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2016 DIGILAW 571 (HP)

Kuldeep Singh v. State of Himachal Pradesh

2016-04-27

SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. 1. This jail appeal stands preferred by the appellant-accused Kuldeep Singh, assailing the judgment dated 29.11.2012, passed by learned Addl. Sessions Judge, Fast Track Court, Chamba, District Chamba, H.P. in Sessions Trial No. 29/12/11, titled as State of H.P. vs. Kuldeep Singh, whereby he stands convicted for having committed an offence punishable under the provisions of Section 304 (Part-II) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of 7 years and pay fine of Rs. 20,000/- and in default thereof to further undergo rigorous imprisonment for a period of six months. 2. It is the case of prosecution that accused owns an apple orchard at a place known as Baloli. For the year 2010 his son Sukhjinder Singh (PW-15), had sold the crop to contractor Hari Singh (PW-9). On 8.9.2010, the said Contractor had directed his employees Chuhru Ram (PW-1) and Dhian Singh (deceased) to carry the apple boxes to the road. As such, they engaged the services of a mule contractor and at about 9.30 a.m., went to the orchard. There, without any provocation or sufficient cause, accused pelted stones at them. One cement brick directly hit deceased Dhian Singh on his head causing injuries. The matter was immediately brought to the notice of Vipan Kumar (PW-8) who telephonically informed the police. Report (Ext. PW-12/A) was recorded and police party headed by Inspector Brij Mohan (PW-16) rushed to the spot where statement of Chuhru Ram, under the provisions of Section 154 Cr.P.C. (Ext.PW-1/A) was recorded on the basis of which F.I.R. No. 83/2010, dated 8.9.2010 (Ext. PW-12/B) came to be registered against the accused at Police Station Tissa, Distt. Chamba, under the provisions of Section 302 IPC. Unfortunately Dhian Singh succumbed to the injuries and died on the spot. Police conducted the investigation and after preparation of the inquest reports (Ext. PW-8/A and 8/B), sent the dead body for post mortem which was conducted by Dr. Rishi Puri (PW-2) who opined the deceased to have died as a result of head injury leading to fracture of the occipital bone, resulting into hemorrhage of brain leading to shock and death. The accused was arrested. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 3. The accused was arrested. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under the provisions of Section 302 IPC, to which he did not plead guilty and claimed trial. 4. In order to prove its case, in all, prosecution examined sixteen witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded, in which he took the defence of innocence and defending his property i.e. apples being stolen by the deceased. In defence accused tendered copy of order dated 21.7.2010 (Ext. D-1) passed by Civil Judge (Senior Division) Chamba in CMA No. 84/2010, titled as Kuldip Singh vs. Sukhjinder Singh & others. 5. Appreciating the material on record, including the testimonies of the witnesses, trial Court convicted the accused for having committed an offence punishable under the provisions of Section 304 (Part-II) IPC and sentenced as aforesaid. Hence, the present appeal. 6. Heard learned counsel appearing on both the sides and perused the record. 7. Mr. Anoop Chitkara, learned legal aid counsel for the appellant assails the judgment on the grounds that: (i) While convicting the accused, trial Court seriously erred in correctly and completely appreciating the testimonies of the prosecution witnesses, rendering the conviction to be illegal also resulting into travesty of justice; and (ii) in the alternative and in any event, the sentence imposed is harsh and much on the higher side. 8. On the other hand, Mr. R.S. Verma learned Addl. Advocate General assisted by Mr. Puneet Rajta, learned Dy. A.G. appearing for the respondent-State, supports the judgment for the reasons set out therein. 9. From the testimony of Dr. Rishi Puri (PW-2) who conducted the post mortem on the deceased and proved the port mortem report (Ext. PW-2/B), it is quite apparent that deceased Dhian Singh died as a result of injuries sustained by him on his vital portion i.e. occipital bone. The Doctor found the following injuries on the body of the deceased:- “1. There was fracture on occipital bone. No corresponding injury was seen. 2. There were multiple abrasions in an area of 10 x 10 cms. on right side of chest. 3. There was swelling on right eye. On examination haematoma was present on around right eye which was black in colour. 4. There was fracture on occipital bone. No corresponding injury was seen. 2. There were multiple abrasions in an area of 10 x 10 cms. on right side of chest. 3. There was swelling on right eye. On examination haematoma was present on around right eye which was black in colour. 4. Lacerated wound of 1 x 0.5 CM. over chin with clotted blood was present.” The Doctor has opined the case of death to be internal hemorrhage of brain leading to shock and death. That injuries on the body of the deceased could have been inflicted with a brick stands proven by this expert. 