Criminal Appeal No.15-DB of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Hari Chand APPELLANT VERSUS The State of Haryana RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE L.N.MITTAL Present:- Shri Rakesh Nehra, Advocate for the appellant. Shri Kulvir Narwal, Additional A.G. Punjab. MEHTAB S.GILL, J. This is an appeal against the judgment/order dated 21.11.2005/ 24.11.2005 of the learned Additional Sessions Judge, Gurgaon whereby he convicted Hari Chand son of Chhotu Ram under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2000/-, in default, to further undergo RI for 4 months. The learned trial Court also framed charges against Abhey Singh son of Chhotu Ram under Section 109 I.P.C. read with Section 302 I.P.C., but in its wisdom acquitted Abhey Singh. The State has not filed any appeal against the order of acquittal. The case of the prosecution is unfolded by the statement of Inderpal Criminal Appeal No.15-DB of 2006 -2- Ex.PF given to Jagmender Singh SI at Bus Stand Farukh Nagar. Inderpal stated that he is a student of 5th class and is studying in a private school. His father Hari Chand was an employee in H.U.D.A. Department. He is a habitual alcoholic. On 24.4.2003 in the evening he along with his mother Dil Kaur was sleeping on a cot. They had closed the door, but had not bolted it. At about 9.30 p.m. Inderpal heard the cries of his mother. Inderpal got up and saw that his father Hari Chand who had a small gas cylinder in his hand, was causing injuries to his mother. She had received injuries on the front side of her head and the upper portion of her right ear with the gas cylinder. Indepral tried to save his mother and in the process also received minor injuries. Thereafter Inderpal called his uncle (Taya) Jagdev who was sleeping on the roof of a house next to his. Hari Chand ran away. By the time another uncle (Taya) Asmer Singh and aunt i.e. Mosi Roshini and his cousin brother Badan Singh came there and took his mother Dil Kaur in an injured condition to Gurgaon for treatment. On the basis of this statement F.I.R. Ex.PF/1 was recorded on 24.4.2003 at 9.30 a.m. Special report reached the Judicial Magistrate at Gurgaon on the same day at 3.10 p.m. The prosecution to prove its case, brought into the witness-box Dr.Rajesh Kumar Sharma PW-1, Manoj Kumar Draftsman PW-2, Constable Baljeet Singh PW-3, MHC Mukat Lal PW-4, Constable Ram Niwas PW-5, SI Hans Raj PW-6, ASI Rohtash Singh PW-7, Veer Singh PW-8, Inderpal PW-9, Jagdev PW-10, Badan Singh PW-11, Sanjeev Kumar PW-12 and SI Jagmender Singh PW-13. In defence Dr.Naveen Kumar Sharma Advocate DW-1 and Asmer DW-2 were examined. Learned counsel for the appellant has argued, that the marriage between appellant Hari Chand and deceased Dil Kaur had taken place in the year 1977. Four children were born out of this wedlock. Appellant is a government servant and he would not have committed such a heinous crime after 25 years of Criminal Appeal No.15-DB of 2006 -3- marriage. Out of the four children he has married his two daughters. He has been a responsible father and husband. Veer Singh PW-8 who is the brother of the deceased, has stated that appellant did not harass his sister. On the fateful day, appellant may have taken some alcohol, which was objected to by the deceased and a quarrel ensued as it always happens in a number of houses. There was no intention, nor any conspiracy on the part of the appellant, nor did he have the knowledge that if such a blow is given by the small gas cylinder, it would turn out to be fatal. In this case, appellant did not have the intention to commit the murder of his wife, but since he was drunk, he lost control of himself and picked up a gas cylinder to hit his wife. The case at the most falls under Section 304 Part-II I.P.C. Learned counsel for the State has argued that the gas cylinder Ex.P1 was made into a lethal weapon of offence as it had an iron casting and appellant knew if hit on the head, the blow would be fatal. Appellant knew that he would kill his wife Dil Kaur if he hits the gas cylinder on her head. If he only wanted to injure her, then he would have hit her on her leg or some other non-vital part of the body. Age of the deceased was 40 years. Two eye-witnesses i.e. Inderpal PW-9 son of the deceased and Jagdev PW-10 who is Taya of Inderpal, have