IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 713-DB of 2001 DATE OF DECISION : 23.02.2010 Satish .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Gorakh Nath, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellant Satish was tried by the Court of Additional Sessions Judge, Rohtak, in case FIR No. 132 dated 20.11.1998, registered at Police Station Kalanaur, under Section 302 IPC, for committing the murder of Jai Kishan. Vide judgment dated 18.10.2001 and order dated 19.10.2001, he was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/-, in default to undergo further simple imprisonment for two months, under Section 302 IPC. 2. In the present case, the prosecution was launched against the appellant on the basis of statement (Ex.PA) made by Hawa Singh son of deceased Jai Kishan on 20.11.1998 in CHC Kalanaur, in which he had Crl. A. No. 713-DB of 2001 -2- stated that on 18.11.1998, some altercation had taken place between him and appellant Satish, a resident of the village, with regard to taking of water from a public hydrant . The said matter was patched up with the intervention of the persons of the locality. On 20.11.1998, his uncle Dalip Singh, father Jai Kishan (deceased), Ram Mehar and 5-7 other persons of the locality went to the house of appellant Satish in the form of a Panchayat to settle the dispute. After having patched up the matter, he (complainant), his uncle Dalip Singh, Ram Mehar and his father Jai Kishan were standing in front of the house of appellant Satish. Dalip Singh was advising them (complainant side) to go back to their house and not to quarrel. Rajender Singh son of Raghbir Singh, Member Panchayat, was standing near them. In the meantime, appellant Satish armed with a scissors came out of his house and gave a scissors blow in the abdomen of his father saying that he would not give chance of any dispute in future. His father fell down on the ground and became unconscious. Blood was oozing out from his abdominal injury. The appellant fled away from the spot along with the scissors. Ajit son of Rameshwar reached there. He (complainant) and Ajit took his father in a rickshaw to the Hospital, Kalanaur, but he breathed his last on the way to the hospital on account of injury sustained by him. In the Hospital, the Doctor on duty declared him dead. 3. According to the prosecution, the aforesaid occurrence had taken place on 20.11.1998 at about 9/9.15 AM in the street outside the house of the appellant. Complainant Hawa Singh took his father to CHC, Crl. A. No. 713-DB of 2001 -3- Kalanaur, where they reached at 9.30 AM. Dr. Kamla Chaudhary (PW.4) sent ruqa (Ex.PE) to the police at 9.50 AM. Thereupon, the police reached CHC, Kalanuar and recorded the aforesaid statement (Ex.PA) of complainant Hawa Singh, on the basis of which the formal FIR (Ex.PA/2) was registered against the appellant. ASI Nathu Ram (PW.15) prepared the inquest report (Ex.PC/1) and sent the dead body for autopsy. Thereafter, on the same day i.e. on 20.11.1998, he reached the spot, got the place of occurrence photographed, lifted the blood stained earth, took the same into possession vide memo (Ex.PO) and prepared the rough site plan (Ex.PQ) of the place of occurrence with correct marginal notes. 4. On 20.11.1998 at 5.00 PM, Dr. R.K. Jain (PW.3) conducted post mortem examination on the dead body of the deceased. He found the following one injury on the body of the deceased : “Incised wound present on the left side of abdomen, which was 4 cm x 2 cm in size spindal shaped with medial aspect of wound rounded and appears as lacerated and lateral aspect clean cut. The wound was 5 cm from the amblicus and above it, 4.5 cm from the mid line and 6 cm below the left costal margin. Track of this wound was going down to backward. Pears the omentem and mesentaryof large gut, posterior peritoneum and ultimately left kidney was cut. There was hemo peritonum more than 2 litres of blood was in the peritoneum cavity and retro peritoneum heamotoma was upto transverse column, left kidney was badly injured. In his opinion, the cause of death was due to shock and haemorrhage due to Crl. A. No. 713-DB of 2001 -4- the aforesaid injury, which was ante-mortem in nature and sufficient to cause death in the ordinary course of nature. He proved the Post Mortem Report (Ex.PB). He also gave the opinion (Ex.PD/1) to the effect that possibility of injury No.1 on the body of the deceased having been caused by the scissors (Ex.P5) cannot be ruled out. 5. On 23.11.1998, appellant Satish surrendered in the court and he was formally arrested after getting the permission of the court. On 25.11.1998, during interrogation, the appellant suffered disclosure statement (Ex.PL/1) to the effect that he had kept concealed the scissor in his house in an empty pitcher. Pursuant to the said disclosure statement, the appellant got recovered one-blade scissor, which was taken into possession by the police vide memo Ex.PN, in the presence of Dharambir (PW.14) and Hazari. 