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2000 DIGILAW 25 (PNJ)

Ganpat Dass v. State Of Haryana

2000-01-11

JAWAHAR LAL GUPTA, MEHTAB S.GILL

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Judgment Jawahar Lal Gupta, J. 1. The two appellants have been convicted and sentenced for the offences punishable under Sections 302 and 325 read with Section 34 IPC. Aggrieved by the judgment of the trial Court they have filed this appeal. 2. The case of the prosecution is revealed by Ravinder Rai PW- 7. On November 11, 1992 he made a statement before ASI Rajpal Singh PW9. This statement is Ex.PM. He disclosed that Ganpat Dass, Ram Parvesh along with him were working in the saw mill. At about 2 PM on, that day, Ram Parvesh and Ganpat Dass had a dispute. They even exchanged slaps and fist blows. The other workers had intervened and separated them. In the evening at 5 PM, Ganpat Dass brought Ram Bilas Dass, a rickshaw puller, along with him to the saw mill. He further stated that "while coming, Ram Bilas Dass lifted a wooden Barri from the saw mill and gave a blow with it on the head of Ram Parvesh. On receipt of that blow Ram Parvesh fell down on the ground". He added that he "went to rescue Ram Parvesh.....Ganpat Dass lifted an iron Basola from the saw mill and gave" him a blow with its wrong side on the left wrist. On his raising noise both were rescued from the assailants. After that the assailants went away "along with their respective weapons". The two injured persons viz. Ram Parvesh and Ravinder Rai were taken to the Government Hospital, Karnal, for treatment. They were admitted. The Doctor had done the dressing. However "Ram Parvesh has not spoken a single word uptill now since the time of fight." 3. On the basis of this statement Daily Diary Report No.22 was recorded at Police Post, Ram Nagar, Karnal at 10 PM. It appears that the injury to Ram Parvesh was serious. He was referred to the P.G.I., Chandigarh. In the morning of November 12, 1992 he was admitted in the P.G.I. at 12.30 AM. He, unfortunately, passed away at 3.40 PM. On November 13, 1992 FIR Ex.PO/2 was recorded at 1.15 PM. 4. The prosecution has rested its case on the medical and ocular evidence. The medical evidence consists of the statements of five Doctors. Dr. H.S. Randhawa PW.1 had examined both the injured persons at Government Hospital, Karnal. PW.2 Dr. He, unfortunately, passed away at 3.40 PM. On November 13, 1992 FIR Ex.PO/2 was recorded at 1.15 PM. 4. The prosecution has rested its case on the medical and ocular evidence. The medical evidence consists of the statements of five Doctors. Dr. H.S. Randhawa PW.1 had examined both the injured persons at Government Hospital, Karnal. PW.2 Dr. G.S. Arora had conducted radiological examination of the injury suffered by Ravinder Rai. He had found that the left radius bone was fractured. Dr. J.K. Kalra PW5 is the Medical Officer at the Civil Hospital, Sector 16, Chandigarh. He had conducted postmortem on the body of the deceased Ram Parvesh. Dr. K.K. Seth PW6 had declared Ravinder Rai fit to make a statement at 8.45 PM on November 11, 1992. At about the same time he had also certified that Ram Parvesh was not to fit to make any statement. Dr. Altaf Ramzan PW 8 is the Senior Resident from the Department of Neurosurgery at the P.G.I. He produced the summary regarding the case of the deceased Ram Parvesh. 5. Besides the medical evidence, we have the formal evidence of Mr. Shashi Sharma, Draftsman PW3 and Head Constable Mam Raj PW4. The prosecution also produced Ravinder Rai PW7. He was the eyewitness and it was on his statement that the F.I.R. had been recorded. The Investigating Officer ASI Rajpal Singh had appeared as PW.9. 6. After examination of the entire evidence the trial Court found that "the accused persons had assaulted Ram Parvesh and has inflicted injury to Ravinder Rai". It, therefore, held "Ram Bilas accused who had inflicted the fatal blow to Ram Parvesh guilty of the offence under Section 302 IPC.......accused Ganpat guilty of the offence under Section 302 read with Section 34, Indian Penal Code.......Ganpat Dass accused guilty of the offence under Section 325 Indian Penal Code for inflicting grievous injury to Ravinder Rai and Ram Bilas Dass accused of the offence under Section 325 read with Section 34 Indian Penal Code." 7. Hence, this appeal. 8. Mr. Cheema, learned counsel for the appellants, contended that Ravinder Rai PW7 is not a reliable witness. He had tried to make improvement at every stage of the proceedings. Hence, this appeal. 