Mohan Lal vs State of Punjab

V.S. Aggarwal, J.—This is an appeal filed by Mohan Lal directed against the judgment and order of sentence passed by learned Sessions Judge, Ludhiana dated 25-1-1995. By virtue of the impugned judgment, learned trial Court held the appellant guilty of the offence punishable u/s 304 Part-I Indian Penal Code. The appellant was sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 5000/-. In default of payment of fine, he was to undergo further rigorous imprisonment for one more year. The entire amount if recovered was directed to be paid to Smt. Harbhajan Kaur, widow of Baldev Raj, after the expiry of the period of appeal, if any.

On 17-6-1991 Karam Singh was returning to his house from the fields. When he reached near the house of Baldev Raj, deceased, he heard a noise. Appellant, Mohan Lal was holding a Gandasi. He gave a Gandasi blow from its sharp side. It hit on the left side of the head of Baldev Raj. Baldev Raj fell down in his courtyard. Where the occurrence took place. Anotherblow with Gandasi was given with its reverse side. It struck Baldev Raj on left side of the eye. Thereafter appellant ran away with the weapon of offence.

Karam Singh wrapped his Parna (piece of cloth) around the head of Baldev Raj so that blood could be stopped from bleeding. Karam Singh requested one person in the village to take the deceased to the Hospital and thereafter took him in the Car to Civil Hospital, Machhiwara.

Dr. Kuldip Singh, Medical Officer at Machhiwara examined Baldev Raj and found the following injuries on his person :-

" 1. Incised wound 5 cm x 1 cm x bone deep over left side of the fore head, 3 cm from left eye brow and 6 cm from mid line of the head. The margins of the wound were clean cut and fresh bleeding was present. At the time of the admission, he was having vomiting and the condition un-conscious.

Left upper eye lid was swollen and bluish in colour. Eye ball was having normal movements and pupils of both eyes re-acting normally."

In the opinion of Dr. Kuldip Singh, duration of injuries was 12 hours from the time of medical examination. The injured was unfit to make a statement and subsequently expired in the hospital.

Dr. A.S. Sahney, (P.W.3) conducted the postmortem examination on the person of the deceased. He found the following injuries :-

"1. Stitched wound 6 cm long present on the parital region 10 cm. from the left ear.

On exploring the injuries, I found the muscles, were infiltrated with blood. There was fracture of left front to parital bone. On opening the skull, there was a big haemotoma, on the left interior cranial fossea, extending towards the right side, as well as left midle cranial fossa. Left frontal lobe of the brain were lacerated and the brain stem was congested. The right side of the heart contained blood. All other organs were healthy."

In the opinion of Dr. Sahney, death was due to cardio-respiratory failure.

Investigation had been taken up by Sub Inspector Kartar Singh. He had gone to the Civil Hospital, Machhiwara so as to record the statement of the injured. It was opined that injured was not fit to make a statement. He visited the hospital on 17/ 18-6-1991 but without any gopod results. He even went to C.M.C. Ludhiana, where the injured had been removed, but, could not record his statement. One Krishan Lal handed over to Sub Inspector the blood stained clothes of the injured. He converted those clothes into a sealed parcel and sealed them with the impression of "KS". The site was inspected, but no blood stained earth could be taken into possession. Rough site plan was prepared. Inquest report had been drawn. On 24-6-1991 sealed site plan was prepared. On 25-6-1991 appellant was produced before Sub Inspector Kartar Singh and was detained. On interrogation on 28-6-1991 in the presence of ASI Avtar Singh and Constable Darshan Singh appellant made a disclosure statement. In pursuance of that disclosure statement, he took the police party near the bushes of a tree near Behlopur and got recovered the weapon of offence (Gandasi). It was taken into possession vide a recovery memo. Rough site plan was prepared. On receipt of the report, challan has been presented.

On 21-1-1992 learned trial Court framed charges against the appellant with respect to offences punishable u/s 449/302 Indian Penal Code. The appellant pleaded not guilty and claimed trial.

When examined u/s 313, Code of Criminal Procedure, appellant denied the prosecution evidence that was put to him to be correct answer to question No. 39 gives the pracise defence:-

"I am only brother of five sisters. Nirmala is my real sister. Baldev Raj deceased had given Dah blow on the head of Nirmala and Nirmala in self defence gave Dah blow to the deceased. My sister Nirmala was got admitted in the Civil Hospital, where she was medically examined. A report was lodged with the police of P. S. Machhiwara. I have old enmity with Karam Singh PW. Karam Singh was not present at the time of incident. I was also not present there. I have been falsely implicated in this case."

In defence the appellant examined Nirmla Rani DW-1, sister of the appellant. She deposed that she was purchasing coconut. The deceased had come there and stated that he will not allow vegetables to be sold by Bhajan Singh and purchased by Nirmla Rani. She had asked Baldev Raj that she must purchase vegetables. Baldev Raj started abusing. He picked up a Dah and gave a blow on her forehead. Another Dah was taken by Nirmla Rani and she gave a blow on Baldev Raj''s forehead. As such she had stated that she was medically examined.

Learned trial Court on appraisal of evidence concluded that the incident did not take place in the house of Baldev Raj. It takes place in the street. Altercation took place. In the course of altercation, Baldev Raj hurled brickbat with a view to injure Asha Rani and hit Nirmala Rani. It was the appellant who was present. He lost his self control and gave Gandasi blow to Baldev Raj. It was not with an intention to cause death. With these findings, impugned judgment followed by the order of sentence were passed.

Aggrieved by the judgment and order of sentence, present appeal has-been filed.

