Telu Ram vs State of Himachal Pradesh

D.B. Lal, J.—This is an appeal brought from the judgment of the learned Sessions Judge, Hamirpur, whereby he has convicted Telu Ram for an offence u/s 302, I. P. Code and has sentenced him to imprisonment for life.

Darshan Singh deceased of village Dhuggi possessed two loudspeakers which he used to hire for marriage occasions. His assistant was Swaran Singh (P.W. 1) and both the deceased and Swaran Singh used to take the loud-speaker sets for playing at the houses of the persons where marriages etc. were performed. Accordingly on 16th June, 1973, sometimes in the afternoon at village Hiran the two loud-speakers belonging to Darshan Singh were being played one at the house of Dhanna Singh whose son Joginder Singh was married a day before and the other at the house of Dilbag Singh. Darshan Singh himself was playing the loudspeaker at the house of Dilbag Singh, while his assistant Swaran Singh was playing the loud-speaker at the house of Dhanna Singh. It is stated that the marriage functions were almost over at the house of Dhanna Singh and at about 2 P.M. he asked Swaran Singh not to play the loud-speaker any further. The said loud-speaker was installed at the roof of Dhanna Singh. So saying, Dhanna Singh went away to the bus-stand of Pabbowal where his son and daughter -in-law were to leave as the marriage function was almost over. After Dhanna Singh left the place, the prosecution case was that Darshan Singh deceased who was playing his loud-speaker at the house of Dilbag Singh came to the roof of Dhanna Singh to ask Swaran Singh as to why he had stopped playing the loud-speaker. At that time, Telu Ram accused whose roof is adjacent to the roof of Dhanna Singh''s house, came to Darshan Singh and Swaran Singh, and asked them to play on the loud-speaker which should not have been stopped. Upon that they retorted that their employer had asked them not to play the loud-speaker and so Telu Ram was nobody to command them to continue playing the loud-speaker. Upon that, some abuses were exchanged between them and according to prosecution case, Telu Ram whipped out a spring knife which was struck up in the knot of his "tehmad" and gave two blows, first one on the chin of Darshan Singh which missed its aim and the other one down inside the heart of Darshan Singh which penetrated 4" deep and resulted in instantaneous death of Darshan Singh. Thereafter Telu Ram made good his escape.

Swaran Singh went to the Police Station, Una, and lodged the F.I.R. (Ex. P.A.) at 7.30 p. M. on that very day. The police reached the spot and the dead body was sent for post-mortem examination which was performed by Dr. R. S. Nanda (P.W. 4) who found one penetrating injury and two bruises on the person of the deceased. The penetrating wound was 3/4 X 1/2 X 4'' and perforated through the chest wall. The cut wound of the heart measured 1/2" X 1/8" X One bruise 1/2" X 1/3" was on the lower Jip, while the other one of similar diamension was on the right lower back of the deceased. According to the doctor, the penetrating wound was sufficient in the ordinary course of nature to cause death. He also confirmed that the death was almost instantaneous.

On these facts and allegations, a case u/s 302, I. P. Code, was instituted against Telu Ram. His defence was that he had rather gone to Swaran Singh to stop him from playing the loud-speaker as obscene songs were being played. Upon that Swaran Singh and he exchanged abuses. Swaran Singh threatened him and went to call Darshan Singh from the house of Dilbag. Darshan Singh came with a "dang" and wanted to attack him. The accused warded off the attack and in self-defence gave one blow of knife which caused his death. In this manner the defence was of justification of assault in exercise of a right of private defence.

The prosecution produced ten witnesses which included three eye witnesses Swaran Singh (P.W. 1), Bakshi Ram (P.W.2) and Surinder Kaur (P.W. 3). Besides them, Dhanna Singh (P.W.5) was also produced. The accused had concealed the knife which was subsequently discovered by him at the instance of the police. Chanan Singh (P.W.6), Tarsem Singh (P.W.7) and Kartar Singh S.I. (P.W. 10) came to state about the disclosure statement and the recovery of the knife (Ex. P.l) at the instance of the accused.

The accused also produced four witnesses: Lachhman Singh (D.W. 1) Malkiat Singh (D.W.2), Mangal Singh (D.W.3) and T. C. Puri, Advocate (D.W.4.).

The learned Sessions Judge believed the prosecution evidence , and convicted and sentenced the accused Telu Ram in the manner stated above. The accused felt aggrieved of the decision and preferred this appeal.

