Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.19 of 2003. Dated of Decision: March 09, 2010. --------------------------------------------------------------------------------------------------- Poiya Ram and others. …… Appellants. Versus State of H.P. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellants : Mr. V.S. Rathore, Advocate. For the Respondent : Mr. J.S. Rana, Asstt. Advocate General. Surinder Singh, J (oral) : The appellants were convicted under Section 304 Part-II of the Indian Penal Code and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1000/- each, hence this appeal. The prosecution story, in short, can be stated thus. On 21st October, 1998, at about 9.45 a.m., Mast Ram (deceased) was busy in making the bamboo baskets in his courtyard. There was a boundary dispute of the courtyard. The appellants picked up an altercation disputing the boundary. They started removing the stones and then entered into the courtyard of the deceased and all of them attacked Mast Ram and gave fist and kick blows to him. Ashwani Kumar (PW3) son of deceased was inside the room, He was attracted by the noise outside. He came out and saw that the appellants were beating his father. He went there. The moment he reached, on account of giving kick and fist blows, Mast Ram fell on him, then on the ground and became unconscious. Suti Devi (PW4) - 2 - was sitting in the verandah of her house. She also witnessed the aforesaid incident. Mast Ram was taken inside the room. The inmates of the house gave some massage to his body. Ashwani Kumar (PW3) went to call the doctor. PW7 Dr. Mulkj Raj examined the deceased and advised them to take him to the hospital. Injured was taken to CHC Nagrota Bagwan. He was examined by Dr. Rajesh Guleri (PW2). He found Mast Ram dead, thus the police was informed telephonically. The dead body was taken back to the house of the deceased. MC, Police Post, Nagrota Bagwan informed S.I. Daulat Ram (PW10), Police Station Nurpur. He visited the spot and recorded statement (Ex.PW3/A) of Ashwani Kumar, under Section 154 Cr.P.C. Inquest papers Exts.PW1/A and B were filled in. Dead body was photographed and police also prepared the site plan Ex.PW10/A. Thereafter the dead body was sent for autopsy to the zonal hospital, Dharamshala. PW1 Dr. D.P. Swami, Lecturer Forensic Medicines, Medical College Tanda, conducted the postmortem on 22.10.1998 at 10.30 a.m. and noticed the following injuries on the cranium and spinal cord:- (i) Bruise on right temporal region 1 x 1 inch just above right ear, reddish bright irregular; (ii) Extra dural haemorrhage on the right middle cranial fossa just on temporal region 2 x 3 inch area reddish. Right side of the pericardium heart was full of dark coloured fluids. In the opinion of the doctor, the death was caused due to asphyxia and neurogenic shock due to ante mortem injuries to the right side of brain which was sufficient in ordinary course of nature to cause death. The time which elapsed between injury and death was 5 minutes to 3 hours - 3 - and between death and postmortem 20 to 24 hours. The postmortem report is Ex.PW1/D. After completing the investigation, the challan was presented in the court for the trial of the appellants for the above offences. The appellants were accordingly charge-sheeted. They pleaded not guilty and claimed trial. To prove its case, prosecution examined PW3 Ashwani Kumar and PW4 Suti Devi, the alleged eye witnesses besides examining PW2 Dr. Rajesh Guleri, who declared him dead and also PW1 Dr. D.P. Swami, who conducted the postmortem of the deceased and also PW10 S.I. Daulat Ram, Investigating Officer. The appellants were also examined under Section 313 of the Code of Criminal Procedure. According to them, they were falsely implicated in the case and in fact the deceased was a patient of hypertension and the attack of hypertension, caused his death. The learned trial Court on the strength of prosecution evidence led against the appellants, did not find it a case of no evidence, as such called upon the appellants to enter into their defence, but they did not lead any evidence in defence. The plea raised by them did not find favour with the learned trial Court, therefore, at the end of the trial, the appellants were convicted and sentenced as aforesaid. Shri V.S. Rathore, learned counsel for the appellants vehemently argued that the deceased was a patient of hypertension and had an attack, as such, fell down and sustained injuries, which caused his death. To strengthen his arguments, he has read the evidence on record and ventilated that the statements of the witnesses is full of contradiction and cannot be relied upon. - 4 - He also referred to the statement of PW7 Dr. Mulkh Raj, who had admitted that the deceased was a patient of hypertension and few medicines were also found in his pocket. Learned counsel also relied upon the statement of PW2 Dr. Rajesh Guleri to strengthen this point and