deposed cogently and convincingly. They are natural witnesses. Inderpal PW-9 son of the deceased would never have gone against his own father. It is not that the occurrence had taken place at the spur of the moment, but it has come in evidence that they kept fighting with each other and in fact, Veer Singh PW-8 had warned his sister Dil Kaur to be careful in future. We have heard the learned counsel for the parties and perused the record with their assistance. The main thrust of the argument of the learned counsel for the appellant, is that the case of the appellant falls under Section 304 Part-II I.P.C. Criminal Appeal No.15-DB of 2006 -4- There was no intention and nor any conspiracy on the part of the appellant to commit the murder of his wife. Appellant did not have the knowledge when he hit the gas cylinder on the head of the deceased, that she would die. Though the marriage had taken place in the year 1977 and she gave birth to four children but the dispute was going on for a long time. Inderpal PW-9 who was just 14 years of age at the time of occurrence, has stated in his testimony that appellant used to drink liquor practically every day. Only on some days he did not drink. He had seen his father drinking liquor since his childhood. To a question put by the Court as to whether he saw any quarrel between his father and mother on account of his consuming liquor, he stated in the affirmative by stating “Yes, quarrel occasionally took place”. The next question put by the Court was as to what was the type of quarrel. He answered that there used to be exchange of slaps and blows between the deceased and the appellant at times. Veer Singh PW-8 who is brother of the deceased, has stated in his testimony that he advised his brother-in-law Hari Chand appellant not to drink liquor daily, but instead of feeling bad about it, Hari Chand stated that he would kill his sister when he gets an opportunity while she is asleep. He advised his sister (deceased) to be careful during the nights. The other eye- witness to the occurrence Jagdev PW-10 has stated in his testimony before the Court that he saw the occurrence, the house of the appellant is next to his house and there is only a common wall in between. He also stated that appellant Hari Chand used to drink liquor and used to fight with the deceased. Going through the statements of Veer Singh PW-8, Inderpal PW-9 and Jagdev PW-10 who are the close relatives of the appellant and the deceased, it is clear that appellant was continuously drinking and threatening deceased Dil Kaur that he would finish her, as she objected to his drinking. Not only that, Dil Kaur had been warned to be careful by her brother Veer Singh PW-8. The Criminal Appeal No.15-DB of 2006 -5- argument advanced by the learned counsel for the appellant that the occurrence had taken place on the spur of the moment and there was no intention on the part of the appellant to kill his wife, has no weight. Threatening and beating of the deceased by the appellant was a continuous process. Appellant had the intention to commit the murder of his wife when he picked up a gas cylinder and hit her on the head. The gas cylinder being of iron casting, had become a lethal weapon especially when a gas cylinder was not a big one, but a small one. A small cylinder can be handled very easily like a club to hit Dil Kaur. The occurrence has taken place in the house of the deceased. Both the eye-witnesses Inderpal PW-9 and Jagdev PW-10 are natural witnesses. They have seen the occurrence. Inderpal PW-9 would have never gone against his own father. There was no need for the appellant to run away when Jagdev PW-10 came, if he (appellant) had not committed the offence. In fact, appellant would have been the first person to get a F.I.R. registered against the actual culprits who had committed the murder of his wife. But instead, after committing the murder, appellant ran away from the spot. There is no delay in lodging of the F.I.R. The medical evidence corroborates the ocular account regarding the fatal injury i.e. injury No.1. We do not find any infirmity in the judgment of the learned trial Court. Appeal is dismissed. ( MEHTAB S.GILL ) JUDGE ( L.N.MITTAL ) February 18, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO Criminal Appeal No.15-DB of 2006 -6-