Himachal Pradesh High Court
Balwant Rai vs Of on 16 September, 2016
Bench: Rajiv Sharma, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 70 of 2011.
Reserved on : 7.07.2016.
.
Date of Decision 16.09.2016
Balwant Rai .....Appellant
Versus
of
Ramesh Chand and another ....Respondents
Coram rt
The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 ____ For the Appellant : Mr. Vivek Chandel, Advocate.
For the Respondents: Mr. Gaurav Gautam, Advocate. No. 1 & 2.
For the Respondent: Mr. P.M. Negi, Deputy Advocate No. 3. General.
__________________________________________ Vivek Singh Thakur, Judge Appellant (PW-1 Balwant Rai) lodged a complaint against respondents No. 1 and 2 stating therein that on 18.11.2009 he, alongwith his daughters in-law namely Manjit and Neena Devi, was irrigating his fields at about 2.30 PM and 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 2at that time his cousin Ramesh Chand (son of his Chacha) having spade in his hand alongwith his wife Rachana Devi .
having sickle in her hand reached there. They asked reason for damaging boundary of their fields. PW-1 Balwant Rai replied that he was raising blockade (Aad) for irrigating his field but respondents extending threaten to see him alleged of that he was removing boundary of their fields and Respondent No. 1, Ramesh Chand gave a blow of spade on his head and rt respondent Rachna Devi inflicted injury on his right hand thumb with sickle causing bleeding from his hand and head.
His daughters-in-law rescued him and took to Civil Dispensary Dehlan for treatment. After taking treatment he returned home. Thereafter matter was compromised between him and his cousin Ramesh Chand but thereafter also his cousin continued to threaten.
2. On registration of FIR matter was investigated and PW-1 Balwant Rai was medically examined and after completion of investigation challan was presented in the Court.
::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 33. Respondents No. 1 and 2 were charge sheeted under Sections 323 and 307 readwith Section 34 IPC. On .
conclusion of trial, respondent No. 1 was convicted under Section 324 IPC and was given benefit of Section 4 of Probation of Offenders Act, 1958 whereas respondent No. 2 Rachana Devi was acquitted of charge framed against her of under Sections 323 and 307 IPC readwith Section 34 IPC vide impugned judgment.rt
4. Respondent No. 1 did not file any appeal against his conviction. Therefore, his conviction under Section 324 stands accepted.
5. In instant appeal appellant/complainant has assailed impugned judgment with prayer to quash and setaside the same and to convict respondents No. 1 and 2 under Section 307 IPC.
6. We have heard learned counsel for parties and have also gone through the record.
Section 307 reads as under:-
"307. Attempt to murder- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, ::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 4 he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to .
fine; and if hurt is caused to any person by such act, the offender shall be liable either to {imprisonment for life}, or to such punishment as is hereinbefore mentioned.
Attempt by life convicts {When any person of offending under this section is under sentence of (imprisonment of life), he may, if hurt is caused, be rt punished with death}"
7. The offence of attempt to commit murder punishable under Section 307 IPC is constituted by occurrence of mens rea followed by an actus rues. An intent per-se is not an attempt. It implies purpose and attempt is an actual effort made in execution of the purpose. From overt act directed towards the objective sought, the criminal intent must be logically inferable. The attempt for purpose of Section 307 IPC should stem from a specific intention to commit murder and this blameworthy condition of mind may be gathered from direct or circumstantial evidence including the conduct of accused. When mens rea, which is essential ::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 5 part of offence of murder, is absent and where the weapons used by accused is ordinarily agricultural implement and does .
not necessarily indicate a deliberate intention to cause death or fatal injury, the accused is not be convicted under Section 307 IPC. (Mohindar Singh versus State AIR 1960, Punjab 135 and Kanbi Nagji Kala versus State AIR of 1956, Saurashtra 107).
8. Conviction is not legally punishable under Section rt 307 IPC unless prosecution proves ingredients of Section 300 IPC., of which intention or knowledge play a vital role.
(Kumar Majhi versus State 1981 Cr.LJ 1787).
