Om Prakash vs State of Haryana

S.S. Grewal, J.

Additional Sessions Judge, Rohtak, vide his order dated 29th/30th October, 1985 convicted Om Prakash appellant under Section 304 Part II of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for four years to pay a fine of Rs. 250/ or in default of payment of fine to undergo further rigorous imprisonment for three months, whereas Raj Bir, Umed Singh and Ranbir Singh co accused were acquitted. Agreed against the order of conviction and sentence passed against Om Prakash appellant he has filed Criminal Appeal No. 527SB of 1985 whereas Bijinder Singh complainant filed Criminal Revision No. 961 of 1986 for conviction of all the accused and to pass sentence in accordance with law against them. Prayer was also made that legal heirs of the deceased be awarded compensation to the tune of Rs. 50,000/. As common questions of law and fact are involved in both the appeal and revision, so these are disposed of by one judgement.

In brief facts relevant for the disposal of this appeal, as emerge from the first information report lodged by Bijinder Singh an eye witness and son of the deceased are that Rati Ram deceased used to cultivate his land by canal water from outlet No. 20000. His turn of water would come on every Wednesday from 5.34 p.m. to 7.25 p.m. Immediately thereafter the turn of water of Om Prakash would commence.

About a month prior to the present occurrence Rati Ram permitted his turn of water to be utilized by Giani Ram. Om Prakash accused did not allow Giani Ram to avail of the said turn. The latter complained about this fact to Rati Ram. Rati Ram also availed of his turn of water on 26.12.1984 as usual. This, however, annoyed Om Prakash who collected persons in front of the house of Sukhbir on 27.12.1984 at about 4.30 p.m. Rati Ram was called there and his son Bijinder Singh as well as Jagdish and Bhima PWs were also present there along with the accused. Rati Ram stated that he would avail his turn of water separately and not jointly with Om Prakash. He also asked Om Prakash as to why he did not permit Giani Ram, to use his turn of water. Om Prakash accused felt enraged. He went inside his house and brought a lathi whereas his coaccused Rajbir brought a jaili. Umed Singh and Ranbir Singh their co accused caught hold of Rati Ram wherea. Om Prakash accused gave a lathi blow on his head and Raj Bir accused gave a jaili blow on the back of Rati Ram lathi wise. Rati Ram fell down on receipt of the injuries and become unconscious and then all the accused went away from the spot. The entire occurrence was witnessed by Bijinder Singh, Jagdish and Bhima. Rati Ram was subsequently removed to Civil Dispensary, Jhajjar in a tractor trolley. The doctor at Jhajjar referred him to Civil Hospital Rohtak. Rati Ram was then taken to Medical College and Hospital at Rohtak where he was examined by Dr. Jatinder Aggarwal. The injured however died in the Medical College and Hospital Rohtak, at about 10.30 a.m. on 28121984. Head Constable Pirthi Singh first went to Civil Dispensary Jhajjar and then to Medical College and hospital where he recorded the statement of Bijinder Singh and on its basis formal FIR was registered at the Police Station at 7.10 a.m. on 28101984 under Section 308 read with Section 34 of the Indian Penal Code. After receipt of information about the death of Rati Ram the offence was converted to that under Sections 302 read with Section 34 of the Indian Penal Code. After completion of the investigation, the accused were challaned tried and only Om Prakash was convicted and sentenced whereas other three co accused were acquitted as already detailed earlier.

The accused in their statements under Section 313 of the Code of Criminal Procedure denied the prosecution allegations and pleaded false implication. According to Om Prakash accused Rati Ram''s turn of water used to come prior to his turn. Rati Ram gave his turn of water to a person whose land was situated far away from his fields, thus depriving Om Parkash accused of almost his entire turn of water. He called about 25/3.1 respectables at about 2.30 p.m. on 27121984 at the Chabutra of Sukhbir with a view to persuade Rati Ram not to give his turn of water to persons whose fields are situated at a far off distance. When the respectable including Sukhbir and Ratia started persuading Rati Ram to accede to the genuine demand of Om Prakash, some persons made noised, hot words were exchanged and in that melee Rati Ram was pushed. He fell down on the lane and received injuries on his head due to stones and brick bats lying there. The other three accused denied their presence at the spot at the time of the alleged occurrence.

