Punjab-Haryana High Court
Baldev Singh vs State Of Haryana on 14 January, 2019
Bench: A. B. Chaudhari, Harnaresh Singh Gill
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-No.824-DB OF 2009
DATE OF DECISION : 14th JANUARY, 2019
Baldev Singh
.... Appellant
Versus
State of Haryana
.... Respondent
CORAM : HON'BLE MR. JUSTICE A. B. CHAUDHARI
HON'BLE MR. JUSTICE HARNARESH SINGH GILL
****
Present : None for the appellant.
Mr. Vivek Saini, Deputy Advocate General, Haryana.
****
A. B. CHAUDHARI, J.
1. Being aggrieved by judgment and order dated 22/25.08.2009
passed by the Additional Sessions Judge, Karnal in Sessions Case No.35
of 2009 by which the appellant was convicted for offence of murder
punishable under Section 302 IPC and sentenced to undergo rigorous
imprisonment for life, the present appeal was filed by the appellant.
FACTS:
2. In brief the case of the prosecution is that Harbhagwan son
of Assa Ram made a statement to SI/SHO Varinder Singh on 07.03.2009
and stated that he had four sons and two daughters. His eldest son was
Ashok Kumar and Ramesh alias Kamma aged about 34/35 years was
younger to him. Ramesh was married and used to live separately and he
had two sons and two daughters. Baldev son of Chaina was his
neighbour. Ramesh always used to consume liquor in the evening and
after consuming liquor used to trouble his neighbour Baldev almost
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everyday and therefore Baldev nursed grudge against him. On
07.03.2009 at about 9.45 p.m. again Ramesh consumed liquor when the
complainant was standing in front of his house tying animals. Baldev
armed with a kulhara reached there and gave a blow by kulhara from
behind on the neck of Ramesh proclaiming that Ramesh made his life
miserable. Ramesh fell down on the ground and died on the spot. The
complainant made cries and tried to nab the Baldev but he ran away. The
police thereafter took the body in possession and sent it for post mortem
examination and arrested the accused who made disclosure statement on
15.03.2009 and discovered kulhara and chadar. Site plan was prepared.
The statement was recorded. Opinion of doctor was obtained and finally
the chargesheet was filed. The trial court heard the evidence and
thereafter convicted the appellant. Hence this appeal.
ARGUMENTS:
3. The learned counsel for the appellant submitted that the
discovery of weapons etc. is planted and should have been rejected by the
trial Court. He then submitted that the evidence of the complainant being
of interested witness should have been rejected by the trial Court. The
trial Court, however, relied upon the evidence of PW-7 Harbhagwan-
complainant. PW-6 Ramesh Chand deposed about the extra judicial
confession made by Baldev on 12.03.2009 at about 7/7.30 p.m. that he
was afraid of the police as he had committed murder of Ramesh on
07.03.2009. The trial Court should not have relied on the extra judicial
confession which is a weak piece of evidence. Finally learned counsel
for the appellant prayed for acquittal of the appellant. In the alternative,
the learned counsel for the appellant contended that the prosecution failed
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to prove evidence of murder under Section 302 IPC as according to
prosecution itself there was a single injury allegedly given by the
appellant.
4. Per contra, learned counsel for the State opposed the appeal
and supported the impugned judgment and order and reasons recorded
therein. He submitted that the appellant had no business to commit
murder by taking law in his hands even if he was really everyday tortured
by the deceased. At any rate the nature of blow given by the appellant to
the deceased was such that the offence of murder only could be said to
have been proved by the prosecution and not any lower offence. He,
therefore, prayed for dismissal of the appeal.
CONSIDERATION:
5. We have heard learned counsel for the rival parties and
perused the judgment and reasons recorded by the trial Court and the
evidence produced by the prosecution.
6. At the outset we quote the injuries caused to the deceased.
Which read thus:
"1. There was an incised wound present on the
base of skull posteriorly 2cm. below occipital
protuberance starting from angle of mendable right
side upto just below mastoid process left side 26 x 5
cm size. Multiple pieces of skull bone was there and
brain matter was also coming out.
2. There was an incised wound 1 cm. above
injury No.1 starting 1 cm. above right angle of
mandible going posteriorly, 8x3 cm. size with
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underlying fracture of skull bone deep upto brain
matter. Bilateral pleura, right and left lungs, larynx,
trachea were pale. Pericardium was healthy. All
chambers of heart were empty. Blood from large
vessels sent for alcohol estimation to FSL,
Madhuban. The abdomen wall and peritoneum was
health. Mouth, pharynx and esophagus were pale
and healthy. Stomach contained semi digested food
material. Small intestine contained chyme and
gases. Large intestine contained faecal matters and
gases. Liver spleen and kidneys were pale and
healthy. The urinary bladder contained 100 ml.
