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2007 DIGILAW 1677 (PNJ)

Deep Chand v. State Of Haryana

2007-09-14

MAHESH GROVER

body2007
Judgment Mahesh Grover, J. 1. On 13.10.1992, the deceased-Naraini Devi widow of Pehlad Singh received injuries at the hands of the appellant. She had celebrated a religious function at her place which was attended by one Karan Singh, brother of the present appellant, who remonstrated with his brother as to why he had attended the function. During the course of altercation, the appellant took up a `kulhari and started giving beatings to Karan Singh, when the latter tried to reason with him. The deceased intervened and the appellant gave a kulhari blow from its reverse side on her head. He also gave two other blows which hit her in the knee region. Her son-Vijay Kumar rushed to the scene of occurrence to rescue his mother upon which the appellant is said to have inflicted kulhari blow which hit him on the little finger of his right hand. The incident attracted other villagers to the spot, who rescued the deceased and Vijay Kumar from the appellant. 2. The statement of the deceased was recorded by the police on 14.10.1992 in the Community Health Centre, Mahendergarh. She died on 6.11.1992. The appellant was arrested on 15.11.1992. 3. The police, who investigated the matter, submitted a challan against the appellant for having committed an offence punishable under Section 302 of the IPC. 4. The Sessions Judge, Narnaul (hereinafter described as `the trial Court) charge-sheeted the appellant under Section 302 of the IPC for causing death of Smt. Naraini Devi and under Section 323 of the IPC for causing voluntarily hurt to Vijay Kumar, to which he pleaded not guilty and claimed trial. 5. The prosecution, thereafter, examined as many as ten witnesses including PW-2 Dr. D.V. Singh, who had medico-legally examined the deceased and Vijay Kumar (PW-7) and PW-3 Dr. R.S. Sharma, who along with Dr. A.K. Arora, had conducted post-mortem on the dead body of Smt. Naraini Devi. 6. The appellant, in his statement recorded under Section 313 of the Cr.P.C. pleaded that he is innocent. He stated that he and his brother Karan Singh were fighting with each other and in the meantime, Smt. Naraini and Vijay Kumar came there armed with lathi. Vijay Kumar gave him a lathi blow on the nose and upon hearing his cries, his daughter, namely, Santosh Kumar had come to the spot. Vijay Kumar also gave a lathi blow on her head. Vijay Kumar gave him a lathi blow on the nose and upon hearing his cries, his daughter, namely, Santosh Kumar had come to the spot. Vijay Kumar also gave a lathi blow on her head. Santosh Kumari had thrown stones in her defence upon which Naraini Devi and Vijay Kumar received injuries. 7. In his defence evidence, the appellant examined Dr. Narvir Singh as DW-1 and his brother-Karan Singh as DW-2. DW-1 deposed that on 20.10.1992, he had radiologically examined appellant-Deep Chand and found a fracture of nasal bone. He further stated that Santosh daughter of Deep Chand was also X-rayed by him and a fracture in the left parietal bone was detected. This witness, however, could not state as to whether the injuries in question could have been caused by a blow of stones throwing or not. 8. DW-2, who is brother of the appellant, supported the version as put forward by the letter. 9. After appraisal of the evidence before it, it the trial Court came to the conclusion that the appellant could not be held guilty of committing an offence under Section 302 of the IPC, but convicted and sentenced him as under :- For offence punishable under Section 304, Part-II of the IPC to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months. For offence punishable under Section 323 of the IPC to undergo rigorous imprisonment for three months and to pay fine of Rs. 100/- and in default of payment of fine, to undergo further rigorous im prisonment for one week. Both the sentences were, however, ordered to run concurrently. 10 The aforesaid conviction and sentence awarded to the appellant vide the trial Courts judgment dated 15.10.1998 have been assailed by him in the present appeal. 11. It was contended by the learned counsel for the appellant the case against the appellant is absolutely false as it has come on record that he himself had suffered a fracture on the nose and his daughter had suffered a fracture on her head which injuries have not been explained by the prosecution and no case was registered against the assailants despite his best efforts. In view of this, as also the testimony of DW-2 Karan Singh, learned counsel for the appellant urged, that Naraini Devi and her son-Vijay Kumar had attacked the appellant and in fact, the injuries caused by him were on account of self- defence. Learned counsel for the appellant contended that the death of Naraini Devi had taken place after almost one month of the occurrence and there is no intervening record to suggest that the death was as a direct consequence of the injuries allegedly caused by the appellant. Moreover, the doctors, who had attended upon the deceased, have not been produced in evidence. Learned counsel argued that it was a case of self-defence and the injuries caused to Naraini Devi and Vijay Kumar were not a result of pre-meditation. Lastly, he contended that even if the prosecution version is accepted, the appellant can, at best, be held guilty for an offence punishable under Section 325 of the IPC. 12. On the other hand, learned counsel for the State contended that the post mortem report clearly states that Naraini Devi died due to the injuries sustained by her and in the face of the over-whelming evidence on record, the appellant cannot escape the conclusion of having caused the death of Naraini Devi for which he has rightly been convicted and sentenced under Section 304, Part-II of the IPC. 13. I have heard the learned counsel for the parties and have perused the record. 