Punjab-Haryana High Court
Chuni Lal And Ors. vs State Of Punjab on 19 August, 1997
Equivalent citations: 1998CRILJ1179
Author: P.K. Jain
Bench: P.K. Jain
JUDGMENT P.K. Jain, J.
1. This appeal is directed against the judgment/order dated September 19, 1995, passed by the Sessions Judge, Ferozepur, whereby Chuni Lal appellant has been convicted "under Section 302, I.P.C, and sentenced to undergo imprisonment for life and to pay a fine of Rs. 400/-, or in default of payment of fine to undergo further rigorous imprisonment for five months, whereas the remaining appellants-Sunil Kumar alias Kalia and Hans Raj have been convicted Under Sections 302/34, I.P.C. and each of the two has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 400/- or in default of payment of fine to undergo further imprisonment for five months.
2. The facts necessary for the disposal of this appeal are that Jagdish Rai, the complainant, and his family members are labourers by profession. Raj Kumar alias Raj (deceased), aged about 22 years, was his eldest son. The marriage of Raj Kumar was scheduled to take place a month after the day of occurrence. On 28-7-1993 at about 9.00 p.m. Jagdish Rai was advising his family members to work hard since only one month was left for the marriage of Raju. His wife Kanta raised an objection with a loud voice that he was criticising even those persons who were already working. An altercation took place between Jagdish Rai and his wife Kanta. On hearing their noise, their neighbourer Hans Raj appellant came in a drunken condition in front of the door of their house and started abusing them while remarking as to why they were making noise, Jagdish Rai told him that it was their family affair but the said appellant did not desist from hurling abuses being under the inflence of liquor. Upon it, the altercation between them took a serious turn. Smt. Kanta and Smt. Bhagwanti (mother of Jagdish Rai) came out of the house. Hans Raj appellant exhorted his brothers Chuni Lal and Sunil Kumar alias Kalia, who came there duly armed with dangs. In the first instance, the three appellants are alleged, to have given fist blow to Jagdish Rai. In the, meanwhile, on hearing the noise Raj Kumar came outside while running. Sunil Kumar alias Kalia and Hans Raj appellants caught hold of Raj Kumar by his hands and Chuni Lal appellant gave a dang blow on the head of Raju, as a result of which he fell down and became unconscious. An alarm was raised "NA MARO NA MARO". All the appellants gave fist blows to Jagdish Rai, his mother Bhagwanti and his wife Kanta and then ran away from the spot.
3. Jagdish Rai removed his injured son Raju to Civil Hospital, Abohar, and got him admitted there at 11.10 p.m. Dr. Prithvi Raj (PW 1) examined Raju and prepared his medico-legal report (Ext. PA). He sent a ruqa (Exhibit PB) along with the copy of the medico-legal report to Police Station City, Abohar. On receipt of the said information and documents, ASR Hardial Singh (PW 5) reached the hospital and moved application (Exhibit PC) on which Dr. Prithvi Raj (PW 1) declared Raj Kumar alias Raju to be unfit to make statement vide his endorsement-Exhibit PC/1. Consequently, statement (Exhibit PH) made by Jagdish Rai was recorded by ASI Hardial Singh in the hospital itself, who made his endorsement (Exhibit PH/1) thereunder and sent the ruqa at 1.05 a.m. to Police Station City, Abohar, wherepon formal first information report (Exhibit PH/2) of this case was recorded at 1.15 a.m. under Sections 308/34, IPC.
4. On 29-7-1993 at 7.10 a.m., Dharm Chand came to the Police Station and informed that the injured Raj Kumar alias Raj who was admitted in the Civil Hospital, Abohar, had been referred to the Civil Hospital, Ludhiana, and they were taking Raju to the Civil Hospital, Ludhiana, but at about 5.00 a.m. when they reached near Muktsar Raj Kumar alias Raju breathed his last on the way. They brought him back to Civil Hospital, Abohar. On this information, Daily Diary No. 34 (Ext. PH/3) was recorded and the offence under Section 304, IPC, was added.
5. Special report of the case was sent to the Judicial Magistrate, Abohar, which was received by him on 29-7-1993 at 8.00 a.m.
6. ASI Hardial Singh prepared the inquest report (Exhibit PF) and despatched the dead body of Raj Kumar for post mortem with his request (Exhibit PG). Thereafter he went to the place of occurrence and prepared rough site plan (Exhibit PJ). The clothes removed from the dead body of Raj Kumar were taken into possession after converting the same into a sealed parcel vide memo, Exhibit PK. Appellants Chuni Lal and Sunil Kumar alias Kalia were arrested on 1-8-1993, whereas appellant Hans Raj was produced before him on 2-8-1993 by Nirmal Sarpanch, and was arrested in this case. On 3-8-1993 Chuni Lal appellant, on interrogation, made a disclosure statement (Exhibit PL), in pursuance of which he got recovered two dangs from inside the residential rooms of his house which were taken into possession vide memo Exhibit PL/1. Scaled site plan of the spot of occurrence was got prepared. After completing the investigation, a charge sheet was submitted against all the three appellants to the Court.
