Dhan Singh vs State of Haryana

S.S. Grewal, J.—This appeal is directed against the order of the Additional Sessions Judge, Hisar, dated 23.3.1989, whereby the present appellant was convicted under section 304 PartI of the Indian Penal Code and was sentenced to undergo R.I. for 7 years. He was further directed to pay fine of Rs. 1000/ or in default of payment of fine to further undergo R.I. for one year.

In brief, facts relevant for the disposal of this appeal, as emerge from the statement of Amar Singh first informat and an eyewitness, are that on 28.10.1988 he along with his nephew Rajinder went to village Dhani Raju Ki in order to give ceremonial items on occasion of Karwa Choth ceremony and impending Dewali to his niece Banarsi, as well as to the sisters of Rajinder who were married in that village. At about 6.00 P.M. when they reached the house of Banarsi, they found children of Banarsi and Chhabila (father of the present appellant) quarrelling with each other. Banarsi tried to pacify them. At that time, the appellant armed with a Lath came there and raised lalkara, as to why Banarsi was beating his brother and he gave a Lath blow to Banarsi which hit her on head while she was standing. Lath broke into two pieces. Banarsi fell down after the receipt of the injury and the appellant ran away leaving the Lath, which had broken into two pieces near the spot. In the meantime, Ram Sarup, husband of Banarsi, came there running from the side of the temple. Benarsi was then being taken to Civil Hospital Hansi but she succumbed to her injuries before reaching the hospital.

On receipt of ruqa from the civil hospital Hansi, Inspector Hukam Singh went there recorded the statement of Amar Singh on the basis of which formal FIR was subsequently registered at the Police Station. The Inspector prepared inquest report and sent deadbody for postmortem examination. On the next day, he inspected the spot and lifted bloodstained earth. He also picked up the Lath broken into two pieces from near the spot. ASI Rajinder Singh arrested the present appellant on 31.10.1988. After completion of investigation, appellant was challaned, committed, tried, convicted and sentenced, as indicated above.

Appellant when examined under section 313 Cr.P.C. denied the prosecution allegation levelled against him and pleaded false implication. According to him, Om Prakash his younger brother and Suresh son of Banarsi quarrelled on the evening of day of occurrence. Thereafter Om Parkash went to the roof of his house and aimed a brick at Suresh sitting in the compound of his house, which accidentally hit Banarsi, on her head.

The learned counsel for the parties were heard. The learned counsel assailed the prosecution story mainly on the ground that both Amar Singh and Rajinder, the two alleged eyewitnesses belong to a different village and their presence at the spot at the time of the occurrence as alleged by the prosecution, is highly doubtful.

Both Amar Singh and Rajinder PWs have given cogent reason for their presence at the spot at the time of the occurrence. Amar Singh Pw is the uncle of Banarsi deceased whereas Rajinder PW is the first cousin of the deceased. It has also come in evidence that the father of the deceased used to live at a far away place at a distance of about 100 Kilometers from the village, where, her deceased daughter Banarsi was married. Amar Singh PW has gone to the village of the deceased to give customary gifts on the occasion of Karwa Choth and impending Diwali whereas, Rajinder PW had accompanied his uncle in order to give similar gifts to his three sisters who too were married in the same village. In these circumstances, Amar Singh and Rajinder PWs cannot be dubbed as mere chance witnesses.

Another important aspect of the case is that first information report, in the instant case has been reduced into black and white within four hours of the occurrence. After Banarsi received head injury at about 6.00 P.M. at the hands of appellant, she was being taken to the civil hospital at Hansi and died on the way. Some time must have been taken before arranging rikshaw and taking her to the hospital. After the dead body was taken to the civil hospital, ruqa was sent from there to the police. Inspector Hukam Singh went to the hospital and completed the statements of Amar Singh PW by 9.30 P.M. and on its basis formal FIR was registered at policestation city Hansi at about 9.45 P.M. and the special report reached the Ilaqa Magistrate at 11.00 P.M. on the same evening at Hansi along with the inquest report, wherein too statements of both Amar Singh and Rajinder PWs had been recorded. From these circumstances, it is quite apparent that the first information report which contains all the vivid details of the occurrence has been recorded without undue delay. The presence of both Amar Singh and Rajinder PWs at the spot at the time of occurrence is quite natural, probable and convincing.

The next question which arises for determination is as to whether testimony of the aforesaid two eyewitnesses is worthy of credence. Their testimony has been assailed mainly on the ground that as per statement of Amar Singh PW2, when they reached near the house of Banarsi children of Chhabila(father of tho present appellant) and Banarsi were quarrelling and Banarasi was trying to separate them. Both Amar Singh and Rajinder PWs were present near the gate of the hose of Banarsi when the accusedappellant came there with a Lath raising lalkara as to why Banarsi has given beating to his brother and gave a Lath blow on the head of Banarsi, who fell down on receipt of the said injury. On the other hand, according to Rajinder PW6 they went to the house of Banarsi at about 6.00 P.M. In the meantime, children started quarrelling outside the house of Banarsi and, she went outside to pacify the children and thereafter, the main occurrence took place.