8. Mr. Cheema, learned counsel for the appellants, contended that Ravinder Rai PW7 is not a reliable witness. He had tried to make improvement at every stage of the proceedings. Learned counsel pointed out that after his statement had been recorded by the Court he had filed an application as also an affidavit to the effect that he had made the statement against the accused persons under the pressure of the police. On an application having been filed he was recalled for further examination. During his examination he had departed from the statement as originally made by him in Court. It was further submitted by the counsel that the evidence on record did not show that the appellants had a common intention to kill Ram Parvesh. In fact, it was a sudden fight in which the injury given by Ram Bilas Dass had proved fatal. The case, according to the counsel would be covered by Part-II of Section 304 IPC. 9. The claim made on behalf of the appellants was contested by Mr. Amol Rattan, Asstt. Advocate General for the State of Haryana. 10. On an examination of the evidence led by the prosecution it is clear that Ganpat Dass, Ram Parvesh and Ravinder Rai were working together at the saw mill. Ganpat Dass and Ram Parvesh had some fight at about 2 PM. Thereafter Ganpat Dass had gone away. He had returned at about 5 PM along with Ram Bilas Dass, a rickshaw puller. Ram Bilas Dass was talking to Ram Parvesh. He had suddenly picked up a wooden Barri (a thickish piece of wood which is about 5 ft. long but has a variable diameter) and hit Ram Parvesh on the head. When Ravinder Rai tried to intervene, Ganpat Dass had hit him with the blunt side of the Basola. The injury to Ram Parvesh had proved fatal. He had died in the P.G.I. on the next day at 3.40 PM. The injury suffered by Ravinder Rai was grievous. It was a fracture of the radius. 11. On a perusal of the evidence, certain facts emerge. It is clear that both the appellants had no weapon with them when they had come back to the saw mill at about 5 PM. The injury suffered by Ravinder Rai was grievous. It was a fracture of the radius. 11. On a perusal of the evidence, certain facts emerge. It is clear that both the appellants had no weapon with them when they had come back to the saw mill at about 5 PM. It is further clear that Ram Bilas Dass was talking to Ram Parvesh for about 5 minutes when he had suddenly picked up the wooden Barri and hit him. There is not even a suggestion of any exhortation by Ganpat Dass. No second blow was given by either of the appellants. It is true that the blow given by Ram Bilas Dass was on the head of Ram Parvesh. In this situation it may be possible to assume that Ram Bilas Dass had the knowledge that his action in hitting Ram Parvesh on the head may result in a serious injury. He may even be imputed the knowledge that it may lead to death. However, there is no circumstance to show that he had the intention to cause death. Still further, we find that there is no evidence of `pre-meditation. There is nothing to indicate that Ram Bilas Dass had taken any undue advantage over Ram Parvesh. 12. Taking the totality of circumstances, into consideration we are of the view that the case of Ram Bilas Dass would fall under Exception 4 of Section 300. 13. So far as the appellant Ganpat Dass is concerned, it is the admitted position that he had caused no injury to the deceased. It has not even been suggested that he had even exhorted Ram Bilas Dass to cause the injury. There is no evidence on the basis of which it may be possible to hold beyond doubt that he and Ram Bilas Dass shared a common intention to cause injury to Ram Parvesh. Thus, his conviction under Section 302 IPC cannot be sustained. However, the evidence on record clearly shows that when Ravinder Rai had tried to intervene Ganpat Dass had given him a blow with the wrong side of the Basola. He had caused the fracture of the radius. On this account he has rightly been found guilty of the offence under Section 325 IPC. 14. It was pointed out by the counsel for the appellants that Ram Bilas Dass has remained in custody from November 19, 1992 to December 2, 1999. He had caused the fracture of the radius. On this account he has rightly been found guilty of the offence under Section 325 IPC. 14. It was pointed out by the counsel for the appellants that Ram Bilas Dass has remained in custody from November 19, 1992 to December 2, 1999. He has, thus, undergone more than 7 years of substantive sentence. Ganpat Dass has remained in custody since October 17, 1994. He has, thus, undergone more than 5 years of substantive sentence. Taking the totality of circumstances into consideration we are satisfied that the sentence already undergone by the two appellant would meet the ends of justice. We order accordingly. 15. Resultantly, the appeal is partly allowed. The conviction of the appellants under Section 302 read with Section 34 IPC is set aside. It is held that the case of appellant Ram Bilas Dass is covered by the provisions of Section 304 IPC. The sentence of more than 7 years already undergone by him would meet the ends of justice. Appellant Ganpat Dass is held guilty of the offence punishable under Section 325 IPC. Even in his case the sentence already undergone by him is held to be sufficient in the circumstances of the case.