Parveen Kumar vs State of Haryana

P.K. Jain, J.

This appeal is directed against the judgment dated 16.11.1993 and the order dated 22.11.1993, passed by the Sessions Judge, Sonepat, whereby the appellant has been convicted for an offence under Section 302, Indian Penal Code, and sentenced to undergo life imprisonment.

The prosecution case, as can be gathered from the record of the trial Court, is that on 5.12.1991 Surinder Kumar (PW5) along with his father Ram Kishan deceased had gone to his field to look after the crops and also for bringing barseem. There is a watercourse running through their land for irrigating purposes. The field of Jeet Ram Harijan is located ahead thereof and then there is the field of the appellant who had a separate watercourse to irrigate his fields. However, on that day the appellant came to the fields of the deceased and wanted to take water through his (deceased''s) water course, to which Ram Kishan deceased objected on the ground that if he was allowed to take the water through that watercourse, the wheat crop belonging to the deceased would be damaged inasmuch as the field of the appellant was located at a higher level. On it, the appellant went to his field. In the meanwhile, Smt. Sheelwanti (PW 6), wife of the deceased, reached there with meals. After taking meals Surinder Kumar (PW 5) and Smt. Sheelawanti (PW 6) started cutting barseem crop while the deceased Ram Kishan was looking after the wheat crop. At about 12.00 noon the appellant again came there armed with kassi and jeli and asked Ram Kishan deceased that he would take water through the said water course to which Ram Kishan again objected. Thereupon the appellant gave a kassi blow from the reverse side on the head of Ram Kishan deceased, and thereafter, after putting down the kassi, gave a jeli blow on the right leg below the knee, as a result of which Ram Kishan fell down and the appellant ran away from the spot along with the kassi and the jeli. Ram Chander and the wife of Jai Bhagwan who were working in the nearby fields, had also arrived there and witnessed the occurrence.

Ram Kishan injured was removed to Medical College Hospital, Rohtak, and was examined by Dr. Deep Parkash (PW 9), who found the following injuries on his person :

1) There was a lacerated wound on the right parietal region of the scalp measuring 7 x 3 cms. x bone deep with marks of fresh bleeding. Its margins were irregular. Xray of skull was advised and surgeon''s opinion was sought.

2) There was a swelling of the size of 8 cms. x 6 cms. in the middle of right leg at its posterior surface. Movements of the limbs were restricted and painful. Xray for right leg was advised and Orthopedic Surgeon''s opinion was sought.

He prepared medicolegal report (Exhibit PN) and also sent information (Exhibit PA/5) to the Incharge, Police Post, Medical College, Rohtak, regarding the admission of this patient in the injured condition. Ram Kishan succumbed to his injuries at 4.30 p.m. and the doctor sent intimation Exhibit PA/5 to the Incharge, Police Post, Medical College, Hospital, Rohtak. On receipt of information from the said Police Post, report Exhibit PA/4 was recorded at Police Station Gohana at 5.25 p.m. On the receipt of a copy of the special report S.I. Man Singh along with the police party reached Medical College Hospital, Rohtak, and recorded the statement (Exhibit PA) made by Surinder Kumar (PW 5), he made his endorsement (Exhibit PA/3) thereunder and sent the same for the registration of a case, on the basis of which formal FIR (Exhibit PA/1) was recorded at Police Station Gohana at 10.00 p.m. Copy of the FIR was received by the SubDivisional Judicial Magistrate on the same night at 12.35 a.m. on 6.12.1991.

S.I. Man Singh (PW 8) conducted the inquest proceedings (Exhibit PD/2) and sent the dead body of Ram Kishan for post mortem along with his application (Exhibit PD/1). Dr. A.P. Sharma (PW 4) performed autopsy on the dead body of Ram Kishan and found the following injuries on it :

1) A stitched wound 7 cms. long was present over right parietal region, longitudinally placed. On dissection underlying bone was fractured. Brain matter was lacerated and was full of altered blood.

2) There was a diffused felling over right leg.