9. Under Section 307 IPC, Court has to see whether the act irrespective of its result was done with the intention or knowledge and under circumstances mentioned in that Section. The intention or knowledge of the accused must be such as his necessary to constitute murder. Without this ingredient being established there can be no offence of attempt to murder under Section 307, the intention precedes the act attributed to accused. The intention is to be gathered from all circumstances and not merely from the ::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 6 consequences that ensue. The nature of weapons used, manner in which it is used, motive for the crime, severity of .
the blow, the part of the body where injury was inflicted are some of the factors that may be taken into consideration to determine intention. (Hari Singh versus Sukhbir Singh and others (1988) 4 SCC 551 and Tukaram Gundu Naik of versus State (1994) 1 SCC 465)
10. In present case PW-1 Balwant Rai and PW-2 Manjit rt Kaur are spot witnesses. No other witness examined by prosecution has witnessed incident. By accepting conviction by respondent No. 1 under Section 324 IPC, causing injury to PW-1 Balwant Rai by him with spade is conceded. Therefore, only gravity of offence committed by respondent No. 1 is to be assessed. So far as respondent No. 2 is concerned, she was acquitted and her acquittal is also challenged in present appeal, therefore her culpability is to be determined.
11. PW-2 Manjit Kaur stated that other persons were also working in their own fields before they started irrigating their land. PW-1 Balwant Rai stated that he alongwith her daughter-in-law was irrigating their fields. PW-1 Balwant Rai ::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 7 was having spade in his hand. Similarly, respondent No. 1 was also having spade in his hand. Daughters-in-law of PW-1 .
Balwant Rai i.e. PW-2 Manjit Kaur and Neena and also respondent No. 2 were also having tools required for agricultural operation in their fields. Therefore, holding a spade in hand by respondent No. 1 and sickle by respondent of No. 2 cannot be basis to infer criminal intent on their part.
12. It came in evidence that except two daughters-in-
rt law of PW-1 Balwant Rai no one came forward to rescue PW-1 Balwant Rai. One daughter-in-law Manjeet Kaur was examined as PW-2 whereas another daughter-in-law Neena was given up to avoid repetition. Intention or knowledge of respondents to cause injuries to PW-1 Balwant Rai is to be assessed on the basis of statements of PW-1 Balwant Rai and PW-2 Manjeet Kaur and other surroundings facts and circumstances on record. PW-2 Manjeet Kaur stated that she was working in her fields at a distance of about 10-12 feet from her father-in-law and respondent No. 1 inflicted injury to her father-in-law with spade only once and she did not try to snatch spade from him. In his statement Ex. PW-1/B under ::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 8 Section 154 Cr.P.C., PW-1 Balwant Rai stated that on questioning by respondents for reasons to damage boundary .
of their fields, he had replied that he was raising blockade to irrigate his fields. Thereupon respondent No. 1 gave one blow to PW-1 Balwant Rai with spade, being carried by him.
13. Besides causing injury to PW-1 Balwant Rai, of intention or knowledge to cause death was also necessary for convicting respondents under Section 307 IPC. There was no rt one near PW-1 Balwant Rai so as to stop respondents from inflicting injuries to him as nearest person to him, his daughters in-law were at a distance of 10 to 12 feet from him who did not try to snatch spade from respondent No. 1 and after inflicting one blow to PW-1, Balwant Rai, respondent No. 1 had left the place on his own.
14. Conjoint reading of statements of PW-1 and PW-2 indicated that except one stroke of spade in spur of moment after reply of PW-1 Balwant Rai to question of respondent Ramesh Chand asking for reasons for uprooting boundary, there was no further assault by respondent Ramesh Chand. It happened within few seconds PW-2 Manjeet Kaur stated that ::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 9 she and Neena were at some distance about 10-12 feet. No one was there to stop respondent Ramesh Chand from .
inflicting more than one injury or striking PW-1 Balwant Rai with spade more than once. But as stated by PW-1 and PW-2 respondent Ramesh Chand hit PW-1 Balwant Rai only once and weapon used by respondent was agricultural implement.
of There is nothing on record to infer that intention of respondent was to cause death of PW-1. In these facts and rt circumstances, it can be inferred that there was no intention on the part of respondent Ramesh Chand to cause death of PW-1 Balwant Rai.
