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CASE NO.:

Appeal (crl.) 147 of 2002

PETITIONER:

Hukam Chand

RESPONDENT:

State of Haryana

DATE OF JUDGMENT: 23/10/2002

BENCH:

Umesh C. Banerjee & Y.K. Sabharwal.

JUDGMENT:

JUDGMENT

Banerjee, J.

The 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.

Two 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.

It is 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.

The 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

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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.

On opening the stitches, it was bone deep, margins were clean cut.

The 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.

In the 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.

Records 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 :-

1. 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.

2. 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.

3. Superficial abrasion 7 cm on the right arm anterio laterally.

4. Superficial abrasion 3.5 cm on the middle of back of right

fore-arm.

5. Superficial abrasion 1 cm x 1 cm on the back of left elbow.

All the injuries in the opinion of the doctor were simple in

nature caused by blunt weapon.

It has 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 :

(1) 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.

(2) Superficial abrasion 8 cm on the right shoulder. Both the

injuries were simple in nature caused by blunt weapon.

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Ex.DB is the copy of the medico legal report.

Incidentally, all the weapons, namely, Lathi, Pharsa and

Ballam with blood-stained marks thereon were duly recovered at

the instance of the accused persons.

Presently, 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.

Hukam Chand at the trial stated in his statement under

Section 313 as below :

"I 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.

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Mr. 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.

Before 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 Chand only.

Coming 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 :

"7. 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.

Having 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.

Therefore, 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.

This 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.

He was 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.

The 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 cause death.

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On the wake of the aforesaid, we are unable to record our

concurrence on the second count as well, as addressed by the

appellant.

In 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 dismissed.