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2005 DIGILAW 236 (PNJ)

Harjinder Singh v. State Of Punjab

2005-02-09

VIRENDER SINGH

body2005
Judgment Virender Singh, J. 1. Harjinder Singh son of Gurdial Singh was booked in a case bearing FIR No. 80 dated 22.5.1990, under Section 304 IPC, registered at police station Nawanshahar for allegedly causing the death of one Battar Chand aged 65 years on 21.5.1990 by throwing a brick towards him, hitting him on his groins (testicles). The prosecution story in brief runs thus : 2. The appellant demanded money from Battar Chand (deceased) on account of some early deal, in which he was to be sent abroad. He was keeping a hostile attitude towards the deceased. After taking liquor, he used to abuse him on every available occasion. On 21.5.1990 at about 9.00 P.M., the appellant went up the roof top of house of the deceased, abuse him and started saying loudly that since the complainant-side had not returned his money, he could not go abroad and that he would kill him. The applicant was advised by Bakhshish Singh, Satnam Kumar and Lakhwinder Singh not to behave in that manner. Instead of listening to their advice, the appellant took up a brick and threw it towards the deceased, hitting him on his groins. Battar Chand was removed to hospital, where he was declared dead. 3. On these allegations, the case was registered against him. After completion of investigation he was sent up to face trial. He was accordingly charged under Section 304 IPC. After appreciating the entire evidence, the learned trial Court has convicted him under Section 304 Part II IPC by the impugned judgment of learned Additional Sessions Judge dated 1.9.1993 and was sentenced to undergo RI for ten years and to pay a fine of Rs. 5,000/-, in default thereof to suffer further RI for one year. Hence this appeal. 4. I have heard learned counsel for both the sides. With their assistance, I have carefully perused the entire evidence on record. 5. Mr. Dhillon does not join issue on merits and instead confines his arguments with regard to reduction in the quantum of sentence. He submits that the appellant has already undergone 2 years and 6 months of his actual substantive sentence, which includes the period as undertrial prisoner (i.e. 3 months during trial and 2 years & 3 months after conviction). The learned State counsel is not in a position to controvert the factual position regarding detention period. 6. Mr. He submits that the appellant has already undergone 2 years and 6 months of his actual substantive sentence, which includes the period as undertrial prisoner (i.e. 3 months during trial and 2 years & 3 months after conviction). The learned State counsel is not in a position to controvert the factual position regarding detention period. 6. Mr. Dhillon further contends that the appellant was 32 years of age at the time of occurrence; that he is not a previous convict; that the occurrence relates to the year 1990 and since then he has suffered the agony of protracted trial spreading over to long 15 years; that the appellant was not armed with any weapon; that the altercation ensued on the spur of moment, he picked up a brick, threw it towards the deceased, which incidently hit his vital part of the body (i.e. groins), proving to be fatal. According to the learned counsel, all these facts can be taken as mitigating circumstances for reducing sentence of the appellant, may be to the period already undergone by him. 7. The learned State counsel controverts the submissions made on behalf of the appellant and submits that he does not deserve any sympathy from this Court and the sentence already awarded may be upheld. Although Mr. Dhillon has not assailed the impugned judgment on merits, yet I have gone through the entire file. I uphold the conviction of the appellant as recorded by the trial Court. 8. Adverting to the quantum of sentence, admittedly, the appellant has undergone 2 years and 6 months of his substantive sentence. By now he must have settled in his life having the burden of entire family on his shoulders. An opportunity has to be given to him to be a good citizen. On facts also, the appellants case calls for a lenient view. He picked up a brick all of a sudden and caused injury to the deceased, may be at that time he was under the influence of liquor and was restrained by others. All the aforesaid facts, in my view, certainly turn out to be a mitigating circumstance in favour of the appellant for reduction in quantum of sentence. Accordingly, the substantive sentence awarded to him by the learned trial Court is ordered to be reduced to the period already undergone. However, the sentence of fine shall remain in- tact. All the aforesaid facts, in my view, certainly turn out to be a mitigating circumstance in favour of the appellant for reduction in quantum of sentence. Accordingly, the substantive sentence awarded to him by the learned trial Court is ordered to be reduced to the period already undergone. However, the sentence of fine shall remain in- tact. Since the recovery of fine was stayed while suspending the substantive sentence of the appellant, he is now directed to deposit the amount of fine before the trial Court within one month of receipt of a certified copy of this judgment, failing which he shall undergo the sentence as awarded for the default clause (i.e. one year). In the event of deposit, the said amount shall be disbursed by the trial Court to the wife of the deceased and in case she is not alive, then to the other legal heirs of the deceased. 9. With the modification in the quantum of sentence, as indicated above, the appeal stands dismissed. A copy of the judgment be sent to the trial Court for compliance.