Ashwani Kumar vs State of Haryana

Hemant Gupta, J—The present appeal is directed against the judgment of conviction and order of sentence dated 28.09.2011 rendered by the learned Sessions Judge, Kurukshetra, whereby the appellant was convicted for an offence punishable under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/-. In default of payment of fine, the appellant to further undergo rigorous imprisonment for two years.

The prosecution case was set in motion on the statement of Arjun Singh son of Kabaj Singh, uncle of Suresh (deceased), made to ASI Som Nath, P.S. Pehowa on 09.10.2007. In his statement (Ex. PA), Arjun Singh stated that today i.e. 09.10.2004 at about 1.00 PM, when he reached near Taneja Khal Bhandar, Dhand Road, Pehowa while coming to his village Rua on a tractor of someone after taking medicine from Pehowa, he saw that 15-20 persons were quarrelling in front of the shop. Amongst them, his nephew Suresh son of Falel Singh was also present. All those persons were having dandas, iron rods and swords etc. In the said fight, his nephew sustained injuries. Later on, he came to know that the injuries were inflicted by Ashwani, Mahesh, Kuldeep and Asha Ram as well as 10-12 other persons, whose names he do not know. His nephew Suresh died due to the injuries suffered in the fight. He further stated that all the persons fled away from the spot alongwith their respective weapons on seeing Suresh as dead. On the basis of such statement, ruqa (Ex. PA/3) was sent to the Police Station for registration of an FIR. On receipt of ruqa, FIR (Ex. PA/1) was lodged at about 3.20 PM on the same day.

Thereafter, after completing the inquest proceedings, ASI Som Nath sent the dead body of Suresh for post-mortem examination. It was on 02.11.2007 and 03.11.2007, ASI Som Nath arrested accused Ram Parshad and Ashwani - the present appellant respectively. At the time of arrest, Ashwani produced a danda, which was taken into possession vide recovery memo Ex. PM. On completion of necessary formalities, report under Section 173 Cr.P.C. was filed against Ram Parshad and Ashwani - the present appellant.

To prove its case, apart from examining the witnesses of formal nature, the prosecution has examined PW-1 Arjun Singh, the author of FIR and the uncle of the deceased; PW-14 Dr. B.B. Kakkar, who conducted postmortem examination on the dead body of the deceased and PW-12 SI Som Nath, the Investigating Officer. PW-14 Dr. B.B. Kakkar while stepping into witness box tendered his evidence by way of affidavit Ex. PQ. He also proved the post-mortem reported as Ex. PR. He found the following injuries:

"A. A reddish contusion 3 x 3 cm on the right infra orbital region of the face;

B. Reddish contusion 6 x 2.5 cm over the temporal region;

C. Reddish contusion 6.5 x 1 cm on the right infra clavicular region of the chest on exploration, fracture were seen on the left temporal bone under line, left side of extra dural hematoma about 200 ml. of clotted blood."

He opined that the cause of death in this case was due to head injury, which was ante mortem in nature and sufficient to cause death in ordinary course of events. In his cross-examination, he stated that there was only one injury in the head and that injuries No. 1 & 3 could be caused because of a fall by the deceased after receipt of injury No. 2.

While appearing as PW-1, Arjun Singh supported the prosecution case in its entirety. He deposed that Ashwani, who was armed with iron rod, gave iron rod blow on the head of Suresh, whereas Lovmahesh, who was armed with lathi, gave lathi blow on the head of Suresh and that other assailants were also armed with lathis and iron rods and were beating Suresh Kumar. In his cross-examination, PW-1 Arjun Singh could not disclose the name of the owner of the tractor in question or its make. However, in respect of occurrence, he stated that when he reached in front of Taneja Khal Bhandar, he had seen 15-20 persons fighting with each other. Suresh was one of them, but he was not one of those 15-20 persons, who were fighting, but was being assaulted. All those 15-20 persons were armed with iron rods, dandas & swords etc. and that Ashwani has caused an iron rod blow and Lovmahesh caused the lathi blow on the person of Suresh. He stated that his nephew had no dispute with any of the accused or the persons named by him. He denied that he ever gave a statement to the police that there was dispute regarding the plot.

