Criminal Appeals No. 1162-SB of 2003 1 In the High Court of Punjab and Haryana, at Chandigarh Criminal Appeal No. 1162-SB of 2003 Date of Decision: 22.11.2011 Mohan Lal ... Appellant Versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Kapil Aggarwal, Advocate for the appellant. Mr. Anupam Sharma, Assistant Advocate General, Haryana, for the respondent. Kanwaljit Singh Ahluwalia, J. Mohan Lal, present appellant, along with his three brothers namely Phool Chand, Ami Chand and Saraf Singh and Ram Karan son of Daulat Ram and Munga Ram son of Lachhman, was tried by the Court of Sessions Judge, Ambala, in case arising out of FIR No. 109 dated 15.7.1997, registered at Police Station Raipur Rani, under Sections 302, 452 and 34 IPC. Vide impugned judgment dated 1.5.2003, the trial Court acquitted Phool Chand, Ami Chand, Saraf Singh, Munga Ram, whereas co-accused Ram Karan died during the course of trial. The trial Court further recorded acquittal of the appellant for the offence under Section 302 IPC but held him guilty of offence under Sections 449 and 304 Part-I Criminal Appeals No. 1162-SB of 2003 2 IPC. Vide a separate order dated 2.5.2003, the appellant was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 1,000 on both the counts, in default whereof to further undergo rigorous imprisonment for a period of six months on each count. Criminal proceedings were set into motion on the statement made by PW.12 Ishro Devi, which was recorded in the Daily Diary Register as Ex.PK. In her statement, Ishro Devi has stated that she was married with Khilla Ram and was residing at village Bichpari. She has got three sons, namely Jagbir Singh, who is residing with his maternal grand father at Fatehpur, Satbir is working in Home Guard and Mohinder Singh do agricultural work in the village. Her husband Khilla Ram had returned from the fields after bringing grass and sat on a cot in the verandah of the baithak. At about 11.00 A.M., Phool Chand, Ami Chand, Sarafa sons of Ram Kishan, Munga son of Lachhman and Ram Karan son of Daulat Ram came there abusing and started giving fist blows to her husband. When she protested and stated as to why they were beating her husband, at that time, Mohan Lal came armed with axe (kulhari) and gave a blow which fell on the left side of the head of Khilla Ram and he also gave second blow which fell on the back of her husband below his neck. The complainant intervened to stop the assailant. Mohan Lal pushed her and gave another blow with his kulhari which fell on the back. The complainant raised alarm of “Bachao Bachao” which attracted Amar Nath son of Bir Singh and Ravi Chand Pandat, who came running to the spot and saved Khilla Ram. The accused left the spot along with their weapons. The cause of grudge, for causing injuries to Khilla Ram, as stated by the complainant, was that Criminal Appeals No. 1162-SB of 2003 3 there was a litigation between the complainant and Ram Karan regarding partition of the house and 1 killa of land, in which she had succeeded. The Kikkar tree, which existed in the disputed land, was cut and the sale proceeds of `1,500 were lying with the Sarpanch. Since the amount was to be given to the complainant, the accused got infuriated and had caused injuries to Khilla Ram. After the opinion of the doctor, since cognizable offence was made out, a formal FIR Ex.PL was recorded under Sections 324, 452 and 34 IPC. During the pendency of investigation, Khilla Ram died and offence under Section 302 IPC was added. The above said FIR was investigated and the report under Section 173 Cr.P.C. was submitted. The case was committed to the Court of Sessions and on 8.5.1998, the appellant was charged for the offence under Sections 148, 449 read with Section 149 IPC and 302 read with Section 149 IPC. The appellant pleaded not guilty and claimed trial. The prosecution commenced its evidence. On the day of occurrence i.e. 15.7.1997 injured Khilla Ram was taken to the Community Health Center, Raipur Rani, where his medicolegal examination was conducted by PW.11 Dr. Rana Singh, who found the following injuries on his person:- “1. Incised wound of the size 6 cm x 1 cm on the parietal region of scalp. It was bone deep and X-ray examination was advised. 2. Incised wound of the size 3 cm x 1 cm x 1 cm on the left side of neck. 3. Incised wound 4 cm x 2 cm x 1 cm on the Criminal Appeals No. 1162-SB of 2003 4 scapular region The muscle was cut. Injury No.2 was simple. All the three injuries were caused with sharp weapon within a duration of 24 hours.” Thereafter, Khilla Ram was referred to P.G.I. Chandigarh where he remained admitted from 15.7.1997 till 17.9.1997. It has come in the evidence of PW.10 Dr. M.K. Tiwari that from 15.7.1997 till 29.7.1997, Khilla Ram remained admitted in the Emergency Ward of P.G.I. and thereafter he was shifted in the Ward for major procedure. He was discharged from the P.G.I. on 17.9.1997. He was having a compound depressed fracture of left temporoparietal bone with aerocene. Khilla Ram was surgically operated upon on 30.7.1997. Debridement was done on the left temporal region and dura plasty was also done. After discharge from the P.G.I. Chandigarh, the deceased was admitted in Civil Hospital, Naraingarh, where he was stated to have expired on 22.10.1997 as a result of the injuries. Autopsy on the dead body of Khilla Ram was conducted by PW.1 Dr. Ashok Kumar Gupta, who submitted post mortem repot Ex.PA. At the time of post mortem examination, this witness had noticed the following injuries on the dead body of Khilla Ram:- “1. The dressed wound