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2007 DIGILAW 882 (PNJ)

Sukh Singh Alias Sukhan v. State Of Haryana

2007-04-18

MAHESH GROVER

body2007
Judgment Mahesh Grover, J. 1. The present appeal is directed against the judgment of the Additional Sessions Judge, Faridabad dated 26.9.1995 by which the appellant Sukh Singh was convicted under the provisions of Sections 323 and 304 Part II of the Indian Penal Code. Appellants Yash Pal, Kallu and Pohap Singh were convicted under Section 323 of the Indian Penal Code. Appellant Sukh Singh was sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 500/- under Section 304 Part II and in default of payment of fine, he was further directed to undergo rigorous imprisonment for 3 months. He was further sentenced to imprisonment for one year under Section 323 of the Indian Penal Code. Appellant Yash Pal, Kallu and Pohap Singh were released on probation. 2. All the four appellants were arrayed as accused in an occurrence which took place on 13.10.1990 at about 2.30 p.m. Sullar complainant was present at his house in village Asavati when the accused persons, namely Sukh Singh, Yash Pal, Kallu and Pohap Singh came there armed with lathis and hurled abuses upon the complainant. Sukh Singh allegedly gave a lathi blow on the head of Sullar, Jassan gave another lathi blow on his left shoulder and Kallu hurled a brick bat hitting him on the forehead. Pohap Singh also hurled a brick bat hitting him on the left hand fingers. Lahorey and Budh Singh, brothers of complainant Sullar, and their mother Hardei also came out of the house. Accused persons are alleged to have given beatings to all these interveners and in the process Hardei received injuries at the hands of appellants Jassan and Sukhan who are alleged to have given lathi blows on her right foot and shoulder and kick blows. Thereafter the complainant and all other injured persons first went to police station and then to the hospital at Palwal where they were medically examined by the doctors. Hardei, mother of the complainant was in a critical condition and she succumbed to the injuries on 14.10.1990 in B.K. Hospital at Faridabad. The FIR was registered at 9.15 p.m. on the same day. Hardei, mother of the complainant was in a critical condition and she succumbed to the injuries on 14.10.1990 in B.K. Hospital at Faridabad. The FIR was registered at 9.15 p.m. on the same day. The police investigated the matter and challaned all the accused persons, pursuant to which all of them were charge-sheeted for having committed an offence under Sections 302 read with Sections 34, 325 read with Section 34 and 323 read with Section 34 of the Indian Penal Code. All the accused persons pleaded not guilty and claimed trial. 3. In order to prove its case, the prosecution examined nine witnesses. 4. In their statements under Section 313 of the Code of Criminal Procedure all the accused persons denied the allegations levelled against them. Appellant Sukhan stated that on the date of occurrence he and Jassan had returned to the village after selling milk at Faridabad and Delhi. They found Sullar, Lahore, Kishan Dei and Budh Singh standing in front of their houses armed with lathis and ballams and that they attacked him and Jassan. Thereafter Hardei and Kishan were attracted to the spot and then he and Jassan caused injuries to the male members as a measure of self defence and Kishan Dei and Hardei sustained injuries accidentally. Report was made to the police station and they were got medically examined by the police. They pleaded implication at the behest of the police. 5. The trial Court thereafter on appraisal of the evidence before it went on to convict and sentence the appellants as aforesaid. Aggrieved against the aforesaid conviction and sentence awarded to the appellants they have filed the present appeal. 6. It was contended by the learned counsel for the appellants that there is a delay in lodging the FIR. The occurrence took place at 2.30 p.m. and the FIR was registered at 9.15 p.m. even though the statement of Sullar complainant was recorded at 5.45 p.m. which is on record as Ex. 6. It was contended by the learned counsel for the appellants that there is a delay in lodging the FIR. The occurrence took place at 2.30 p.m. and the FIR was registered at 9.15 p.m. even though the statement of Sullar complainant was recorded at 5.45 p.m. which is on record as Ex. P.A. Besides, it has come in evidence that complainant Sullar was present in the police station at 4.00 p.m. which is also fortified by the statement of Lahore who says that it was 4.00 p.m. That apart, the complainant was medically examined prior to the lodging of the FIR and the deceased herself was examined at 7.15 p.m. Thereafter the police had the benefit of the medical evidence and the whole story has been concocted to conform to the injuries denoted