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Himachal Pradesh High Court · body

2013 DIGILAW 103 (HP)

Naresh Kumar Sharma v. State of Himachal Pradesh

2013-02-25

DEV DARSHAN SUD

body2013
JUDGMENT Dev Darshan Sud, J. The appellant has challenged his conviction under Section 304 Part II and 323 of the Indian Penal Code (hereinafter referred to as the IPC) and he has been sentenced to undergo rigorous imprisonment of five years and fine of Rs.5000/- for offence under Section 304 Part II, IPC and rigorous imprisonment of one month for offence under Section 323, IPC. All the sentences have been directed to run concurrently. 2. The prosecution case in brief is that on 17.1.2012 at about 10/11 A.M. PW1 Sh. Ramesh Chand son of Shri Daulat Ram (hereinafter referred Ramesh Chand-1), PW3. Sh. Ramesh Chand son of Shri Jania Ram (hereinafter referred Ramesh Chand-2) and deceased Manohar Lal accompanied workers of HPSEB from their village to Bargali. HPSEB workers had been deputed to check the power line on the complaint that there was erratic supply of electricity. All of them proceeded ahead of Shri Ramesh Chand-1 and Shri Ramesh Chand-2. These two witnesses including Manohar Lal-deceased consumed liquor near the Transformer. When they were returning to their respective homes and had reached near the shop of accused Naresh Kumar, a bottle containing about 375 ml liquor accidentally fell down in front of the shop of the accused and broke. Accused took exception to this and confronted them that they had deliberately indulged in this act. Shri Ramesh Chand-1 informed him that the bottle was not hurled at the shop but it was an accident. This did not satisfy the accused who became enraged and picked up stick Ex.P1 and beat up Shri Ramesh Chand-1. Shri Manohar Lal intervened to save Shri Ramesh Chand-1 but he was not speared and was beaten up. He was hit on his legs and a blow with the stick Ex. P-1 was administered on his head. Shri Manohar Lal became unconscious and collapsed on the spot. He was bleeding from his head and the accused asked this witness to take him away. After some time, the deceased got up and proceeded to his house. Shri Ramesh Chand-1 and Shri Ramesh Chand-2 also left for their homes. 3. The case of the prosecution further is that when deceased Manohar Lal reached his house, he complained to his wife PW5 Smt. Seema and his father PW2 Shri Kanshi Ram that he had been assaulted by the accused. He took his meals and went to sleep. Shri Ramesh Chand-1 and Shri Ramesh Chand-2 also left for their homes. 3. The case of the prosecution further is that when deceased Manohar Lal reached his house, he complained to his wife PW5 Smt. Seema and his father PW2 Shri Kanshi Ram that he had been assaulted by the accused. He took his meals and went to sleep. At this time, Shri Ramesh Chand-1 also reached his house and stated that it was the accused who had assaulted him and the deceased. Next day, on 18.1.2012, deceased Shri Manohar Lal was taken to IGMC, Shimla in the car of PW6 Shri Chet Singh. PW7 Dr. Sanjay Kumar examined the deceased at around 11.15 A.M. on that day and at that time the deceased was unconscious. Information about this fact was conveyed to the police post for registration of a medico legal case. Injuries were found on the left temporoccipital region of the deceased and on his legs. He was referred for x-ray examination and expert treatment. But before any medical aid could be provided, he died at around 3.15 p.m. This in a nut shell is the case of the prosecution. The learned trial Court on the evidence of the prosecution which also includes evidence of PW10 Dr. Ashok Chauhan, Medical Officer, Civil Hospital, Theog, concluded that the appellant was guilty for offence under Sections 304 Part II and 323 of the IPC. It is this conviction which has been challenged before me. 4. It is undisputed before me that there had been heavy snow fall prior to 17.1.2012. It was urged by learned counsel Sh. Anoop Chitkara that the possibility of the accused slipping and falling down could not be ruled out for the reasons (a) that all the three persons that is Shri Ramesh Chand-1 and Shri Ramesh Chand-2 as also the deceased were drunk which fact is established on record from the evidence of these witnesses, (b) there was infallible certainty in this drunken condition, due to heavy snow on the ground that the deceased had slipped and fallen down. (c) he submits that there was no intention of the accused to cause death which fact is manifested from the nature of injuries found on both Shri Ramesh Chand-1 and deceased Manohar Lal, as injury marks were found on their knees. (c) he submits that there was no intention of the accused to cause death which fact is manifested from the nature of injuries found on both Shri Ramesh Chand-1 and deceased Manohar Lal, as injury marks were found on their knees. Had there been any intention of causing grievous hurt, Shri Ramesh Chand-1, who has been assaulted by the accused and in fact he was the first in the line of fire, would also have sustained serious injuries. 