on the back of sacral region was in mid-line. On removing the dressing, a bed sore of 4 inch x 3 inch was seen. The underline bone was exposed. Clotted blood stained purulent Criminal Appeals No. 1162-SB of 2003 5 discharge was there on the dressing pad. 2. There was a partially healed tracheostomy wound. The size was 1 inch x 1 inch. Blood stained purulent discharge was there in front of the neck near its root. 3. A linear oblique healed scar on the left side of the neck. Size was 1 inch. 4. Oblique linear scar of 3 inches on the left parietal region. On exploration of scalp fracture of left parietal bone with bone necrosis was seen in area of 1 inch x 3/4 inch. There was collection of blood mixed pus between outer line of the membrane of the brain and the skull bone under the size of the fracture. Dura mater was blackened. The underline meninges was congested. The brain was slightly soft with mucopurulent and blood mixed discharged on the surface.” According to the opinion of the doctor, the cause of death of Khilla Ram was secondary infections and chronic starvation following head injury and confinement to bed. During cross-examination, this witness admitted that injury No.1 was bed sore, whereas injury No.2 was due to surgery. This witness further stated that absence of proper medication leads to secondary infection and chronic starvation was due to non-administration of food and also due to failure of appetite. Criminal Appeals No. 1162-SB of 2003 6 The prosecution case rests upon the solitary eye witness Ishro Devi, PW.12. The other witnesses had only participated in investigation of the case. PWs Bachna Ram, Banarsi Dass, Ravi Chander and Amar Nath were given up by the prosecution as won over. Mr. Kapil Aggarwal, Advocate, appearing for the appellant, has very vehemently contended that no reliance can be placed upon the testimony of PW.12 Ishro Devi as she has inflated a number of accused and the version given by her has not been believed by the trial Court qua the acquitted accused. Deceased Khilla Ram, at the time of his medicolegal examination, was aged about 65 years. PW.12 Ishro Devi, at the time of her examination in the Court, mentioned her age as 61 years. In the present case, occurrence had taken place inside the house of Khilla Ram, deceased. PW.12 Ishro Devi, an old illiterate lady was supposed to be present in her house. Thus, her presence at the spot is natural, probable and convincing. She has stated in categoric terms that earlier Ami Cand, Phool, Saraba, Mohna, Munga and Ram Karan had come and they were hurling abuses and were empty handed. It is only Mohan Lal who came lateron armed with axe (kulhari) and had caused injuries to her husband Khilla Ram. In the medicolegal examination of deceased Khilla Ram, three injuries were found on his person. Had PW.12 Ishro Devi not been truthful, she would have distributed these injuries to the other accused also. Thus, merely because the trial Court had acquitted co-accused of the appellant, it cannot be held that PW.12 Ishro Devi is not a reliable witness. Learned counsel for the appellant has further submitted that in the present case, death of the deceased had taken place after about Criminal Appeals No. 1162-SB of 2003 7 three months of the occurrence and the offence, if any, would fall under Section 326 IPC. I am not inclined to accept this argument. The present appellant came armed in the house of the complainant and caused three injuries to deceased Khilla Ram. Injury No.3, found on scapular region, had also cut the muscle. Injury No.1 was in the parietal region of the scalp and as per PW.10 Dr. M.K. Tiwari, this caused compound depressed fracture of left temporoparietal bone. The deceased had to be surgically operated upon and dura plasty was also done. As it is apparent from the post mortem report Ex.PA that this injury had caused sub dural haemotoma. This injury had caused further complications which led to the death of deceased. The trial Court had already given benefit to the present appellant by convicting him under Section 304 Part-I IPC. The State has opted not to file any appeal against acquittal of accused for the offence under Section 302 IPC. Thus, this Court has to accept conviction of the appellant for the offence under Section 304 Part-I IPC. Mr. Aggarwal, in alternate, has made a submission that in the present case, occurrence had taken place in the year 1997 and the appellant has suffered the agony of pain and protracted trial for about more than 14 years. Furthermore, the appellant was not involved in any other case before or after registration of the present case. It is further submitted that the appellant is a sole bread earner of his family and, therefore, this Court, taking into consideration the above said mitigating circumstance, should reduce the sentence. Taking into consideration the alternate submission advanced by learned counsel for the appellant, for reduction of sentence, the Criminal Appeals No. 1162-SB of 2003 8 sufferance of protracted trial, antecedents of the appellant and the fact that he is a sole bread earner of his family, this Court is of the view that ends of justice will be fully met in case sentence of ten years rigorous imprisonment, awarded upon him, for the offence under Section 304 Part-I IPC, is reduced to that of seven years rigorous imprisonment. However, the sentence of fine and default clause shall remain intact. With the modification in the sentence, awarded upon the appellant, the present appeal is disposed of. (Kanwaljit Singh Ahluwalia) Judge November 22, 2011 “DK”