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Himachal Pradesh High Court · body

2015 DIGILAW 243 (HP)

Vinod Kumar v. State of Himachal Pradesh

2015-03-26

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 23.5.2009, rendered by the learned Sessions Judge, Kangra at Dharamshala, H.P. in Sessions Case No. 24-P-VII/2008(2007), whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Sections 302 & 506(II) IPC, has been convicted and sentenced to undergo simple imprisonment for life and to pay a fine of Rs. 30,000/- and in default of payment of fine to further undergo simple imprisonment for one year under Section 302 IPC. 2. The case of the prosecution, in a nut shell, is that on 25.9.2006, at Panapar at about 11:00 AM, the accused person had inflicted an iron spade blow on the head of Sarwan Kumar (deceased) with intention to kill him. He sustained fatal injuries and died subsequently. The accused had also threatened Reshan Devi, wife of the deceased, to kill her, in case she reported the matter to the doctor or to any other person. On completion of the investigation, challan was put up after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as 17 witnesses. The accused was also examined under Section 313 Cr. P.C. He has pleaded innocence. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Surinder Saklani, Advocate for the accused has vehemently argued that the prosecution has failed to prove the case against the accused. On the other hand, Mr. P.M. Negi, learned Dy. Advocate General, appearing on behalf of the State, has supported the judgment of the learned trial Court dated 23.5.2009. 5. We have heard learned counsel for both the sides and gone through the records of the case carefully. 6. Smt. Reshan Devi, PW-1 stated that on 25.9.2006 at about 10-11:00 AM, she alongwith her husband late Sh. Sarwan Kumar were working in their field. They had ploughed the field and were clearing some wild grass. The accused person armed with spade trespassed into their field. He asked them to vacate the field. The accused claimed possession of the field in dispute. They informed him that they had been cultivating the field for the last several years. The accused person inflicted one injury with spade on the head of her husband. Her husband turned unconscious and collapsed. She cried for help. Sh. He asked them to vacate the field. The accused claimed possession of the field in dispute. They informed him that they had been cultivating the field for the last several years. The accused person inflicted one injury with spade on the head of her husband. Her husband turned unconscious and collapsed. She cried for help. Sh. Ashwani Kumar and Bantu alias Rakesh rushed to their rescue. They arranged a Van and had taken her husband to PHC Dheera. The accused person also visited PHC Dheera. She also accompanied her husband. Her husband was unconscious. The Medical Officer, referred her husband to Zonal Hospital, Dharamshala. The accused also visited Zonal Hospital, Dharamshala. The condition of her husband deteriorated. He was further referred to PGI, Chandigarh. She reported the matter to the police at Police Post Bhawarna vide Ext. PW-1/A. Her husband was admitted at PGI, Chandigarh. Her husband died on 5.10.2006. She identified spade Ext. P-1. She also identified her husband’s shirt Ext. P-2, Vest Ext. P-3 and trouser Ext. P-4. In her cross-examination, she admitted that her husband died after 10 days of occurrence. Her husband was under treatment for ten days. They did not have any litigation with the accused person about the field wherein the occurrence had taken place. Her clothes were not smeared with the blood of her husband nor had she produced her clothes before the Police. 7. Sh. Sunil Kumar, PW-2 deposed that on 25.9.2006, her sister had telephonically informed him at Delhi that the accused had caused injury with a spade on the head of his father. On receipt of this information, he rushed from Delhi to his house. He reached his house on 26.9.2006 in the evening. When he reached, it was found that his father was already referred to PGI, Chandigarh. His father died on 5.10.2006. He produced shirt Ext. P-2, Vest Ext. P-3 and trouser Ext. P-4 of his father before the Police. 8. Sh. Ashwani Kumar, PW-3 deposed that on 25.9.2006 he was present in his shop. He did not hear PW-1 crying nor had he rushed towards her field. He had not seen the accused person armed with spade Ext. P-1 in the field of PW-1. He had not seen Sh. Sarwan Kumar in injured condition on 25.9.2006. He did not know whether Sarwan Kumar was taken to Hospital or not. He did not hear PW-1 crying nor had he rushed towards her field. He had not seen the accused person armed with spade Ext. P-1 in the field of PW-1. He had not seen Sh. Sarwan Kumar in injured condition on 25.9.2006. He did not know whether Sarwan Kumar was taken to Hospital or not. