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Himachal Pradesh High Court · body

2016 DIGILAW 973 (HP)

Jhabe Ram v. State of Himachal Pradesh

2016-05-30

RAJIV SHARMA, VIVEK SINGH THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against Judgment/Order dated 2.9.2015/4.9.2015 rendered by the learned Additional Sessions Judge, Kullu, HP in Sessions Trial No. 58 of 2014 (2013), whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 302 of the Indian Penal Code, has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- under Section 302 of the Indian Penal Code and in case of default of payment of fine, to further undergo simple imprisonment for two years. Learned trial Court has also recommended the District Legal Services Authority Kullu for awarding the compensation under the HP (victim of Crimes) Compensation Scheme, 2012. 2. Prosecution case, in a nutshell, is that on 7.7.2013 at around 4.50 PM at Nathan in District Kullu, 'Ganga Jal Pujan’ ceremony was going on. Children were playing in the courtyard. Accused picked up the coins of the children and threw them away. Deceased Tule Ram objected to it. A quarrel ensued between Tule Ram (deceased) and Jhabe Ram (accused). Accused pushed the deceased. Deceased fell in the courtyard. Tule Ram gave a firewood blow to the shoulder of the accused. Immediately thereafter, the accused came from behind and gave a Danda blow to the temple region of head of the deceased. Tule Ram became unconscious. He was shifted to a room. Deceased was then taken to Harihar Hospital for treatment. From there, he was shifted to Regional Hospital Kullu for further treatment. He was then referred to PGI Chandigarh. Tule Ram died at Thalot. Statement of Ghambu Ram under Section 154 CrPC was recorded vide Ext. PW-1/A. FIR Ext. PW-13/A was registered. Post-mortem examination was conducted. Statements of witnesses under Section 161 CrPC were recorded. Investigation was completed and challan was put up after completing all the codal formalities. 3. Prosecution has examined as many as eighteen witnesses to prove its case against the accused. Statement of accused was recorded under Section 313 of the Criminal Procedure Code. He pleaded innocence. Accused was convicted and sentenced as noticed above. Hence, this appeal. 4. Mr. Anoop Chitkara, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Neeraj K. Sharma, Deputy Advocate General has supported the judgment/order dated 2.9.2015/4.9.2015 passed by the learned trial Court. 6. He pleaded innocence. Accused was convicted and sentenced as noticed above. Hence, this appeal. 4. Mr. Anoop Chitkara, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Neeraj K. Sharma, Deputy Advocate General has supported the judgment/order dated 2.9.2015/4.9.2015 passed by the learned trial Court. 6. We have heard the learned counsel for the parties and also gone through the judgment and record carefully. 7. PW-1 Ghambu Ram testified that on 7.7.2013, there was 'Ganga Jal Pujan’ ceremony in their house on account of death of Puni Devi, wife of his younger brother Balak Ram. In the evening at about 4.50 PM, children were playing. Jhabe Ram picked up the coins and threw them away. His younger brother (deceased) objected to this. Thereafter both of them abused each other. Jhabe Ram pushed his brother (deceased). Deceased picked up a firewood and gave a blow to the left shoulder of the accused. After 10-15 minutes, when deceased was sitting, accused came from behind and gave Danda blow on the side of head of deceased. Deceased fell down. He was taken inside. He became unconscious. He was taken to the police post. His condition deteriorated. He was then taken to Harihar Hospital. From there he was taken to regional hospital Kullu and then he was referred to PGI Chandigarh. Deceased died at Thalot. In his cross-examination, he has admitted that he told the police that after 10-15 minutes when deceased was sitting, accused came from behind and gave Danda blow to the deceased. (Whereas it is not so recorded in the Ext. PW-1/A). He also told the police that deceased was taken to Sher Singh. (Whereas it is not so recorded in the statement Ext. PW-1/A) He has admitted that during 'Ganga Jal Pujan’ ceremony, accused was given duty to cook and serve food. He also admitted that there were about 30-35 men, women and children on the spot. 8. PW-2 Lot Ram testified that at about 4 PM, he alongwith other boys was playing in the courtyard