In crossexamination, Rajinder PW admitted that they were sitting inside the house when they heard noise outside. The quarrel between the children of Banarsi and brother of the accused lasted for about 45 minutes. Banarsi came outside to pacify the children and after about 56 minutes of Banarsi coming out they too came out of the house. However, Rajinder has categorically stated that the appellant gave the single blow with a lathi to the deceased in his presence and that of Amar Singh PW6.

The discrepancy referred to above, in narration of the two eyewitnesses, in my opinion, would not be sufficient to disbelieve the testimony of the two eyewitnesses with regard to the main occurrence. Testimony of both these witnesses were recorded after four months of the occurrence. The discrepancy referred to above, in my opinion rather would indicate that these witnesses were not tutored. On the other hand, they were truthful witnesses.

Their testimony concerning the infliction of injury finds material support from the medical evidence on the record which, reveals presence of the following injury on the dead body of the deceased :

"Lacerated wound 6 cm x 1 cm on vertex region of the skull, starting from 2 cm to the right of midline obliquely placed directly downwards, forward and laterally on the left side up to 4 cm to the left of midline. Clotted blood was present in and around the wound. On dissection, there was subcutaneous accymosis. On further dissection, there was depressed fracture of underlying bone (both parietal bones). On removing the bones, there was laceration of brain matter underlying the fractured wounds and a big haemotoma was pressing the brain."

The said injury in the opinion of the doctor could be caused by the Lath Ex. P2/12. Incidentally both the pieces were recovered from near the place of occurrence when ASI Rajinder Singh to whom the investigation had been subsequently handed over, went to the spot on the next morning of the occurrence. He lifted two pieces of Lath Ex. P2/12 as well as bloodstained earth from the lane just outside the house of the deceased. This aspect of the case also contradicts the defence plea set up in this case that the deceased was sitting in her own compound along with her son Suresh, when Om Parkash DW1 brother of the accusedappellant is alleged have thrown a brickbat towards Suresh which allegedly hit Banarsi deceased. The dimensions, particularly, the width of the head injury of the deceased would clearly indicate that the said injury could not possibly be caused in case a brick is hurled from some height. In case the said injury had been cased with a brick thrown from a roof, the width and other dimensions of the injury would have been much more. Medical opinion to the contrary is without any legal basis. The width of the injury in the instant case is an independent circumstance, which supports the ocular account given by Amar Singh and Rajinder PWs that the said injury has most probably been caused by a Lath and not by a brick hurled from rooftop. It is true that the defence has not to prove its case to the hilt. However, in view of the infirmities referred to above, the defence plea set up in this case is highly improbable, whereas the ocular account given by Amar Singh and Rajinder PWs is creditworthy and finds ample corroboration on the salient feature of the prosecution story by medical and other circumstantial evidence referred to above. Besides the ocular account finds support from the first information report which has been lodged with all promptitudes. Prosecution has also been able to prove that the appellant had adequate motive to commit the crime.

It is true that Amar Singh PW in his crossexamination, admitted that statement of Ram Sarup (husband of the deceased) was recorded in the hospital prior to his own statement. It is significant to note that apart from the statement of Amar Singh PW which constitutes the first information report, in the instant case, his statement and that of Rajinder PW, and Ram Sarup, were recorded in the inquest reports prepared by the Investigating Officer in the Hospital at Hansi on the night of occurrence. From statement of Amar Singh PW and other material on the record, it is not clear as to whether statement of Ram Sarup was recorded first of all or thereafter, the investigating officer recorded the statement of Amar Singh PW which incidentally constitutes the first information report in this case. In these circumstances, it cannot be reasonably inferred that the statement of Ram Sarup which, according to the defence was withheld by the prosecution constitutes the first information report or that the statement of Ram Sarup is at variance with the first information report, or that ocular account given by Amar Singh and Rajinder PW in this case is in any manner contradicted, or is at variance with the version given by Ram Sarup PW. This aspect of the case too is not sufficient to disbelieve the ocular account given by Amar Singh and Rajinder PWs. I am satisfied that the prosecution has been able to prove its case against the appellant beyond any reasonable doubt.

The occurrence took place at the spur of moment over a minor incident in which the children of the deceased and brother of the appellant were involved, and had quarrelled with each other shortly before the main occurrence took place without any premeditation. The appellant gave only single blow on the head of the deceased which subsequently proved fatal. In the facts and circumstances of the present case, the trial Court has rightly convicted the appellant under Section 304 PartI of the Indian Penal Code and the said conviction is hereby maintained.

On behalf of the appellant, it was submitted that the appellant who is less than 20 years of age underwent agony of trial for a considerable period and has undergone detention for the last about 21/4 years and that a lenient view may be taken.

Taking into consideration the overall circumstances of the case, the manner in which the occurrence took place and also the fact that the appellant who is about 20 years of age is already stated to be in detention for the last about 21/4 years, gave a single blow on the head of the deceased which subsequently proved fatal, in my opinion the sentence of imprisonment awarded by the trial Court is too severe. In the peculiar circumstances of the case referred to above, the sentence of imprisonment awarded by the trial Court to the appellant is reduced from 7 years R.I. to 3 years R.I., whereas fine imposed by the trial Court is enhanced from Rs. 1000/ to Rs. 500/. In case of nonpayment of fine the appellant shall undergo further R.I. for one year. Out of the fine realised, the entire amount shall be paid as compensation to the nearest legal heirs of the deceased by the trial Court. This appeal is partly allowed to the extent indicated above.