14. PW-3 Dr. R.S. Sharma has categorically opined that the cause of death of Naraini Devi was head injury leading to intra-cerebral hemorrhage. He further went on to opine as follows :- "At the time of the post-mortem examination on the dead-body of Naraini Devi, there was a long scar at inter-parietal region of the skull. On dissection of the scar, the subcutaneous tissue was oedematious and reddish in colour in 12 cms x 6 cms area and the skull was having 3 cms x 1/2 cm an irregular hole and there was extra dural hemorrhage in parietal region and in the brain the clotted blood was present. The possibility cannot be ruled that hole in question could be the result of an operation." 15. Indeed, this Court is handicapped as the doctors, who treated the deceased during the intervening period, have not been examined as witnesses. The possibility cannot be ruled that hole in question could be the result of an operation." 15. Indeed, this Court is handicapped as the doctors, who treated the deceased during the intervening period, have not been examined as witnesses. However, there is on record the file of treatment given to the deceased at Medical College and Hospital, Rohtak, a perusal of which shows that she was operated upon for head injury and which ultimately resulted in her death. In any case, this does not make any difference to the case of the prosecution as the testimony of all the witnesses, as also statement of the appellant under Section 313 of the Cr.P.C. and his defence evidence, do not reveal any denial of the incident. In this view of the matter, the only question that is to be determined is as to whether the appellant was the aggressor or were the injuries caused to the deceased as a measure of self-defence as claimed by him ? 16. On examination of the entire material on record from the aforesaid prospective, it transpires that the incident did not take place in the house of the deceased. The appellant was, concededly, outside the house of Naraini Devi where he is said to have objected to his brother having attended the religious function at her house. The statement of DW-1 Dr. Narvir Singh shows that the appellant as well as his daughter had suffered fractures. The prosecution has failed to state anything about these injuries. This is indicative of the fact that a fight had erupted in which the appellant, his brother, his daughter, the deceased and her son-Vijay Kumar were involved in which pelting of stones was also resorted to. Clearly, there was no intention to cause such damage which purportedly resulted in the incident. Even if the plea of self-defence is accepted, it reveals that in the wake of the deceased and her son being unarmed, the appellant was clearly not within his right to cause injuries with a `kulhari with which he had come armed revealing his intention. Hence, the plea of self-defence is not inspiring. 17. Be that as it may, the fact remains that Naraini Devi died on account of injuries caused to her by the appellant. He also gave simple injuries to PW-7 Vijay Kumar. Hence, the plea of self-defence is not inspiring. 17. Be that as it may, the fact remains that Naraini Devi died on account of injuries caused to her by the appellant. He also gave simple injuries to PW-7 Vijay Kumar. However, the evidence led by the prosecution does not show that he had done so with any pre-meditative intent. 18. In the back-drop of the above, the conviction recorded by the trial Court cannot be faulted with. 19. At this stage, learned counsel for the appellant contended that at the time of occurrence, the appellant was about 40 years old and by now, he would be 55-58 years of age and that he was a government employee in the Electricity Department and he lost his job on account of this incident. Besides, he has faced the agony of the prosecution for the last about 15 years and that it would be extremely harsh on him and his family if he is sent to complete the remaining tenure of his sentence now. Learned counsel further contended that the appellant has already undergone four years, three months and six days of the substantive sentence awarded to him. In view of all this, he prayed that a lenient view in the matter of sentence may be taken. 20. I have anxiously considered this aspect of the matter. There is no doubt that the appellant has faced the agony of the prosecution for the last fifteen years. He had given his age as 44 years at the time of recording of his statement under Section 313 of the Cr.P.C. and by now, he would be well advanced in age. As informed by the learned counsel for the appellant, he has already undergone four years, three months and six days of imprisonment. On the basis of all these factors coupled with the fact that there was no pre- meditative intent of the appellant in causing the death of Naraini Devi, as also injuries to PW-7 Vijay Kumar, I am of the opinion that the sentence awarded to appellant deserves to be modified. The appeal is accordingly disposed of in the following terms :- (1) The conviction as recorded by the trial Court shall remain intact. The appeal is accordingly disposed of in the following terms :- (1) The conviction as recorded by the trial Court shall remain intact. (2) The sentence imposed upon him for both the offences will stand reduced to that of already undergone, provided the appellant deposits with the trial Court, within three months from today, a sum of Rs. 50,000/- to be paid to the heirs of deceased-Naraini Devi. This amount will be in addition to the amount of fine as imposed by the trial Court. (3) In case, the appellant fails to deposit the aforesaid amount within the stipulated period, the sentence imposed by the trial Court shall get revived and in that eventuality, his bail bonds will be cancelled. (4) On deposit of the amount as directed above, the same will be disbursed to the heirs of Naraini Devi after due enquiry and verification.