Mulla @ Mool Chand vs State of Haryana

T.P.S. Mann, J.—Judgment and order dated 28.3.1997 passed by Sessions Judge, Gurgaon, while convicting the appellant u/s 304 Part II IPC and sentencing him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/- and on failure to pay the fine, to undergo further rigorous imprisonment for a period of six months, has been challenged by him by filing the present appeal.

According to the FIR, Om Parkash, since deceased, used to run a tailor shop in his house. On 19.5.1996 at about 6.00 P.M., he saw his neighbour Mulla @ Mool Chand coming from the bazar towards his house. At that time his wife Maya Devi was sweeping the floor outside the house. Mulla @ Mool Chand started staring at Maya Devi. At this, Om Parkash told Mulla @ Mool Chand that sisters and daughters of all were equal and he should not stare at his wife. At this, Mulla @ Mool Chand abused him. Mulla @ Mool Chand then brought a Gandasi from his house and hurled the same at Om Parkash but it did not hit the latter. Then Om parkash brought hand-pump handle and hurled the same towards Mulla. Mulla picked up the said handle and used it in giving a blow on the head of Om Parkash. As a result, blood started oozing out and Om Parkash became giddy. He was rescued by his wife and others, who got him admitted in the hospital.

Injured Om Parkash was medically examined by Dr. R.N. Yadav, Medical Officer, General Hospital, Gurgaon on 19.5.1996 at 7.35 P.M., who found that he was smelling of alcohol. Pulse rate was 90 per minute, blood pressure was 130/80 and pupils were bilateral and were of normal size and reacting to light. The doctor found the following injury on his person:

Lacerated wound of size 6 x 1.5 cms x scalp deep, was present on the top of the scalp on mid parietal region, 8 cms anterior to occipital protuberance. Fresh bleeding was present. Advised x-ray and surgeon''s opinion.

On receipt of wireless message from Police Station City, Gurgaon, Head Constable Ram Kumar of Police Post Pataudi Chowk, Gurgaon went to the hospital and after obtaining an opinion of the doctor about the injured being fit to make a statement, recorded his statement Ex.PE. As no cognizable offence was made out uptill that point of time, formal FIR was not registered and, instead, entry Ex.PB made in the rozmancha. However, on 20.5.1996 at 6.10 P.M, formal FIR was registered under Sections 323 and 506 IPC. Subsequently, Om Parkash succumbed to the injuries and, accordingly, offence u/s 302/34 IPC was added to the heading of the FIR on 21.5.1996. The appellant was arrested on 27.5.1996. After completion of the investigation, final report u/s 173 Cr.P.C. was submitted against the appellant before the Ilaqa Magistrate, who committed the case to the Court of Sessions. After going through the material available on the record, the trial Court found a prima facie case for offences under Sections 302, 323 and 506 IPC and, accordingly, charged sheeted the appellant for the said offences, to which he pleaded not guilty and claimed trial.

In support of the ocular account, the prosecution had examined PW1 Smt. Maya Devi and PW2 Siri Ram. The medico-legal examination of Om Parkash, since deceased, was brought on the record by PW7 Dr. R.N. Yadav. In cross-examination, he stated that on the same day, i.e. 19.5.1996, he also medico-legally examined accused Mool Chand and found two lacerated injuries on him, one was on the right side of his forehead while the other in between the little and ring fingers. According to PW8 Dr. Alfred Lepcha, Senior Resident, Safdarjang Hospital, New Delhi, injured Om Parkash was admitted on 20.5.1996 as a case of blunt injury in abdomen for which he was operated upon and the injured died on that very day at 11.45 A.M. PW9 Dr. D. Parashar proved his opinion Ex.PD/1 given on application Ex.PD moved by HC Ram Kumar, declaring Om Parkash, injured fit to make statement on 19.5.1996 at 10.10 P.M. PW 10 Dr. Alexander F. Khakha, Specialist, Department of Forensic Medicines, Safdarjang Hospital, New Delhi, testified that he conducted postmortem examination on the dead body of Om Parkash on 21.5.1996 and found the following ante-mortem injuries:

Stitched lacerated wound on the top of the scalp on the mid parietal region at the mid line with underlying fracture of the skull bone. The size of the wound was 6 x 1.5 x 1 cms.

