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2004 DIGILAW 437 (PNJ)

Allis v. State of Punjab

2004-04-07

S.S.SARON

body2004
JUDGMENT S.S. Saron, J. - This is an appeal against the order dated 30.1.1992 passed by the learned Sessions Judge, Gurdaspur whereby the appellant has been convicted for the offence under Section 304 Part II of the Indian Penal Code (Indian Penal Code - for short) and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs. 2000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year. Besides, in case of realisation of fine, the entire amount of fine is to be paid to Smt. Mewi widow of the deceased Rattan Lal (PW-2). 2. Case FIR No. 63 dated 7.4.1990 (Ex.PC/2) was registered at Police Station City Pathankot, District Gurdaspur against the appellant for the offence under Section 304 Indian Penal Code on the statement (Ex.PC) of Smt. Mewi widow of Rattan Lal (PW-2). It has been stated that her husband Rattan Lal (deceased) was a rickshaw-puller. Some inhabitants of the locality (mohalla) including the complainant were running contributory committees jointly which could be taken by any of the members by making a higher bid for the same. On the day of the occurrence, i.e. on 6.4.1990 at 8.30 p.m. Allis Masih son of Mangat Masih (appellant) came in front of their hut. He was armed with a dang (stick). The appellant asked the husband of the complainant that he had received the amount of the committee so he should arrange to serve liquor for him. The appellant was already drunk. The husband of the complainant refused and replied that he does not take liquor and that he is a poor man and he had not received the amount of the committee so far. Hearing this, the appellant got enraged and attacked the husband of the complainant and gave two dang blows continuously on his head and her husband fell down on the ground with face downwards and received injuries on his mouth, left cheek and right eye. The whole occurrence was witnessed by Charan Singh the elder brother of the complainants husband and Sahiba son of Suraj Masih their neighbour. They raised a noise which attracted the neighbours and the appellant ran from the spot. They admitted the injured Rattan Lal in the hospital where he died. It was requested that action be taken. 3. The whole occurrence was witnessed by Charan Singh the elder brother of the complainants husband and Sahiba son of Suraj Masih their neighbour. They raised a noise which attracted the neighbours and the appellant ran from the spot. They admitted the injured Rattan Lal in the hospital where he died. It was requested that action be taken. 3. On the basis of the said FIR (Ex.PC/2) the police investigated the case and filed challan in terms of Section 173 Criminal Procedure Code in the Court of learned Judicial Magistrate Ist Class, Pathankot on 2.7.1990. The learned Magistrate vide his order dated 12.7.1990 committed the case to the Court of Session as the offence attributed to the appellant was triable by the said Court. The learned Additional Sessions Judge, Gurdaspur to whom the case was assigned after hearing the parties and going through the record found grounds for presuming that the appellant had committed an offence punishable under Section 304 Indian Penal Code Accordingly, he was charge-sheeted for the said offence i.e. 304 Indian Penal Code on 10.8.1990. The appellant pleaded not guilty and claimed trial. 4. The prosecution examined Dr. Avinash Kumar Medical Officer, Civil Hospital, Pathankot (PW-1), the complainant Smt. Mewi (PW-2), Sabha (PW-3) nephew of the deceased. Besides, affidavits of Constable Bhag Singh, MHC Bishan Dass and Constable Dharam Pal were tendered in evidence and were admitted under Section 296 Criminal Procedure Code and were read as PW-4, PW-5 and PW-6 respectively. The investigating officer ASI Kulwant Rai (PW-7), Draftsman Narjinder Kumar (PW-8) and Dr. R.K. Khanna (PW-9) and Sub Inspector Harbhajan Singh (PW-10) were also examined. Besides, the report of the Chemical Examiner and Serologists Exs. PQ and PR were tendered in evidence and the evidence of the prosecution was closed. 5. The statement of the appellant in terms of Section 313 Criminal Procedure Code was recorded in which he stated that he was innocent. It is further stated that the statement of Mewi (PW-2) Ex.PC had been recorded at about 12 noon on 7.4.1990 after due deliberations. There was no light at the time and place of occurrence and some unidentified persons caused injuries to the deceased. The appellant did not lead any evidence in his defence. 