6. After completion of investigation, the challan was filed against the appellant and charge under Section 302 IPC was framed, to which the appellant did not plead guilty and claimed trial. 7. In support of its case, the prosecution examined 15 witnesses, besides placing on record certain documents. 8. PW.11 Hawa Singh and PW.12 Dalip are the eye witnesses, who have fully supported the prosecution version. However, neither Ram Mehar and Rajender, who as per the prosecution case had also witnessed the occurrence, nor Ajit son of Rameshwar, who had reached the spot lateron and had taken the deceased to the Hospital, have been examined by the prosecution. Crl. A. No. 713-DB of 2001 -5- 9. PW.1 ASI Raghbir Singh recorded the formal FIR Ex.PA/2. PW.2 SI Jai Parkash prepared final report under Section 173 Cr.P.C. PW.3 Dr. R.K. Jain, who conducted the post mortem examination on the dead body of deceased Jai Kishan, proved the Post Mortem Report Ex.PB and his opinion Ex.PD/1 to the effect that possibility of injury No.1 on the person of the dead body having been caused by the scissors (Ex.P5) cannot be ruled out. PW.4 Dr. Kamla Chaudhary sent information (Ex.PE) to the police. PW.5 Constable Anup Singh, PW.8 Mangat Ram HC, PW.9 Constable Ballu Ram, PW.10 Constable Ram Kishan and PW.13 Constable Ishwar Singh are the formal witness, who tendered into evidence their respective affidavits Ex.PF, Ex.PH, Ex.PJ, Ex.PK and Ex.PL. PW.6 Pawan Kumar took photographs (Ex.P1 and Ex.P2) of the spot. PW.7 Radhe Sham prepared the scaled site plan (Ex.PG) of the place of occurrence. PW.14 Dharambir is the witness to the disclosure statement (Ex.PL/1) suffered by the appellant and the recovery of the scissors (Ex.P5) vide recovery memo (Ex.PN). PW.15 SI Nathu Ram is the Investigating Officer in the case. 10. In his statement under Section 313 Cr.P.C., the appellant denied all the incriminating evidence appearing against him. He pleaded innocence and stated that he has been named in this case on suspicion and the prosecution witnesses have not witnessed the occurrence, who have lateron falsely deposed against him. However, the appellant did not lead any evidence in defence. 11. The trial court, after considering the evidence and record, Crl. A. No. 713-DB of 2001 -6- convicted and sentenced the appellant, as mentioned in the first paragraph of this judgment. 12. Faced with the situation that both the eye witnesses, namely i.e. PW.11 Hawa Singh and PW.12 Dalip, have categorically stated that the appellant gave a scissors blow in the abdomen of the deceased, which according to PW.3 Dr. R.K. Jain resulted into causing death of Jai Kishan; as well as recovery of the scissors (Ex.P5) from the house of the appellant at his instance in pursuance of his disclosure statement, which has been proved by the attesting witness PW.14 Dharambir, learned counsel for the appellant argued that the said scissors blow was caused by the appellant in the heat of passion, when the complainant party and the deceased were quarreling on a petty dispute arisen on account of taking water from a water tap. He submits that from the evidence led by the prosecution, it has been established that the occurrence has taken place in front of the house of the appellant, where the complainant party had gone in order to settle the dispute with regard to the quarrel, which had taken place two days before the day of occurrence and in the heat of passion, upon a sudden quarrel, the appellant gave one scissors blow on the abdomen of the deceased, without any premeditation. He did not make any attempt to give second blow to the deceased. In these facts and circumstances, learned counsel for the appellant argued that the culpable homicide committed by the appellant does not amount to murder and at the most, he can be convicted and punished under Section 304 Part I IPC. Crl. A. No. 713-DB of 2001 -7- 13. We have heard learned counsel for the parties on the issue as to whether in the present case, the culpable homicide committed by the appellant amounts to murder or not? 14. From the medical evidence on record, the homicidal death of deceased Jai Kishan has been proved. According to PW.3 Dr. R.K. Jain, who conducted the post mortem examination of the deceased on 20.11.1998 at 5.00 PM, he found only one incised wound on the body of the deceased, which was ante mortem in nature. In his opinion, the possibility of causing the said injury from scissors (Ex.P5) can not be ruled out. He further gave the opinion that the cause of death of the deceased in this case was because of shock and