Kalu alias Kalu Ram vs State of Haryana

V.K. Bali, J.

AppellantKalu has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs. 1,000/, in default whereof, he has been ordered to further undergo RI for one year. His coaccused, appellants Dhir Singh, Mahabir @ Mahabir Singh and Jai Parkash, his sons, and Jai Dayal son of Mir Singh have also been convicted under Section 302 of the Indian Penal Code but with the aid of Section 34 IPC and have been sentenced to undergo life imprisonment. All the appellants have also been convicted under Section 323 read with Section 149 IPC and sentenced to undergo RI for six months as also under Section 148 IPC to undergo RI for one year. All the substantive sentenced have, however, been ordered to run concurrently. The present appeal has been filed by the appellants against the order of conviction and sentence recorded by the learned Addl. Sessions Judge, Sonepat, dated May 4, 1993, convicting them in the manner indicated above.

The facts leading to death of Prem Wati wife of Daya Nand and injuries sustained by Daya Nand and Hari Parkash PW6 and PW7 respectively, were brought to the notice of ASI Sham Singh, PW9, who recorded the statement of Daya Nand, PW6 at 12.15 PM on February 10, 1991. His statement was recorded at Civil Hospital, Sonepat, on the basis of which DDR No. 29 came to be recorded in Police Station Rai at 9.05 P.M. The formal FIR was recorded on Feburary 22, 1991 at 8.15 AM on the basis of daily diary report, referred to above, under Section 308 read with Section 34 IPC. Prem Wati died on February 22, 1991 at 3.35 PM in Ram Manohar Lohia Hospital, Delhi, for which reason the offence was converted to Section 302 IPC. Daya Nand stated before ASI Sham Singh that he was resident of village Jakholi and used to go to village Tikri in order to teach there. The day of occurrence being a holiday, he was present at the village. His wife Prem Wati and he were going to meet his brother Daya Nand to the village. At about 12.15 PM when they reached in front of the house of Pt. Narain Dutt, in the public lane, Rattan son of Lajja and Kalu s/o Lajja Ram were quarrelling with each other over a manure pit (KURDI). Kalu Ram said, "You have come to help Rattan. Let me first deal with you." Kalu Ram was holding a lathi in his hand. He gave a lathi blow on the head of his wife Prem Wati. Thereafter, Jai Parkash son of Kalu Ram came there while holding a lathi in his hand. Immediately on reaching there, he gave a lathi blow on his head. He gave another lathi blow on his left wrist. Thereafter, Dhir Singh son of Kalu, Mahabir son of Kalu and Jai Dayal son of Mir Singh came there one after the other while holding lathis. His wife Prem Wati fell on the ground. While she was lying fallen, Jai Parkash gave a lathi blow on her waist. He raised an alarm "Mar Dia, Mar Dia" (Killed, killed). On hearing the alarm, Hari Parkash son of Gopi Ram, who was his cousin, came running. Jai Parkash and Dhir Singh gave lathi blows to him also which landed on his head and hands. Pt. Narain Dutt and Laxmi Narain also reached there and rescued them from the assailants, otherwise they would have caused them more injuries. Thereafter, his brother Daya Nand brought them to the hospital in a threewheeler and got them admitted.

With a view to subtantiate its case, the prosecution examined PW1 Dr. Vijay Gupta, PW2 Dr. H.R. Singal, PW3 Anil Kumar, Draftsman, PW4 Dr. Arun Garg, PW5 Dr. R.N. Tehlan, PW6 Daya Nand, PW7 Hari Parkash, PW8 Puran Lal, PW9 ASI Sham Singh, PW10 ASI Mehar Singh and PW11 Dr. V.K. Gaba. Dr. V.K. Gupta stated that on February 23, 1991 at 10.30 AM he conducted autopsy on the dead body of Prem Wati and found following injuries :

"1. There was light greenish bluish discoloration of skin in lower lid and adjoining area. In left eye there was subconjuctival haemorrhage about half centimeter in diameter.

Stitched wound 5 cms in size over the left frontoparietal region of scalp. It was about 5 cms posterior to eye brow. On operning, there was haematoma present underneath. Pus formation and dirty granulation tissue were present.

11 cms stitched wound right tempoparietal region of skull, horizontally placed extending from quricale to midline of skull. Multiple black stitches were applied over the wound."