6. It is further stated that the statement of Mewi (PW-2) Ex.PC had been recorded at about 12 noon on 7.4.1990 after due deliberations. There was no light at the time and place of occurrence and some unidentified persons caused injuries to the deceased. The appellant did not lead any evidence in his defence. 6. The learned Sessions Judge, after considering the materials and evidence on record convicted and sentenced the appellant for the offence under Section 304 Part II Indian Penal Code The said order of the learned Sessions Judge, as already noticed, is assailed in this appeal. 7. Shri T.P.S. Mann, learned counsel appearing for the appellant has only confined his submission to the quantum of sentence. He has stated that the appellant is a labourer and at the time of the incident he was 35 years of age. Besides, he was arrested in the case on 13.4.1990 and throughout the trial he remained in custody. Thereafter he was released on bail by this Court vide order dated 12.3.1992. In this manner, he has undergone one year and eleven months of sentence. Besides, being sentenced to fine of Rs. 2000/-, therefore, due to long lapse of time, the appellant now is not liable to be incarcerated. 8. In response, Ms. Sonia Virk, learned Assistant Advocate General, appearing for the State of Punjab submits that the appellant had caused the loss of an innocent life and, therefore, in the facts and circumstances, the conviction and sentence recorded by the learned trial Court warrants no interference by this Court and that the same is liable to be upheld and sustainable. 9. I have given my thoughtful consideration to the respective contentions of the learned counsel appearing for the parties. 10. It is appropriate to note that Rattan Lal (deceased) was a rickshaw puller. The occurrence in respect of case in hand is not due to any prior enmity. The appellant had come in a drunk condition to the house of the deceased. He was armed with a dang and asked the deceased to serve him liquor as he had received an amount of the contributory committee on that day. The deceased stated that he was a poor person and he had made a bid for the committee amount but he had not been paid the money till then. Besides, he did not consume liquor nor he served liquor to the appellant. The deceased stated that he was a poor person and he had made a bid for the committee amount but he had not been paid the money till then. Besides, he did not consume liquor nor he served liquor to the appellant. It is on this account that the appellant got enraged and gave two dang blows on the head of deceased Rattan Lal, as a result of which he fell down and suffered injuries on his mouth, left cheek and right eye. Therefore, keeping in view the nature of the offence, it is a case of sudden fight at the spur of the moment and is not a case where the appellant had come with any pre-meditation to commit the crime. Besides, there was no mens rea on the part of the appellant to commit the crime. In the circumstances the learned trial Court rightly convicted the appellant for the offence under Section 304 Part II Indian Penal Code Therefore, once an offence under Section 304 Part II Indian Penal Code is found to have been committed it can be said that the act was done with the knowledge that such act was likely to cause death but without an intention to cause death or causing such bodily injuries as was likely to cause death. Therefore, there being no intention on the part of the appellant to cause death of Rattan Lal deceased and also keeping in view the time that has already lapsed, in my view, the ends of justice would be met if the sentence of imprisonment of the appellant is reduced to that already undergone. However, at the same time the amount of fine payable should be enhanced to Rs. 17,000/-. In other words, in addition to the sum of Rs. 2000/- awarded by the learned Sessions Judge, Gurdaspur, the appellant shall pay a further fine of Rs. 15,000/- and which the appellant shall deposit within a period of two months from the receipt of certified copy of the order. In the event of deposit of the fine, the same shall be paid to Smt. Mewi, widow of the deceased Rattan Lal (PW-2). In all a sum of Rs. 17,000/- shall be paid to Smt. Mewi widow of the deceased. In the event of failure to deposit fine, the appellant shall undergo rigorous imprisonment for one year. In the event of deposit of the fine, the same shall be paid to Smt. Mewi, widow of the deceased Rattan Lal (PW-2). In all a sum of Rs. 17,000/- shall be paid to Smt. Mewi widow of the deceased. In the event of failure to deposit fine, the appellant shall undergo rigorous imprisonment for one year. With the above modification in the quantum of sentence, the appeal stands disposed of. Appeal disposed of.