IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.128-SB of 1998 Date of Decision : July 22, 2010 Kiran Kumar ....Appellant Versus State of Punjab ....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Ashok Saini Advocate. Mr. P.S. Grewal, Assistant Advocate General, Punjab. T.P.S. Mann, J. (Oral) Vide judgment and order dated 28.1.1998, learned Additional Sessions Judge, Gurdaspur, convicted the appellant under Section 304 IPC and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2,000/- and in default of payment of fine, to further undergo rigorous imprisonment for six months. According to the prosecution, on 14.6.1995, at about 8,00 p.m., complainant Sadhu Ram, accompanied by his sister-in-law Santosh Kumari went to call his brother Sain Dass for some domestic work and when they reached near the Smadh of Panj Peer, they found Sain Dass and the appellant quarreling with each other. The Satish Kumar 2013.08.21 12:47 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.128-SB of 1998 -2- appellant was given a kahi blow by Sain Dass on his right wrist, whereafter the appellant gave a brick blow to Sain Dass hitting on his head. On receiving the blow, Sain Dass fell down unconscious and on sensing some trouble, the appellant left that place. When the complainant and his sister-in-law went closer, they found Sain Dass dead. The complainant after leaving his sister-in-law at the spot, left for the Police Station and reported the matter to SI Jugal Kishore, who met him on the way. Further case of the prosecution was that after recording statement Ex.PN of the complainant, SI Jugal Kishore made endorsement Ex.PN/1 and sent it to the Police Station, on the basis of which FIR Ex.PL was recorded. Thereafter, SI Jugal Kishore visited the spot and prepared inquest report Ex.PC and sent the dead body for post-mortem. He took into possession one brick and one spade vide memos. Exs.PJ and PK, which were attested by ASI Gurmit Singh and Santosh Kumari. Rough site plan Ex.PO was prepared and statements of the witnesses were recorded. The clothes of deceased Sain Dass were produced by Constable Harcharan Singh before SI Jugal Kishore on 15.6.1995, which were taken into possession vide memo. Ex.PM and were sealed into parcel with seal bearing impression ‘JK’. The appellant was arrested and was got medically examined vide MLR Ex.PE. It was opined by the doctor that the death of Sain Dass was due to haemorrhage and Satish Kumar 2013.08.21 12:47 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.128-SB of 1998 -3- shock as a result of multiple injuries, which were ante mortem in nature and sufficient to cause death in the ordinary course of nature. Upon completion of investigation, presentation of challan, followed by commitment of the case to the Court of Sessions, charge under Section 304 IPC was framed against the appellant, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW1 Dr. Hardeep Singh, PW2 Dr. Harbhajan Singh, PW3 Satish Chander, Draftsman, PW4 ASI Gurmit Singh, PW5 Constable Subash Chander, PW6 SI Tilak Raj, PW7 Constable Harcharan Singh, PW8 Sadhu Ram complainant, PW9 Santosh Kumari, PW10 HC Lakhwinder Singh, PW11 ASI Sarup Singh and PW12 SI Jugal Kishore. When examined under Section 313 Cr.P.C., the appellant denied all the circumstances appearing against him and pleaded that he was falsely implicated. He, however, did not lead any evidence in defence. After hearing learned counsel for the parties and going through the evidence brought on record, the trial Court held that the prosecution case was fully supported by the evidence of PW9 Santosh Kumari whose statement was corroborated by the medical Satish Kumar 2013.08.21 12:47 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.128-SB of 1998 -4- evidence and other evidence on the file. Accordingly, the appellant was convicted and sentenced, as mentioned above. Aggrieved of his conviction and sentence, the appellant filed the present appeal. The appellant also preferred an appeal through jail so as to challenge the impugned judgment of conviction and sentence. The said appeal was duly numbered, i.e. Criminal Appeal No.172-SB of 1998 and on 1.7.1998, it was admitted with the direction that the same be heard alongwith the present appeal. Hence, both the appeals are being decided together. Learned counsel for the appellant has submitted that complainant Sadhu Ram, while appearing as PW8 did not support the case of the prosecution. According to him, when he reached the place where his brother Sain Dass used to sit, he saw that Sain Dass was dead and the appellant had ran away. However, he had not seen the appellant assaulting the deceased. Therefore, the appellant deserves the benefit of doubt. It is true that during his examination-in-chief PW8 Sadhu Ram testified that when he reached the place where his brother Sain Dass used to sit, he saw him dead and the appellant had run away. However, he had not seen the appellant assaulting the deceased. In view of his stand, he was declared hostile and allowed to be cross- examined by the Additional Pubic Prosecutor. During his cross- examination, he turned around to say that he had seen the appellant Satish Kumar 2013.08.21 12:47 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.128-SB of 1998 -5- and Sain Dass grappling with each other and the appellant, after giving a kahi blow to Sain Dass had run away from there. He also testified that the appellant had picked up a brick