in the medico legal report. On the strength of this, it was sought to be contended that the have been proportionately distributed amongst the accused persons which does not reflect the true picture and the benefit of doubt should be given to the appellants. It was contended that appellants Sukhan and Jassan both had suffered injuries which have been completely ignored by the prosecution and have not been met at all. Lastly, it was contended that even if the sequence of events is to be accepted, then according to the version as given by the complainant, appellant Sukhan was armed with a lathi and if it were so, then it was improbable that he would be having his hands free to use a brick bat in preference to the weapon he had in his hand. The offence in any case would not come under the purview of Section 304 Part II of the Indian Penal Code as there was no knowledge attributed to the said appellant in view of the fact that there was a sudden scuffle and a free fight where Hardei intervened. The injuries could have been the result of an accident rather than a deliberated and a conscious attack. On the strength of this, it was contended that the offence could at best be under Section 325 of the Indian Penal Code. 7. The injuries could have been the result of an accident rather than a deliberated and a conscious attack. On the strength of this, it was contended that the offence could at best be under Section 325 of the Indian Penal Code. 7. On the other hand, the contentions as raised by the learned counsel for the appellants were sought to be refuted by the learned counsel for the State who contended that keeping in view the medical and ocular testimony there was no escape from the conclusion that the deceased was subjected to an injury with a brick bat with complete knowledge that it is likely to cause death. The findings, conviction and sentence according to the learned counsel appearing for the State were perfectly, conviction and sentence according to the learned counsel appearing for the State were perfectly in accordance with law. Reference was also made to para 18 of the judgment of the trial Court wherein the contention of the counsel for the appellants before the trial Court had been noticed when he had confined his argument only to the fact that a case against Sukh Singh appellant could at best be under Section 325 or 304 Part II of the Indian Penal Code. Having once accepted that a case could at best fall under Section 304 Part II, learned counsel for the appellants was now precluded from challenging the conviction which has rightly been accorded under Section 304 Part II of the Indian Penal Code. 8. I have heard the learned counsel for the parties and have perused the record. There is no denial to the occurrence. Only the mode and manner is being disputed. Concededly, the parties are residing in adjoining houses. The occurrence itself took place in front of their houses in the street. In the absence of any denial to the occurrence as also in the absence of any cogent evidence to establish the fact as to who is the aggressor, it would be inappropriate to go into the half baked evidence and deliberate upon the plea of being attacked and acting in self defence as raised by the learned counsel for the appellants. The fact remains that a scuffle had taken place in which Hardei had intervened and in the process suffered injuries resulting in her death. 9. The medical testimony on record in the shape of statement of PW4 Dr. The fact remains that a scuffle had taken place in which Hardei had intervened and in the process suffered injuries resulting in her death. 9. The medical testimony on record in the shape of statement of PW4 Dr. B.S. Sharma reveals the presence of following injuries on the person of Hardei : (1) Reddish diffused swelling 2" x 2" over the middle of the right leg of the interior aspect. Advised x-ray of right leg. (2) Diffused swelling 2" x 2" over the right shoulder joint. (3) History of haemoptysis. No injury mark over the front of the chest. Head : Lacerated wound 5 cm x 7 cm over the left parietal region of a scalp. Muscle deep. Fresh bleeding was present associated with left ear of pinna." In cross-examination this witness has testified that the possibility of the injuries having been caused by a fall cannot be ruled out. P.W.5 Dr. R.K. Jain conducted the postmortem upon the dead body of the deceased. Injuries No. 2 and 4 which were on the frontal and parietal bones have been described as follows : "(2) Lacerated wound 5 x 7 cm present on and below the ear involving lobial of pinna. The portion of ear pinna and lobial was missing. Wound was red in colour and on dessection of scalp, there was fracture of frontal and parietal bones just above the ear level to right side. On opening skull there was a huge sub dural haematoma 12 x 6 cm in size involving the right