Vs. State of Haryana  Insc 437 (23 October 2002)
C. Banerjee & Y.K. Sabharwal. Banerjee, J.
appellant by the grant of special leave of this Court is in appeal from the
order of the Punjab and Haryana High Court affirming conviction for an offence
under Section 302 IPC and sentence to undergo imprisonment for life and further
to pay a fine of Rs.50,000/-. The appellant has further been convicted under
Section 323 IPC and sentenced to imprisonment of six months and both the sentences,
however, were directed to be concurrent.
principal issues stand canvassed for consideration in the appeal. Firstly, the
order of conviction as confirmed by the High Court remains wholly unwarranted,
since injuries inflicted on the deceased cannot but be termed to be in self-defence
and secondly having credence on the entire prosecution story at the most the
conviction should have been under Section 304 Part I and not under Section 302
IPC on the state of evidence available on record.
at this juncture, certain factual backdrop ought to be noticed. On 6th May, 1989, around 7.00 in the morning, PW.12 Kishori
Lal son of Devi Sahai and his brother Udai Chand (since deceased) went to the
fields of Chatur Bhuj, where a wheat thrasher had been installed for thrashing
the wheat. A cart belonging to Kishori Lal was standing nearby from where Mani
Ram and Tuhia @ Varinder picked up a Khes and started filling the fodder in the
tractor trolley by laying the fodder on Khes. The complainant side asked them
to return the Khes and there was by reason whereof some altercation between the
two groups : whilst altercations, however, were on, Mani Ram asked his son Tuhia
to inform his uncle so that he can come to lend support to Mani Ram's group. It
is in pursuance of such a call that Hukam Chand arrived but armed with a Pharsa
and it is this Pharsa by which Hukam Chand did inflict a blow on the head of Udai
Chand and the latter on receipt of the same fell down. Whereas Mani Ram gave a Lathi
blow on the head of Kishori Lal, Tuhia being the son of Mani Ram inflicted a Ballam
blow on the right shoulder of Kishori Lal. The latter was also given a Ballam
blow by Dayawati, wife of Hukam Chand and it is on the hue and cry that some
other persons arrived on the spot and Udai Chand was removed to the Government
Hospital, Mandkola and subsequently to B.K. Hospital, Faridabad and then to Safdajung
Hospital in New Delhi.
factual score further depicts that the Primary Health Centre sent a Ruqa to the
local police station and ASI, Rajinder Singh, upon a visit to the village Mandkola,
came to know that the injured had been admitted in B.K. Hospital, Faridabad and subsequently to Safdarjung Hospital, New
Delhi on 9.5.1989.
The condition of Udai Chand, however, was rather serious, by reason wherefor no
statement could be obtained but Kishori Lal's statement was recorded (Ex.PL).
Subsequently, Udai Chand died on 12th May, 1989. Dr. A.K. Sharma (PW.2) conducted the post-mortem on the
body of the deceased Udai Chand on 13.5.1989 and found a stitched wound of the
length of 15 cm with 12 stitches placed anterio posteriorly above the middle of
the head. Its anterior and being 6 cm above the root of the nose and posterior
end was also 6 cm above the occipital protuberance.
opening the stitches, it was bone deep, margins were clean cut.
doctor also found that effusion of blood was present in whole of the scalp
region. Cut fracture of the skull was present in the middle of the frontal bone
and continued backwards all along the saggital suture, its anterior and
continued in the floor of the skull in the right side of the anterior cranial fossa.
It encloses two small depressed fractures one at the middle level of saggital
suture as shown in the post mortem report and another just at the anterior end
of the saggital suture. Anterior end of the cut fracture in the frontal bone
also encloses small depressed fracture. Duramatter was cut anterio posteriorly
just underneath the cut fracture. Extra dural haemotoma 0.3 cm in thickness and
3 cm of width present all along with underneath the cut fracture. Thick subdural
and patchy sub arachnoid haemorrhage present all over the both cerebral hemi
sphere. Contusion laceration present along the inner margins of the anterior
half of both the cerebral hemi sphere.
opinion of the doctor the death was due to cranio- cerebral damage consequent
upon being hit on the head by a heavy sharp cutting weapon and injury No.1 was
sufficient to cause death in the ordinary course of nature.
depict that apart from the injury inflicted on to the deceased Udai Chand, Kishori
Lal on the complainant side also suffered some injuries and Dr. A. Ahmad, PW.1
medico legally examined Kishori Lal, PW.12 on 6.5.1989 at about 9.45 a.m. and
found the following injuries on his person :-
Lacerated wound 4 cm x 0.4 cm x 0.3 cm on the middle of scalp, 10 cm above from
occipital protuberance. There was slight bleeding.