Urine. Organs of generation were healthy."
7. It is thus clear that injury was fatal which resulted into death
of deceased-Ramesh. This Court cannot be oblivious of the fact on the
admitted evidence on record that right from the beginning, including the
lodging of report by Harbhagwan that Ramesh the deceased used to
consume liquor everyday in the evening and used to make tamasha and
hurling abuses at the appellant-Baldev. That was his everyday
programme. This fact is deposed by almost all the witnesses. We would
like to quote the relevant paragraph from the discussion of the learned
trial Court about it. Which reads thus:
"PW7 Harbhagwan stated that he had four sons and
two daughters. Deceased Ramesh was residing
separately from him in the same village. Baldev
accused and Ramesh were neighbours and had a
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common wall intervening their houses. On
7.3.2009 at about 9.30/9.45 p.m., his son Ramesh
was consuming liquor and he was tying animals in
his house. Baldev Singh went up to Ramesh and
told him that he had made his life miserable. He
gave a blow with 'kulhara' on his neck from the
back side. Ramesh fell on the grounds. He raised
cries. He and Dharam Singh, his neighbour,
reached and they both ran after Baldev for about
two killas but could not catch him. So, they came
back near Ramesh. Ramesh, member Panchayat
was found near the dead body of Ramesh. He left
them behind and went to the police station to report
the matter. Police recorded his statement which he
thumb marked.
8. Then the evidence of PW-6, which has also been discussed
by the trial Court reads thus:
"PW6 Ramesh Chand son of Nihal Chand stated
that accused, who was earlier residing in village
Chundipur, was residing in their village for the last
10-15 years. He was Panch of village Mugal Majra.
Deceased Ramesh was also resident of their village
and both accused and deceased were known to him.
Deceased used to consume liquor and after
consuming liquor, Baldev and Ramesh often
quarreled. On 12.3.2009 at about 7/7.30 p.m.
Baldev came to his house and asked to produce him
in the police station. He told him that he feared the
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police and told him that on 7.3.09, he had
committed murder of Ramesh. He also told him
that they had consumed liquor together and the
quarrel occurred in front of house of Ramesh and
that he committed murder of Ramesh with
'kulhara', after which he ran away."
9. Not only that the Doctor who conducted post mortem, found
149.5 mg % ethyl alcohol from the blood of Ramesh the deceased. That
is clear from the FSL report Exhibit P-24. We quote the relevant
discussion about it as under:
"xxx.... xxx.... xxx.... The FSL report Ex.P24
shows that the sealed glass vial containing 8 ml.
Blood of Ramesh extracted by the doctor at the time
of post mortem examination had ethyl alcohol in
strength of 149.5 mg %. xxx.... xxx.... xxx...."
10. Thus it is clearly proved on record that the deceased Ramesh
was a drunkard and used to trouble the appellant, his neighbour almost
everyday by hurling abuses etc. The fact that on the day of incident also
he consumed liquor, is corroborated by the FSL report as stated above
with heavy quantity of liquor. Thus the prosecution evidence itself
shows that it was the deceased who was at fault and even on the date of
incident he heavily consumed alcohol and abused the appellant-Baldev
with his regular feature of abusing him and troubling him. That is why
the prosecution witness honestly supported the case that before
assaulting, appellant stated that Ramesh made his life miserable. We are
fully satisfied that the appellant was put to sufferance by everyday
vicious conduct of the deceased-Ramesh so also on the date of incident
also when he was heavily drunk. In that view of the matter, we are
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inclined to alter the conviction to the one under Section 304 Part-I IPC in
place of Section 302 IPC. He has undergone sentence of 15 years with
remissions. Hence we make the following order:
ORDER
(i) Criminal Appeal i.e. CRA-D-No.824-DB OF 2009, is partly allowed.
(ii) The impugned judgment and order dated 22/25.08.2009 convicting the appellant for offence punishable under Section 302 IPC and sentencing him to undergo imprisonment for life, is set aside and modified.
(iii) Instead the appellant is held guilty of offence under Section 304 Part-I IPC and sentenced to undergo the sentence which he has already undergone. Sentence of fine shall remain intact.
(iv) The appellant be released forth with from jail, if not required in any other case.
(A. B. CHAUDHARI)
JUDGE
14th JANUARY, 2019 (HARNARESH SINGH GILL)
'raj' JUDGE
Whether speaking/reasoned: Yes No
Whether Reportable: Yes No
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