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2012 DIGILAW 1030 (HP)

Lachho Devi v. State of Himachal Pradesh

2012-12-24

SURINDER SINGH

body2012
JUDGMENT Surinder Singh, J (oral) : The challenge in this appeal is to the judgment passed in Sessions Case No.23 of 2000, decided on 13/15.11.2003 by the learned Sessions Judge, whereby appellant Man Singh was held guilty thus convicted of the offence punishable under Section 304-II of Indian Penal Code for committing culpable homicide not amounting to murder of Dhyan Singh and his mother Smt. Lachho Devi under Section 325 of the Indian Penal Code for causing grievous hurt to PW-1 Chhao Devi and sentenced to undergo the sentence under each of the Sections aforesaid as follows:- Sr. No. Name Offence under Sentence In default of Section payment of fine. 1 Man Singh 304-II IPC Three years simple To further undergo simple imprisonment with imprisonment for two months. fine Rs.1000/- 2. Lachho Devi 325 IPC Simple imprisonment To further undergo simple till the rising of the imprisonment for three months. Court with fine Rs.5,000/- 2. The prosecution story as emerges from the evidence can be stated thus. PW-1 Chhao Devi is the widow of Sh. Karam Lal. She was residing in her village with her married son Dhyan Singh, who was already having three children. (ii) The appellants hereinafter referred to as ‘the accused’ were residing in the close vicinity. On 10.11.1999 they constructed a latrine over a portion of the land to which the deceased Dhyan Singh claimed it to be his own. On 11.11.1999 at about 11.00 a.m. Dhyan Singh raised objection to continue construction work. On this Amar Singh and his wife Smt. Chandro Devi allegedly caught hold of Dhyan Singh. In the meantime the accused Man Singh also came there and hit with stone Ex. P-2 on the head of Dhyan Singh. On receiving the bleeding injury Dhyan Singh fell down. Apprehending that he was dead but however, his mother PW-1 Chhao Devi persuaded him to get up but he did not respond. When she was busy in the above persuasion Lachho Devi, accused hurled a stone which hit her mouth causing loss of three teeth. Immediately thereafter PW-1 Chhao Devi went to Police Station and lodged FIR Ex. PA. (iii) The aforesaid incident was witnessed by PW-2 Chunni Lal, Mason, who was engaged by the accused persons in constructing the structure. (iv) PW-7 Dr. Kishore Chand medically examined PW-1 Chhao Devi and issued MLC Ex. PG. Immediately thereafter PW-1 Chhao Devi went to Police Station and lodged FIR Ex. PA. (iii) The aforesaid incident was witnessed by PW-2 Chunni Lal, Mason, who was engaged by the accused persons in constructing the structure. (iv) PW-7 Dr. Kishore Chand medically examined PW-1 Chhao Devi and issued MLC Ex. PG. He opined dislocation of two incisors left to the lower jaw and one canine tooth was also found broken. He also noticed the fresh clotting of blood. (v) PW-11 ASI Qadir Ali visited the spot and recovered stone Ex. P-2 which was made into a parcel Ex. P-1 sealed it and took it in his possession vide memo Ex. P-D. He also prepared inquest papers. 3. PW10 Dr. Hari Ram Thakur conducted the autopsy of the dead body on the written request of the police. He noticed a lacerated wound about diameter 1 ½ on the tempo frontal region, irregular, swollen and contused, skull was found fractured. There was depressed fracture of temporal bone orbital plate of frontal bone. Membrane of brain was turn off. In the opinion of the Doctor the death was due to haemorrhagic and neurological shock and axonal death of brain. The probable time which elapsed between injury and death was between 1 ½ hours to three hours and between death and post mortem 12 to 36 hours. The post mortem report is Ex. PK. Doctor also opined that the injury in question could be caused with a stone Ex. P-2. 4. The challan was presented against the accused persons along with Amar Chand and Chandro Devi for the offences under Sections 302, 325, 506 read with Section 34 of Indian Penal Code. All the accused persons were accordingly charge-sheeted for the offences aforesaid. At the end of the trial accused Amar Chand and Chandro Devi were acquitted and accused Man Singh and Lachho Devi were convicted and sentenced as above to which they have laid challenge in the present appeal. But however, State did not prefer any appeal against the acquittal of the other accused. 5. Mr. Anup Chitkara, learned counsel for the accused persons vehemently argued that it was not a case of culpable homicide not amounting to murder so far as accused Man Singh is concerned. At the worst it could have been under Section 325 of IPC. But however, State did not prefer any appeal against the acquittal of the other accused. 5. Mr. Anup Chitkara, learned counsel for the accused persons vehemently argued that it was not a case of culpable homicide not amounting to murder so far as accused Man Singh is concerned. At the worst it could have been under Section 325 of IPC. However, he did not make any grievance qua the conviction and sentence of Smt. Lachho Devi. 6. Shri J.S Rana, Assistant Advocate General, supported the impugned judgment of conviction and sentence and further argued that the statement of PW-1 Chhao Devi duly corroborated by PW-2 Mason Chunni Lal proves the case against the accused persons beyond reasonable doubt for the offences for which they have been convicted and sentenced. It is also submitted that conduct of Man Singh, in the instant case is not above board. He had tried to mislead the Court by filing a false birth certificate in Cr.MP(M) 341 of 2012, seeking benefit of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000, which was got enquired into by this Court from the learned Sessions Judge and proved fake. It is argued that keeping in view the act and conduct of accused Man Singh, the sentence imposed upon him is already on the lower side and it requires no interference. 