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he admitted that he heard PW-1 crying for life and had rushed to her field alongwith Sh. Rakesh alias Bantu. He denied the suggestion that he had arranged a Van and had taken Sarwan Kumar to PHC Dheera. He also denied that accused was also present in the field and he was armed with spade Ext. P-1. 9. Sh. Bongar Ram, PW-4 testified that in his presence the accused person was interrogated by the police. He made disclosure statement vide Ext. PW-4/A. It was signed by him as well as Rattan Chand, Pardhan and the accused. The accused also led the police party to his house. He got spade Ext. P-1 recovered vide recovery memo Ext. PW- 4/B. The police sealed the spade Ext. P-1 with seal “T”. Seal “T” was handed over to Sh. Rattan Chand. 10. Sh. Devi Chand, PW-5 deposed that he was working in his fields. PW-1 Smt. Reshan Devi and her husband were working in their fields near his field. After some time, the accused person appeared there. The parties entered into arguments and he had heard them. After some time, he heard PW-1 and he rushed to the field of PW-1 and found Sarwan Kumar lying unconscious on the ground. The accused person was stated to have caused injury to the head of Sarwan Kumar with a spade. He had also seen Sarwan Kumar bleeding from head. The accused had been in possession of spade Ext. P-1 with which the injury was caused to Sarwan Kumar. In his cross-examination, he admitted that his statement under Section 161 Cr. P.C. was recorded after 5 days. 11. Smt. Chanchala Devi, PW-6 deposed that on 25.9.2006 she was working in her fields. She had seen PW-1 and her husband working in their fields adjacent to her fields. She had heard PW-1 and her husband entering into arguments with the accused. Both the parties were shouting at each other. P.C. was recorded after 5 days. 11. Smt. Chanchala Devi, PW-6 deposed that on 25.9.2006 she was working in her fields. She had seen PW-1 and her husband working in their fields adjacent to her fields. She had heard PW-1 and her husband entering into arguments with the accused. Both the parties were shouting at each other. After some time, she had seen the accused person inflicting injury with spade Ext. P-1, on the head of Sarwan Kumar. Sh. Sarwan Kumar collapsed and turned unconscious. PW-1 with the help of villagers had taken her husband to PHC Dheera. In her cross-examination, she also admitted that her statement under Section 161 Cr. P.C. was recorded after 5 days. 12. Sh. Nand Lal, PW-7 deposed that on 25.9.2006, at about 4:00 PM, he received telephonic call of her sister Smt. Reshan Devi at his house. PW-1 had contacted him from Dharamshala and informed him that the accused Vinod Kumar had inflicted injury with spade on the head of Sh. Sarwan Kumar. He immediately rushed to Dharamshala. He reached hospital and found Sarwan Kumar lying un-conscious. He was taken to PGI, Chandigarh. 13. Dr. Ramesh Chand, PW-8 had examined Sarwan Kumar on 25.9.2006 at 11:45 AM. He noticed lacerated wound on the scalp central region and size of the wound was 2.5 cm x 1.5 cm. Fresh bleeding was also present. Four stitches were applied and necessary treatment was provided. After x-ray examination, fracture was also noticed. The injury was opined to be grievous. According to him, the nature of weapon used was blunt. The probable duration of injury was 6 hours prior to medical examination. He issued MLC Ext. PW-8/A. The police had produced before him a spade in a sealed packet on 2.12.2006. According to his opinion, the head injury to Sarwan Kumar was possible with spade Ext. P-1. In his cross-examination, he admitted that the name of assailant was not given in the MLC. 14. Dr. Ajay Sharma, PW-9 conducted the post mortem examination on the dead body alongwith Dr. S. Chakarvarty. According to them, the death was caused due to brain edema following head injury. 15. Sh. Rakesh Kumar, PW-10 deposed that on 25.9.2006, at about 10-11:00 AM, he was present in his house near the field of Sh. Sarwan Kumar, deceased. PW-1 Smt. Reshan Devi started crying for life of her husband. S. Chakarvarty. According to them, the death was caused due to brain edema following head injury. 