PW-12 SI Som Nath, the Investigating Officer, deposed with regard to the investigations carried out by him. In his cross-examination, he stated that on enquiry, Arjun Singh has not disclosed the parentage and addresses of Ashwani, Mahesh, Kuldeep and Aasa Ram, He stated that he had received wireless message from the Chandigarh Police regarding the admission of Ashwani Kumar, Lovmahesh and Ram Parshad in GMCH, Sector 32, Chandigarh, but he could not visit Chandigarh on the date, as it was too late. However, on the next day i.e. 10.10.2007, he visited Chandigarh, but he could not record the statements of Ashwani and Lovmanesh, as they were declared unfit to make statement. He denied the suggestion that the statement of Arjun was recorded much later after he was summoned from Village Rua after finding the dead body lying near Dhand road.

It may be noticed that a cross-case was also registered on the statement of Ashwani. On the basis of such statement, the accused therein stand convicted and sentenced for the offences punishable under Sections 325, 323, 148 read with Section 149 IPC. The said judgment is subject matter of appeal in CRA No. 2666-SB of 2011, which shall be taken up for decision separately.

After going through the evidence on record, learned trial Court convicted and sentenced the accused-appellant, as mentioned above, whereas acquitted Ram Parshad of the charges levelled against him.

Before this Court, learned counsel for the appellant has vehemently argued that the deceased was part of a group, who wanted to encroach upon the land of the appellant, which is apparent from site plan Ex. PL, which reflects the place of occurrence a plot in the ownership of Smt. Chanan Devi wife of Singharamal, grand-mother of the appellant. Therefore, the appellant had a right to protect possession of his property. It is pointed out that the prosecution case is based upon the statement of PW-1 Arjun Singh, uncle of the deceased, alone to the effect that when he reached near Taneja Khal Bhandar, Dhand Road, Pehowa while coming to his village Rua on a tractor, he saw that 15-20 persons were giving beatings to his nephew Suresh and that it was Ashwani - the present appellant and Lovmahesh, who gave iron rod blow and lathi blow respectively on the head of the deceased. It is also pointed out that as per the testimony of PW-14 Dr. B.B. Kakkar, he found three injuries on the person of the deceased and it is head injury i.e. injury No. 2, which is sufficient to cause death in ordinary course of events. It is argued that injury on the head is attributed to the appellant as well as Lovmahesh, therefore, it is not possible to arrive at a definite conclusion that the injury attributed to the appellant was the cause of death of the deceased. Lastly, it is argued that the appellant is attributed single injury, which injury is not with intention to cause death or with intention of causing bodily injury, which may be said to be sufficient in the ordinary course of nature to cause death. It is, thus, argued that at best, it is a case for an offence punishable under Section 304 IPC. Reliance is placed upon judgments of Hon''ble Supreme Court reported as State of Punjab v. Bira Singh & others 1995 SCC (Criminal) 1152 ; Bagdi Ram Vs. State of Madhya Pradesh, AIR 2004 SC 387 : (2004) 98 CLT 225 : (2004) CriLJ 632 : (2003) 10 JT 219 : (2003) 10 SCALE 41 : (2004) 12 SCC 302 : (2004) 1 UJ 147 and Gurmukh Singh Vs. State of Haryana, (2010) CriLJ 450 : (2009) 11 JT 117 : (2009) 11 SCALE 688 : (2009) 15 SCC 635 .

On the other hand, learned State counsel controverted the arguments raised. It is contended that the evidence on record may show that there was a dispute regarding plot of a land, but the allegations against the deceased is not of any covert or overt act to disturb the possession of any person. There is no evidence to this effect. The prosecution evidence is clear and categorical that the deceased was being given beatings by 15-20 persons and that blow on the head was given by Ashwani with iron rod, whereas Lovmahesh gave a lathi blow on the head of the deceased. Keeping in view the extent of injury caused, as per the medical evidence, the said injury is not possible with a danda blow. It is, in fact, an injury by iron rod. Reliance is placed upon Virsa Singh Vs. The State of Punjab, AIR 1958 SC 465 : (1958) CriLJ 818 : (1958) 1 SCR 1495 , wherein while considering Section 300 IPC particularly ''firstly'' and ''thirdly'', the Hon''ble Supreme Court held that once it was proved that there was intention to inflict injury then the words ''and the bodily injury intended to be inflicted'' in clause ''thirdly'' is merely descriptive. The Hon''ble Supreme Court observed as under:

"10. .....All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention."