15. After incident PW-1 Balwant Rai went home, visited Civil Dispensary at Dehlan and after getting first-aid returned back to home on foot and no complaint was lodged by him with police meaning thereby that on that day injury caused to him was not considered to be of such nature so as to attract Section 307 IPC. Later on, some complications developed in the wound of PW-1 Balwant Rai and he had to have medical treatment for his head injury from PGI Chandigarh and DMC Ludhiana.
::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 1016. PW-12 Dr. Rajesh stated that PW-1 was brought to PGI Chandigarh on 23.11.2009 with alleged history of assault .
on 18.11.2009 and patient was conscious, moving all four limbs with stable vitals. On local examination, there was sutured wound over scalp and C.T. Scan showed fracture left parietal bone with preumecphas-lus. PW-1 was treated of conservatory and was referred to District Hospital on 24.11.2009. rt
17. PW-6 Dr. Indu Bhardwaj treated PW-1 Balwant Rai in Regional Hospital Una. She stated that patient remained for basic nursing care with them for three days and on 27.11.2009 he was developing hemiparasis paralysis of half of the body but attendants were reluctant to take the patient to PGI.
18. PW-13 Dr. R.K. Kaushal admitted PW-1 Balwant Rai in DMC Hospital Ludhiana with history of weakness of right side of the body and difficulty in speaking and memory loss.
At the time of admission patient was conscious but having difficulty in expressing himself with weakness of right side.
On C.T. Scan of his head, fracture left parietal area with the ::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 11 pneumocephalus (air in the brain) was noticed. He was operated on 28.11.2009. At the time of surgery injured areas .
was found to be infected. In cross examination he stated that incidence of wound infection was much more in diabetic untreated patient and PW-1 had history of diabetes for the last five years. From medical evidence on record it transpired of that initially injury was not apprehended be so serious and later on due to delay in medical aid the injured area was rt infected and injury was aggravated. There is nothing on record to show that respondents were having knowledge that PW-1 Balwant Rai was diabetic since last 5 years and even injury caused by single blow may be fatal for his life.
Therefore, knowledge of causing death with such injury is negated by evidence on record.
19. Knowledge of causing death by injury inflicted to PW-1 Balwant Rai by respondent Ramesh Chand was also absent. Not only PW-1 Balwant Rai but PW-7 Doctor Suresh Kumar did also not apprehend impact of injury received by PW-1 Balwant Rai. For that reason only, gravity of offence was not considered to be of such high degree so as to report ::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 12 the matter to police despite the fact that constable Banwari Lal son-in-law of PW-1 Balwant Rai was serving in Police .
Department.
20. PW-1/A compromised deed also indicated that PW-1 respondent Ramesh Chand apologized and Balwant Rai admonished him in Khangi Panchayat. It was possible only of when there was a feeling amongst parties that alleged incident had taken place between cousins without any rt intention or knowledge to murder. PW-1 Balwant Rai went and came back from Dehlan on foot. PW-7 Doctor Suresh had stitched the wound and given firstaid to PW-1 Balwant Rai.
Despite being a Medical Officer he did not find injury so serious at first instance so as to causing danger to life of PW-1 Balwant Rai and for that reason no such apprehension was mentioned in prescription slip Ex. PW-7/A issued on 18.11.2009. However, in MLC PW-7/B issued on 23.11.2009 he stated that injury was grievous and dangerous to life. But this opinion of doctor that injury caused to PW-1 Balwant Rai was dangerous to life is not sufficient to hold respondent guilty for committing an offence under Section 307 IPC.
::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 1321. In absence of intention or knowledge of respondents as required under Section 307 IPC, respondent are not liable .
to be convicted under Section 307 IPC and trial Court has rightly acquitted respondents under Section 307 IPC.