On dissection there was fracture of right fibula bone with haematoma around.

In his option injury No. 1 was sufficient to cause death in the ordinary course of nature. Injures were found to be ante mortem in nature. He proved Exhibit PD, the copy of the post mortem report as well as Exhibit PD/1, the application moved by the police and Exhibit PD/2, the inquest proceedings received by him.

On the next day, S.I. Man Singh went to the spot of occurrence, prepared a site place thereof. He took into possession the bloodstained clothes of the deceased (Exhibit P.1 to P.4) vide memo Exhibit PE. On 11.12.1991, the appellant was arrested and was interrogated. His disclosure statement (Exhibit PH) was recorded. In pursuance of the said disclosure statement, Kassi (Exhibit P5) and jeli (Exhibit P6) were recovered by the police on 12.12.1991. All the articles seized during investigation were sent to the office of the Forensic Science Laboratory and report (Exhibit PG) was received. After completing the investigation a chargesheet was submitted to the Court.

A charge under section 302, Indian Penal Code, was framed against the appellant, to which he pleaded not guilty and claimed trial.

In support of its case, the prosecution examined 8 witnesses. Surinder (PW 5) and his mother Smt. Sheelawanti (PW 6) are the eyewitnesses to the occurrence. Dr. Deepak Parkash (PW 9) had examined the deceased in the casualty department on his admission therein and had prepared the medicolegal report (copy of which is Exhibit PN). According to his testimony, injury No. 2 was not possible if it was caused by a jeli in a lathiwise position. But swelling is possible by a blunt object. He also clarified that at the age of 70, as was the case of the deceased, bones become brittle and such a person could sustain the type of injury No. 2 by fall. Dr. A.P. Sharma (PW 4) had performed autopsy on the dead body of Ram Kishan and had prepared his reportExhibit PD. He has also stated in his crossexamination that at the age of 70 the bones of a man becomes brittle. He further clarified that injury No. 2 was not a wound but only a swelling and there was no external mark of injury. H.C. Brahm Swarup (PW 2) had recorded the formal FIR of this case, carbon copy of which is Exhibit PA/1. Constable Dharmabir (PW 1) had taken the special report and had delivered the same to the Ilaqa Magistrate on that very night. Ajit Singh (PW 3) was the Halqa Patwari who prepared Aksh Shajra (Exhibit PB) in respect of the place of occurrence on the pointing of Sheelawanti and Raj Bala PWs. ASI Mehar Singh (PW 7) was joined in the investigation when the appellant was interrogated and thereafter in pursuance of the disclosure statement made by the appellant, kassi (Exhibit P.5) and jeli (Exhibit P.6) were recovered. S.I. Man Singh (PW 8) is the Investigating Officer.

In his examination recorded under section 313 of the Code of Criminal Procedure, the appellant denied the allegations of the prosecution. He stated that he had been falsely involved by Surinder (PW 5) and his mother in collusion with the police, that they were not present at the spot at the time of the alleged occurrence. He further stated that he had the turn of water and wanted to irrigate his fields but the deceased obstructed him from doing so, that he had a wordy duel which was witnessed by Satbir and others, that the deceased Ram Kishan attacked him with a kassi, which he warded off, that Ram Kishan fell down and while snatching the kassi, it accidentally hit Ram Kishan. He further stated that Ram Kishan was removed by Satbir and others and got admitted in the M.C. Hospital, Rohtak, He further explained that it was a sudden quarrel and the occurrence had not taken place in the manner alleged by the prosecution and a story has been concocted. He produced Exhibit DX, a copy of the order dated 30.6.1967 in his defence.

On the basis of the evidence produced before him, the Sessions Judge, Sonepat, while placing implicit reliance on the testimony of Surinder (PW 4) and Sheelawanti (PW 6) read with the medical evidence, while disbelieving the defence version, convicted and sentenced the appellant, as stated above. Feeling aggrieved, the convict has come up in appeal.

We have heard the learned counsel for the parties and have gone through the record with their active help.

