IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.48 of 2008 Date of decision: 16.6.2009. Mahinder Singh ... Appellant Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 No For the Appellant: Mr.Ashok Chaudhary, Advocate. For the Respondent: Mr.R.M. Bisht, Dy.A.G. ____________________________________________________________ Deepak Gupta, J (Oral). This appeal is directed against the judgment dated 31.12.2007 passed by the learned Sessions Judge, Chamba in Sessions Case No.41 of 2007/2005 whereby he has convicted the appellant of having committed offences punishable under Sections 452, 304-II and 323 IPC and sentenced him to undergo imprisonment as follows: i) under Section - To undergo simple 452 IPC imprisonment for seven years and to pay a fine of Rs.10,000/- and in default 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 of payment of fine to undergo further S.I. for one year. ii)Under Section 304-II IPC To undergo simple imprisonment for ten years and to pay a fine of Rs.10,000/-and in default of payment of fine to undergo further S.I. for one year. iii)Under Section To undergo simple 323 IPC imprisonment for one year. Briefly stated the prosecution version as set out in the FIR is that on 13.5.2005 Smt.Isro Devi got recorded her statement Ext.PC under Section 154 Cr.P.C. According to her on the previous date i.e. 12.5.2005 when her husband had gone to work in the Orchard she was alone at her home with the children. At around 3 p.m. Devi Singh son of Swarn Singh came to her house along with her husband. Then the husband went to the orchard. At about 4 p.m. accused Mahinder Singh came to her house. He was carrying a wooden stick in his hand and was under the influence of liquor. On seeing Devi Singh in the house of the informant he started abusing both of them. He wanted Devi Singh to accompany him to village Galodi. Devi Singh refused to do so. Then accused Mahinder Singh gave beatings to Devi Singh with stick and Devi Singh fell down and became unconscious. 3 Mahinder Singh then thrashed the complainant with the same stick and went away. At 7 p.m. the husband of the complainant came home. When her husband saw Devi Singh he was already dead. Report was lodged next day with the police. On the basis of this statement, FIR was registered and investigation was carried out by the police. After completion of the investigation challan was filed in the Court. The accused was charged with having committed offences punishable under Sections 452, 304-II and 323 IPC. The accused pleaded not guilty and claimed trial. After trial, the trial Court sentenced the accused as detailed hereinabove. The accused filed an appeal through Jail and Sh.Ashok Chaudhary, Advocate was appointed as his counsel at the State expense to argue the matter on behalf of the appellant. We have heard Sh.Ashok Chaudhary, learned counsel for the appellant as well as Sh.R.M.Bisht, learned Deputy Advocate General for the respondent-State. The main contention of Sh.Ashok Chaudhary is that even if the prosecution story is believed and it is accepted that the appellant had given a beating to the deceased then also no offences under Section 304-II or Section 452 4 IPC are made out and at best the offence made out is only under Section 323 IPC. It would be relevant to refer to the statement of Isro Devi who appeared as PW-2. There are many improvements and embellishments in her statement made in Court. According to her statement made in Court both the deceased Devi Singh and the accused Mahinder Singh had come together to her house. She states that accused gave beatings to Devi Singh with the danda and then left her house. According to her, her husband reached home after the death of Devi Singh. It would be pertinent to mention that the trial Court has specifically observed that this witness is totally illiterate and does not even understand Hindi language and therefore assistance of one Sh.Bhagat Ram, PW-1 who was Patwari in the area was taken to record the statement of Smt.Isro Devi. It is apparent that there are certain inconsistencies in the statement of this witness which probably are due to the fact that she did not understand the language of the Court very well. One fact which however stands clearly established by the statement of this witness is that the accused Mahinder Singh had beaten deceased Devi Singh with a stick. There may be some variations and 5 minor contradictions as to when her husband left the house or whether Devi Singh had come earlier or not but these are not very material. The statement of this witness has a ring of truth and we are of the opinion that the learned trial Court rightly held that the accused had beaten the deceased with the danda. Having held so, we are of the considered view that the learned trial court has wrongly convicted the appellant of having committed an offence punishable under Section 304-II IPC. One of the essential ingredients of culpable homicide is that the person causing the death does an act either with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death. The medical evidence shows that the beatings with the stick were only given on the back of the deceased. Statement of Dr.Abhinav Rana, PW-11 is very relevant. He has only found bruises on the back of the deceased. There is no injury on any vital part of the body. The Doctor has categorically stated that in normal course the injuries found on the deceased could not have caused his death. He has admitted that the deceased died due to heart attack. According to him a person having a poor arteries could have died due to the 6 injuries. He has admitted that the narrowing of the arteries could not have taken place by the beatings. Similarly the Doctor has stated that three injuries found on the person of Smt.Isro Devi are also simple in nature. There is nothing to show that the accused intended to cause death of the deceased or that he had any knowledge that the beating given by him would result in the death of the deceased. In view of the above, we are of the considered view that the conviction of the accused under Section 304-II is totally illegal. The injuries being simple in nature the appellant could have only been convicted under Section 323 IPC. We are also of the considered view that the conviction of the appellant under Section 452 IPC is not justified. PW-2 Isro Devi has clearly stated that the accused along with the deceased had come to her house. It is not the case of the prosecution that the accused stealthily entered the house of the complainant. He came in when she was present there. Therefore, there is no question of his having committed any trespass. There is also no material on record to show that before entering the house the accused had made any preparation for causing any hurt to the deceased. The wooden danda 7 (sangu) which he was carrying is something which is commonly carried by Sadhus and Mendicants. His conviction under Section 452 IPC is also totally illegal. In view of the above discussion, the appeal is partly allowed. The conviction and sentence of the accused under Sections 304-II and 452 IPC is set-aside but his conviction and sentence under Section 323 IPC is maintained. The appellant was only sentenced to undergo imprisonment of one year under Section 323 IPC. Since the appellant has already spent more than this period in jail he is directed to be released forthwith unless required in any other case. The amount of fine, if deposited, is ordered to be refunded to the appellant. ( Deepak Gupta ), J. June 16, 2009 ( Surinder Singh ), J. PV