There was decidedly a dispute in the genesis of the assault as well as in the manner in which it was accomplished. That was rather so because the Appellant had set up a story of self-defence. The learned Counsel submitte:! that the death was caused in exercise of a right of self-defence and hence the Appellant deserved acquittal . In the alternative, however, he argued that the case fell within Exception 4 of Section 300 and as such was punishable only under Part II of of Section 304 of the I. P. Code. The learned Counsel led us through the evidence and in our opinion the prosecution witnesses were rightly believed and no story of self-defence was made out. It is admitted on behalf of the accused that the two roofs were adjacent and the Appellant came to object in respect of the playing or non-playing of the Tape-recorder. There was exchange of abuses and at any rate one knife blow was given by the accused which proved fatal. It is also admitted that the death was instantaneous and sufficient in the ordinary course of nature to cause death. There is no injury on the person of the accused. As regards Swaran Singh (P.W.I), the only ground which the learned Counsel could point out was that he was employee of the deceased and as such should not be believed. That is hardly a reason to discard the statement of Swarai Singh (P.W.I). He might have been under the employment of the deceased but admittedly he was present at the time of occurrence. Nothing else could be pointed out as to why absolute credence should not be given to his statement. He is then corroborated by so many other factors, the dsicovery of knife, the improbability of the defence version, and above all the statement of Surinder Kaur (P.W.3) if not of Baskhi Ram (P.W.2). We have gone through the statement of Surinder Kaur (P.W.3) and we hardly find any reason to discard her testimony. In fact, we do not agree with the learned Sessions Judge that Surinder Kaur should be discarded so as not to give a corroboration to the version given by Swaran Singh (P.W.I). The learned co. nsel pointed out in respect of Surinder Kaur (P.W.3) that she i a relation of the deceased, that her husband employed the counsel to conduct the prosecution, and that perhaps the roof where the deceased was standing was not visible from the roof of Karama''s house where Surinder Kaur was standing when she saw the incident. There is no indication from the statement of Surinder Kaur (P.W.3) that the roof of Dhana Singh was not visible from that spot where she was standing and saw the incident. There was no reason to disbelieve the statement of Surinder Kaur in that regard. Being a relation of the deceased is meaningless. She was naturally interested to have run up immediately to the spot of occurrence. She did not see any ''dang'' being struck by the deceased and so she demolished the story of self-defence. According to her, there was exchange of abuses and the Appellant straightway wipped out a knife and gave a'' blow. Therefore, Swaran Singh (P.W.I) stood corroborated by Surinder Kaur (P.W.3), besides getting strength from the other evidence produced in the case. Therefore, at any rate, two of the eye witnesses could not be discarded.

The improbable nature of the defence set up by the accused was amply borne out. Why should the apppellant object to the playing of the songs which are rather played too frequently without exception from any quarter? The accused was doing the profession of a labourer and he is not so highly sophisticated so that he could have taken exception to any obscene song. That apart, no one cared to ask on behalf of the defence as to what type of obscenity was attached with those songs. Dhanna Singh (P.W.5) was rightly believed when he stated that he had asked Swaran Singh to stop playing the loud-speaker for the obvious reason that the marriage function was over. His own son and daughter-in-law were leaving the place and he had gone to see them off at the bus station. Although there was some previous enmity between Dhanna Singh and the Appellant, yet they were on visiting terms. It does not stand to reason that Dhanna Singh would go to the length of supporting the prosecution case merely by stating that he had asked Swaran Singh to stop the playing of loud-speaker and going no further, because he could as well be eye witness of the occurrence. Admittedly, both had exchanged abuses and there was no occasion for Swaran Singh to have gone 600 paces to the house of Dilbag to bring Darshan Singh. According to the def nce, Darshan Singh brought a ''dang'' and came abusing and even attempted to strike the Appellant. When the abuses were already exchanged, there was no occasion for Darshan Singh to have come from a distance to attack the Appellant. Another curious feature is that all along the Appellant stayed on the roof and it seems he waited for Darshan Singh to arrive and strike him. The excuse he gave was that he was urinating on the roof of Dhanna Singh. As he had to set up a false story, he faked the assertion of urination. In the natural course of things after the abuses were over he should have gone back to his house and should not have enable Darshan Singh to arrive and start a fight with him. According to the statement of the accused before the committing Magistrate, the fight started even over the stair case. He was coming from the upper side while Darshan Singh was climbing from the lower side of the stair case. It was not difficult for the the Appellant to have pushed back Darshan Singh if he was really drunk as stated by him. Rather doing so, he warded off the blow of ''dang'' and somehow found a knife lying inside the stair case and gave the blow. The entire set up of the defence story is so unnatural that it can hardly be believed. The ''dang'' was never produced by the Appellant. He never took that ''dang'' to the the police station where according to him he had gone and waited upto 8 P. M. and was brought to the spot by the police party. This version of the Appellant was also incorrect as no question was asked from the Sub-Inspector as to whether the Appellant had gone to the police station and was already sitting there. The Appellant never lodged any F.I.R. of his own. According to Lachhman Singh (D.W.I), the ''dang'' was lying at the spot. No one lifted that ''dang'' and showed it to the police. The startling feature is that no question about ''dang'' was put to the three eye witnesses. It seems the entire story regarding self-defence was an after-thought. The Appellant even denied that the knife (Ex. P. 1) was the weapon of attack, before the learned Sessions Judge. However, in the Committing Court he did admit that the knife with which he struck was similar in shape as the knife (Ex. P. 1.). The witnesses Channan Singh (P.W.6), Tarsem Singh (P.W.7) and Kartar Singh S.I. (P.W.10) decidedly proved the recovery of the knife (Ex.P.l) at the instance of the Appellant. The learned Counsel pointed out that in the disclosure statement it was not written that the accused had concealed that knife. At any rate, it was so stated by the three witnesses in the court and that was the primary evidence which could be ''. considered. As regards drunkenness of the deceased, the post-mortem report did not disclose any feature to substantiate it. The doctor rather stated that no smell of alcohol was detected in the body, especially inside the stomach. From this, certainly it cannot be inferred that the liquor was present inside the body, although the evidence of the doctor may not be considered conclusive to deny that inference. The defence could have procured evidence to prove that Darshan Singh was dead-drunk. But, as we have noted, the defence story is based on a realm of fantasy and imagination, rather than reality. As other details were concocted, similarly the story of drunkenness was also set up. As we have noticed, there is no injury on the person of the Appellant. If a ''dang'' was really used by the deceased, he would have succeeded in giving at least one blow to the Appellant. By the assistance of ''dang'' the blow could have been administered even from some distance although knife blow could only be given when the deceased and the Appellant were at a much closer distance from each other.

