IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 415 of 1995 with Cr.Appeal No.287 of 1998. Date of decision: September 29, 2009. 1. Cr. Appeal No.415 of 1995. Ashok Kumar .. Appellant. Versus State of Himachal Pradesh .. Respondent. 2. Cr. Appeal No.287 of 1998. State of Himachal Pradesh .. Appellant Versus Ashok Kumar .. Respondent. Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . 1. Cr. Appeal No.415 of 1995. For the Appellant : Mr. Ajay Sharma, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. 2. Cr. Appeal No. 287 of 1998. For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : Mr. Ajay Sharma, Advocate. Surjit Singh, J (oral): By this judgment we are disposing of two appeals, titles and particulars of which are given 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - hereinabove, as both of them arise out of the same judgment, i.e., judgment dated 30th November, 1995 of learned Additional Sessions Judge (2), Kangra at Dharamshala. One appeal, i.e., Cr. Appeal No.415 of 1995 has been filed by Ashok Kumar, who has been convicted of offence under Section 307, Indian Penal Code, and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/-, in default of payment of fine to undergo simple imprisonment for a further period of two months. The second appeal has been filed by the State for enhancement of sentence awarded to the said Ashok Kumar by the trial court. The case of the prosecution, as it emerges from the evidence on record, may be summed up thus. Injured PW-3, Ravinder Singh, accompanied by his friend PW-4, Rakesh Kumar, went to see off his two friends, named Gaurav and Navjeevan Mankotia on 13th May, 1993, around 8.15 PM. When said Ravinder Singh, PW-3 and Rakesh Kumar, PW-4, were returning, they were stopped by the present appellant, who came from the side of village Sidhwari riding pillion of a scooter which was being driven by his accomplice Krishan Gurang, since acquitted by the trial court. - 3 - Appellant’s accomplice Krishan Gurang stopped the scooter. The appellant, who was riding pillion, got down from the scooter and while addressing PW-3, Ravinder Singh, he proclaimed that the fire which he had ignited would be extinguished by him. Thereafter the appellant allegedly gave a fist blow on the face of injured Ravinder Singh, PW-3. In the meanwhile, the two friends of Ravinder Singh and Rakesh Kumar, namely, Gaurav and Navjeevan Mankotia, who had gone not very far reached the spot and when the said two friends of Ravinder Singh and Rakesh Kumar tried to disengage the appellant and Ravinder Singh, PW-3, the appellant allegedly pushed away the aforesaid friends of Ravinder Singh, PW-3 and took out a knife with which he stabbed PW-3, Ravinder Singh in the abdomen as a result of which his intestinal fat layer protruded out from the incision caused by the stab injury. Ravinder Singh was rushed to the hospital by his friends. There he was operated upon by PW-2, Dr. D.N. Chadha. The doctor opined that the injuries were dangerous to life. Police was called to the hospital. PW-8, Harbans Singh, ASI, went to the hospital. He made an application Ex.P-3 to the doctor to ascertain if the injured was fit to give statement. Doctor gave the opinion that he - 4 - was not fit for the purpose. Then PW-8, Harbans Singh, recorded statement of PW-4, Rakesh Kumar, a friend of injured Ravinder Singh, under Section 154 of the Code of Criminal Procedure. The said statement is Ex.P-6. It was sent to the Police Station for registration of the case. Case was registered vide FIR Ex.P-13. Police investigated the case and filed a report, under Section 173 of the Code of Criminal Procedure against the present appellant and his accomplice Krishan Gurang. Both the appellant and his accomplice Krishan Gurang were charged. The appellant was charged with offence under Section 307, Indian Penal Code. His accomplice was also charged with the same offence, but with the aid of Section 34, Indian Penal Code. Prosecution relied upon the testimony of PW-1, Dr. R.K. Sharma, PW-2, Dr. D.N. Chadha, PW-3, injured Ravinder Singh, PW-4, Rakesh Kumar, PW-5, Bir Singh and PW-10, Inspector Pritam Singh, to prove the charge. The later named two witnesses were examined to prove discovery of knife Ext. P1, the weapon of offence, on the basis of disclosure statement of the appellant. Appellant took the plea that when he was coming from the side of village Sidhwari, riding pillion of the scooter of his accomplice Krishan Gurang, PW-3 - 5 - Ravinder Singh and his friend PW-4 Rakesh Kumar forcibly stopped the scooter and Ravinder Singh started arguing and scuffling with him and caught hold of him by his testicles and pressed the same with a great deal of force, as a result of which, he felt unbearable pain and apprehended that he might be killed by PW-3, Ravinder Singh, and therefore, he took out the knife and dealt a blow in the abdomen of PW-3 to save his own life. Trial court has disbelieved the defence and convicted and sentenced the appellant as aforesaid. Appellant has appealed against his conviction and sentence. The State has