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2010 DIGILAW 518 (HP)

SASHI PAL v. STATE OF H. P.

2010-03-17

DEEPAK GUPTA, SANJAY KAROL

body2010
JUDGMENT Deepak Gupta, J.-The aforesaid two appeals are being disposed of by one judgment since they arise out of the same judgment delivered by the District and Sessions Judge, Mandi, Kullu and Lahaul-Spiti Districts at Mandi in Sessions trial No.15 of 1994 whereby he convicted the accused Sashi Pal for having committed an offence punishable under Section 304-II of the Indian Penal Code and accused Sagro Devi for having committed offence punishable under Section 325 IPC and sentenced Sashi Pal to undergo rigorous imprisonment for 3 years and pay fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of one year. Accused Sagro Devi was sentenced till the rising of the Court and to pay fine of Rs.1000/- and in default of payment of fine to undergo simple imprisonment for a period of six months. 2. Criminal Appeal No.92 of 1996 has been filed by Sashi Pal and Sagro Devi challenging their conviction and sentence passed against them and Criminal Appeal No.132 of 1996 has been filed by the State praying that the sentence imposed on the two accused be enhanced. 3. Briefly stated, the facts of the case as mentioned in the FIR are that on 11.11.1993 at about 9 a.m. Damodari Devi complainant along with her husband Sh.Sukh Ram were going to the fields in order to sow wheat. Accused Sagro Devi passed by the field carrying a load of grass on her head. When the complainant looked at her, Sagro Devi asked her why she (Damodari Devi) is staring at her grass. She also stated that the eyes of the complainant would bring bad luck to her and her grass would become useless. The complainant Damodari told the accused Sagro Devi that she (accused Sagro Devi) had been consuming milk and lassi from her hands and therefore she should not make such allegations against the complainant. Sagro Devi thereafter left the spot but returned soon thereafter along with her son Sashi Pal. The prosecution case is that they first pelted stones on Damidari and her husband Sukh Ram. When the complainant party raised objection to this, Sashi Pal picked up a ‘Barohata’ (an agricultural instrument made of wood resembling a hammer which is used to break pieces of mud) and starting hitting Sukh Ram with the same. The prosecution case is that they first pelted stones on Damidari and her husband Sukh Ram. When the complainant party raised objection to this, Sashi Pal picked up a ‘Barohata’ (an agricultural instrument made of wood resembling a hammer which is used to break pieces of mud) and starting hitting Sukh Ram with the same. Damodari Devi tried to help her husband then she was also beaten up by the two accused with kicks and fist blows. 4. According to the complainant, Sashi Pal also holding a darat in his hand. A number of villagers were working in their adjoining fields. When the complainant and her husband raised an alarm, Inder Dev, Smt.Santoshi Devi his wife and Bansi Ram came there and rescued them. The accused persons thereafter ran away. Then the villagers brought Sukh Ram on a cot to the road and from there he was taken on a scooter to CHC, Baldawara for medical check up. This complaint was lodged by Damodari Devi on 12.11.1993 at 6.30 a.m. The police then swung into action. In the meantime Sukh Ram unfortunately succumbed to his injuries and a case under Section 302/ 325 read with Section 34 IPC was registered against the accused persons. Post mortem of the deceased was done and two visible injuries were found. Injury No.1 was a lacerated wound on the frontal area of the scalp of the deceased. This was a bone deep injury. There was also an abrasion over the medial boarder of the left ulna. On opening of the scalp the doctor found haematoma in the right temporal and front oparietal region. There was no fracture of the scalp. 5. The police carried out further investigation and thereafter the case was presented to the committal Court and since the offences were triable by the Court of Sessions, the case was committed to the Sessions Court. Charges were framed against the accused under Sections 302, 325 IPC. They pleaded not guilty and claimed trial. The accused have been convicted and sentenced for the offences detailed hereinabove. Hence, these two cross appeals. 