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2013 DIGILAW 849 (HP)

Vipin Kumar v. State of H. P.

2013-09-26

DEV DARSHAN SUD, DHARAM CHAND CHAUDHARY

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JUDGMENT Dev Darshan Sud, J. (Oral): Appellant, hereinafter referred to as ‘the accused’, challenges his conviction under Section 302 of the Indian Penal Code, hereinafter referred to as ‘IPC’ for short, for committing the murder of his father Chinga Ram, on 22.2.2007. 2. Prosecution case is that the accused started quarrelling with his mother PW-3 Krishni Devi, threatening her that he would commit suicide by consuming poison or would kill her and his father, as she had insulted/humiliated him in public. The accused took out a tube containing aluminium phosphide, but it was snatched by his mother PW3 Krishni Devi. The accused then took out a Darat (sickle), which was also snatched by his mother. In this process, she sustained injury on her right hand as she had held it by the sharp end. When the deceased intervened, the accused threatened to kill him and assaulted him with a hammer hitting him on his head. PW-3 Krishni Devi then went to the house of PW-2 Surender Singh and PW-5 Pradeep Kumar, who were their neighbours, to seek their intervention, but when she returned with them, they noticed the deceased was dead lying in a pool of blood with his face downwards. The accused was found missing from the house. He was seen by PW-9 Kushal Singh on the road, whom he informed that he had committed a ‘bad act’. 3. Before we proceed to consider the evidence further, we notice th at this is an unfortunate case, where a son has killed his father, the mother being the only witness to the incident has resiled from her statement under Section 161 Cr. P.C. and has turned hostile. 4. Adverting to the evidence of PW-3 Smt. Krishni Devi, she states that on the fateful day, when she was in the upper storey of her house watching television with her husband, the accused kicked-open the door and asked for dinner. She refused to serve him food, on which the accused started quarreling with him. They started quarreling and went downstairs. The deceased had stayed back in the room. She further states that she suffered injury in her hand with the Darat (sickle), because she was holding it from the blade instead of the handle. She refused to serve him food, on which the accused started quarreling with him. They started quarreling and went downstairs. The deceased had stayed back in the room. She further states that she suffered injury in her hand with the Darat (sickle), because she was holding it from the blade instead of the handle. She then went to her neighbours PW-2 Surender Singh, Gian Chand (not examined) and PW-5 Pradeep Kumar to seek their help and intervention as her son was quarreling with her and the deceased. These three persons accompanied her to her house. When they reached there, they found the accused absent and her husband was lying dead with his face downward in a pool of blood. He was bleeding from his nose, there were no marks of injuries on his body. She states that her husband had told her that his BP (blood pressure) was very high and he was feeling giddy. She says that she does not know as to who had informed the police about the entire incident. She admitted her statement Mark-A, which she made to the police and was thumb marked by her. She was declared hostile as she had resiled from her statement Ext. PW12/A on the basis of which FIR Ext. PW12/B was registered. She was cross-examined by the Public Prosecutor, wherein she states that she was watching TV in the upper floor of the house and her husband was sleeping in the lower storey. She denies that her son had threatened to commit suicide by consuming aluminum phosphide as he had been insulted by her in the village. She also denies having been assaulted by the accused with the Darat (sickle) as a consequence of which she sustained injuries. She also denies that when the deceased intervened in the altercation, the accused struck him with a hammer on his head and he had killed him. In cross-examination by the accused, PW-3 says that her statement was not read over and explained to her by the police. 5. PW-2 Surender Singh states that the accused is his Taya’s (elder uncle) son. According to this witness, on 22.2.2007 around 9.15 p.m., PW-3 Krishni Devi came to his house and informed him that the accused was quarreling with them. When they went to her house, they found the deceased lying face downward and bleeding from his mouth, nose and head. PW-2 Surender Singh states that the accused is his Taya’s (elder uncle) son. According to this witness, on 22.2.2007 around 9.15 p.m., PW-3 Krishni Devi came to his house and informed him that the accused was quarreling with them. When they went to her house, they found the deceased lying face downward and bleeding from his mouth, nose and head. He states that PW-5 Pradeep Kumar had informed the police about the incident and that the accused was missing. PW1 Munshi Ram Pardhan had also reached there. He was declared hostile and then cross- examined by the Public Prosecutor, wherein he denied that PW-3 Krishni Devi had informed him that she was assaulted by the accused. 6. We now advert to the evidence of PW-5 Pradeep Kumar. He in fact corroborates PW-2 Surender Singh. This witness was also declared hostile. PW1 Munshi Ram, who, at the relevant time was Up Pardhan of Gram Panchayat, states that he was called by PW-5 Pradeep Kumar. 