5. Adverting to the medical evidence on record, PW7 Dr. Sanjay Kumar, Medical Officer, Casualty, IGMC Shimla, H.P. states that he had examined Shri Manohar Lal deceased on 18.1.2012 at 11.50 a.m. when he found the following injuries: “1. Lacerated wound 2x1 cm with dark red clotted blood around wound on left temporoccipital region of scalp, above and behind left pinna. 2. Tram track contusion 7x2 cm, blue in colour, on outer aspect of left leg upper part near knee. 3. Tram track contusion 7x2 cm, blue in colour on aterolateral aspect of lower part of right thigh near knee.” He had referred the deceased for radiological examination and expert opinion of neuro surgeon. Injuries were recorded by him in MLR Ex.PW7/A. He then states that injuries appeared to be dangerous to the life for the reasons that the patient had died on the same day. In cross-examination, he admits that he did not give any opinion with respect to the nature and character of the injuries. also find that in Ex.PW7/A no such opinion has been rendered by this doctor. PW8 Dr. Sangeet Dhilon, Assistant Professor of Department of Forensic Medicines, IGMC Shimla, who performed the postmortem on the next day, opined that the patient had died as a result of contusion, intraerebral, hemorrhage, extra dural, subdural, hemorrhage along with fracture of skull following ante mortem head injury caused by blunt trauma. His opinion was confirmed by the Chemical examiner’s reports Ex.PX and PY. He states that if a person falls on stone(s) and hard surface, he would suffer contusion, laceration as also fracture. Learned counsel submits that it is this evidence which supports the possibility of the deceased slipping and falling down. Learned counsel then refers to the evidence of Shri Ramesh Chand-2, who admits that he is familiar with the accused since his childhood. Learned counsel submits that it is this evidence which supports the possibility of the deceased slipping and falling down. Learned counsel then refers to the evidence of Shri Ramesh Chand-2, who admits that he is familiar with the accused since his childhood. He was declared hostile but nonetheless in his cross-examination by defence admits that the deceased Manohar Lal was habituated to drinking for the last 10 or 12 years and was regularly involved in drunken brawls. He admits that a retaining wall was being constructed near the shop of the accused and that there was a pile of stones and firewood stacked on the road. He then states “Manohar lal ne doshi ki taraf ek sharab ki bottle bhi fainki” (Manohar Lal also hurled a bottle of liquor towards the accused). He states that the deceased was armed with a stick. He fell down and sustained head injuries. Learned counsel submits that this evidence by itself is sufficient to establish that it was the deceased who had initiated and provoked the quarrel more especially when he was in the habit of picking up drunken brawls. Learned Additional Advocate General submits that the statement of the deceased which he had made to PW5 Smt. Seema and his father PW2 Shri Kanshi Ram, cannot be disbelieved. 6. Adverting to the entire evidence on record, one fact stands established that there was free fight either because of hurling of liquor bottle by the accused or its breaking by accidental fall in front of his shop. Nonetheless Shri Ramesh Chand-2 goes to the extent that the bottle of liquor was hurled by Manohar Lal towards the accused. What stands established is that fight had occurred in the heat of moment and that there was no premeditated intention of the accused to have caused any injury to the deceased on any vital part of the body of the deceased. I also find that there were no blood marks on stick Ex.P-1. Moreover, I do find it strange that in case a serious injury has been caused to the deceased why he was not immediately rushed to the hospital by his father and wife. 7. I also find that there were no blood marks on stick Ex.P-1. Moreover, I do find it strange that in case a serious injury has been caused to the deceased why he was not immediately rushed to the hospital by his father and wife. 7. Taking into consideration the totality of the facts and circumstances of the case, I hold that no offence under Section 304 Part II is made out as there was no intention for causing such injury and weapon used i.e. stick Ex. P1 was not a dangerous weapon. Since there was fracture in the skull, he could have been convicted under Section 325 of the IPC. I hold accordingly. 8. Adverting to the sentence imposed, I deem it proper that in case the accused is sentenced to the imprisonment already undergone which in this case is more than 1 year and to pay a fine of Rs.1,00,000/- (Rs.One lakh only) which shall be deposited by him with the learned Sessions Judge, Shimla within four months after his release, failing which the sentence imposed by the learned trial Court shall revive and shall be faithfully executed. I also direct that this amount of fine deposited by the accused shall be paid to the wife of the deceased Smt. Seema (PW5). The accused shall be released from prison forthwith in case he is not wanted in any other offence.