with coins. Accused picked up coins and threw them away. Deceased objected to this. There was a quarrel between accused and deceased. Accused pushed deceased due to which he fell down. Deceased gave a blow of firewood to the shoulder of accused. PW-2 Lot Ram testified that at about 4 PM, he alongwith other boys was playing in the courtyard with coins. Accused picked up coins and threw them away. Deceased objected to this. There was a quarrel between accused and deceased. Accused pushed deceased due to which he fell down. Deceased gave a blow of firewood to the shoulder of accused. Accused picked up another fuel wood and gave a blow on the left portion of the head of the deceased. Deceased became unconscious and fell down in the courtyard. In his cross-examination, he has admitted that deceased was walking when he was being shifted to the hospital. Accused had hit the deceased on the temple portion of his head. 9. Statements of PW-1 Ghambu Ram and PW-2 Lot Ram have been corroborated by Gumat Ram PW-3. Accused picked up coins of the boys, which was objected to by the deceased. Deceased abused the accused. Accused pushed deceased Tule Ram. Tule Ram fell down. Tule Ram picked up firewood and gave blow on the shoulder of Jhabe Ram and asked him why he was misbehaving. Accused picked up big firewood and gave blow on the left portion of the head of Tule Ram. Tule Ram fell down. Deceased was taken inside. 10. PW-6 Ganga Ram testified that on 8.7.2013, Gumat Ram produced a piece of firewood Ext. P-2 before the police and told the police that said stick was used by accused in the commission of offence. It was seized vide seizure memo Ext. PW-3/A. In his cross-examination he admitted that no occurrence has taken place in his presence. 11. PW-7 Mohar Singh deposed that the quarrel has taken place between the accused and the deceased. Accused pushed the deceased. Deceased fell down. In the meantime, accused picked up a piece of firewood and hit on the head of the deceased. Deceased collapsed. He was shifted to a room. In his cross-examination, he admitted that on the day of occurrence, accused was cooking food for 'Ganga Jal Pujan’ ceremony and was deputed by Balak Ram for distributing the food. About 60-70 persons were there. He also admitted that the deceased went to the doctor on foot. 12. PW-8 Dr. Bharat Bhushan Bhardwaj deposed that the deceased was brought with the alleged history of assault. Patient was referred from Harihar Hospital, Kullu. CT Scan was done at Harihar Hospital. About 60-70 persons were there. He also admitted that the deceased went to the doctor on foot. 12. PW-8 Dr. Bharat Bhushan Bhardwaj deposed that the deceased was brought with the alleged history of assault. Patient was referred from Harihar Hospital, Kullu. CT Scan was done at Harihar Hospital. CT scan suggested extra-dural Hemotoma with intra-cerebral contusions with fracture of left paletal bone. Probable duration of injury was less than 24 hours and weapon used was blunt. He issued MLR Ext. PW-8/A. In his cross-examination, he admitted that the referring doctor did not make reference of history of assault on the person of deceased, rather the referral doctor had made reference of injury by fall. 13. PW-9 Dr. Kalyan Singh, has conducted post-mortem examination. He issued post-mortem report Ext. PW-9/A. Duration between injury and death was less than six hours and between death and post mortem was 12-24 hours. His final opinion is Ext. PW-9/B. 14. PW-15 SI Sanjeev Kumar testified that he received information on 8.7.2013. He visited the hospital and recorded statement of Ghambu Ram under Section 154 CrPC vide Ext. PW-1/A. Site map was prepared. In his cross-examination, he has admitted that it has come in the investigation that deceased sustained injury due to fall as stated by Dr. Ravinder Kumar and it was also told to the doctor by the attendant. 15. PW-17 Dr. Ravinder Kumar deposed that he was serving as a general surgeon at Harihar Hospital, Kullu from 4.6.2012 to 30.7.2013. On the night of 7.7.2013 at around 8.30 PM, he was called by the RMO who was on duty in the hospital as Tule Ram (deceased) was brought for medical treatment. When he reached in the hospital, he asked 4-5 persons who were with Tule Ram what had happened to him. One lady claiming herself to be the sister of Tule Ram informed that Tule Ram had fallen from stairs. One old person, claiming to be the father of Tule Ram was also with the deceased. He advised CT scan of the patient. 