6. During the course of trial Damodari Devi appeared as PW-1. In her statement she virtually repeated what has stated in the FIR. However, she gave further details of the incident. According to her after the accused pelted stones and her husband objected to the same the accused did not give any reply. Hence, these two cross appeals. 6. During the course of trial Damodari Devi appeared as PW-1. In her statement she virtually repeated what has stated in the FIR. However, she gave further details of the incident. According to her after the accused pelted stones and her husband objected to the same the accused did not give any reply. Then she and her husband wanted to run away and while climbing up a ‘beer’ (boundary) of the field Sashi Pal gave a blow of a ‘Barohata’ and Sagro Devi also started beating her husband. Her husband received serious injuries on the head and on the armpit. Thereafter, he was taken to the hospital. In cross examination she states that she does not know for how long the beating continued. She states that she was hit with the stones and one or two stones stuck her husband also. This witness also admits that the ‘Barohata’ belonged to her. She has changed her version slightly and states that Bansi and Santosh only came after the entire incident had taken place and did not rescue her husband from the accused. She admits that the place where the incident occurred is not visible from the place where Inder and Santosh were working. She also states that she is not aware whether Sagro sustained any injury. Neither she nor her husband caused any injury to Sagro. 7. Inder Dev PW-2 states that he was sowing wheat in his field along with his wife Santosh Kumari. They saw Sashi Pal and Sagro coming from the upper side of their field armed with danda. Santosh asked where they were going armed with dandas and then Sashi Pal uttered “Gayee kahan rand” but did not say anything further. The two accused persons then went towards the direction of their fields which adjoins the fields of Sukh Ram. After 7-8 minutes they heard cries of a woman shouting “Bachao Bachao”. The place from where the cries were coming was not visible. Inder Dev then went to the ‘beer’ of his field and saw that accused Sashi Pal was beating Sukh Ram with a ‘Barohata’ and Sagro was beating Damodari with a danda. When Damodari ran away then Sagro also joined Sashipal in beating up Sukh Ram with a danda. The witness did not however go to the place of occurrence. Sukh Ram had fallen down. When Damodari ran away then Sagro also joined Sashipal in beating up Sukh Ram with a danda. The witness did not however go to the place of occurrence. Sukh Ram had fallen down. He was given one more blow with ‘Barohata’ and then the accused ran away. The witness then went to the spot. He identified the ‘Barohata’ Ext.P-1 and Danda Ext.P-2. This witness was cross examined and confronted with his statement made under Section 161 Cr.P.C. wherein there is no reference to the accused persons being armed with danda or the wife of this witness making an inquiry from the accused as to where they were going armed with dandas. He states that when he heard the cries “bachao bachao” he reached the beer of the field within 10 seconds and remained standing for 7-8 minutes and the accused continued to beat Sukh Ram for 7-8 minutes. Damodari was beaten for 4 or 5 minutes. 8. These are the only two witnesses of occurrence. The two other important witnesses are PW-6 Dr.Virender Thakur who examined Sukh Ram at CHC, Baldwara and issued medico legal certificate Ext.PE and found only two visible injuries i.e. laceration over the scalp and abrasion on the wrist. He also conducted medical examination of Damodari Devi and issued MLC Ext.PF and found only one injury i.e. pain on left wrist joint on the injured. After X-ray it was found that fracture of 4th meta-tarsal of the left hand had taken place. 9. PW-5 Dr.B.R. Chauhan, carried out the post mortem on the deceased Sukh Ram. According to him injury No.1 could have been caused with ‘Barohata’ and injury No.2 i.e. abrasion on Sukh Ram could have been caused by pelting of stone. 