Lacerated wound 3 cm x 0.4 x 0.3 cm, 0.7 cm from injury No.1 towards left side.
There was slight bleeding.
Superficial abrasion 7 cm on the right arm anterio laterally.
Superficial abrasion 3.5 cm on the middle of back of right fore-arm.
Superficial abrasion 1 cm x 1 cm on the back of left elbow.
the injuries in the opinion of the doctor were simple in nature caused by blunt
also come in evidence that both Hukam Chand and Baljit, being accused persons
also suffered some injuries, whereas Hukam Chand's injury is a lacerated wound
1 cm x 1 cm x 0.5 cm on the back of left side of scalp, 5 cm above left to
occipital protuberance and X-ray was advised. Baljit being the other accused
person was found to have suffered the following injuries on his person :
Lacerated wound 3.5 cm x 0.5 cm x 0.3 cm on the right side of scalp 7 cm above pinna
of right ear. Wound was surrounded by contusion. Slight bleeding was present.
Superficial abrasion 8 cm on the right shoulder. Both the injuries were simple
in nature caused by blunt weapon.
is the copy of the medico legal report.
all the weapons, namely, Lathi, Pharsa and Ballam with blood-stained marks
thereon were duly recovered at the instance of the accused persons.
we are concerned with the appellant only and as such evidence pertaining to the
involvement of the accused is required to be seen and considered.
at the trial stated in his statement under Section 313 as below :
am innocent. My co-accused Mani Ram has filed a cross-case, which is pending in
the court of JMIC, Palwal, wherein, our complete version has been given and Devi
Sahai and Kishori PW have been summoned as accused. Harchandi, my uncle is a
bachelor and he resides with us and is very much attached with Tuhia co-accused
and treats him as his son. The complainant party i.e. Devi Sahai and his sons
are jealous of Tuhia and are always looking out to give beating to Tuhia and
his father, and his father Mani Ram on 6.5.1989 my co-accused Mani Ram and his
son Tuhia went to the field of Chattarbhuj PW where we have stored our fodder,
with a tractor trolley and had started putting fodder on the Khes, belonging to
us which was in our trolley. Devi Sahai, Kishori PWs and Udai Chand reached
near the field of Chatterbhuj with a bhansa buggi and snatched/pulled the Khes
from our trolley and on being confronted by Mani Ram they gave beating to Mani
Ram and Tuhia on which Tuhia slipped away with our tractor and informed me and
my brother Baljit about the same on which I along with my brother Baljit went
to the field of Chattarbhuj with Tuhia on tractor but unarmed and on reaching
there asked the complainant party i.e. Devi Sahai, Kishori to return the Khes
but Udai Chand armed with a Pharsa, Kishori armed with a ballam and Devi Sahai
armed with lathi opened attack on us. Kishori PW gave injuries to Tuhia by Ballam
lathiwise. Devi Sahai PW gave injuries to Baljit with his lathi and Udai Chand
armed Pharsa and gave Pharsa blow on my head with blunt side and when Udai Chand
wanted to hit a second blow of pharsa to me I grappled with Udai Chand in order
to disarm and in that process Udai Chand received injury on his head. The
occurrence was witnessed by Hari Chand and Kishan sons of Ramji Lal. Charanjit
son of Man Singh and Kanwar Pal son of Chattarbhuj who intervened and separated
us. I and my co accused were medically examined by Dr. Krishan Kumar and Dr. A.