22. PW-1 alleged that respondent No. 2 inflicted injury on his right hand thumb with sickle. During medical of examination of PW-1 Balwant Rai, no injury was found on his right hand thumb. PW-1 had approached PW-7 Doctor Suresh rt Kumar for his treatment immediately after the incident on 18.11.2009. PW-7 Doctor Suresh Kumar had found following injuries:-
1. Wound was 7x2x2 cm. bleeding profusely, stitched applied.
2. Wound on left wrist joint 3x1 cm. antiseptic dressing done. Abrasion and contusion right side of arm.
23. In his deposition in the Court also, PW-1 Balwant Rai stated that he sustained injury on his right hand thumb due to sickle stroke by respondent No. 2. PW-2 Manjit Kaur also stated that Rachna Devi inflicted injury to right hand thumb of her father-in-law. On this count, version of these ::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 14 witnesses was negated by injuries noticed by PW-7 Doctor Suresh Kumar on body of PW-1. There was no injury not .
only on right hand thumb of PW-1 but even on left hand thumb. It is not a case where there is a reconcilable discrepancy in ocular and medical evidence, rather medical opinion is completely wiping ocular version with regard to of injury caused by respondent Rachna Devi.
24. Prosecution also relied upon compromise dated rt 20.11.2009 arrived at between parties after the incident. In this compromise, it was mentioned in clear words that respondent Ramesh Chand abused and beat PW-1 Balwant Rai and respondent Ramesh Chand confessed his fault and PW-1 Balwant Rai admonished him. There was no reference about even slightest involvement of respondent Rachna Devi in incident.
25 The matter was reported to Police on 23.11.2009 after five days of incident. There was possibility to improvement at the time of lodging FIR after five days to involve respondent No.2 Rachna Devi being wife of respondent Ramesh Chand because of afterthought for ::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 15 revenge. There was no other evidence regarding involvement of respondent No. 2 Rachana Devi in the incident so as to held .
her liable for act of respondent Ramesh Chand punishable under Section 34 IPC. Therefore, there was no sufficient material to invoke Section 34 IPC, to hold respondent Rachna Devi liable for committing an offence in furtherance of of common intention for common object with respondent Ramesh Chand. Trial Court has rightly acquitted respondent rt Rachna Devi and therefore, no interference is warranted to disturb her acquittal.
26. So far as conviction of respondent Ramesh Chand under Section 324 IPC, the same was not challenged by respondent Ramesh Chand. However, he was released by trial Court on probation by giving benefit of Section 4 of Probation of Offender Act 1958. The said release of respondent has also been challenged by appellant.
27. Learned counsel for appellant relying upon pronouncement of Hon'ble Supreme Court in case titled as State of Punjab versus Bawa Singh, reported in 2015(2) Criminal Court Cases 765 (SC) submitted that release of ::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 16 respondent Ramesh Chand on probation was a result of misplaced sympathy and in view of ratio laid down in this .
judgment respondents deserved to be sentenced to undergo imprisonment as provided in Indian Penal Code.
28. After giving our anxious consideration to the contention urged by counsel for appellant we are of the view of that the trial Court has not committed any error in releasing respondent Ramesh Chand on probation of good conduct.
rt Respondent No. 1 is not dangerous criminal but a person who surrendered to temptation. The occurrence in question was a out come of a sudden flare-up. The respondent was 55 years of age at the time of occurrence. He was released on probation of good conduct in the year 2010. The incident had taken place on account of sudden boundary dispute.
Respondent Ramesh Chand cannot be compared with hard core criminal or person having a criminal intent to commit crime to murder PW-1 with pre-mediation. Also from compromise dated 20.11.2009, it can be inferred that respondent had realized his mistake and after his repentance matter was compromised. It is also relevant that at the time ::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 17 of compromise there was no police complaint pending against respondent Ramesh Chand and therefore compromise was not .
under pressure but only of repentance. There is nothing on record to reflect conduct of respondent Ramesh Chand warranting interference of this Court after releasing him on probation of good conduct. For these reasons, we do not of consider it appropriate to interfere in release of respondent under Probation of Offenders Act, 1958.
rt
29. In view of above discussion, appeal being devoid of merit is dismissed alongwith pending application if any. Bail bonds if any, are discharged. Record of the Court below be sent back immediately.
(Rajiv Sharma) Judge (Vivek Singh Thakur) Judge 16 September, 2016 (Subh) ::: Downloaded on - 15/04/2017 21:14:39 :::HCHP 18 .
of rt ::: Downloaded on - 15/04/2017 21:14:39 :::HCHP