Gulshan Kumar vs State of Punjab

A.S. Bains, J.

Gulshan Kumar appellant was convicted by the learned Sessions Judge, Jullundur under Section 302, Indian Penal Code, and sentenced to undergo imprisonment for life. His coaccused Amar Nath and Kashmiri Lal were given the benefit of doubt and acquitted. Hence, this appeal against his conviction and sentence.

The prosecution case as set up at the trial was as under :

On 9th October, at about 415 p.m., Balkar Singh (since deceased) went to the house of Kashmiri Lal co accused where his sons Amar Nath coaccused and Gulshan Kumar appellant also reside for demanding the payment of Rs. 1080/ as his commission. The house of Kashmiri Lal coaccused falls in the area of Basti Danashmandan Dakhli Jullundur and is near the Dairy of Pal Singh (PW 5) brother of the deceased. Shortly thereafter, Pal Singh (PW 5) saw the deceased, being chased by the three accused. Only the appellant was then armed with a spade, whereas the other coaccused were emptyhanded. The appellant and his coaccused overtook the victim in the lane near the house of Karam Chand. Amar Nath and Kashmiri Lal coaccused secured Balkar singh deceased from both of his arms, while Gulshan Kumar appellant dealt a `Kassi'' blow on the right cheek of Balkar Singh at the exhortation of Kashmiri Lal coaccused Balkar Singh, after receipt of the Kassi blow, fell unconscious at the spot. Dara Singh witnesses besides Pal Singh (PW 5) saw the occurrence and raised an alarm, on which the appellant and his coaccused made good their escape.

Balkar Singh injured was removed to Civil Hospital, Jullundur where he was admitted at 5.00 p.m. the same day. Dr. O.P. Chabbra (PW 4) medically examined Balkar Singh at 510 p.m. and found him unconscious. He also observed an incised wound over the right side of his face and the cheek bone was exposed.

A telephonic message was sent from the Civil Hospital regarding the admission of Balkar Singh in an injured condition to the Police Station Division No. 5, Jullundur. On receipt of the message at 605 pm., ASI Sarup Sigh (PW 8) reached the hospital at 615 p.m. and the elicited the opinion of the doctor regarding the fitness of the victim make a statement and Dr. Surinder Singh (PW 1) gave his opinion that the victim was unfit to make a statement. In the meanwhile, Pal Singh (PW 5) also reached there and the Assistant SubInspector recorded his statement. Ex. PF., on the basis of which a case against the appellant and his two coaccused was registered under Section 307 and 324 read with section 34, Indian Penal Code, vide, FIR. Ex PF/2. The Assistant SubInspector then reached the spot besides `Parna'' P.6. He also found the accused missing from their house. He prepared the visual site plan Ex. PK/1 of the spot.

Balkar Singh succumbed to his injuries at 920 p.m. on the same night and intimation regarding his death was sent to the police by Dr. S.D. Chitkara (PW 2) at 1030 p.m. On receipt the same, ASI Sarup Singh (PW 8) changed the offence to the one under Section 301, Indian Penal Code, and on reaching the hospital prepared the inquest report Ex.PD of the deadbody on the next morning.

Dr. Dalbir Singh (PW 3) conducted autopay on the deadbody of Balkar Singh at 10.10 a.m. 10th October, 1981, and found the following injury : A stitched wound on the right cheek measuring 11 cm starting from the side of the nose going externally and downwards. On dissection, the underlying bone was cut. On further dissection of the skull other bones of the skull were normal but there was subdural oaemasoma present in the right temporal region".

In his opinion, the death was due to shock and haemorrhage resulting from the aforesaid injury. The injury was antemortem and sufficient to cause death in the ordinary course of nature. The death took place within 6 hours of the infliction of the injury and the postmortem was conducted within 24 hours of the death.

At the trial, the appellant denied the prosecution allegations and pleaded false implication but gave his own version which is as follows :

"In fact I was returning from my shop to my house on the evening when Balkar Singh met me near the haveli of Karam Chand. He was armed with a dang and enquired from me the whereabout of Amar Nath. I depicted ignorance. He inflicted a dang blow on my shoulder reason. I picked up a spade lying there and after hurling it at Balkar singh ran away to the Police Station. I narrated the incident to ASI Sarup Singh but he detained me there."

He also produced in his defence DW 1 Romesh Kumar and DW 1 SI Bahadur Singh.

Mr. Sibal, learned counsel for the appellant, has only convassed regarding the nature of the offence. He urged that the offence will fall under Section 304, part 1 and not under Section 302 of the Indian Penal Code. According to him there was no enmity between the appellant and the deceased and the dispute was between the deceased and Amar Nath coaccused, the elder brother of the appellant.

We find merit in the contention of Mr. Sibal. There was no dispute between the appellant and the deceased. Only one injury was given to the deceased by the appellant and the blow was not repeated although he had the opportunity to repeat the same. The appellant is a young boy of about 20 years of age. In the circumstances the injury could not be intended to be caused, which ultimately resulted in the death of the deceased. It was the deceased who went to the house of the appellant''s father and brother and far the return of amount of Rs. 1080/. It does not seem to be a case of preplanning or premeditarion on the part of the appellant. The occurrence took place all of a sudden, when the deceased went to the house of appellant''s father to demand money. There is, it seems, some altercation ensued between the deceased and the coaccused of the appellant and in the sudden quarrel the appellant gave only a single blow to the deceased. Thus, the case of the appellant is squarely covered under Exception 4 to Section 300, Indian Penal Code, which is punishable under Section 304 (part 1), Indian Penal Code. Accordingly we are of the considered view that the offence would not fall under clause `thirdly'' of section 300 of the Indian Penal Code. The appellant is therefore, acquitted of the charge under Section 302, Indian Penal Code, and as he is found guilty of the offence of culpable homicide not amounting to murder, he is convicted under Section 304 (Part 1) of the Indian Penal Code and is sentenced to seven years'' rigorous imprisonment and a fine of Rs. 5,000/ (Rupees Five Thousand only). In default of payment of fine, he shall undergo further two years'' rigorous imprisonment. Fine, if realised, shall be paid to the heirs of Balkar Singh deceased, who be informed.

In the result, the appeal is partly allowed.