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2013 DIGILAW 615 (HP)

Diwan Chand v. State of Himachal Pradesh

2013-06-28

SURINDER SINGH

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JUDGMENT SURINDER SINGH, J. In Sessions Trial No.31/2001, 44/2004, decided on 30/31.12.2005, by the learned Presiding Officer, Fast Track Court, the appellant was convicted for the offences punishable under Sections 452 and 307 of the Indian Penal Code, as such sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.10,000/- for the attempted murder under Section 307 and two years rigorous imprisonment and to pay a fine of Rs2,000/- under Section 452 of the Indian Penal Code, with default clauses. Both the sentences were ordered to run concurrently. It was also ordered that injured Mahant Ram shall be paid whole of the fine amount as compensation. Feeling aggrieved and dissatisfied, the present appeal has been preferred by convict Diwan Chand, which was admitted for hearing on 2.3.2006. Vide order dated 6.3.2006, pending appeal he was granted bail to which he failed to furnish and on 31.12.2005 he was committed to Jail for serving out the sentence, but later, on 17.7.2006 as per the record, the fine amount of Rs.12,000/- was deposited by him and also furnished bail bonds. 2.In short, the prosecution story, as emerges from the evidence on record, can be stated thus. PW2 Mahant Ram and the convict/appellant, hereinafter to be referred as ‘the accused’ are the real brothers. PW1 Leelawati is the wife of Mahant Ram aforesaid. The relations between both of them were strained. On 29.1.2001, at about 8.30 a.m., PW1 Leelawati and her husband PW2 Mahant Ram both were present in the newly constructed house. In the meanwhile, Kanta Devi, wife of the accused came crying to them. Mahant Ram aforesaid asked as to why the accused gave beatings to his wife. On this, the accused became furious, inflicted a fist blow on his face and hit Mahant Ram on his head with a wooden frame, which caused bleeding injury. At that time PW3 Veena Devi, his daughter-in-law was an eye witness. (ii) Mahant Ram was taken to Sarkaghat hospital. On the same day, PW10 Dr. Keshav Kaundal medically examined injured Mahant Ram. He noticed lacerated wound at right parietal side of head extending below upwards with haemotoma, which was repaired with stitches. In addition, the injured was having black eye on the right side. The injured was also having slurring speech. He also found slight protrusion of the tongue. On the same day, PW10 Dr. Keshav Kaundal medically examined injured Mahant Ram. He noticed lacerated wound at right parietal side of head extending below upwards with haemotoma, which was repaired with stitches. In addition, the injured was having black eye on the right side. The injured was also having slurring speech. He also found slight protrusion of the tongue. X-ray of the skull was advised, which showed multiple fractures of right parietal and frontal bones. Thereafter he was referred to Zonal Hospital, Mandi for CT scan and MRI. In the opinion of the doctor, the injury was grievous in nature and dangerous to life. The opinion to this effect is Ext.PW10/B and the Medico Legal Certificate is Ext.PW10/A. (iii) PW9 Dr. S.K. Malhotra had taken the X-rays Exts.PW9/A and 9/B of the skull. He also noticed the fractures of right side frontal and parietal bone of skull. His opinion is Ext.PW9/C. 3.The police had prepared the site plan and took into possession the blood stained clothes of the injured. Police found the complicity of the accused in the alleged offences, as such after collecting the relevant material presented the Challan in the Court against the accused for his trial. 4.The accused was accordingly charge-sheeted for the offences aforesaid to which he pleaded not guilty and claimed trial. 5.To prove its case, the prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were put to him. When called upon to enter into his defence, he did not lead any evidence. At the end of trial, he was convicted and sentenced as aforesaid. 6.On 4.5.2013, Shri Janesh Gupta, Advocate, was appointed as Amicus Curiae, as earlier to him, the accused was represented by Shri Rakesh Jaswal, Advocate. He was supplied with complete paper book and both the parties were heard. 7. Shri Janesh Gupta, learned Counsel for the accused, vehemently argued that there was no independent witness of the alleged occurrence. The Danda in question was commonly available. The ingredients of Section 307 of the Indian Penal Code are not made out from the evidence on record and also that the evidence of the prosecution is quite contradictory. 8. 7. Shri Janesh Gupta, learned Counsel for the accused, vehemently argued that there was no independent witness of the alleged occurrence. The Danda in question was commonly available. The ingredients of Section 307 of the Indian Penal Code are not made out from the evidence on record and also that the evidence of the prosecution is quite contradictory. 