15. Sh. Rakesh Kumar, PW-10 deposed that on 25.9.2006, at about 10-11:00 AM, he was present in his house near the field of Sh. Sarwan Kumar, deceased. PW-1 Smt. Reshan Devi started crying for life of her husband. He rushed to the field of Smt. Reshan Devi and found that Sarwan Kumar was lying unconscious in the field with injury on his head. The clothes of Sarwan Kumar were smeared with blood. He picked him and took him to local Medical Officer. Smt. Reshan Devi accompanied him to the Medical Officer. In his cross-examination, he deposed that he did not know as to where Sarwan Kumar was treated. Smt. Reshan Devi did not inform him about the assailant nor had he asked her. The accused had borne the expenses of medical treatment of the deceased at Dheera. The Medical officer, Dheera had sent for x-ray examination of Sh. Sarwan Kumar and also applied some injections. The cost of the same was borne by the accused. 16. HHC Saroop Chand, has proved Ext. PW-11/A. 17. Sh. Jiwan Kumar, PW-12 deposed that he was working as Medical Record Technician in PGI, Chandigarh, for the last several years. Sh. Sarwan Kumar stood admitted in PGI, Chandigarh on 26.9.2006. He was discharged on 3.10.2006. 18. Dr. Rahul Singh, PW-13 deposed that he was working as Senior Resident in the Department of Neurosurgery in PGI, Chandigarh w.e.f. 1.1.2004 to 31.12.2006. Sh. Sarwan Kumar, remained admitted in the neurosurgery department of PGI on 26.9.2006. He had suffered head injury and had been unconscious. He treated him w.e.f. 26.9.2006. He was discharged on 3.10.2006. The nature of injury was dangerous to life. The patient had not improved even after operation, having suffered deep injury to head. He proved Ext. PW-13/A. In his cross-examination, he deposed that the police did not seek his opinion with regard to the nature of injury. He had given the opinion of the injury being dangerous to life in the Court for the first time. 19. SI Duni Chand, PW-16 has investigated the matter. He recorded statements under Section 161 Cr. P.C. He rushed to the spot. He prepared rough sketch map and demarcation was got conducted by him. He collected the case summary of Sarwan Kumar from the Medical College and Hospital, Dharamshala. 19. SI Duni Chand, PW-16 has investigated the matter. He recorded statements under Section 161 Cr. P.C. He rushed to the spot. He prepared rough sketch map and demarcation was got conducted by him. He collected the case summary of Sarwan Kumar from the Medical College and Hospital, Dharamshala. The accused person had made disclosure statement vide Ext. PW-4/A. The spade Ext. P-1 was got recovered vide memo Ext. PW-4/B. It was duly sealed. He prepared the inquest papers. In his cross-examination, he deposed that Sarwan Kumar has died after ten days after receiving injury on his head. He was admitted in PGI, Chandigarh. 20. Dr. Jagdeep Singh, PW-17 deposed that on 25.9.2006 at 3:30 PM, injured Sarwan Kumar was admitted in hospital with alleged history of sustaining head injury, while working in the fields. There was no history of ENT bleeding or convulsions. X-ray skull showed depressed fracture fronto-parietal region. CT scan machine was out of order. The patient was referred to PGI, Chandigarh. 21. What emerges from the statements discussed hereinabove, is that the incident took place on 25.9.2006. According to the prosecution case, the accused has given spade blow on the head of Sarwan Kumar. He collapsed and became unconscious. PW-1 Reshan Devi, the wife of the deceased cried for help. Sarwan Kumar was taken to PHC, Dheera where he was referred to Zonal Hospital, Dharamshala. Thereafter, he was referred to PGI, Chandigarh. He died on 5.10.2006. 22. According to PW-1 Reshan Devi, the accused person armed with spade trespassed into their field and asked them to vacate the field. The accused claimed possession of the field in dispute. They informed him that they had been cultivating the field for the last several years. The accused person inflicted one injury with spade on the head of her husband. Her husband turned unconscious and collapsed. She cried for help. Sh. Ashwani Kumar, PW-3 deposed that on 25.9.2006 he was present in his shop. He had not heard PW-1 crying nor had he rushed towards her field. He did not know the cause of death of Sarwan Kumar deceased. Sh. Devi Chand, PW-5 deposed that he was working in his fields. PW-1 Smt. Reshan Devi and her husband were working in their fields near his field. After some time, the accused came there on the spot. The parties entered into arguments. He heard their arguments. He did not know the cause of death of Sarwan Kumar deceased. Sh. Devi Chand, PW-5 deposed that he was working in his fields. PW-1 