also referred the cross-examination of PW1 Dr. D.P. Swami, whereby he had admitted that in a case there is an attack of hypertension, the death can be caused instantaneously. Contra, Shri J.S. Rana, learned Assistant Advocate General has supported the judgment of conviction and sentence, passed by the learned trial Court. I have gone through the rival contentions of the parties and have carefully reappraised the evidence on the record. PW3 Ashwani Kumar, son of the deceased is an eye witness of the alleged incident. He categorically stated that on 21st October, 1998, at about 9.45 a.m., he was ill and sleeping in the upper story of his house, his father was busy preparing bamboo basket in the courtyard. He heard some noise outside and came out. He saw the appellants were fighting with his father and were fisticuffing his father. He further testified that the appellants were changing the boundary lay out of stones of their courtyard. He categorically stated that the appellants gave fist and kick blows on the chest, legs and slapped on the face of his father. In that fight, his father fell on him and thereafter on the ground. He further testified that this occurrence was witnessed by PW4 Suti Devi from her verandah. Thereafter, he lifted his father, took him inside the house, but he was unconscious. He never regained the consciousness again. Few persons also arrived in his house. He went to call PW7 Dr. Mulkh Raj. He also noticed that Mast Ram was unconscious, thus referred him to the hospital, but did not treat him. - 5 - Smt. Suti Devi (PW4) and PW7 Dr. Mulkh Raj have lent corroboration to his version. However, Dr. Mulk Raj in his cross-examination admitted that the deceased was a patient of blood pressure and he used to take the medicines of blood pressure. Admittedly, the deceased was in known case of hypertension, but from scanning the evidence aforesaid, it is quite apparent that he was given beatings by the appellants. Although PW3 Ashwani Kumar and PW4 Suti Devi were confronted with their statements recorded by the police under Section 161 Cr.P.C. to testify their version that the appellants had given kick and fist blows on the stomach and chest, which was not found recorded therein, but no suggestion was put that no fist blows were given on the face of the deceased, as deposed by PW3 Ashwani Kumar. Therefore, it stands established that the appellants had given beatings to the deceased and he sustained the injuries on the right side of his face, just above the right ear. On the postmortem, doctor found bruise on the right temporal region 1 x 1 inch just above the right ear, which was reddish bright irregular and also extra dural haemorrhage on the right middle cranial fossa just on temporal region 4 x 3 inch area which was reddish and in the opinion of the doctor, these ante mortem injuries were responsible for the cause of death of the deceased. From the trend of the cross-examination, it stands established that the appellants knew that the deceased was a patient of hypertension and had been taking the medicines and according to the doctor, the injuries sustained by him could have aggravated his death. As a matter of fact, Section 304 Part-II of the Code gets attracted when it is proved that even if the accused had no - 6 - intention to cause such bodily injury as was likely to cause death but had the knowledge that the injuries caused to him by them were likely to cause death. In the instant case, the accused/ appellants in furtherance of their common intention gave beatings to the deceased their blows had hit the right side of his face, causing the above injuries. Although, the intention to cause death cannot be imputed to them, but it would be reasonable to conclude from the proved facts that the appellants had knowledge that any injury, on that part of the body of the deceased where it was found, would cause his death. So, in the given facts, in my opinion, the appellants in furtherance of their common intention had committed the offence of culpable homicide not amounting to murder punishable under Section 304 Part-II of the Indian Penal Code. As such, the appellants were rightly convicted for the said offence by the learned trial Court. In so far as the sentence part is concerned, the learned trial court has already taken a lenient view. It is on the lower side against which no appeal is preferred by the State, therefore, no interference is called for. For the above reasons, the appeal is without any merit and is dismissed. The appellants are on bail. They remained in custody w.e.f. 21st October, 1998 till 20th November, 1998, thus, they are hereby directed to surrender before the learned trial Court on 7th April, 2010 at 10 a.m., to serve out the remaining sentence, failing which the learned trial court to take the coercive method to procure their presence and commit them to the Jail. Send down the records. March 09, 2010. (Surinder Singh) (Pds) Judge.