I have heard the learned counsel for the parties and have carefully pursued the record.

It is true that there is delay in lodging the first information report which was actually reduced into writing on the next morning of occurrence at about 7.10 a.m. The delay per se is not sufficient to discard the prosecution evidence altogether. Its only effect is to scrutinize the prosecution evidence more thoroughly so as to sift truth from false hood or grain from the chaff. The remissness on the part of the Investigating agency particularly, Head Constable Pirthi would not be sufficient to disbelieve the ocular account. In the present case it would be prudent to seek independent corroboration of the ocular account in material particulars.

On behalf of the appellant it was submitted that no legal cogent or reliable evidence has been produced by the prosecution in order to connect him with the crime for commission of offence under Section 304 Part II of the Indian Penal Code. The argument is devoid of any merit. The ocular account given in this case by Bijinder Singh, first informant, Bhirra PW 6 and Jagdish PW7 as far as presence and participation of Om Prakash is worthy of credence. Mere fact that the trial court, which had the added advantage of watching the demeanor of the witness disbelieved the testimony as far as presence and participation of other three accused namely Raj Bir, Umed Singh and Ranbir Singh are concerned, would not per se be sufficient to discard their evidence qua the role attributed to Om Prakash accused in the main occurrence. No enmity or ill will between the three eye witnesses and accused party has been alleged or proved on the record. Mere fact the Bhima PW was convicted under Section 332/353 of the Indian Penal Code, for assaulting police officials in the absence of any other material on the record would not be sufficient to disbelieve his testimony. No material contradiction worth the same as been pointed out in the testimony of the three eye witness as far as presence and participation of Om Prakash accused in the main occurrence is concerned. Testimony of three eye witnesses to the effect that they had seen Om Prakash giving injury with a lathi on the head of the deceased finds ample corroborations from the medical evidence on the record which shows abrasion on the vertex in its mid line big heamstoma was found underneath the said injury. Besides there was intracranial and interacerebellar and extra dural haemorrhage underneath the head injury. The head injury in the opinion of the doctor was sufficient to cause death in the ordinary course of nature and could be caused by a lathi. The defence plea put forth on behalf of Om Prakash accused that the said injury was result of fall on brick bias or stones is a cock and bull story which cannot be believed. The second injury on the body of the deceased attributed to Raj Bir accused was merely a linear abrasion on the left ear and there is no injury on the back as deposed to by the eye witness. Even otherwise such like injury possibly could not be caused by a jaili used with a considerable force. No other injury has been specifically attributed to other two accused namely Umed Singh and Ranbir Singh. It does not sound natural or probable that while two of the accused namely Umed Singh and Ranbir Singh would be holding the deceased their other two co accused would inflict injuries to the deceased. No independent corroboration could be found as far as ocular account for presence and participation of Umed Singh Ranbir Singh an RajBir accused is concerned. The trial Court has rightly disbelieved the ocular account in this respect and acquitted the accused other than. Om Prakash accused. The latter had also adequate motive to commit the crime. He was aggrieved party as the deceased would give his turn of water to other persons against the wishes of Om Prakash accused, who earlier had been utilizing turn of water of deceased jointly.

During the entire occurrence Om Prakash accused gave a single blow with a lathi on the head of the deceased which subsequently proved fatal. In view of the facts and circumstances of the case it is quite apparent that there as no intention on the part of Om Prakash accused to cause the death of Rati Ram. The said accused can only be attributed with the knowledge that the injury caused by him was likely to cause death. He has thus rightly been convicted by the trial Court under Section 304 Part II of the Indian Penal Code. His conviction is accordingly maintained.

The accused underwent agony of trial for about ten months in the trial Court and his appeal also remained pending in this Court for about six years. Taking all these factors into consideration the sentence of imprisonment awarded by the trial Court is reduced from the rigorous imprisonment for four years to rigorous imprisonment for three years. The sentence of fine or imprisonment in lieu thereof is maintained.

This appeal is partly allowed to the extent indicated above. The Revision Petition filed by the complainant being without any merit is hereby dismissed.