7. A charge under Section 302, I.P.C. was framed against the appellant-Chuni Lal, whereas a charge under Sections 302/34, I.P.C. was framed against the two appellants-Sunil Kumar alias Kalia and Hans Raj. The appellants pleaded not guilty and claimed trial.
8. In support of its case, the prosecution examined 6 witnesses. Dr. Prithvi Raj (PW 1) had examined the injured Raj Kumar on 28-7-1993 at 11.20 p.m. and had prepared the medico-legal report, copy of which is Exhibit PA and pictorial diagram showing the seat of injuries is Exhibit PA/1. He had also sent a ruqa (Exhibit PB) to the S.H.O., Police Station City, Abohar, regarding the admission of injured Raj Kumar alias Raju on that night at 11.10 p.m. He had also recorded his opinion Exhibit PC/1 on 29-7-1993 at 0.30 a.m. that the injured Raj Kumar was unfit to make a statement. Dr. Dayal Singh (PW 2) had performed autopsy over the dead body of Raj Kumar and prepared the post mortem report, copy of which is Exhibit PE. Jadish Rai (PW 3) is the father of the deceased and an eye-witness to the occurrence and author of the first information report. Kanta (PW 4) is the mother of the deceased and an eye-witness to the occurrence. Onkar Mal (PW 6) had prepared scaled site plan (Exhibit PM) of the spot of occurrence on 5-8-1993 on the pointing out of Jagdish Rai (PW 3). ASI Hardial Singh (PW 5) is the Investigating Officer.
9. In their examination under Section 313 of the Code of Criminal Procedure, all the three appellants denied the allegations of the prosecution and pleaded their innocence and false implication. It has been admitted by them that the house of the appellant Hans Raj is situated opposite to the house of Jagdish Rai (PW 3) acroses the street. No evidence has been produced in defence.
10. On an appraisal of the evidence produced on the record, the trial Court came to the conclusion that the prosecution has proved its case against all the three appellants beyond reasonable doubt and consequently convicted and sentenced them as stated above. Being aggrieved, the convicts have come up in appeal.
11. We have heard the learned counsel for the parties and have perused the record of the trial Court.
12. Shri Vinod Arya, Advocate, learned counsel for the appellants, has raised two-fold arguments i.e. (i) that the prosecution has not been able to prove that there was any common intention among the three appellants to commit any offence, and (ii) that it was only in a sudden fight in the heat of passion upon a sudden quarrel without pre-meditation and without having taken undue advantage, one single injury with a dang was caused by appellant Chuni Lal upon the head of the deceased Raj Kumar, and as such Exception 4 to Section 300, I.P.C. is attracted and the offence committed by the appellant Chuni Lal would fall under Section 304, I.P.C. and not under Section 302, I.P.C.
13. From a bare perusal of the prosecution version, as contained in the first information report (Exhibit PH/4) read with the testimony of Jagdish Rai (PW 3) and Kanta (PW 4), it is evident that there was no previous enmity between the two parties. It is also not disputed that the appellants had no previous motive to cause injuries to the complainant party or to commit the murder of Raj Kumar. It is also admitted that appellant Hans Raj is residing in a house opposite to the house of the complainant, whereas the appellants Chuni Lal and Sunil Kumar are residing in a house situated at a distance of 200 Kararms from the house of the complainant i.e. they are not residing along with Hans Raj in the same house. From the testimony of Jagdish Rai (PW 3) and Kanta (PW 4), it is evident that when Jagdish Rai had asked his family members to work hard as there was only one month left for the marriage of the deceased Raj Kumar, Kanta (PW 4) retorted that Jagdish Rai was accusing even those who were already working hard, and upon it an altercation took place between Jagdish Rai (PW 3) and his wife Kanta (PW 4). On hearing their noise, the appellant Hans Raj, who was in a drunken condition, came in front of the house of the complainant and started abusing them while enquiring as to why they were making noise. According to the version given by Jagdish Rai (PW 3), Hans Raj was told that was their family matter but Hans Raj did not desist from hurling abuses being under the influence of liquor, and upon this the altercation took a serious turn. All these facts would go to show that there was no premeditation or pre-planning between Hans Raj and the appellants Chuni Lal and Sunil Kumar. Chuni Lal and Sunil Kumar had not come to the spot of occurrence on account of any pre-arranged plan. It was only when the altercation between Jagdish Rai and Hans Raj took a serious turn and an alarm...was raised by Hans Raj that the appellant Chuni Lal and Sunil Kumar came out of their house and rushed to the spot. It cannot be believed that Hans Raj had given any exhortation from a distance of 200 Karams in pursuance of which Chuni Lal and Sunil Kumar might have come to the spot. When Chuni Lal and Sunil Kumar came to the spot, the deceased Raj Kumar was nowhere at the scene of occurrence. According to the version contained in the first information report, all the three appellants started giving fist blows to him (Jagdish Rai). Thus, it becomes clear that there was no common intention...on the part of the three appellants to cause the murder of Raj Kumar. The mere fact that on hearing the noise of altercation and grappling between Jagdish Rai and Hans Raj, Chuni Lal and Sunil Kumar came to the place of occurrence, would not be enough to infer any common intention on their part to commit the murder of Raj Kumar. Therefore, the necessary conclusion is that Section 34, I.P.C. is not attracted in this case at all.