and gave a blow with the same on the head of Sain Dass as a result thereof Sain Dass fell down on the ground. Under these circumstances, it cannot be said that PW8 Sadhu Ram had not supported the case of the prosecution in regard to the ocular account. His testimony as eye-witness stands corroborated by his sister-in-law Santosh Kumari, who appeared before the trial Court as PW9. Said Santosh Kumari is wife of deceased Sain Dass. She has testified that her husband Sain Dass used to go to the Smadh of Panj Peer at Batala and as there was marriage in the family of her uncle which she and others were required to attend, she had accompanied her brother-in-law Sadhu Ram to the Panj Peer to summon her husband Sain Dass from there. In their presence, when they reached there, the appellant and the deceased were seen quarreling with each other. The appellant gave a kahi blow to Sain Dass. She then corrected herself to state that it was Sain Dass who gave a kahi blow to the appellant and the appellant then gave brick blow on the head of her husband Sain Dass. On receiving the brick blow, her husband Sain Dass fell down on the ground and the appellant ran away. Because of the brick blow received at the hands of the appellant, her husband died. She made statement before the police which had reached the spot in the Satish Kumar 2013.08.21 12:47 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.128-SB of 1998 -6- company of her brother-in-law Sadhu Ram. Therefore, it stands established that to begin with it was the deceased who had given a kahi blow and only thereafter, the appellant gave a brick blow on the head of Sain Dass. The ocular account of PW8 Sadhu Ram and PW9 Santosh Kumari is corroborated by the testimonies of PW1 Dr. Hardeep Singh, who had conducted post-mortem on the dead body of Sain Dass and found six injuries on the dead body. Clotted blood was present in an area of 4 cm. x 3 cm. underneath the scalp corresponding to injury No.6 and underlying skull bone at the junction of right parietal bone, left parietal bone and occipital bone was found tractured. In the opinion of the doctor, the death was due to haemorrhage and shock as a result of multiple injuries which were ante mortem in nature and sufficient to cause death in the ordinary course of nature. Similarly PW2 Dr. Harbhajan Singh testified that he had medico-legally examined the appellant on 17.6.1995 at 12.35 p.m. and found semi healed stitched wound surrounded by diffused swelling on the posterior lateral aspect of right wrist joint. The probable duration of the injury was about 72 hours. The prosecution case further gets support from the fact that soon after the occurrence, which had taken place on 14.6.1995 at 8.00 p.m., statement Ex.PN was made by complainant Sadhu Ram which was recorded by SI Jugal Kishore during the same night at Satish Kumar 2013.08.21 12:47 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.128-SB of 1998 -7- 9.15 p.m. On its basis, formal FIR Ex.PL was registered at Police Station City Batala, again on the same night, at 9.25 p.m. which was concluded at 9.55 p.m. The special report was received by the Ilaqa Magistrate, again during the same night, at 10.35 p.m. The prompt reporting of the matter to the police and receipt of the special report by the Ilaqa Magistrate lends independent corroboration to the veracity of the prosecution case. Therefore, no case is made out for any interference in the conviction of the appellant under Section 304 IPC. As regards the quantum of imprisonment, it may be noticed that the appellant has been facing the agony of criminal prosecution since the year 1995. Out of the sentence of ten years imposed upon him, he has already undergone an actual period of about two years. This fact stands established from the custody certificate produced by the State counsel. It may also be noticed that it was deceased Sain Dass, who in the first instance, gave a kahi blow on the right wrist of the appellant and only, thereafter, the appellant picked up a brick lying nearby and hurled the same which hit Sain Dass on his head and on receiving the same he had fallen down. Under these circumstances, a case is made out for reducing the sentence of imprisonment of the appellant to that already undergone by him. At the same time, the appellant can be directed to Satish Kumar 2013.08.21 12:47 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.128-SB of 1998 -8- pay a sum of Rs.50,000/- to PW9 Santosh Kumari as compensation in addition to the fine of Rs,2,000/- imposed upon him. Resultantly, the conviction of the appellant under Section 304 IPC is maintained. His sentence of imprisonment is reduced to the period already undergone by him. The sentence of fine, alongwith its default clause imposed upon the appellant, is maintained. However, the appellant shall deposit a sum of Rs.50,000/- in the Court of Chief Judicial Magistrate, Gurdaspur which shall, thereafter, be disbursed to PW9 Santosh Kumari, wife of deceased Sain Dass as compensation. In case of the appellant not depositing the compensation amount of Rs.50,000/-, he shall be required to undergo rigorous imprisonment for ten years for the offence under Section 304 IPC, as originally ordered by the trial Court. Criminal Appeal Nos.128-SB of 1998 and 172-SB of 1998 are accordingly, disposed of. ( T.P.S. MANN ) July 22, 2010 JUDGE ajay-1 Satish Kumar 2013.08.21 12:47 I attest to the accuracy and integrity of this document Chandigarh