7. We are now adverting to the evidence of PW-5 Sanjay Ranaut, who medically examined PW-3 Krishni Devi and found the following injuries on her person: “1. cut lacerated wound on the right thumb, interiorly measuring 3 inches x .5 from the anterior base of thumb to laterally with clotted blood. 2. Incised wound on the right middle finger over the pulp with active bleed and clotted blood around the wound. Wound was clean cut with extend transversally from latero medial on the pulp finger. Floor of the wound is visible. Margins are clean cut on hand lens examination. 3. Incised wound over the right ring finger over the pulp with transverse extend in line with injury No.2. Wound is clean cut incised with active bleed on touch and clotted blood around the wound. Margin of the wound were clean cut on lens examination. 4. Incised wound with clean margin and tailing of the wound on the left palmer aspect of the left hand extending from thenar muscles prominence proximally 2 web of left hand space laterally measuring 2 inches x 1/2 inch x .5 cm deep. Clean base of wound and clotted blood around the wound. 5. Contused with bluish discolouration of skin over the right hip joint, interiorly measuring 5 inches ovally x 2 inches ovally with swelling and tenderness over the right inguinal region. No weight bearing possible on standing and swelling was present. Clean base of wound and clotted blood around the wound. 5. Contused with bluish discolouration of skin over the right hip joint, interiorly measuring 5 inches ovally x 2 inches ovally with swelling and tenderness over the right inguinal region. No weight bearing possible on standing and swelling was present. Advised x-ray right pelvis and right hip joint.” 8. PW-15 Dr. D.V. Kulkarni, had conducted postmortem examination of the deceased. He proved on record postmortem report Ext. PW15/B and testifies the injuries suffered by the deceased:- “WOUNDS AND INJURIES 1. Ante-mortem abrasion over outer aspect of left leg, 6cm x 3 cm red in colour. SCALP 1. Ante-mortem contusion in the scalp over left frontal region 4 cm x 3 cm. 2. Ante-mortem contusion in scalp over bye- lateral parieto-occipital region, extending on both sides of midline 6 cm x 4 cm. 3. Ante-mortem fracture (fissure) over right parietal bone extending upto vertex 3 cm in length. There was bye-lateral haematoma (subdural) in parieto-occipital region 600ml. in vol. Bye-lateral parieto-occipital lobes show contusion.” 9. It was suggested to this witness that the injuries (supra) were possible by a fall. Though he admits that high blood pressure does cause disorientation, but clarifies that if a person falls from the stairs, other accompanying injuries must be present on the body, which were not there found on the person of the deceased. 10. Lastly, we consider the evidence of PW-9 Kushal Singh, who has also turned hostile. He states that he is familiar with the accused as he resides near his house. On 23.2.2007, when he (this witness) was going to village Balota, he met the accused near Ladraur at about 9/10 in the morning. He enquired from him as to where he (accused) was going, but he did not reply as he was perplexed. He started crying and when he enquired from him as to what was the cause of his distress, the accused told him that he had entered into some altercation with his father the previous day, but he did not know as to how his father died. He was also declared hostile. This is entirety of the evidence. 11.Learned counsel have made a number of submissions on behalf of the accused viz that the evidence on record is insufficient to convict the accused under Section 302 IPC. He was also declared hostile. This is entirety of the evidence. 11.Learned counsel have made a number of submissions on behalf of the accused viz that the evidence on record is insufficient to convict the accused under Section 302 IPC. Learned counsel for the appellant submits (a) that there is no eye witness to the incident and the only circumstance being used against the accused is that he was absent/absconding from the house, and (b) that no witness, including PW-3 Smt. Krishni Devi (who only speaks about a quarrel), has supported the prosecution case. 12.It is unfortunate that the mother has resiled from her statement and was declared hostile, but this alone is not sufficient to discard the other incriminating circumstances appearing against the accused. She states that she sustained injuries on her hand as she had held the Darat by the blade instead of the handle. However, the other two witnesses, i.e.PW-2 Surender Singh and PW-5 Pradeep Kumar have stated that the PW-3 Smt. Krishni Devi had come to inform them that the accused was quarreling with her and her husband. PW-3 Smt. Krishni Devi stated that she was watching TV with her deceased husband, but thereafter changed her stand stating that when the altercation with her son took place, her husband was sleeping in the lower portion of the house. She also states that the deceased was suffering from high blood pressure and he had complained about it to her in the morning and that due to this reason he had fallen down from the staircase and died due to head injury which he had received. We are unable to accept this explanation in the manner in which it has been made. Surely, if the deceased was suffering from high blood pressure, there would have been some evidence of some sort to show that he was taking medicines, but nonetheless we ignore this aspect as it would amount to putting the burden on the accused which is against the canons of criminal jurisprudence. In the given facts and circumstances, we are unable to accept the explanation that the deceased had fallen from the stairs and died due to head injury. In arriving at this conclusion, we are supported by the evidence of PW-15 Dr. In the given facts and circumstances, we are unable to accept the explanation that the deceased had fallen from the stairs and died due to head injury. In arriving at this conclusion, we are supported by the evidence of PW-15 Dr. D.V. Kulkarni, who has denied the possibility of the deceased falling from stairs, as in that event other secondary injuries would be sustained and there were none on the body of the deceased. 