Bishamber alias Cheeni vs State of Haryana

S.S. Dewan, J.

Bishamber appellant stands convicted under Section 302, Indian Penal Code and has been sentenced to life imprisonment. He appeals.

The prosecution case herein is essentially simple and indeed in a narrow compass. On 21.10.1985, Ramesh Kumar and Karnaila went to see Ram Leela in Gulab Nagar at Yamuna Nagar at about 8.30 p.m. but by that time Ram Leela had not started and so they started taking tea. At about 9.30 p.m. they went to see Ram Leela being staged in the camp area. When they reached near the park, they found Mango alias Goverdhan deceased and the accused Bishamber present there. Ramesh Kumar on seeing his brother Goverdhan went to him. Goverdhan asked Ramesh Kumar to get a nip of liquor and handed over Rs. 10/ to him. Ramesh Kumar then went to the liquor vend whereas Karnaila PW remained sitting with the deceased and the accused. Ramesh Kumar returned after some time with a nip of liquor and found Karnaila sitting alone, upon which he enquired from him about his brother and the accused to which he told that they had gone inside the park. Ramesh Kumar then entered the park to hand over the nip of liquor to his brother. When he reached inside the park, he found that the accused was demanding Rs. 20/ from his brother Governdhan on which he was saying that he had no money with him at that time and will pay it later. The accused abused the deceased upon which the latter tried to catch hold of the former but the accused took out a knife from the pocket of his pant and plunged it in the chest of Governdhan deceased. When Ramesh Kumar went ahead towards his brother to rescue him then the accused wielded his knife blow at him which fell on his back. On hearing the alarm raised by Ramesh Kumar, Karnaila was attracted to the spot and in the meantime, the accused ran away with his knife. Goverdhan succumbed to his injury at the spot Leaving Karnaila near the dead body, Ramesh Kumar set out for the Police Station to lodge the report but on the way he met Sub Inspector Ashok Kumar and made a statement Ex.PD before him. On the basis of that statement, formal F.I.R. Ex. PD/1 was recorded at Police Station City, Yamunanagar at 10.45 P.M.

Ashok Kumar SubInspector accompanied by Ramesh Kumar vent to the spot and, lifted blood stained earth from near the dead body. He also prepared the visual plan Ex.PH of the place of occurrence. The SubInspector held inquest Ex.PJ and sent the dead body of Goverdhan to the mortuary for autopsy. Ramesh Kumar was having injury on his person and he was accordingly sent to the hospital for his medical examination. The accused was arrested by the Assistant SubInspector Tek Ram.

Dr. Akhilesh Narain PW 1 medically examined Ramesh Kumar PW on 21.10.1985 at 1.40 a.m. and found one incised wound on his back as detailed in the medicolegal report Ex.PB. The said injury was stated to be simple in nature having been caused with a knife within a duration of six hours. Mrs. Sudha Sharma PW. 11 conducted autopsy on the dead body of Goverdhan on 22.10.1985 and found the following injury :

"1. There was a oblique elliptical incised wound size 2 cm x 1 cm on the front left chest 21/2 em below left nipple in the intercostal space. The wound margins were averted, clean cut, the wound ends were clean cut. On dissection the wound was found extending down through subcutaneous tissue, intercostal muscles, pericardium and upper left auricle of the heart anteriorly. The whole of the thoracic cavity was full of blood. The above said wound in the heart was 11/2 cm and whole thickness left auricle and the wound margin were clean cut."

Death was opined to be due to shock and hemorrhage as a result of injury No. 1. which was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injury and death was stated to be instantaneous and between death and postmortem withiin 24 hours. After necessary investigation, the accused were challaned and committed.

The ocular testimony consists of Ramesh Kumar PW 4. Karnaila PM 5 deposed to have been informed by Ramesh Kumar PW that Cheeni accused had given a knife blow to Goverdhan deceased. Be also claimed to have seen the accused running away from the spot. SubInspector Ashok Kumar PW 10 was the Investigating officer. The remaining evidence was of formal nature. When examined under Section 313 Cr.P.C., the accused denied the prosecution allegations and pleaded in the following terms:

"Ramesh, his brother Goverdhan were present in the Ram Leela being staged in Camp. They were sitting in between the girls where they misbehaved with the girl. I raised alarm that they be caught. They ran towards the park and public men followed them. I do not know what happened there. This false case has been brought against me." No evidence was, however, led in defence.

The prosecution case primarily rests on the testimony of Ramesh Kumar PW 4 and the medical evidence. Mr. K.K. Aggarwal, learned counsel for the appellant with his illimitable fairness virtually expressed his inability to pose any serious or meaningful challenge to the prosecution case. He offered not an iota of criticism to the ocular account given by Ramesh Kumar PW. On an independent appraisal thereof also, we are wholly inclined to confirm the findings of the trial Court in paragraphs 21 to 23 of its judgment with regard to the eyewitness account being both clear and forthright as also cogent, consistent and convincing. We hold that the lodging of the report in the present case was as prompt and unblemished of delay as the circumstances could possibly permit. The medical evidence to which detailed reference becomes necessary owing to the absence of any argument with regard thereto, is wholly consistent and directly corroborative of the ocular account. The chest injury was specifically opined by the medial witness as being sufficient in the ordinary course of nature to cause death.

Mr. Aggarwal, the learned defence counsel has contended that in the facts and circumstances of the case Bishamber appellant can at best be said to have committed an offence under Section 304, Indian Penal Code. There appears to be substance in this contention. It emerges from the evidence of Ramesh Kumar PW that the appellant was insisting that he would have his Rs. 20/ from the deceased on that day but the latter told him that he had no money on him and he (appellant) may do whatever he liked and that when the deceased tried to catch hold of the appellant, the latter took out a knife from the pocket of his pant and plunged it in the chest of the deceased which proved fatal. It appears that there was some altercation between the parties and three is no evidence that the appellant took any undue advantage or acted in a cruel or unusual manner. He gave a single knife blow on the chest of the deceased which proved fatal. He did not go on assaulting the deceased even though he slumped on the ground. We are, therefore, clearly of the opinion that the offence committed by the appellant would be culpable homicide not amounting to murder and he is punishable under Section 304 Part I, Indian Penal Code.

In the result, the conviction of Bishamber appellant under Section 302, Indian Penal Code, is set aside and he is convicted under Section 304 Part I, Indian Penal Code and sentenced to 7 years rigorous imprisonment and to pay a fine of Rs. 3,000/ or in default of payment of fine, he shall suffer further rigorous imprisonment for one year. The amount of fine, if realised, whole of it shall be paid to the heirs of the deceased.

The appeal is allowed to the extent detailed above.