On exploration of skull, diffused haematoma was found present in fronto parietal regiontemporoparietal region of the right side of the skull. On scalp separation, there were multiple fractures lying involving frontal bone and both parietal bones. There was big hole of the size of 4 cms in diameter in right temporoparietal region of skull. The cause of death, in the opinion of doctor, was due to shock and haemorrhage as a result of head injury which was sufficient to cause death in ordinary course of nature. The time that elapsed between injuries and death was within two weeks and between death and post mortem within 24 hours. In crossexamination he stated that the hole described by him was the operative hole and the laceration of brain under the hole described by him was possible because of the hole caused by the Surgeon. He also stated that he had given the time between injuries and death as two weeks on the basis of discolouration of the skin, pus formation and granulation of the tissues. He, however, denied the suggestion that the cause of death given by him was wrong and that Smt. Premo died due to supervening and intervening causes due to the negligence of the Surgeon.

Dr. H.R. Singal stated that he had medicolegally examined Smt. Premo on February 10, 1991 at 2.25 PM and had found following injuries on her person :

"1. Lacerated wound 5 cms x 1 cm on left frontal bone. Wound was bone deep. Fresh blood was present on the wound. The wound was surrounded by swelling 8 cms x 8 cms and there was brownish colouration of eye ball. Bleeding was from nose. Xray was advised and also for surgical opinion.

Patient was complaining of generalised bodyache."

Injury No. 1 was advised xray. The said injury was caused within 12 hours by blunt weapon.

On the same day at 2.35 PM, he also examined Hari Parkash and found following injuries on his person:

"1. Lacerated wound 7 cms x 3/4 cm present in the midline of scalp. Wound was skin deep. Fresh blood was present.

Lacerated wound 3 cm x 1 cm was present on the first web of the right hand. It was skin deep and fresh blood was present.

Abrasions were present in the area of 5 cms x 2 cms on the left arm on the lateral aspect. Abrasion was skin deep.

Diffused swelling was present on left thigh in the area of 10 cms x 9 cms. It was tender on pressure."

On the same day, he also medically examined Daya Nand and found following injuries on his person :

"1. There was diffused swelling 4 cms x 4 cms present on skull in frontal line with lacerated wound in the centre in the area of 2 cms x 2 cms. Wound was bone deep. Fresh blood was present.

Diffused swelling 10 cms x 8 cms was present on the left wrist joint which was tender on pressure".

Injury No. 1 was kept under observation and advised surgical opinion. Injury No. 2 was advised xray. In his crossexamination, he stated that he had not received the xray reports after medicolegal examination but had seen xray reports, Ex. DA and DB which were in the handwriting of Dr. B.D. Chaudhary, whose handwriting and signatures he identified. The reports revealed that there was no fracture corresponding to the injuries which were advised xray. This was with regard to injuries of Daya Nand.

Dr. Arun Garg only stated that on February 13, 1991 police moved an application, Ex. PG for taking statement of Prem Wati, on which he gave an opinion, Ex PG/1 that patient was unfit to make a statement, Dr. R.N. Tehlan stated that he had brought the bed head ticket of patient Prem Wati according to which she was brought to Civil Hospital, Sonepat on February 10, 1991 at 2.25 PM. She was examined by him on February 10,1991 at 7 PM. She was dowsy, disoriented to time and space. Blood pressure, pulse and pupils were normal. She was vomitting, Both of her eyes were swollen. He referred the patient to Medical College, Rohtak. According to second bed head ticket, she was again admitted in the Civil Hospital, Sonepat on February 11, 1991 at 7 PM. According to the file, she was referred to Medical College, Rohtak, but the attendants took her to Ram Manohar Lohia Hospital, Delhi where xrays were done and patient was discharged in the morning itself. Xrays were done on February 15, 1991 and the reports reveled that there was fracture of frontal bone.

Dr. V.K. Gaba stated that on February 21, 1991 while he was posted in Ram Manohar Lohia, Hospital in the Department of Neorosurgery, Premo was admitted with the history of assault. T.C.T. scan showed left side haemotoma. She was operated on the same day by Dr. G.B. Bhatti and Dr. Majumdar. She died on February 22, 1991 at 12.35 PM.

Daya Nand, who is an injured eye witness deposed in tune with the FIR lodged by him. Hari Parkash another injured eye witness too, broadly supported the prosecution version. PW8 Puran Mal is only a formal witness. ASI Sham Singh and ASI Mehar Singh have apprised the Court, the way and manner in which they conduced investigation.