appealed against the sentence part of the judgment of the trial court. It seeks enhancement of punishment, which according to it is inadequate, looking to the facts and circumstances of the case as also the nature of the offence. We have heard Shri Ajay Sharma, learned counsel representing appellant Ashok Kumar as also learned Assistant Advocate General and gone through the evidence. It is not disputed by the learned Counsel for appellant Ashok Kumar that a blow of knife was given in the abdomen of PW-3, Ravinder Singh by the appellant, but according to him, the blow was given when the - 6 - injured pressed the testicles of the appellant with so great a force that the appellant felt unbearable pain and apprehended that he might be killed in case his testicles were not released immediately. Evidence on record does not prove this plea of the appellant. Both the witnesses of the incident, i.e., the injured examined as PW-3 and his friend Rakesh Kumar examined as PW-4, very categorically stated that scooter was got stopped by appellant Ashok Kumar and after getting down from the pillion he started arguing with injured Ravinder Singh and then gave a punch on his face. PW-3, Ravinder Singh, stated that when Rakesh Kumar and his two friends, namely, Gaurav and Navjeevan Mankotia tried to rescue him, appellant Ashok Kumar pushed them aside and dealt a knife blow in his abdomen. Both PW-3, Ravinder Singh and PW-4, Rakesh Kumar, denied that testicles of appellant Ashok Kumar had been pressed by injured Ravinder Singh. Though, PW-4, Rakesh Kumar, initially stated that he did not know if Ravinder Singh, PW-3, had caught hold of the appellant by his testicles and had pressed them, yet at another stage, also in the cross-examination, he categorically denied the suggestion. Also, we do not find any medical evidence in support of appellant Ashok - 7 - Kumar’s claim that he had been caught hold of by his testicles and the same were pressed with great force. Therefore, we see no reason to disagree with the finding of the trial court that the defence plea of exercise of right of private defence of person is not established. However from the facts and circumstances of the case, it is clear that this is not a case of attempt to murder, but a case of attempted culpable homicide not amounting to murder, punishable under Section 308, Indian Penal Code. Admittedly, appellant Ashok Kumar had been having an affair with a cousin (father’s brother’s daughter) of PW-3, Ravinder Singh. On the fateful day, appellant Ashok Kumar, was spotted riding the pillion of his accomplice Krishan Gurung at the site of the crime which is in the vicinity of aforesaid cousin of PW-3, Ravinder Singh. Prior to the incident Ravinder Singh, PW-3 and a brother of his aforesaid cousin had spotted the appellant and the said cousin of PW-3, injured Ravinder Singh, in the temple of Chamunda Devi and Ravinder Singh and the brother of his cousin had objected to the appellant being in the company of the said cousin. It appears that on seeing the appellant near the house of his aforesaid cousin, Ravinder Singh PW-3 got enraged and asked the accomplice of the appellant to - 8 - stop the scooter and started arguing with the appellant. It has come in the evidence that the appellant and PW-3, Ravinder Singh, started grappling with each other. Reference in this behalf may be made to the statement of PW-4 Rakesh Kumar. PW-3, Ravinder Singh, also admitted a suggestion of the defence counsel that he and the appellant grappled with each other. When they were grappling, appellant first punched PW-3, Ravinder Singh in his face and when PW-4 Rakesh Kumar and two other friends of PW-3, Ravinder Singh, tried to rescue him, the appellant in the heat of passion took out knife Ex.P.1 and dealt a blow in the abdomen of the injured, causing a stab wound, which according to the testimony of PW-2, Dr. D.N. Chadha, was dangerous to life. The facts and circumstances are such that had Ravinder Singh died on account of stab wound given by appellant Ashok Kumar, the latter would have been guilty not of offence of murder, punishable under Section 302, Indian Penal Code, but of the offence of culpable homicide not amounting to murder, punishable under Section 304, Indian Penal Code. Therefore, in our considered view appellant Ashok Kumar is guilty of offence, under Section 308, Indian Penal Code. Consequently, we set aside his conviction and sentence - 9 - under Section 307, Indian Penal Code, as awarded by the trial court and convict him under Section 308, Indian Penal Code and sentence him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default of payment of fine, to undergo simple imprisonment for a further period of two months. State’s appeal for enhancement of punishment becomes infructuous in view of the conviction of the appellant under Section 307 Indian Penal Code having been set aside and the appellant having been convicted and sentence under Section 308, Indian Penal Code. Both the appeals stand disposed of accordingly. ( Surjit Singh ), J. September 29, 2009. ( Surinder Singh ), J. (rc)