Faced with the direct testimony of the two eyewitnesses, Surinder (PW 4) and his mother Smt. Sheelawanti (PW 6) duly corroborated by the medical evidence, Shri S.S. Narula, Advocate, learned counsel for the appellant, has not challenged the order of conviction before us, and has confined his arguments only to a legal plea that on the basis of the facts established on the record, no offence under section 302, Indian Penal Code, is made out. The learned counsel has argued that admittedly there was no previous enmity between the parties and the appellant wanted to irrigate his fields through the said watercourse, which was being objected by the deceased. The learned counsel has pointed out that it was at this stage that the appellant being provoked gave one kassi with its reverse side on the head of the deceased and did not cause any other injury with that kassi to the deceased at all. It has been further contended by the learned counsel that injury No. 2 is just possible by fall since the deceased was a man of 70 years of age and his bones had become brittle as per medical evidence. Thus, it has been argued by the learned counsel, that at the most the appellant could be convicted for an offence under section 304 Part II, Indian Penal Code.

On the other hand, Shri N.K. Sanghi, learned Deputy Advocate General, Haryana, has argued that the appellant had come earlier when he was told that the deceased was not going to allow him to irrigate his field thought the watercourse of the deceased, and thereafter the appellant being duly armed with kassi and jeli came again and when an objection was raised by the deceased, the appellant gave a kassi blow with the reverse side on the head of the deceased and also a jeli blow on the right leg of the deceased with such a force that the deceased succumbed to his injuries within a short while. It is, thus, contended by the learned Deputy Advocate that it is a clear case which falls under section 302, Indian Penal Code.

We have given our careful thought to the respective arguments advanced at the Bar. To say at the cost of repetition, the appellant had first gone to the fields of the deceased and requested that he be allowed to take water through the watercourse running through the field of the deceased, but the request was turned down with the observations that if he was allowed to do so, the same would damage the crops of the deceased as the fields of the appellant is situated at a higher level. It is also the admitted case of the prosecution that thereafter at noon time the appellant came again having a kassi and a jeli. The appellant again asked the deceased that he should be allowed to take water through that watercourse but the deceased objected to it. Being enraged, the appellant gave one kassi blow with its reverse side on the head of the deceased which proved fatal after some hours. It cannot be disputed that a kassi and a jeli are agricultural implements and are necessary for irrigation purposes when the water is to be taken through a watercourse. In these circumstances, accepting the prosecution case as it is, no intention to commit the murder of the deceased can be imputed to the appellant. If he had the intention to cause the death of the deceased, he would not have put down his kassi and lifted the jeli. He could have given kassi blows even thereafter. But he did not cause any other kassi blow to the deceased. The mere fact that the head injury proved to be fatal in itself is not enough to hold a person guilty for an offence punishable under section 302, Indian Penal Code.

Looking at the totality of the evidence in the case in hand, it would not be possible to come to the conclusion that when the appellant struck the deceased with the blunt side of the kassi (Exhibit P.5), he intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death. If a man is hit with a blunt side on the head with sufficient force, it is bound to cause death. But that by itself is insufficient to raise an inference that the accused intended to cause such bodily injury as was sufficient to cause death. He could only be attributed with the knowledge that it was likely to cause injury which was likely to cause the death. When there is no previous enmity, no premeditation and a fatal injury is given in the heath of moment, the case would fall within the ambit of Section 304 Part II of the Indian Penal Code. This view finds affirmation in several decisions of the Apex Court including Jagrup Singh v. The State of Haryana, AIR 1981 Supreme Court 1552; Kulwant Rai v. State of Punjab, AIR 1982 Supreme Court 126; Hari Ram v. State of Haryana, 1983(1) R.C.R. (Crl.) 148 : 1983 SCC (Crl.) 159 ; and Jagtar Singh v. State of Punjab, 1983 SCC (Crl.) 459.

As a result of the above discussion, we allow this appeal in part, set aside the conviction under section 302, IPC, and instead convict the appellant for an offence under section 304 PartII of the Indian Penal Code and sentence him to suffer rigorous imprisonment for five years.