Smt. Reshan Devi and her husband were working in their fields near his field. After some time, the accused came there on the spot. The parties entered into arguments. He heard their arguments. After some time, he heard PW-1 Smt. Reshan Devi crying and he rushed towards the field of Smt. Reshan Devi (PW-1) and found Sarwan Kumar lying unconscious on the ground. Similarly, Smt. Chanchala Devi, PW-6 deposed that Smt. Reshan Devi (PW-1) and her husband were working in their fields adjacent to her fields. She heard PW-1 Smt. Reshan Devi and her husband entering into arguments with the accused. Both the parties were shouting at each other. After some time, she had seen the accused person inflicting injury with spade Ext. P-1 on the head of Sarwan Kumar. 23. It is evident from the statements of Smt. Reshan Devi (PW-1), Sh. Devi Chand (PW-5) and Smt. Chanchala Devi (PW-6) that the arguments have taken place between the accused and Sarwan Kumar (deceased). According to PW-1 Smt. Reshan Devi, the accused had trespassed into their field and he asked them to vacate the field. Smt. Chanchala Devi (PW-6) has categorically testified in her examination-inchief that both the parties were shouting at each other. Sarwan Kumar received injury on head on 25.9.2006 and died on 5.10.2006. The accused has accompanied deceased Sarwan Kumar to the hospital. He has also incurred the medical expenses of the deceased as per the statement of PW-10 Rakesh Kumar. The cause of death of Sarwan Kumar, as per the opinion given in post mortem report Ext. PW-9/D, is that he died as a result of brain edema following head injury. The weapon of offence i.e. spade was recovered, on the basis of disclosure statement made by the accused in the presence of PW-4 Bongar Ram. The spade is Ext. P-1. 24. It is established from the evidence that both the parties had entered into heated arguments with regard to the possession of the field. Smt. Reshan Devi (PW-1) and Sarwan Kumar (deceased) were in their field. The accused has asked them to vacate the field. The accused has given only one blow with the spade. According to Dr. P-1. 24. It is established from the evidence that both the parties had entered into heated arguments with regard to the possession of the field. Smt. Reshan Devi (PW-1) and Sarwan Kumar (deceased) were in their field. The accused has asked them to vacate the field. The accused has given only one blow with the spade. According to Dr. Ramesh Chand (PW- 8), the injury was opined to be grievous in nature and weapon used was blunt. The probable duration of injury was 6 hours prior to the medical examination. According to Dr. Ajay Sharma (PW-9) also, the injury to head could be possible by blunt object. Dr. Ramesh Chand (PW-8) has also stated in his examination-in-chief that the head injury received by Sarwan Kumar was possible with spade Ext. P-1. The accused has requested the deceased and his wife to vacate the field. However, they refused to do so. Passions ran high. It is, in these circumstances, the accused has lost his self control by grave and sudden provocation given to him by the deceased. Everything has happened suddenly and it was not a pre-meditated act. 25. It cannot be gathered from the facts, as noticed hereinabove, that the accused had intention to kill the deceased. He only wanted the deceased and his wife to vacate the field. However, he had the knowledge that Sarwan Kumar would die if a spade blow was given on his head. Sarwan Kumar died due to brain edema following head injury on 25.9.2006. The accused has accompanied the injured to the hospital as per the statement of Smt. Reshan Devi (PW-1). We have already noticed that Rakesh Kumar (PW-10) has deposed that accused person has borne the medical expenses of Sarwan Kumar at Dheera and also paid for x-ray examination. 26. Accordingly, the appeal is partly allowed. Judgment of conviction and sentence dated 23.5.2009, rendered by the learned Sessions Judge, Kangra at Dharamshala, H.P. in Sessions Case No. 24-PVII/2008(2007) under Section 302 IPC is set aside and is modified and substituted by conviction under Section 304 (Part II) of Indian Penal Code. 27. The accused is in jail for the last eight years as per the statement of Mr. Surinder Saklani, Advocate, for the accused. Consequently, the accused is sentenced to the term already undergone. 28. 27. The accused is in jail for the last eight years as per the statement of Mr. Surinder Saklani, Advocate, for the accused. Consequently, the accused is sentenced to the term already undergone. 28. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.