicted him under Section 302 of the Code and sentenced him to undergo life imprisonment. The Hon'ble Supreme Court took more lenient view and convicted -6- Criminal Appeal No.371-SB of 1999. him under Section 304, Part II of the Code and sentenced him to undergo rigorous for seven years. The facts were that there was a quarrel between the accused and the victim. The accused, incensed by situation, gave blow with stick on vulnerable part of victim's body resulting in his death. It was held that offence under Section 304, Part II of the Code was made out, not under Section 302 of the Code and the judgment of the High Court was reversed. In the authority reported as State of Punjab vs. Fauja Singh and others, 1997 (1) Chandigarh Criminal Cases 385 (High Court), there were seven injuries, six on non-vital parts and seventh on spleen, which proved fatal. Dimension of injuries showed that weapons of offence were not used with force. Co-accused had caused injuries in furtherance of their common intention with the knowledge that their act was likely to cause death. It was held that offence was punishable under Section 304/34 of the Code and altered from Section 325 read with Section 34 of the Code. Rigorous imprisonment for ten years was awarded. In the case of Kotwal v. State of Madhya Pradesh, 1994 Criminal Law Journal 255 (Supreme Court), the appellant was convicted by the High Court under Section 304, Part II of the Code and and was sentenced to undergo R.I for five years. No interference was made by the Hon'ble Supreme Court. The accused had caused injury on head of the deceased by throwing a stone, as a result of which the brain matter came out. -7- Criminal Appeal No.371-SB of 1999. In view of the above, the appellant has rightly been convicted under Section 304 Part II of the Code. No interference is called for in the judgment of conviction recorded by the learned trial Judge and the same is, accordingly maintained. So far as the sentence is concerned, keeping in view the facts and circumstances of the case, I am of the considered opinion that the ends of justice will be adequately met with if sentence of rigorous imprisonment of ten years awarded to the appellant under Section 304 Part II of the Code is reduced to rigorous imprisonment for five years as the Sword of Damocles has remained hanging over his head for the last more than thirteen and a half years, the occurrence having taken place on 17.4.1996. I order accordingly by modifying the sentence order. The sentence of fine, as imposed by the trial Court, and the default clause, shall remain unaltered. With the above conditional modification in the sentence order, this appeal is dismissed. January 25, 2010. ( MOHINDER PAL ) ak JUDGE