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2009 DIGILAW 199 (JK)

Prakash Chand v. State Of J. &K.

2009-04-27

J.P.SINGH, SUNIL HALI

body2009
Sunil Hali, J. 1. Appellants have been convicted and sentenced to Imprisonment for life and a fine Rs. 5000/- under Section 302/34 RPC vide judgment dated January 30, 2008 and order of January 31, 2008 respectively of learned Sessions Judge, Kathua. 2. Appellant Bittu stands additionally convicted and sentenced under Section 324 RPC to one years imprisonment. 3. Feeling aggrieved by the judgment and order aforementioned, appellants have filed this appeal for setting aside the judgment and order of Sessions Judge, Kathua, the trial court. 4. The trial court too has made reference for confirmation of the sentence awarded to the appellants. 5. The case set out against the appellants is that on 28th February, 2002, the deceased Om Parkash had gone to attend the marriage ceremony of one Kaku Rams daughter at village, Dharam Kote where he was attacked by the appellant Parkash Chand while he was sitting on a parapet. He inflicted a Lathi blow on the posterior side of the head of the deceased. The brother of the deceased Babu Ram, who had tried to intervene, was also attacked with the Lathi by the other appellant namely Bittu. Both the deceased and his brother suffered injuries. The deceased Om Parkash fell on the ground and became unconscious. He was referred to the hospital at Billawar from where he was referred to Jammu Medical College. He died on 1st March, 2002. FIR No. 29/2002 came to be registered against the appellants for offences under Sections 302/307/34 in Police Station, Billawar. 6. The prosecution, in support of its case, has examined twenty witnesses. Out of said witnesses, only two witnesses are stated to be the witnesses of the occurrence. The witnesses examined by the prosecution are PW Chanchlo Devi, PW Mansa Ram, PW Babu Ram, PW Chanchla, PW Roshan Lal, PW Kaku Ram, PW Guddi, PW Jeet Kumar, PW Gian Chand, PW Nanku, PW Ghulam Mohd, PW Romesh, PW Krishan Chand, PW Janak, Dr. L. D. Bhagat and Dr. Sanjeev Gupta. All other witnesses have appeared on the seen after the occurrence. It is also important to mention here that there are two sets of witnesses, who have been examined by the prosecution. One set of witnesses are those who are related to the deceased and the other are those who are said to be independent witnesses. 7. Sanjeev Gupta. All other witnesses have appeared on the seen after the occurrence. It is also important to mention here that there are two sets of witnesses, who have been examined by the prosecution. One set of witnesses are those who are related to the deceased and the other are those who are said to be independent witnesses. 7. In order to appreciate the controversy involved in the case, it would be appropriate to discuss the statements of the witnesses examined by prosecution. 8. PW-Babu Ram has stated that the appellants and the deceased had assembled in the house of Kaku Ram on the eve of his daughters marriage on 28.2.2002. The deceased while sitting on a parapet of the house of Kaku Ram, was attacked by the appellant Parkash Chand who hit him with a Lathi on the posterior side of his head. He fell down and become unconscious. In his bid to save his brother, Babu Ram PW tried to intervene but was assaulted by appellant Bittu with the Lathi. Thereafter he and his deceased brother were taken to Billawar Hospital, wherefrom the deceased was referred to Jammu. He died there on 1st March, 2002. The witness Babu Ram was examined by the Doctor at Billawar. Disclosure was made by the appellant in presence of the witness. It is revealed on cross-examination by the witness that the deceased was hit 7 to 8 times by appellant Parkash Chand on the head, shoulder and back. It is further stated that the appellant made his disclosure statement in the police custody. 9. PW Roshan Lal has deposed that on the eve of marriage of Kaku Rams daughter, he had gone to feed fried delicacy (pakwan) to bridegroom who at that time was in the house of Bandu Ram. When he was coming back to the house of Kaku Ram, he saw that the appellant Parkash Chand had taken out a burning wooden log from the fire place and hit the deceased on the back side of his head. The appellant Bittu Ram also attacked PW Babu Ram with stick on his head. He has stated that deceased died on 1st March, 2002 at Jammu. 10. Other witnesses namely, PW Chanchlo Devi W/o Babu Ram, PW Chanchla , PW Uttam Chand, PW Mansa Ram, PW Krishan Chand, PW Banshi Lal are the witnesses who appeared on the seen after the occurrence. He has stated that deceased died on 1st March, 2002 at Jammu. 10. Other witnesses namely, PW Chanchlo Devi W/o Babu Ram, PW Chanchla , PW Uttam Chand, PW Mansa Ram, PW Krishan Chand, PW Banshi Lal are the witnesses who appeared on the seen after the occurrence. 11. PW Chanchla wife of the deceased has stated that on hearing noise at her house, she jumped across the danga and found that her husband was in injured condition and had fallen unconscious. She has stated that Babu Ram brother of the deceased, who tried to intervene, was given blow on his head by appellant Bittu. She has further stated that her house is 150 yards away from the house of Kaku Ram where the occurrence is stated to have taken place. She further states that the appellant Parkash Chand had hit her husband with chopped wood. All these witnesses are related to the deceased. 12. The PWs namely, Gian Chand, Nanak, Gh. Mohd, Romesh, Krishan Chand, Janak Raj have not supported the prosecution story. However, it has come in the statements of these witnesses that the deceased had suffered injuries on 28.02.2002 at the house of Kaku Ram. They have denied the role of appellants in the said fight. 13. Dr. Sanjeev Gupta has stated that he had examined PW Babu Ram who is stated to have suffered two injuries; viz. (1) a lacerated wound 2" long, skin deep actively bleeding, tender on touch, read in colour, on left parietal area, parallel to the sagittal suture of the head and (2) Lacerated wound 1 cm long, skin deep, read in colour tender on touch, perpendicular in direction to long axis of the thumb at the base of the thumb of left hand. The Doctor has stated that injuries were simple in nature caused by some blunt object. 