7. I have critically examined the evidence on record, in the light of rival contentions of the parties. 8. In fact both the accused persons in their statements under Section 313 of Cr. P.C, have denied their presence on the spot besides while denying other attending circumstances appearing in evidence led against them. But the prosecution evidence proves their presence on the spot beyond doubt. PW-1 Chhao Devi who is also injured testified that the accused aforesaid were raising the construction over the land owned by Dhyan Singh and when they were objected to it, a big stone was hurled by accused Man Singh on the head of Dhyan Singh as a result of which deceased fell down and became motionless. She further testified that when she was persuading Dhyan Singh to get up, another stone was hurled by co-accused Lachho Devi which hit her mouth and broke her three teeth, as such she reported the matter to police and was medically examined. 9. She further testified that when she was persuading Dhyan Singh to get up, another stone was hurled by co-accused Lachho Devi which hit her mouth and broke her three teeth, as such she reported the matter to police and was medically examined. 9. There is material corroboration to her statement by PW-2 Chunni Lal, Masson who was engaged by the accused persons for the construction of latrine. He categorically stated that Dhyan Singh warned the accused not to raise construction beyond a particular point on his land. It was then accused Man Singh dealt a stone blow on the head of deceased Dhyan Singh on his left side, as a result of which he fell down. When his mother came there she tried to raise him, the accused Lachho Devi hurled another stone which hit her mouth dislocating her three teeth. Thereafter the accused persons left the place. He was subjected to meticulous examination by the accused persons though he stated that Dhyan Singh reached the spot in the fit of anger, yet no roll has been attributed to him except that he had raised objection to raise construction beyond a particular point. He has also stated about the presence of Nandei on the spot beside the mother of deceased. Whereas Sarv Sukh and Jia Lal had reached the spot around 1. 00 p.m. The stone Ex. P2 weighing about 1 ½ Kg. was taken into possession by the police in the presence of PW-3 Jia Lal which was made in the parcel Ex. P-1 as stated by the Investigating Officer. The above witnesses have categorically proved the roll of each of the accused without uttering any word. 10. On the critical examination of aforesaid evidence, I am of the opinion that the accused Man Singh though had no intention to cause the death of Dhyan Singh but he had the knowledge that by the stone which was 1 ½ Kg in weight could have caused death if hit on the head. There was no premeditation to cause the death of deceased Dhyan Singh and it was a sudden quarrel which took place over the construction of latrine, therefore, in these circumstances, the conviction of accused Man Singh for the offence punishable under Section 304-II of Indian Penal Code is justified and is accordingly up-held. There was no premeditation to cause the death of deceased Dhyan Singh and it was a sudden quarrel which took place over the construction of latrine, therefore, in these circumstances, the conviction of accused Man Singh for the offence punishable under Section 304-II of Indian Penal Code is justified and is accordingly up-held. Thus the submissions of the learned counsel that it was a case falling under Section 325 IPC is incorrect, hence rejected. 11. In so far as accused Lachho Devi is concerned, she is rightly held guilty accordingly convicted and sentenced for the offence punishable under Section 325 of Indian Penal Code. 12. Against the above factual scenario while upholding the conviction of the accused persons under the aforesaid Sections, I also affirm the sentence imposed on each of them being just and legal. In my opinion the accused Man Singh is also not at all entitled for further leniency on account of his act and conduct by raising and producing a false birth certificate laying claim of his juvenility which on inquiry was found to be fake. For the reasons aforesaid, the appeal is without merit and accordingly dismissed. 13. Accused Lachho Devi has already served the sentence, the fine amount if not deposited be deposited within a month. So far as accused Man Singh is concerned his sentence was suspended by this Court in this appeal vide order dated 24.2.2004. He is hereby directed to surrender before learned Sessions Judge to serve out the sentence on or before 24.1.2013, failing which the learned trial Court shall take coercive steps to commit him to jail to serve out the remaining sentence. 14. Send down the records.