Punjab-Haryana High Court
Malkiat Singh Alias Pappu vs State Of Haryana on 27 July, 1998
Equivalent citations: 1998CRILJ4724
Author: B. Rai
Bench: B. Rai
JUDGMENT V.K. Bali, J.
1. Appellant Malkiat Singh who was tried along with his co-accused Gurmit Singh through present criminal appeal filed by him has called in question the order of conviction and sentence recorded by Sessions Judge, Ambala dated 13/20-3-1996, by which he has been held guilty of an offence under Section 302 of the Indian Penal Code and sentenced to undergo R.I. for life. In so far as Gurmit Singh co-accused and real brother of the appellant is concerned, he was acquitted by the learned Sessions Judge.
2. The occurrence leading to the death of Baldev Singh was reported by Sukhdev Singh PW 3 brother of the deceased. He made statement on 27-3-1994 at 2.45 p.m. before ASI Raj Singh at Civil Hospital Naraingarh. According to the statement made by Sukhdev Singh, Baldev Singh was done to death by applicant Malkiat Singh and his co-accused Gurmit Singh on 27-3-1994 at twelve noon. Formal FIR came to be recorded at Police Station Naraingarh at 3.45 p.m. and the Special Report reached the concerned Magistrate on the same day at 8 p.m.
3. While giving narration of events leading to the death of Baldev Singh it was stated by his brother Sukhdev Singh PW 3 that he was residing in village Pinjori, Police Station Naraingarh and was plying a Tonga. They were four brothers, the eldest being Baldev Singh. He was younger to him and younger to him was Balraj Singh and younger one was Sartaj Singh. He was plying Tonga from Pinjori to Naraingarh. His brother Baldev Singh had come after retirement from army two months ago. On the day of occurrence which was a holiday being a festival of Holi (Phag), he had accompanied him to Naraingarh with his Tonga. At about twelve noon, after parking his Tonga at Ambala Chowk, Naraingarh he had gone to purchase household goods. When he reached in front of Verma Iron Store at Nahan road, he saw his brother Baldev Singh and Malkiat Singh alias Pappu son of Pritam Singh and Gurmit Singh son of Gurmit Singh residents of Pinjori indulging in filthy abuses in front of Verma Iron Store. Within his sight Gurmit Singh gave a push to his brother and Malkiat Singh threw an empty liquor bottle at him which hit nearby wheat thrashing machine and the bottle got broken. Thereafter Malkiat Singh gave two blows with that broken bottle to his brother Baldev Singh which hit his neck toward its right side. He raised an alarm Mar Dia, Mar Dia, which attracted Joginder Singh son of Dewan Singh and Avtar Singh Panch son of Puran Singh, residents of village Pinjori to the spot. On seeing them coming, Malkiat Singh and Gurmit Singh fled away from the spot leaving behind Baldev Singh. Thereafter he took Baldev Singh in an injured condition and got him admitted in the hospital at Naraingarh, where the doctor had referred Baldev Singh to P.G.I. Chandigarh. When he reached near village Bhure Wala, Baldev Singh succumbed to injuries. Dead body of Baldev Singh was brought back to civil hospital at Naraingarh. Sukhdev Singh came to know that his brother and co-accused had quarrelled with each other after consuming liquor and had abused each other. Malkiat Singh and Gurmit Singh caused injuries to Baldev Singh with the intention to kill him.
4. The prosecution in its endeavour to bring home the offence against the appellant and his co-accused examined Dr. Alok Ahuja, Medical Officer, District Jail, Rohtak. He stated that on 27-3-1994 Baldev Singh son of Kartar Singh was brought to the hospital in an injured condition and he was referred to PGI Chandigarh. He sent the intimation to Police Station, Naraingarh. Thereafter the patient was brought dead after a short while and he again reported the matter to Police Station, Naraingarh. Dr. Ashwani Kashyap, Medical Officer, Civil Hospital, Naraingarh who conducted autopsy on the dead body of Baldev Singh was examined as PW 7. He found following injuries on the dead body of Baldev Singh :-
"1. An incised wound was present on right side of face extending from right angle of mandible below to right side of neck of size 6 cm x 4 cm x 5 cm deep.