The defence witnesses were rightly discarded by the learned Sessions Judge, and we find no exception to his finding in that regard.

The improbable and false defence set up by the Appellant was itself a circumstance against him and could be availed of by the prosecution. The learned Adovcate-Geneal pointed out that the knife itself was a dangerous weapon. We saw it ourselves and in our opinion such a knife could not be carried by the Appellant for any innocent object. It is knife more befitting for attack rather than, as suggested by the defence, for domestic use. It was stated that the knife lying on the stair-case was meant for peeling of an electric wire. There was hardly any occasion to peel off a wire when the loud-speaker was closed and the entire material was packed up.

The learned Counsel then pointed out that the F.I.R. was not despatched so as to reach the Magistrate on the very same night, although it rached there on the next morning. In the absence of any circumstance denoting that the prosecution story was touched up or that false details were introduced, and rather the evidence indicates that the investigation was conducted in very straight forward manner, there was hardly any importance of the police papers having reached the Magistrate with as much promptitude as could possibly be expected in the circumstances. We are rather inclined to hold that the F.I.R. and other police papers were sent with due promptitude as the Magistrate received them on the next morning. The police party could reach the spot late in the evening and must have taken long to complete the formalities of primary investigation. Some other minor discrepancies were pointed out before the learned Sessions Jud e in the statement of the witnesses and he has very carefully explained these discrepancies.

The gallant effort made by the learned Counsel to bring in the story of self-defence thus remained without any foundation. He had naturally to fall back upon Exception 4 of Section 300, but there too he failed. In order to bring the case under Exception 4, the defence had to establish that there was no premediation and that the offender had not taken undue advantage or acted in a cruel or unusual manner. For premeditation, it was not require that previous enmity or motive should have been there. When the abuses were exchanged and the Appellant was already possessed of a spring knife, he naturally premeditated and intended to given the fatal assault. Therefore, the premeditation may be of a few minutes before the actual assault was made. That apart, the Appellant decidedly took undue advantage and acted in a cruel or unusual manner. The deceased and his companion were unarmed. He had already obused them. Nevertheless he whipped out a spring knife which was by itself a dangerous weapon and gave the fatal blow. The medical officer explained that the injury on the lower lip could even be caused by fist which contained the knife when an attempt was made to give the stab blow which missed and instead the fist blow was inflicted on the lower lip. Therefore, the fatal blow was in fact the second one inflicted upon the deceased by the Appellant and the intention is easy togather from the act itself. The learned Counsel for the Appellant relied on Chamru Budhwa Vs. State of Madhya Pradesh, But the facts of that case were different inasmuch as it was found that the accused had not taken undue advantage nor acted in a cruel or unusual manner, and thus his case fell within Exception 4. The other case relied upon Jumman and Others Vs. The State of Punjab, is equally not helpful to the Appellant. In that case there was no reliable and acceptable evidence as to how the mutual conflict started and as to who was the aggressor. It was held that it was not correct to assume private defence for both sides and the case fell within Exception 4 of Section 300. The situation in the instant case is entirely different. It was almost one-sided attack by the Appellant. The last case referred to by the learned Counsel is The The State of Bihar Vs. Mohammad Khursheed, In that case the injuries were found on the person of the accused which were not explained by the prosecution. That was a significant circumstance for a finding u/s 304, I.P.C. In the present case, there is no injury on the person of the Appellant which needed explanation by the prosecution. Therefore, in our opinion, the case does not fall within Exception 4 of Section 300. Rather it was a case where the assault was made with the intention of causing bodily injury which was sufficient in the ordinary course of nature to cause death and the offence made out was of murder under clause Thirdly of Section 300, punishable u/s 302 of the I.P. Code. No exception can be taken to the punishment awarded.

We, therefore, do not find any merit in this appeal and we accordingly dismiss it. If the Appellant is on bail, he has to surrender forthwith to serve out the sentence.