haemorrhage due to the injury received by him, which was sufficient to cause death in the ordinary course of nature. It has been further proved by the prosecution that the said injury was caused to the deceased by the appellant in the occurrence, which had taken place in the street in front of the house of the appellant. It has come in evidence that on the day of occurrence, the complainant Hawa Singh, his father Jai Kishan (deceased), his uncle Dalip Singh, Ram Mehar and 5-7 persons of the locality went to the house of the appellant in the form of a Panchayat to settle the dispute. The dispute was about an altercation which had taken place two days before the day of occurrence on the issue of taking water from a water tap. In his statement (Ex.PA) before the police, complainant Hawa Singh had stated that when they were standing in front of the house of appellant, Dalip Singh was advising them to go back to their house and not to quarrel. This fact Crl. A. No. 713-DB of 2001 -8- establishes that at the time of the occurrence, both the parties were quarreling. At that time 5-10 persons from the complainant side were standing in the street and the quarrel was going on. It appears that when the said quarrel was going on, the appellant came out with a scissors from his house and gave a scissors blow in the abdomen of the deceased, due to which he fell down and became unconscious and lateron, while he was being taken to Hospital, he died. It is undisputed that the appellant did not make attempt to give second blow to the deceased or to any witness. After causing one blow, he is stated to have run away from the spot along with the scissors. From this fact, it appears that when both the parties were quarreling on the aforesaid issue, in a heat of passion, the appellant gave one scissors blow on the abdomen of the deceased, without any premeditation with intention to kill the deceased. In our opinion, in these circumstances, the appellant neither had taken undue advantage of the situation nor acted in a cruel and unusual manner. In that situation, it cannot be taken that by giving scissors blow to father of the complainant, who was empty handed at that time, the appellant had taken any undue advantage of the situation. 15. One more fact emerging from the facts of the case, which further strengthens our aforesaid conclusion, is that if the altercation, which took place on 18.11.1998 between the complainant and the appellant on the issue of taking water from a water tap was settled with the intervention of the local people, then what was the occasion for the complainant, his father Crl. A. No. 713-DB of 2001 -9- Jai Kishan, his uncle Dalip Singh and Ram Mehar along with 5-7 other persons to go to the house of the appellant in form of a Panchayat to settle the dispute. It appears that on the said minor issue, the complainant party went to the house of the appellant and started quarreling with him. At that time, the appellant was not pre-determined to kill the father of the complainant on account of the aforesaid minor issue. When they were quarreling, eye witness Dalip Singh was advising the complainant party to go back to their house and not to quarrel. These facts clearly establish that the occurrence has taken place in a sudden quarrel without any premeditation and in that quarrel, in a heat of passion, the appellant caused one scissors blow to the father of the complainant, without any intention to kill him. Therefore, in our opinion, the appellant has committed the offence of culpable homicide, which does not amount to murder. A person is deemed to have committed the culpable homicide, if the act by which the death is caused is done with the knowledge that the act done by him is likely to cause death. In the present case, the appellant was having the knowledge that if he gives a scissors blow on the abdomen of father of the complainant, then such act is likely to cause his death. In our view, the culpable homicide committed by the appellant falls under exception 4 of Section 300 IPC. Therefore, the same doles not amount to murder. In the instant case, the culpable homicide committed by the appellant is of second degree which becomes punishable in the first part of Section 304 IPC. 16. In view of the aforesaid discussion, the conviction of the Crl. A. No. 713-DB of 2001 -10- appellant under Section 302 IPC is altered to Section 304 Part I IPC. Keeping in view the age and other circumstances, the appellant is sentenced to undergo rigorous imprisonment for a period of ten years with a fine of Rs.5,000/-, in default to further undergo rigorous imprisonment for a period of two months. 17. Consequently, the appeal is partly allowed in the aforesaid terms. ( SATISH KUMAR MITTAL ) JUDGE February 23, 2010 ( JORA SINGH ) ndj JUDGE