2. Incised wound on right side of neck, 5 cm above the clavicle of size 7 cm x 5 cm deep. Under lying tissues were cut and underlying blood vessels were cut open."
5. In the opinion of the doctor cause of death was due to haemorrhage and shock as a result of above described injuries and cutting of vessels which were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. Prosecution examined PW 2 Constable Darshan Lal who had deposited two sealed parcels with the Forensic Science Laboratory, Madhuban, one containing clothes of the deceased and the other containing the pieces of glass bottle. Sukhdev Singh was examined as PW 3. He deposed in tune with the statement made before the police on the basis of which F.I.R. was recorded. Inder Lal Chopra proprietor of Chopra Art Studio was examined as PW 4 whereas Ram Saran Constable was examined as PW 5. The prosecution also examined K. C. Godara as PW 6 and Investigating Officer SI Ram Saran as PW 8. ASI Raj Kumar was examined as PW 9 who too had partly investigated the case.
6. When examined under Section 313 of the Code of Criminal Procedure, the appellant besides denying the incriminating material put to him stated that he was innocent and was falsely implicated in this case at the instance of Sukhdev Singh and Baldev Singh due to enmity and party faction in the village. The appellant did not lead any evidence in defence.
7. We have heard Mr. P. S. Mann. Senior Advocate who represented the appellant is also Mr. Varinder Singh DAG. Haryana and have carefully gone through records of the case. Mr. Mann has endeavoured to show that only eye-witness who was examined in this case had not actually seen the occurrence whereas the other two eye-witnesses have not been examined by the prosecution. When confronted with the situation that the F.I.R. in this case came to be recorded very promptly thus, negating the suggestion that brother of the deceased was not present or had not seen the occurrence, the learned defence Counsel then confined his arguments only to the nature of offence. Even if the prosecution story is accepted in its entirety, the appellant cannot be pinned down under Section 302 of the Indian Penal Code and at the most he can be held for an offence under Section 304, Part I of the Indian Penal Code contends the learned Counsel. We find merit in the contention of the learned Counsel to the extent that the appellant could not be convicted in this case under Section 302 of the Indian Penal Code but we are of the view that offence committed by the appellant would come under Section 304, Part I and not under Section 302.
8. The pointed facts of the case reveal that the deceased was not a stranger to the appellant a his co-accused. He was cousin of the appellant. The day of occurrence was a holiday being Holi (Phag) when in village it is common that the menfolk indulge in heavy drinking. It is the prosecution case itself that the appellant and his co-accused as also the deceased had consumed liquor. It is also the prosecution case itself that an altercation had taken place between the appellant and his co-accused on one hand and the deceased on the other. They had indulged in filthy abuses in front of Verma Iron Store. There was no enmity between them and it was a case of sudden flair up. The appellant and his co-accused were not armed with any weapon. They consumed bottle of liquor which was first thrown which hit a machine and broke. Broken piece of the bottle was lifted and two injuries were given with that by the appellant to Baldev Singh. It is too well settled that in a case of sudden quarrel, when there is no enmity and no undue advantage of the situation is taken, the offence would not be covered under Section 302 of the Indian Penal Code even though it shall be homicide not amounting to murder. Looking into injuries and seats of injuries. We are of the view that it is not a case which would fall under Section 302 of the Indian Penal Code. The injuries have since been described above. The second injury which was incised wound was on right side of neck 4 cm above the clavicle of size 7 cm x 5 cm deep. Under lying tissues were cut and underlying blood vessels were cut open. The nature of injuries surely would bring the offence under Section 304. Part I of the Indian Penal Code.
9. In view of the discussion made above, whereas we set aside the order of the learned Sessions Judge holding the appellant guilty under Section 302 of the Indian Penal Code, we hold him guilty for an offence under Section 304, Part 1 of the Indian Penal Code. In our view ends of justice would be amply met if the appellant is sentenced to undergo R.I. for seven years.
10. This appeal is, thus, partly allowed.
11. Appeal partly allowed.