10. It is more than obvious that the accused had no intention of killing the deceased Sukh Ram. There are only two visible injuries on the person of Sukh Ram. There is one injury i.e. Haematoma which was not visible and was discovered during post mortem. One of the injuries is only an abrasion which could have been caused by a stone. The other injury could have been caused by the ‘Barohata’. The learned trial Court has convicted the accused Sashi Pal under Section 304-II mainly on the ground that it is proved on record that accused Sashi Pal was having darat in his hand. 11. One of the injuries is only an abrasion which could have been caused by a stone. The other injury could have been caused by the ‘Barohata’. The learned trial Court has convicted the accused Sashi Pal under Section 304-II mainly on the ground that it is proved on record that accused Sashi Pal was having darat in his hand. 11. Sh.Rakesh Jaswal, learned counsel for the accused urged that the prosecution has failed to prove its case and according to him the accused should be acquitted. In the alternative he prays that the accused can only be convicted for causing hurt. 12. According to the prosecution accused party came with the intention to kill the deceased since they were armed with danda and darat. This fact has not been proved on record. Complainant Damodari in her statement has stated that Sagro Devi returned to the field along with Sashi Pal and they started pelting stones on the complainant and her husband. She does not whisper a word about the accused being armed with dandas or a darat. No doubt PW-2 states that he and his wife Santosh Kumari saw the accused rushing towards the fields armed with dandas and on inquiry by his wife Santosh Kumari, Sashi Pal uttered some abusive phrase. However, this witness does not state that the accused was armed with a darat. In cross examination he has been confronted with his statement recorded under Section 161 Cr.P.C. in which there is no mention of the accused being armed with Dandas. Therefore, it is obvious that this version is an improvement and cannot be relied upon. 13. Santosh Kumari has not been examined. No other witness has been examined. There is no doubt that a fight did take place in which deceased Sukh Ram suffered injuries. However, it does not appear to be correct that the accused were armed with dandas or darat. In fact there is no injury on Damodari Devi or deceased Sukh Ram which could have caused with a ‘Darat’. In case the intention of Sashi Pal was to kill Sukh Ram he would have used the darat. He neither used the darat nor the danda. Even as per the allegation of the prosecution he has only used a ‘Bharota’. This ‘Bharota’ admittedly belonged to the complainant. This shows that the accused had not come armed for a fight. In case the intention of Sashi Pal was to kill Sukh Ram he would have used the darat. He neither used the darat nor the danda. Even as per the allegation of the prosecution he has only used a ‘Bharota’. This ‘Bharota’ admittedly belonged to the complainant. This shows that the accused had not come armed for a fight. Even as per the prosecution the accused first pelted stones at the complainant and her husband. This again shows that their intention, if any, was only to cause injury and nothing more. The injuries on the deceased Sukh Ram were only simple injuries. Therefore, the accused Sashi Pal is acquitted of having committed an offence punishable under Section 304 and is convicted of having committed an offence punishable under Section 324 IPC. 14. It stands proved that Sagro Devi had caused a grievous injury on the person of Damodari Devi. Therefore, her conviction under Section 325 IPC is maintained. The sentence passed upon her is reasonable and calls for no interference. 15. As far as Sashi Pal is concerned his conviction is changed from Section 304 Part-II -II to Section 324 IPC. 16. The incident occurred more than 17 years back. No doubt the offence in question is a serious offence but the fact remains that the accused did not go armed and the intention was not to kill the deceased. Therefore, we feel that the accused may be entitled to the benefit of the Probation of Offenders Act, 1958 subject to certain terms and conditions including payment of compensation in terms of Section 5 of the said Act. However, before any orders are passed in this behalf, report of the Probation Officer concerned is required. Accordingly, the Probation Officer, Tehsil Sarkaghat, District Mandi, H.P. is directed to submit his report as to whether the accused Sashi Pal son of Shri Krishan Dev Brahmin, R/o Village Narola, Illaqua Hatli, Tehsil Sarkaghat, District Mandi, H.P. is a fit person to whom benefit of the Probation of Offenders Act should be granted or not. This report be submitted to the Court within four weeks from today. 17. List on 19th April, 2010.