Surgical mid line incision with right hypochondrial incision extending over the hepatic region with three punctured wound for drainage.

On internal examination, he found that the head showed extra-vasation of blood under the scalp corresponding to injury No. 1. Skull vault showed ponds fracture of left parieto-occipital bone 0.5 cm lateral to the mid line. Fracture of parieto occipital bone of the left side had torn the dura matter and caused laceration contusion of left parietal lobe of the cerebrum. Sub dural and subasachnoid haemorrhage was present surrounding the laceration contusion. Brain matter was grossly oedematous and pale. The neck and spine structures were normal and intact. The chest showed fracture of 5th, 6th and 7th ribs of right side at mid clavicular line. Rest of the bones were normal. Both the lungs alongwith pleura were normal. The abdomen showed peritoneal cavity contained approximately 1 litre of haemorrhagic blood after surgical evacuation. The stomach contained 50ml of semi digested food particles with smell of alcohol. The liver showed multiple stitched transcapsular lacerations of the right lobe on the superior and anterior surface. Spleen and both the kidneys were pale and intact. The pelvic structures were normal and intact."

In the opinion of the doctor, the death of Om Parkash was due to shock and haemorrhage caused by multiple transcapsular laceration of liver resulting from blunt force impact with a heavy blunt weapon/object and was sufficient to cause death in the ordinary course of nature. Injury No. 1 was also caused by heavy and blunt weapon/object. He also deposed that both the injuries could be caused by handle Ex.P1.

The investigation part of the case was deposed by PW3 C. Jai Singh, PW4 ASI Ram Kishan, PW5 ASI Tej Pal, PW6 HC Ram Kumar, PW11 C. Sarwan Kumar, PW12 SI Umed Sharma and PW13 ASI Shankuntala Devi.

When examined u/s 313 Cr.P.C., the appellant denied the prosecution evidence appearing against him. He took the plea that Om Parkash, since deceased, while under the spell of liquor picked up a quarrel with him and gave two blows to him with handle of hand-pump. The first blow was given on his head while the second was warded off on his hand. As result thereof, he started feeling giddy. In the meanwhile, his brother, who was residing in the neighbourhood, brought a Lathi and while the deceased was attempting to strike once again, he after taking Lathi from his brother, gave a blow to the deceased. The appellant had profuse bleeding from his head injury. In defence, however, the accused did not examine any witness.

After hearing learned Counsel for the parties and going through the evidence, the trial Court came to the following conclusion:

The occurrence in this case is admitted. The presence of Siri Ram PW2 at the time of the occurrence seems some what doubtful. However, the only point left for consideration is as to whether Mulla accused had exceeded the right of private defence or not. Learned Counsel for the accused has placed reliance on case Nabia Raj v. State of Madhya Pradesh 1992 (1) RCR 426, wherein the Apex Court has been pleased to hold on facts that where deceased had inflicted knife injuries on the accused and the accused managed to get hold of that knife and inflicted injuries on the deceased in order to save her, the accused who had no motive to kill the deceased, had acted in her right of self defence. In the present case it is doubtful if accused had opened the attack by throwing ''Gandasi'' at Om Parkash. Admittedly, Om Parkash had brought a steel handle bar and threw it at the accused causing him simple injuries. Accused as per his own version had used ''lathi'' in self defence after borrowing it from his brother Sholu. The occurrence is admitted and the accused had caused injuries to the victim at a time when the victim was no more armed with steel handle bar. At the most first non-fatal injury on the head was justified. However, there was no justification to cause second injury which proved fatal since Om Parkash had fallen on the ground after receiving injury caused with steel handle bar on his head. Moreover, the injury on the abdominal region was given with such force that it resulted into fracture of as many as three ribs puncturing the liver. Thus, the injuries inflicted by the accused exercising the right of self defence were not commensurate with the injuries with which he was threatened. In the given circumstances of the matter it is certainly a case of exceeding the right of private defence. It cannot be said that the accused had intention to cause death. Hence accused must be held to have inflicted injuries on the deceased not with intention to cause death but with the knowledge that the same may cause death. The case proved against the accused falls squarely within the ambit of Section 304 Part II and he is accordingly held guilty and convicted for the same. Let argument on sentence be heard.