8. On the other hand, Shri V.K. Verma, learned Additional Advocate General, duly assisted by Shri Ramesh Thakur, learned Assistant Advocate General, supported the impugned judgment of conviction and sentence. 9.After giving my thoughtful consideration to the rival contentions of the parties, I do not find any error in the impugned judgment of conviction and sentence for the aforesaid offences. 10. PW2 Mahant Ram, is an injured witness. His testimony cannot be brushed aside merely on whims. He categorically stated that on the date of the alleged incident, the accused was abusing his wife and children and when he asked about the reasons he became furious, entered into his room and gave fist blow on his mouth and then hit him with a wooden frame on his head. Thereafter he became unconscious. The blood started coming out from the injury received on his head. Consequently, his clothes smeared with blood. He also stated that his wife PW1 Leelawati and daughter-in-law PW3 Veena Devi, Rewatu Ram alias Ram Singh were present on the spot. Thereafter he was taken to hospital. He identified the wooden frame Ext.P.1 to be the same and also stated about the handing over the blood stained clothes to Reeta Devi. In cross-examination, he denied any enmity with the accused and admitted the suggestion that the accused had given a Danda blow on his head and further that prior to this incident there was no dispute with the accused. In other words, the incident in question stands admitted by the accused. 11.Further, PW1 Leelawati, the complainant and PW3 Veena Devi, both have supported the version of the injured. PW3 Veena Devi also stated that when the accused had hit Danda blow on the head of her father-in-law, she raised an alarm. She admitted the presence of PW1 Leelawati and Rewati on the spot and in cross-examination she deposed that the accused was a habitual drunkard and was in the habit of creating nuisance. Earlier also at number of times, he had raised trouble in the house. She admitted the presence of PW1 Leelawati and Rewati on the spot and in cross-examination she deposed that the accused was a habitual drunkard and was in the habit of creating nuisance. Earlier also at number of times, he had raised trouble in the house. 12.PW4 Reeta Devi is a witness with respect to handing over of the wearing apparels, shirt Ext.P.2 and trouser Ext.P.3, to the police of the injured on 9.2.2001, which were sealed in the presence of PW5 Surender Singh. 13. On the scrutiny of the aforesaid evidence, it is clear that it was the accused who had given Danda blow on the head of his brother which caused fracture of the skull as aforesaid and sustained injury of the kind mentioned by PW10 Dr. Keshav Kaundal, who opined the aforesaid injury was dangerous to life. He categorically ruled out the possibility of sustaining of such type of injury, if a person strikes his head against the hard surface. 14. The doctor aforesaid had given the opinion on the basis of MRI to the effect that the aforesaid injury was dangerous to life, but could not comment without neurosurgical opinion, as according to him, it required repeated MRI scans. 15. It is a case of single blow on the head of the injured. To attract Section 307 of the Indian Penal Code, it is necessary to establish that if the victim would have met death, the offence would have been one under Section 302 of the Indian Penal Code. In the instant case, doctor styled the injury in question dangerous to life being fracture of skull, but did not state that it was eminently dangerous to life rather stated that in absence of neurosurgical opinion and repeated MRI scans it was difficult to opine. Therefore, in the instant case being a single blow, without any motive, on the head of the injured in a sudden brawl would be a case for holding him guilty under Section 308 instead of 307 of the Indian Penal Code for attempting to commit culpable homicide not amounting to murder. Therefore, the conviction of the accused is converted to one under Section 308 of the Indian Penal Code holding him guilty of the said offence. Therefore, the conviction of the accused is converted to one under Section 308 of the Indian Penal Code holding him guilty of the said offence. 16.Now, keeping in view the punishment provided for the offence under Section 308 of the Indian Penal Code, the age of the accused, having blood relation with the injured and also that he does not have any past criminal history. Also, he remained in jail in this case for about six months and had deposited the fine. Thus while maintaining the fine under each of the Sections, which is to be paid to injured Mahant Ram, the interest of justice would be met if the substantive sentence of imprisonment under both the offences is reduced to already undergone. Ordered accordingly. 17.The appeal of the accused stands partly allowed with the modification in sentence to the above extent and stands accordingly disposed of. 18. Before parting with the judgment, I record the word of appreciation to Shri Janesh Gupta, Advocate, who has rendered his valuable services in the case.