14. To appreciate the second plea raised by the learned counsel for the appellant, it is necessary and material to refer to the medical evidence. Dr. Dayal Singh (PW 2) had performed autopsy over the dead body of Raj Kumar alias Raj on 29-7-1993 at 12.20 noon in Civil Hospital, Abohar, and found the following injuries on the body of the deceased :-
1) A reddish contusion in right parietal region measuring 10 cms. x 4 cms. extending to left side of head (left parietal region). On dissection underlying brain tissue lacerated in an area of 8 cms. x 3 cms. Haematoma and clotted blood was present.
2) A reddish swelling 2.5 cms. x 1 cm. Present on the outer part of right upper lid.
These injuries were ante mortem in nature. The cause of death in this case was injury to brain tissues as a result of injury No. 1, which was sufficient to cause death in the ordinary course of nature. In his cross-examination, Dr. Dayal Singh has stated that injury No. 1 could be caused with a dang and injury No. 2 could be caused as a result of fall. Similar is the opinion of Dr. Prithvi Raj (PW 1), who had examined Raj Kumar alias Raju on 28-7-1993 at 11.20 p.m. in Civil Hospital, Abohar, when the injured was brought in the hospital in unconscious condition. In his cross-' examination, he has explained that injury No. 2 can be possible without any injury being given on the eye-brow or the cheek bone. It may also be noted that injury No. 2 has been opined to be simple.
15. From the testimony of Jagdish Raj (PW 3), Kanta (PW 4) read with the medical evidence of the two doctors (PWs 1 and 2), it is established that only one injury was caused with a dang by the appellant Chuni Lal on the head of Raj Kumar, on account of which Raj Kumar had fallen down and became unconscious. In other words, Chuni Lal appellants did not cause any other injury to the deceased. Thus, the question is as to what offence is made out on the basis of the facts and circumstances established in this case.
16. At the cost of repetition, we may say that there was no previous enmity between the parties nor there was any motive on the part of any of the appellants to cause the death of Raj Kumar. An altercation ensued between Hans Raj appellant, who was in a drunken condition and Jagdish Rai (PW 3) on account of the noise which arose due to altercation between Jagdish Rai (PW 3) and his wife Kanta (PW 4). During this altercation, Hans Raj appellant and Jagdish Rai (PW 3) started grappling with each other. At this point, Kanta (PW 4) and Bhagwanti mother of Jagdish Rai, came out of the house, and on the other side Chuni Lal and Sunil Kumar appellants rushed from their house which was situated at a distance of 200 Karams from the place of occurrence. Admittedly, Raj Kumar deceased was not present there at that time. It was only thereafter that Raj Kumar came out of the house and the appellant Chuni Lal gave one dang blow which fell on the head of Raj Kumar alias Raju due to which he fell down and became unconscious and which injury later on proved to be fatal.
17. According to Exception 4 appended to Section 300, I.P.C., culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first; provided the occasion be sudden, and not urged as a cloak for pre-existing malice. An unpremeditated assault (ending in an affray in which death is caused) committed in the heat of passion upon a sudden quarrel (it being immaterial which party offers the provocation, or commits the first assault) comes within this Exception. If, on a sudden quarrel, blows pass without any intention to kill or seriously injure one another, and if one of those fightings, while in hot blood, in the course of the struggle, kills the other with a deadly weapon, this is not murder, but culpable homicide. All the ingredients of Exception 4 to Section 300, I.P.C., are satisfied in the case in hand. The incident occurred upon a sudden quarrel without any pre-meditation on a petty matter. Only one dang blow was given by the appellant Chuni Lal upon the head of Raj Kumar. There is no evidence to show that this appellant took undue advantage or acted in a cruel or unusual manner. It was only in a sudden fight in the heat of passion that this appellant inflicted one blow which fell on the head of the deceased and proved to be fatal some time later. In these circumstances we are satisfied that Exception 4 of Section 300, I.P.C. is attracted and the offence of murder would be reduced to culpable homicide punishable under Section 304 (Part I), I.P.C. It has already been found that there was no common intention on the part of the appellants in causing the injury to the deceased or causing his death. Resultantly, it is only Chuni Lal appellant who is guilty of an offence under Section 304 (Part I), I.P.C.
18. As a result of the above discussion, we accept this appeal in part. The appellants Sunil Kumar and Hans Raj are acquitted of the charge under Sections 302, 34, I.P.C. by giving them the benefit of doubt. The conviction of Chuni Lal appellant is altered from one under Section 302, I.P.C. to that under Section 304 (Part I) I. P.C. For this offence, he is sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 10000/- and in default of payment of fine to further undergo rigorous imprisonment for 2 years. The fine, if realised, be paid to the heirs of the deceased.