Karam Singh, PW-I is the solitary eyewitness to the incident. He narrated the sequence of events and in his words, the statement reads as under:-

"On 17-6-1991, at about 2.30 p.m. I was returning to my home from my fields. When we reached near the house of Mohan Lal and house of deceased Baldev Raj is also there. I heard raulla. Baldev Raj was holding a gandasi again said the gandasi was held by Mohan Lal accused and not by Baldev Raj. Mohan Lal accused is now present today in Court. Mohan Lal gave gandasi blow striking the left side of the head of Baldev Raj from its sharp side. Baldev Raj then fell down there. The occurrence had taken place in the Court yard of Baldev Raj. Another blow by means of gandasi was again given from its reverse side by Mohan Lal accused, which struck Baldev Raj on his left eye. The accused, thereafter, ran away with his weapon." There is no controversy that the law does not insist more than one witness. If solitary witness is truthful respect to sub-stratum of the prosecution case, conviction can be based upon his sole testimony. It has never been accepted as rule of law or prudence that there must be more than one witness.

The statement of the witness was the subject- matter of criticism and it was suggested to him that he is inimical towards the appellant. This is for the reason that it was alleged that Karam Singh wanted to purchase land in the auction sale. Ram Ditta father of the appellant purchased the land. Karam Singh was also bidder, but father of appellant became the highest bidder. Infact but for these suggestions which have been promptly denied, there was nothing on the record to suggest that there was any such enmity. There is nothing to corroborate the suggestion that son of Karam Singh had slapped the sister of appellant and later he had apologised. In the absence of any other material, the assertions are nothing but figment of imaginations.

In that event, learned counsel for the appellant argued that medical evidence does not support the prosecution version. According to him, there is nothing to support that the second blow was given on the upper eye lid of the deceased. Reliance was placed on the report of post-mortem in this regard.

However, this contention is totally devoid of any merit. Dr. Kuldip Singh, PW 2 who initially examined the deceased found that the left eye lid was swollen. It indicates that there was a superficial injury on the left eye lid and this fact supports the statement of Karam Singh, PW-1.

In that event, the submission made was to the effect that there is inordinate delay in recording the first information report namely after 2 days, but the facts of the case cannot be lost sight of. It has transpired in the testimony of Investigating Officer that he repeatedly went to record the statements of the deceased, but he was not fit to make the statement. Karam Singh, PW 1 stated that after leaving the injured in the hospital, he went to Yamunanagar to meet his ailing brother. He came back to Machhiwara on 19-6-1991 when his statement was recorded. There is no ground to reject the said statement because it has transpired in evidence that it was Karam Singh, who has brought the injured to the hospital. This has been so recorded in the medico-legal report of the deceased, Ex. PB. Thus it supports and establishes that Karam Singh was the eyewitness, and his explanation is correct.

The defence version put forward was that in that sequence deceased had given a blow on the forehead of Nirmla Rani. Nirmla Rani in her self defence gave Dah blow to the deceased. To buttress this version, it was pointed that Nirmla was admitted in the Civil Hospital. In all fairness it must be stated that it is established that Nirmla was also examined by Dr. Kuldip Singh, P.W.2. She was having injury on the right side of the forehead. It was a incised wound. But the said statement of Nirmala cannot be accepted on its face value. After such an injury, it cannot be expected that Nirmala who was about 8/9 years of age, at the time of incident, could give a blow, which could prove fatal on the person of the deceased. It was alleged that it was the appellant who gave the fatal blow on the person of the deceased and there is no ground to dis-card the statement of solitary eye-witness, Karam Singh.

In that event, learned counsel for the appellant urged that in the present case, appellant could only be convicted u/s 304, Part-II of the Indian Penal Code. In his opinion only one serious blow had been given.

Section 299 Indian Penal Code explains the meaning of culpable homicide as:-

"299. Culpable homicide :- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

While Section 300 of the Penal Code details the meaning of murder. Punishment for culpable homicide not amounting to murder is provided in Section 304, I.P.C. It is divided into two degrees of guilt. The graver of which depends on the intention proved or to be inferred from all the circumstances and the less serious of which does not depend on the intention at all. Section 304, Part-I comes into play only if the act would have amounted to culpable homicide, but for its falling within one of the exceptions to Section 300 of the Penal Code. On the other hand, Section 304, Part-II would apply if there was no intention, but there was knowledge that the act was likely to cause death.

On this aspect, the decisions are legion and it is not necessary to recapitulate them, merely to cover the idle parade of familiar knowledge. One can profitably refer to the decisions in the case of Om Prakash Vs. State of Haryana, , AIR 1983 185 (SC) and Tholan Vs. State of Tamil Nadu, . In all these decisions it was held that where it is one single blow, which had been given after the dispute, then it could only be said that the accused had the knowledge that it is likely to cause death, but not the intention to cause death. In the present case in hand, it is abundantly clear and established beyond any pale of controversy that there was an altercation. The sister of the appellant had been hurt and this prompted the appellant to cause injury with gandasi on the person of the deceased. There was sudden provocation. Learned trial Court rightly held that the intention was not to cause death but was not correct thereafter to infer that Section 304, Part-I, Indian Penal Code would be attracted. Since, it was a case where only knowledge could be attributed pertaining to the act and not intention to cause death, case of the appellant fall u/s 304(2) of the Indian Penal Code.

The appellant had been in custody since June 1991. He is aged about 20 years. The interest of justice, therefore, requires that sentence awarded should be reduced to the one already undergone.

For these reasons, I only partly accept this appeal and hold the appellant guilty of the offence punishable u/s 304, Part-II, Indian Penal Code. Sentence is reduced to the one already undergone.