We have heard learned counsel for the parties and find that the statement of Arjun Singh that Ashwani Kumar, the present appellant, gave iron rod blow, is a statement of reliable and trustworthy witness, given soon after the occurrence. Mere fact that he is uncle of the deceased is not sufficient to discard his testimony, when he has stood the test of cross-examination. His statement is corroborated by the medical evidence. There is no defence version that the deceased was the aggressor or that he was armed, came to the spot with intention to take or interfere in the possession of the accused. Still further, though Arjun Singh has attributed danda blow to Lovmahesh, but the fact remains that the prosecution has not even filed a report against him. Therefore, the prosecution has proved beyond reasonable doubt that it was appellant alone, who has given fatal blow on the head of the deceased.

The prosecution is required to prove that such injury was intended to be inflicted with intention to cause such bodily injury which was likely to cause death. We find that when 15-20 persons were quarrelling, the injuries were caused not with the intention, which is likely to cause death, but to resist the act of forcible dispossession. This is more so when the place of occurrence is a plot of land of the appellant.

In the present case, the prosecution has not explained the circumstances, which prompted the deceased to be at the place of occurrence i.e. a plot of land owned by the grand-mother of the accused-appellant. Therefore, one can reasonably infer that the deceased was not authorized to enter upon the land of the accused. But still the accused has no right to inflict injuries so as to take life of Suresh. We find that the present is a case falling in Exception 4 of Section 300 IPC, which contemplates that culpable homicide is not a 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. There is no evidence that there was any premeditation. It is a case of sudden fight, when the accused in order to protect possession of his plot inflicted single iron rod blow on the head of the deceased. He is not acted in a cruel or unusual manner.

The Hon''ble Supreme Court in Criminal Appeal No. 2279 of 2009 titled ''Ramanlal & another v. State of Haryana'' decided on 15.05.2015, was seized of the identical issue, wherein in a sudden fight a single blow was inflicted by the accused. The Court held that offence committed by the author of the injury is not murder, but culpable homicide not amounting to murder punishable under Section 304 IPC. The Court held that nature of the injury, the vital part of the body on which the same was inflicted, the weapon used by the accused and the medical evidence that the said injury was sufficient in the ordinary course to cause death, it would be a case of culpable homicide, but for Exception 4 to Section 300, when the incident was without any premeditation and a sudden fight upon a sudden quarrel. The injuries upon the deceased were inflicted in the heat of passion and without the accused taking any undue advantage or acting in a cruel or unusual manner.

In Bira Singh''s case (supra), one blow was given with sella. The Hon''ble Supreme Court held that there was no intention on the part of Bira Singh to cause death. In Bagdi Ram''s case (supra), it was found that in an altercation, there was brick-batting from both sides. When tempers ran high, in the heat of passion, upon sudden quarrel, the appellant assaulted the deceased though unarmed, but without pre-meditation. Since a single injury was inflicted upon the deceased, it makes out a case for an offence under Section 304, Part I IPC. In the present case, there is no evidence that there was any intention or pre-meditation in the mind of the appellant to inflict such injury to the deceased, as was likely to cause death in the ordinary course of nature.

Thus, we find that the appellant is liable to be convicted for an offence falling under Part I of Section 304 IPC rather than under Section 302 IPC.

Consequently, we partly allow the present appeal by setting aside the conviction of the appellant under Section 302 IPC, but convict him under Section 304 Part I IPC. As a result thereof, the appellant is directed to undergo rigorous imprisonment for a period of ten years under Section 304, Part I IPC. However, the sentence of fine of Rs. 10,000/- and in default of payment of fine to undergo further rigorous imprisonment for two years, shall remain same.