14. Dr. L. D. Bhagat had conducted post mortem of the deceased on 2.3.2002. On examination of the deceased he found a stitched wound (lacerated wound) 5 cm long over the parieto-occipital region of the scalp in the mid line. He has stated that death of the deceased had been caused due to Craniocerebral injury by some blunt object. He has categorically stated that there was only one external visible injury. He further states that injury mentioned in the post mortem is possible only by one blow. 15. He has stated that death of the deceased had been caused due to Craniocerebral injury by some blunt object. He has categorically stated that there was only one external visible injury. He further states that injury mentioned in the post mortem is possible only by one blow. 15. The Trial Court after hearing the parties convicted the appellants. The following findings have been recorded by the Trial Court after discussing the evidence:- (a) Appellant Parkash Chand was found to have caused injury to the deceased with a wooden log and PW-Babu Ram had been hit by the appellant-Bittu. (b) The medical evidence supports the prosecution story that the deceased and PW Babu Ram had received injuries on the date of the occurrence. 16. We have heard learned counsel for the parties and perused the trial court records. 17. PW Babu Ram and PW Roshan Lal had seen the occurrence. According to their statements Parkash chand had hit Om Parkash deceased on the posterior side of his head with a lathi and on PW Babu Rams intervention he was hit by appellant Bittu Ram. According to PW Roshan Lal while coming back from the house of Kaku Ram, he had seen appellant Parkash Chand hit the deceased with a burning wooden log on the posterior part of his head, which he had taken out from the fire place. 18. Considering the statements of these two eye witnesses, the only inference which may be drawn is that the appellants were not armed before their reaching the place of occurrence. 19. Looking to the totality of the circumstance of the case in the light of the statements of the prosecution witnesses including that of Dr. L. D. Bhagat, who after conducting post mortem examination of the deceased had found him to have suffered one injury, it becomes apparent that appellant Parkash Chand had hit the deceased on the back side of his head only once. 20. PW Babu Rams statement that he had been hit by the appellant 7 to 8 times on the head, shoulder and back, is however, not found wholly reliable in so far as the number of injuries he is stated to have received are concerned as Dr. Sanjeev Gupta who had examined him had found only two injuries on his person, i.e. one on the left parietal area and the second on the thumb. Sanjeev Gupta who had examined him had found only two injuries on his person, i.e. one on the left parietal area and the second on the thumb. These injuries have been found by the doctor to be simple in nature. 21. There is, however, no evidence on records against appellant Nek Ram. 22. Appellants learned counsels submission that no reliance can be placed on the statement of PW Babu Ram as he is an interested witness, is not found acceptable because we do not find any material on records to disbelieve the statement of PW Babu Ram, who had been injured in the incident and the doctor who had attended him immediately after the occurrence had found two injuries on his person. We do not find any merit in yet another submission of appellants counsel that statement of prosecution witnesses were not worthy of credence because they were interested witnesses. This is so because the issue is no longer res-integra that merely because the witnesses are interested, their statement should be discarded. All that is required to be seen while appreciating the evidence of interested witnesses is that there evidence needs to be appreciated with care and caution depending upon the circumstance of the each case. 23. From the evidence produced in the case, it is apparent that appellants Parkash Chand and Bittu Ram had not come on spot with any pre-meditation or pre-concerted plan to hit the deceased and PW Babu Ram. There is no material on records on the basis whereof it may be said that appellants Parkash Chand and Bittu had shared any common intention even on the spur of the moment to commit the murder of Om Parkash and cause injuries to PW Babu Ram. They had indulged in their individual acts in hitting the deceased and PW Babu Ram, and, are thus, required to be punished for their individual acts. 24. The evidence on records proves that appellant Parkash Chand had hit the deceased Om Parkash with a burning wooden log at his head, a vital part of the body, and had the knowledge that the act committed by him was likely to cause death. He had, however, no intention to either cause death or cause such bodily injury, as was likely to cause death. He had, however, no intention to either cause death or cause such bodily injury, as was likely to cause death. The act committed by him would not, therefore, fall in any of the clauses of Section 300 of the RPC and would, on the other hand, amount to CULPABLE HOMICIDE NOT AMOUNTING TO MURDER, punishable under Section 304-Part-II RPC. 25. The act committed by appellant Bittu Ram in causing simple injuries to PW Babu Ram attracts the definition Hurt appearing in Section 321 of the RPC and he is liable to be punished for commission of offence punishable under Section 323 RPC. 26. Accordingly allowing the appeal and setting aside the impugned judgment and order of Sessions Judge, Kathua, while acquitting appellant Nek Ram, we would convict appellant Parkash Chand under Section 304 Part II RPC and appellant Bittu Ram under Section 323 RPC. Appellant Parkash Chand is sentenced to seven years rigorous imprisonment and fine of Rs. 2,000/-, and appellant Bittu Ram is sentenced to one year simple imprisonment and fine of Rs. 1000/-. 27. Confirmation Reference No. 1/2008 is, accordingly, declined.