frontal, parietal and occipital region, compressing the brain matter. (4) Lacerated wound 5 x 1 cm present on right frontal parietal region. The underlying bone was exposed and it was smeared with blood." The cause of death was due to brain haemorrhage and damage to the brain matter and shock due to fracture of skull. The injuries were ante-mortem in nature and the duration was within few hours between the death and the injuries. He further went on to say that the injuries on the person of the deceased could be caused by a brick bat and that the injury on the head was a fatal injury. He, however, consulted with the opinion of PW4 that such injuries could be caused by a fall from a height on a heap of stones. He further went on to say that the injuries on the person of the deceased could be caused by a brick bat and that the injury on the head was a fatal injury. He, however, consulted with the opinion of PW4 that such injuries could be caused by a fall from a height on a heap of stones. Learned counsel for the appellants tried to persuade this Court that in view of this opinion that the injury could be caused by a fall the prosecution version was rendered weak and doubtful. I am afraid the plea of the learned counsel for the appellant is misplaced. There is no evidence on record which could suggest that the site of occurrence was having a heap of stones upon which Hardei could have fallen. That apart, the presence of Hardei has not been denied by the appellant Sukh Singh @ Sukhan in his statement under Section 313 of the Code of Criminal Procedure wherein he has categorically stated that she had intervened in the fight. That being so the possibility of the injury having been received on account of a fall in some other incident or accident also falls flat. On the basis of the conclusive evidence that the incident and the fight had taken place in which Hardei had intervened and suffered the fatal injuries as a result of the brick bat thrown at her by Sukh Singh appellant the only question that is to be debated is as to whether the offence would come within the ambit of Section 325 of the Indian Penal Code as pleaded by the learned counsel for the appellants or that the offence would come within the purview of Section 304 Part II so as to sustain the conviction and sentence awarded by the trial Court. Concededly, the nature of the fight was a scuffle which was in the backdrop of some simmering dispute between the parties. A brick bat was allegedly thrown at the head of Hardei. She was also subjected to lathi blows by co-accused Jassan while kick blows were given by Sukh Singh alias Sukhan. The fact that the brick bat was thrown at her from obviously a very close range and with tremendous force would reveal the presence of knowledge that such an act could possibly result in the death of an old woman of 65 years. The fact that the brick bat was thrown at her from obviously a very close range and with tremendous force would reveal the presence of knowledge that such an act could possibly result in the death of an old woman of 65 years. The conviction, therefore, safely be maintained under Section 304 Part II of the Indian Penal Code. There is no infirmity in the application of the provisions of law by the trial Court, hence the conviction of appellant Sukh Singh @ Sukhan under Section 304 Part II of the Indian Penal Code is maintained. 10 At this stage, learned counsel for the appellants made an impassioned plea that the occurrence is of the year 1990 and that the parties are related being first cousins and that the appeal itself is of the year 1995 and to send the appellant Sukh Singh to undergo the rigorous imprisonment after a lapse of such a long time would not only reopen the wounds but is likely to result in more friction between the parties when time as a healer might have erased the old enmity. I have carefully considered this aspect of the matter. The appellant Sukh Singh is said to have undergone about six months of the imprisonment and at the time of occurrence he was 38 years of age and by new after a lapse of 17 years he would be well entrenched in life. Considering all these facts in their totality, I deem it appropriate and in the interest of justice to reduce the sentence of appellant Sukh Singh to the already undergone provided he deposits a compensation of Rs. 1 lakh within a period of three months before the trial Court, which shall be disbursed to the legal heirs of the deceased Hardei after due notice to them and after establishing their identity. Ordered accordingly. Failure to deposit the aforesaid amount within the stipulated period shall automatically result in the revival of the sentence awarded by the trial Court and confirmed by this Court. With the aforesaid observations, the appeal qua Sukh Singh is disposed of. The appeal qua Yash Pal, Kallu and Pohap Singh is dismissed.