16. Case of the prosecution, precisely, is that on 7.7.2013, when 'Ganga Jal Pujan’ ceremony was going on, an altercation between the accused and deceased took place. Accused was hit by the deceased on his shoulder. Thereafter, accused hit the deceased on the left portion of his head. Deceased collapsed. He was taken to Harihar Hospital, Kullu. 16. Case of the prosecution, precisely, is that on 7.7.2013, when 'Ganga Jal Pujan’ ceremony was going on, an altercation between the accused and deceased took place. Accused was hit by the deceased on his shoulder. Thereafter, accused hit the deceased on the left portion of his head. Deceased collapsed. He was taken to Harihar Hospital, Kullu. Thereafter, he was referred to District Hospital Kullu and from there to PGI Chandigarh. Deceased died at Thalot. The cause of death of the deceased was head injury. Following injuries were noticed by PW-8 Dr. Bharat Bhushan Bhardwaj, on the person of the deceased: “Cystic swelling (l) tempoparietal region of scalp measuring 5cm x 3cm, bluish in colour” 17. Only one injury was noticed on the person of the deceased. 18. PW-1 Ghambu Ram has specifically deposed that a quarrel took place between the accused and the deceased. Deceased was pushed by the accused. Deceased had given a blow on the shoulder of the accused. After 10-15 minutes, when deceased was sitting, accused came from behind and gave a Danda blow on the head of the deceased. Deceased collapsed. PW-2 Lot Ram has also deposed that a quarrel has taken place between the deceased and the accused. First blow was given by the deceased to the accused on his shoulder. Thereafter in retaliation, he gave blow on the head of deceased. PW-3 Gumat Ram has also corroborated the statements of PW-1 Ghambu Ram and PW-2 Lot Ram about the manner in which quarrel has taken place which resulted into injury to the deceased. He has specifically deposed, in his cross-examination that the quarrel lasted for about 10-15 minutes and nobody intervened. PW-7 Mohar Singh has also deposed that the accused has given Danda blow on the left portion of the head of deceased. Accused was preparing food for the 'Ganga Jal Pujan’ ceremony and he was also deputed by Balak Ram for distributing food to the visitors. Probable duration of injury and death was less than 24 hours and weapon used was blunt, as per the statement of PW-8 Dr. Bharat Bhushan Bhardwaj. It has also come on record that deceased went on foot to the Doctor. PW-17 Dr. Ravinder Kumar deposed that the attendants of deceased had told that the deceased had fallen from stairs. Probable duration of injury and death was less than 24 hours and weapon used was blunt, as per the statement of PW-8 Dr. Bharat Bhushan Bhardwaj. It has also come on record that deceased went on foot to the Doctor. PW-17 Dr. Ravinder Kumar deposed that the attendants of deceased had told that the deceased had fallen from stairs. However, fact of the matter is that accused has given Danda blow on the left portion of the head of the deceased resulting into head injury. Deceased was taken to Harihar Hospital and thereafter he died on the way to PGI Chandigarh. There was no pre-meditation in the commission of crime by the accused. Genesis of the incident is picking up the coins and throwing them away by the accused, which was objected by the deceased. The deceased firstly hit the accused on the shoulder. Accused has only retaliated by hitting on the head of the deceased. He had no intention to kill the deceased. The injury inflicted on the head of deceased proved fatal. However, he had the knowledge that if deceased was hit with Danda blow, with force, on temple region of head, it could result into his death. Assault on deceased can be said to be on account of sudden fight without pre-meditation in the heat of passion or sudden quarrel between the deceased and the accused (assailant). Quarrel has taken place at the spur of the moment. Thus, accused is liable to be convicted under Section 304-II IPC instead of Section 302 IPC. 19. Accordingly, the appeal is partly allowed. Judgment/Order dated 2.9.2015/4.9.2015 rendered by the learned Additional Sessions Judge, Kullu, HP in Sessions Trial No. 58 of 2014 (2013) is modified. Accused is convicted under Section 304 part II instead of Section 302 IPC. Accused to be heard on quantum of sentence on 20.6.2016. 20. Registry is directed to issue the production warrant.