13. The second point urged before us is that the prosecution relies on the evidence of hostile witnesses and the accused cannot be convicted on the basis of this testimony. It is now well settled, that the principle falsus in uno falsus in omnibus is not applicable to the criminal trials in India. It is the duty of the Court to separate the grain from the chaff. This maxim is merely a rule of caution to scrutinize the evidence of a witness with care and caution. All that it means is that in such cases testimony may be disregarded and not that it must be discarded. 14.We now advert to the question as to whether the accused can be convicted under Section 304 Part-I IPC. Exception 4 to Section 300 reads: “Exception 4— Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.” 15.What we find from the record is that there was an altercation between the accused and his mother and when the father intervened, the accused struck him on his head with the hammer, which fact stands proved from the report of Forensic Science Laboratory Ext.PW14/B, as the blood found on the hammer matched with the blood of the deceased. But there was no pre-meditation as the incident took place all of a sudden in the heat of passion. 16.In Sayaji Hanmat Bankar Vs. State of Maharashtra, AIR 2011 SC 3172 , the Supreme Court holds: “6. The High Court rejected the contention of learned counsel for the appellant that this case would fall under Exception 4 to Section 300 IPC. It was held by the High Court that this is certainly not a case to which exception 4 to Section 300 would get attracted but would fall under clause “fourth” of 300 IPC. The High Court rejected the contention of learned counsel for the appellant that this case would fall under Exception 4 to Section 300 IPC. It was held by the High Court that this is certainly not a case to which exception 4 to Section 300 would get attracted but would fall under clause “fourth” of 300 IPC. Exception 4 to Section 300 IPC reads as under: Exception 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner” 7. It is clear from the reading of aforesaid Exception 4 that if the act is done without premeditation in a sudden fight or in the heat of passion upon a sudden quarrel and if the offender does not take any undue advantage or act in a cruel or unusual manner, then Exception 4 will be attracted. 8. We have gone through the evidence carefully. It seems that as soon as the accused entered the house, there appeared to be some quarrel with his wife and in that fight first, he threw water pot and thereafter a kerosene lamp. The burning seems to be more out of the fact that unfortunately at that time, the lady was wearing nylon sari. Had she not been wearing a nylon sari, it is difficult to imagine how she could have been burnt to the extent of 70%. In our view this was a case which clearly falls under Exception 4 of Section 300 IPC since there was sudden fight. There was no premeditation either. Therefore the accused-appellant is liable to be convicted for the offence punishable under Section 304 Part-I. 9. We, accordingly, alter the conviction of the accused from Section 302 IPC to Section 304 Part-I IPC and sentence him to the period already undergone by him. The sentence of fine remains the same.” 17.Learned counsel for the appellant-accused also places reliance on a judgment of the Supreme Court in Fulchand Gope and another Vs. State of Jharkhand, (2011)12 SCC 514. The ratio of this judgment is not applicable to the facts of the present case as it is confined to the peculiar facts as noticed by the Supreme Court vide paragraph 3 and 4 of the judgment. State of Jharkhand, (2011)12 SCC 514. The ratio of this judgment is not applicable to the facts of the present case as it is confined to the peculiar facts as noticed by the Supreme Court vide paragraph 3 and 4 of the judgment. 18.Similarly, the ratio of judgment in Buddhu Singh and others Vs. State of Bihar, (2011) 14 SCC 471 is not attracted to the facts of the present case and is confined to the peculiar facts of that case as noticed by the Supreme Court in para 3 of the judgment. 19.Now, we are adverting to Exception 4 of Section 300 IPC, which reads:- “Exception 4. – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” 20. We find that the fight in the present case had taken place in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage. But at the same time, we find that the blow of hammer on the skull was so severe that it ultimately resulted in the death of the deceased, which does not in any way mitigate the offence. 21. In these circumstances, we alter the conviction of the accused from Section 302 IPC to Section 304-I IPC and sentence him to undergo rigorous imprisonment for 10 years.Appeal stands disposed of in the aforesaid terms.