Raja Ram and others vs The State of Haryana

I.S. Tiwana, J.—The three Appellants who are brothers, and labourers by profession, were though tried for an offence u/s 302/34, Indian Penal Code, for having caused the death of Kala Ram, a rickshaw-puller, on 28th November, 1984, at about 6.30 p. m., yet were ultimately convicted and sentenced as follows:

(i)

Raja Ram, U/ss. 304 Part II appellant and 323, IPC

Sentenced to 5 years'' rigorous imprisonment & a fine of Rs 500/-.

(ii)

The other U/s 323/34 IPC two appellants

Sentenced to 6 months'' rigorous imprisonment & a fine of Rs. 200/- each.

The facts alleged against them were that on 28th November, 1984, at about 6.30 p m., when Kala Ram deceased after doing his day''s work had come back to his house in village Rasulpur Kalan, quite close to Karnal town, and was talking to his brother Arjan Dass PW3 who lived at a distance of 40 paces from the former''s house. Raja Ram Appellant came there and asked him to pay back Rs. 100/- which he had spent on his defence in a gambling case. Thereupon Kala Ram suggested that though he did owe him some money yet what exact amount he was to pay to him, i. e., the Appellant, should be got settled by a Panchayat. This led to some sort of wrangling and abusing between the two of them. They actually grappled also but were separated by Arjan Dass PW3. Thereafter Raja Ram, Appellant, left the spot in a huff and came back there after a shortwhile along with his two brothers. On reaching the house of Kala Ram all the three Appellants started abusing and beating him. As a result of this, Kala Ram fell on the ground. While Ved Pal and Sat Pal, Appellants, caught him by arms and legs, respectively, Raja Ram Appellant gave him kick and first blows He even squeezed the testicles of the deceased. On hearing the noise, Smt. Ram Piari, sister of Kala. Ram, who also lived at a short distance from his house, was attracted to the spot. Arjan Dass PW3 also saw the occurrence from a little distance. Since on account of the injuries received by Kala Ram he became unconscious, the Appellants fled from the spot.

It was also deposed to by Arjan Dass PW3 and Raghbir Singh PW6 that about two/three months prior to the date of occurrence, Sat Pal and Raja Ram, Appellants had complained to the Panchayat that Kala Ram had trespassed into their house with an evil eye on their sister. As a result that, Kala Ram was summoned to the Panchayat and after holding him guilty he besides being asked to proclaim the sister of the Appellants to be his own sister was also given a shoe-beating.

The plea of the Appellants u/s 313, Cr P. C, was that neither Ved Pal and Sat Pal. Appellants, nor the alleged eye-witnesses namely Arjan Dass, Shmt Ram Piari or Shmt. Lajjo were present at the spot. Sometime prior to the date of occurence. Raja Ram, Appellant, and the deceased had been challaned for an offence under the Gambling Act. In defending that case, Raja Ram Appellant had incurred an expenditure of Rs 100/- on behalf of Kala Ram. On the fateful day, Raja Ram Appellant demanded this amount back from the deceased and this led to an exchange of hot words between them. They not only abused each other but also grappled In that process. Raja Ram threw the deceased on the ground and he became unconscious.

The court as a result of the trial that followed placed implicit faith on the testimony of PW3 Arjan Dass and Shmt. Ram Piari PW4, and held the Appellants guilty as already indicated in the opening part of this judgment,

Shri D. C. Chaudhary, learned Counsel for the Appellants, raised the following two contentions before me:

(i) Participation of Ved Pal and Sat Pal, Appellants, in the commission of the crime is highly doubtful, and

(ii) Raja Ram, Appellant, can at the most be held guilty of an offence u/s 323 IPC only and not u/s 304-Part II, by any stretch of imagination.

Having given my thoughtful consideration to the entire matter in the light of the submissions of the learned Counsel and the evidence on record, I find considerable merit in both the pleas raised by Mr. Chaudhary.

As is well-indicated by the above narration of facts, Ved Pal and Sat Pal Appellants are stated to have accompanied their brother Raja Ram, Appellant, after the latter had a tiff with the deceased some time earlier. Had that been a fact they would not have come to the spot empty-handed just to have a verbal duel with the deceased. This was more so when the presence of Arjan Dass PW3 with the deceased, as per the prosecution stand, was well known to them, including Raja Ram, Appellant. To me it looks clear that the actual occurrence has been divided into two parts, i e , firstly there was an exchange of abuses and grappling between the deceased and Raja Ram, Appellant, and then the latter had returned to the spot in the company of his two brothers with a view to take some sort of revenge from the deceased in order to secure the presence of these two Appellants, i. e., Ved Pal and Sat Pal, The argument of the defence that the evidence PWs Arjan Dass and Ram Piari who were none others than the brother and the sister of the deceased, respectively, was of highly interested nature was brushed aside by noting that "these witnesses being relations could be least disposed to falsely implicate the accused or substitute the accused in place of the real culprits." The Court though recorded its consciousness that the evidence of such witnesses has to be scrutinised minutely and accepted with a bit of caution yet failed to take notice of the well-established tendency on the part of the relation witnesses to rope in as many number of persons of the family of the accused as they possibly can. Moreover, both these witnesses, i.e., Arjan Dass PW3 and Ram Piari PW4, stand belied by the medical evidence to the extent that Raja Ram, Appellant, had caught hold of and squeezed the testicles of the deceased. Dr. K L. Sachdeva who performed the autopsy on the body of the deceased has made a positive statement that he found that "the scrotum was normal and on cut section both the testis were normal." He completely ruled out the squeezing of the testicles of the deceased. I, therefore, grant benefit of doubt to these two Appellants.

So far as the second contention of Mr. Chaudhary, as noticed above, is concerned I find that the findings recorded by the court itself support the same. As per the medical evidence on record, injury to the spleen of the deceased was the sole cause of his death. The court after posing the question "as to whether all the three accused had a common intention to kill Kala Ram deceased" answered it by holding that ''they shared common intention only to give a thrashing to Kala Ram (deceased) " In the face of this finding how can Raja Ram, Appellant, be held guilty of culpable homicide not amounting to murder? According to the court''s findings, the Appellant neither had the intention of causing the death of Kala Ram nor the intention to cause such bodily injury as was likely to cause his death. The thrashing given by the Appellant to Kala Ram deceased is not in dispute. In the given facts and circumstances of this case, how could this Appellant be posted with the knowledge that the deceased had a diseased spleen, and, therefore, any injury to it could lead to his death. In the light of this. Raja Ram, Appellant can only be held guilty of an offence u/s 323, I.P.C. For this conclusion of mine I seek reliance on the observations made in Jani Gulab Shaikh v. The State of Maharashtra 1970 C. A. R. 40 (S C ), State v. Babar Ali AIR 1952 Ass 110, Dayal v. Union of India AIR 1963 H. P. 18 and Chanda v. The State 1980 C. L. R. (Del) 112. I, therefore, grant him relief to this extent.

The net result of the above discussion is that the appeal is allowed to the extent that Ved Pal and Sat Pal, Appellants, stand acquitted of the charges of which they have been guilty, and Raja Ram, Appellant is held guilty of an offence u/s 323 IPC instead of u/s 304-Part II His sentence is reduced to six months'' rigorous imprisonment only. His bail bonds are, therefore, cancelled to undergo the said sentence.