10. That the dead body of the deceased was recovered from the spot i.e. orchard/house of the accused stands proven on record through the testimony of Ram Singh (PW-7). 11. Weapon of offence i.e. brick stands recovered from the spot in the presence of independent witness Vipin Kumar (PW-8) as also Naresh Kumar (PW-3). Version of the Investigating Officer Inspector Brij Mohan (PW-16) stands sufficiently corroborated by these witnesses. 12. From the un-rebutted testimony of Sukhjinder Singh (PW-15), it is evidently clear that the crop for the year in question was sold by him to contractor Hari Singh (PW-9) and from whom he had taken advance of Rs. 25,000/-. The crop was to be plucked, packed and transported/carried by the Contractor. The witness was extensively cross examined but however, his credit could not be impeached. No doubt he admits of having strained relations with his father (i.e. the accused) and pendency of civil litigation inter se them, wherein interim order was passed restraining him from interfering with the property in question, but then the factum of the crop having been sold also stands corroborated by Hari Singh (PW-9) and Chuhru Ram (PW-1). No challenge was laid to the rights of Hari Singh, to whom also no information of such litigation stood furnished. Also, it has not come on record that the accused took any steps for initiating proceedings against his son for having violated any interim order passed by a Civil Court. 13. The incident in question took place on 8.9.2010 at about 9.30 a.m. as is evident from the testimony of Churhu Ram (PW-1), Naresh Kumar (PW-3) and Duni Chand (PW-4). Also, it has not come on record that the accused took any steps for initiating proceedings against his son for having violated any interim order passed by a Civil Court. 13. The incident in question took place on 8.9.2010 at about 9.30 a.m. as is evident from the testimony of Churhu Ram (PW-1), Naresh Kumar (PW-3) and Duni Chand (PW-4). From the conjoint reading of the testimonies of these witnesses it is evidently clear that the crop stood plucked by the workers of Contractor Hari Singh. Also it was packed by them and the boxes kept in the verandah of the house. It is not even suggested to these witnesses that their testimony to the aforesaid effect is false or incorrect. Now if the Contractor had plucked and packed the crop, he had all the right to remove the same from the orchard. Significantly when the deceased and Chuhru Ram went with the mules to carry the apple boxes, without warning, accused started pelting bricks and one such brick hit the deceased on his head, causing injury on a vital part which proved to be fatal in nature. The incident was witnessed by Chuhru Ram, Naresh Kumar and Duni Chand. Duni Chand (PW-4) in his un-rebutted testimony has deposed that “The brick hit on the neck of Dhian Singh as a result he fell down facing mouth on the ground.” 14. As such, in the teeth of such cogent, convincing and consistent evidence on record, it cannot be said that the trial Court erred in correctly and completely appreciating the testimonies of the prosecution witnesses. Findings of conviction and reasoning adopted cannot be said to be erroneous, perverse or illegal. It be only observed that State has not preferred any appeal assailing the findings returned by the trial Court. In any event from the record, it cannot be inferred that the accused had intent of murdering the deceased. 15. Coming to the second submission, Court is of the considered view that the sentence imposed is slightly arsh and requires to be reduced. The accused, aged about 60 years, had no prior animosity with the deceased, Chuhru Ram or for that matter Contractor Hari Singh. He was in litigation with his son who allegedly sold the apple produce without his consent. As per the version of the Investigating Officer Inspector Brij Mohan (PW-16), accused did not try to abscond. The accused, aged about 60 years, had no prior animosity with the deceased, Chuhru Ram or for that matter Contractor Hari Singh. He was in litigation with his son who allegedly sold the apple produce without his consent. As per the version of the Investigating Officer Inspector Brij Mohan (PW-16), accused did not try to abscond. He willfully and voluntarily associated himself during investigation and fully cooperated with the Investigating Officer. Even during trial and pendency of the present appeal, accused has maintained good conduct. As such order qua sentence needs to be modified. 16. Record reveals that since the date of his arrest i.e. 8.9.2010, accused has been in custody till date. He has suffered incarceration for more than five and a half years. As such the sentence is reduced to the period of imprisonment already undergone by the accused. Insofar as the sentence in default for non payment of fine is concerned, it is reduced from six months to one month. 17. Hence, with the modification in the sentence part of the judgment of the trial Court, appeal stands partly allowed and disposed of, so also pending applications, if any. Release warrants, if any, be prepared accordingly. 18. Copy of judgment be supplied immediately. Registrar (Judicial) to ensure compliance. Records of the Court below be immediately sent back.