I have heard learned Counsel for the parties and perused the evidence with their able assistance.

A perusal of the statement Ex.PE made by Om Parkash, since deceased, before his death and recorded by Head Constable Ram Kumar PW6, would reveal that after he had hurled the hand-pump handle at the accused, and caused him simple injuries the same was picked up by the accused, who then used the same in inflicting an injury on the head of Om Parkash. The injury on the head of Om Parkash was noticed by Dr. R.N. Yadav-PW7 when he medico-legally examined him on 19.5.1996 at 7.35 P.M. However, at the time of postmortem examination on the dead body of Om Parkash, PW10 Dr. Alexander F. Khakha had noticed two injuries, one was a stitched lacerated wound on the top of the scalp while the other in the abdomen. As a result of injury in the abdominal area, 5th, 6th and 7th ribs were fractured. The cause of death was found to be injury No. 2, resulting from blunt force impact with heavy and blunt weapon/object and was sufficient to cause death in the ordinary course of nature. However, there was no mention in the statement Ex.PE of Om Parkash about receiving any injury in his abdomen. This fact can be explained in view of the specific mention made in Ex.PE itself that after receiving an injury on his head, he had started feeling giddy. In such a situation, he was not in a position to register that he had received another injury in his abdomen.

As is clear from the medico-legal examination of Mulla @ Mool Chand-appellant as has been deposed to by PW7 Dr. R.N. Yadav, two lacerated wounds were found on his person, one was on the right side of his fore-head whereas the other was in between the little and ring fingers. On the basis of the evidence brought on the record, the trial Court came to a conclusion that it was Om Parkash, since deceased, who hurled the hand-pump handle at Mulla @ Mool Chand-appellant causing him two simple injuries and only thereafter Mulla @ Mool Chand picked up the same hand-pump handle to cause two injuries on Om Parkash, one on his head and the other in his abdominal area. Thus, the appellant had acted in right of private defence of his person. However, the said right came to an end once Om Parkash received injury on his head and on account of the same he had fallen on the ground. The fatal injury caused by the appellant, thereafter, in the abdominal area was found to be exceeding the right of private defence and, therefore, the conviction of the appellant for an offence u/s 304 Part II IPC, is justified.

It is clear from the records that the appellant was arrested on 27.5.1996 during the investigation of the case. He remained in custody through out the trial which culminated on 28.3.1997. It was only on 19.8.1997 that the appellant was granted the concession of bail in the present appeal. Thus, he has already undergone a sentence of about one year and three months out of the sentence of seven years imposed upon him. The occurrence pertains to the year of 1996. A period of about 14 years has elapsed since then. According to the facts and circumstances of the case, the appellant had retaliated only in exercise of right of private defence of person after suffering injuries at the hands of the deceased. The appellant had not used any lethal weapon in causing the injuries. It was the handle of hand-pump which the appellant had wielded in causing two injuries on the deceased and, therefore, he had no intention to cause death. At the same time, he was saddled with the knowledge that the injuries caused by him might result in the death of Om Parkash. Taking into consideration the totality of the circumstances, the Court is of the view that no useful purpose would be served by sending the appellant behind the bars, once again, so as to undergo his remaining sentence. Ends of justice would be squarely met if the substantive sentence of Mulla @Mool Chand-appellant is reduced to that already undergone by him, and, at the same time, the fine of Rs. 5,000/- enhanced to Rs. 25,000/- so that the enhanced amount of fine may be paid to the legal heirs of deceased-Om Parkash as compensation.

Resultantly, the conviction of the appellant u/s 304 Part II IPC is maintained. His substantive sentence of imprisonment is reduced to that already undergone by him. However, the fine of Rs. 5,000/- is enhanced to Rs. 25,000/, which the appellant shall deposit with the trial Court within three months from today, failing which he shall undergo rigorous imprisonment for a period of one year. The enhanced fine, if deposited, be paid to the legal heirs of the deceased as compensation.

The appeal is, accordingly, disposed of.