Ahmad, Medical Officers of PHC Mandkola at 9.00 A.M. on 6.5.89 but we were all detained by the police in police lock up on
6.5.89 itself and initiated one sided challan against us illegally."
Hereinbefore in this judgment the first issue pertains to a question as to
whether the complainant party can be termed to be aggressors or not ? The
learned Sessions Judge negated it and so did the High Court. A bare perusal of
the injury report of Hukam Chand as a matter of fact negates the theory of
aggression, as introduced by the defence. No serious injuries have been shown
to have been received by any of the accused persons and the pretended
explanation as set up under Section 313 that Udai Chand received the fatal blow
on his head from his own arms cannot but be termed to be otherwise not
creditworthy neither acceptable. On the wake of the aforesaid the aggression
theory completely fails and we answer the first issue thus in negative.
Shiva Pujan Singh, learned Advocate appearing in support of the appeal,
however, very strongly laid emphasis on conversion of the offence from Section
302 to Section 304 Part I.
proceeding with the matter further, it be noticed that the other accused
persons Mani Ram, Baljit and Tuhia @ Varinder were convicted under Section 323
and sentenced to undergo rigorous imprisonment for a period of six months and
to pay a fine in the sum of Rs.1,000/- each and this appeal stands filed by Hukam
back to the issue raised as regards the invocation of Section 304 Part II IPC,
strong reliance was placed on to a decision of this Court in Pularu v. State of
Madhya Pradesh (AIR 1993 SC 1487), wherein K. Jayachandra
Reddy, J., as His Lordship then was, speaking for the Bench in paragraph 7 of
the Report stated :
That takes us to the nature of the offence. All the three eye-witnesses have
spoken that the appellant dealt only one blow with the agricultural implement.
regard to the time and the surrounding circumstances it is difficult to hold
that he intended to cause the death of the deceased particularly, when he was
not armed with any deadly weapon as such. As an agriculturist he must have been
having a tabbal in his hands and if in those circumstances he dealt a single
blow it is difficult to convict him by invoking clause (1) or (3) of Section
300, I.P.C. It cannot be said that he intended to cause that particular injury
which unfortunately resulted in the fracture of bones.
the offence committed by him would be one amounting to culpable homicide
punishable under Section 304, Part II, I.P.C. We accordingly set aside the
conviction of the appellant under Section 302, I.P.C. and sentence of
imprisonment for life awarded thereunder. Instead we convict him under Sec.
304, Part II, I.P.C. and sentence him to undergo Rigorous Imprisonment for
seven years. The appeal is partly allowed to the extent indicated
hereinabove." While it is true that there was only one blow but the
medical evidence on record definitely indicates that the severity of the blow
was such that it was sufficient for causing death. In Pularu (supra) the
appellant dealt only one blow with an agricultural implement.
Court having regard to the fact that Pularu was an agriculturist came to a conclusion
that question of there being any intent to cause death of the deceased would
not arise since he was not armed with any deadly weapon as such. Presently,
however, the situation is slightly different. Hukam Chand was in the house.
called in and he arrived at the scene and place of occurrence with a Pharsa
which by all means is a deadly weapon and it is this Pharsa which was used to
hit the deceased at his head resulting in immediate collapse and subsequent
death. The story set up by the appellant, as noticed hereinbefore belies the
incident and cannot but be ascribed to be a totally fabricated one. Injuries
suffered by Udai Chand, the deceased, cannot be said to be inflicted as a
matter of chance while grabbling with each other.
nature of the injuries, as noticed hereinbefore, depicts it otherwise. If that
be the case which stands to reason that there was in fact a deliberate Pharsa
blow on the deceased, then and in that event, a simple question by itself would
negate the plea of the accused, namely as to the reason why Hukam Chand arrived
at the place of occurrence with a Pharsa in his hand. The factum of bringing in
the Pharsa at the place of occurrence from his house when he was sent for
cannot be ignored. It definitely indicates the intent to use it and thereby
wake of the aforesaid, we are unable to record our concurrence on the second
count as well, as addressed by the appellant.
that view of the matter, we do feel it expedient to record that judgment
impugned does not warrant any interference. The appeal thus fails and is