When examined under Section 313 of the Code of Criminal Procedure, Kalu Ram appellant stated that he was innocent. There was a dispute with Rattan, his brother, over KURDI and on the relevant date Rattan, his brother, and he had an altercation about the use of KURDI and the occurrence had not taken place in the manner as narrated by the prosecution witnesses. The fact of the matter was that after the dispute was over, Daya Nand, Hari Parkash and Prem Wati came to know of the altercation in front of their house and raised lalkara and asked Dhir Singh to come out. Dhir Singh came out of the house and all the three tried to assault him. Dhir Singh''s mother, Bholi came to rescue Dhir Singh. She was attacked with knife by Smt. Premo and when Dhir Singh intervened to save his mother, Daya Nand and Hari Parkash, who were armed with lathi and knife respectively inflicted injuries to Dhir Singh. Smt. Bholi and Dhir Singh acted in self defence. Smt. Prem Wati had not died due to any injury received at the hands of any of the accused but she died due to negligence of the doctor, who performed the operation upon her. At the relevant time he and his other sons, namely, Jai Parkash, Mahabir Singh and Jai Dayal were not at home. In defence, the appellants examined Dr. B.D. Chaudhary as DW1 and Dr. Ranjit Singh as DW2.

We have heard learned counsel for the parties and, with their assistance, have gone through the records of the case. Mr. P.S. Mann, learned Sr. Advocate, appearing on behalf of the appellants, realising perhaps that the defence version is not probable as also that there is nothing at all to disbelieve the statement of injured witnesses, PW6 and PW7, has confined his arguments only to the applicability of Section 149 of the Indian Penal Code insofar as the appellants other than Kalu Ram are concerned as also the nature of offence committed by Kalu Ram. His two fold contention is that even if the facts, as given in the FIR, are believed in toto, coaccused of the appellantKalu Ram, cannot be said to have shared his common intention. They are, thus, liable to be convicted only for their individual acts which should not go beyond 323 IPC as the injuries said to have been caused by them were all by blunt weapon and simple in nature. His other contention is that even though the doctor has stated that injuries sustained by Smt. Premo were sufficient in ordinary course of nature to cause death, the facts of this case are not such that might attract the provisions of Section 302 IPC and the offence would not go beyond Section 304 Part II of the Indian Penal Code.

Mr. Vijay Pal Singh, learned Assistant Advocate General, Haryana, has, however, endeavoured us to sustain the order of conviction and sentence recorded by the learned Additional Sessions Judge, Sonepat.

In totality of the facts and circumstances of this case, we, however, find sufficient merit in the first contention of the learned counsel whereas the second contention deserves to be accepted only half way through. The facts leading to the death of Smt. Prem Wati and injuries to PW6 and PW7, as narrated by Daya Nand while lodging the FIR, clearly reveal that two brothers, namely, Kalu and Rattan were fighting over a small issue when he happened to pass through where minor scuffle between the two brothers was going on. Kalu suspected that Daya Nand, who was coming with his wife at that time, had perhaps come to help his adversary. In the very facts of the case, as narrated above, Kalu did not premeditate and things happened all of a sudden. As that stage, when appellantKalu caused injury with lathi that he was having in his hand to the wife of Daya Nand, other appellants were not even present. They were attracted to the scene of occurrence later. There was, thus, absolutely no occasion for the coaccused of the appellantKalu to entertain any common intention with him. They cannot, thus, he held guilty of sharing common intention with Kalu and, thus, are liable to be punished for their individual acts. Concededly, the injuries caused by them either to Prem Wati or to Daya Nand or to Hari Parkash were all simple in nature and were caused by blunt weapon. They can, thus, only be convicted under Section 323 with regard to injuries caused by them and under Sections 323/149 IPC with regard to injuries caused by others. Offence against them under Section 148 IPC is also fully established. Insofar as nature of offence committed by Kalu Ram is concerned, in our view, he cannot be convicted under Section 302 IPC. It is true that the only injury attributed to him, which was sustained by Smt. Prem Wati, was on her head and the doctor has opined that the said injury was sufficient to cause death in the ordinary course of nature. The fact, however, remains that she died after a gap of 13 days and it has clearly come in evidence of the doctor concerned that there was pus formation surrounding the wound. The doctor has, however, further stated that on scalp separation, he had found multiple fracture involving frontal bone and both pariental bones. Admittedly, as well there was fracture of parietal bone. The nature of injuries sustained by Smt. Prem Wati would, thus, make it to be a case under Section 304 Part I and not 304 Part II.

In view of the discussion made above, this appeal is partly allowed. The conviction and sentence recorded against Kalu appellant is converted from Sections 302 to 304 Part I of the Indian Penal Code. He is ordered to undergo RI for period of seven years and to pay a fine of Rs. 2,000/ in default whereof, he shall further undergo RI for one year. AppellantKalu is also held guilty under Sections 323/149 IPC and ordered to undergo RI for six months. The order of conviction and sentence against other appellants under Sections 302/149 IPC is set aside. They are, however, held guilty under Sections 323/149 IPC. They are also held guilty under Section 148 IPC. They are ordered to undergo RI for a period of six months under Sections 323/149 IPC as also for six months under Section 148 IPC.

All the substantive sentences awarded to each of the appellants shall, however, run concurrently.