Criminal Appeal No.334-SB of 1999 v. State of Haryana

dated 3.4.1998 passed by Mr.C.B. Jaglian, Additional Sessions Judge, Yamunanagar at Jagadhri, vide which he was convicted -2- Criminal Appeal No.334-SB of 1999. under Section 325 of the Indian Penal Code (hereinafter referred to as `the Code') and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.1000/-, in default whereof to undergo further rigorous imprisonment for six months in case F.I.R. No.25 dated 25.7.1998 registered under Section 302 of the Code at Police Station Farakpur. The facts of the prosecution case are that on

24.1.1998 at about 3 P.M, when complainant Munshi Ram was passing from near the house of Narati Devi while going to his fields, he heard the shrieks of Narati Devi. Upon hearing the shrieks, complainant Munshi Ram went inside the house of Narati Devi and found that Sumer Chand (appellant), who is Narati Devi's daughter's son, was giving her blows with the handle of a hand pump. In the meantime, Pala and Rattan sons of Telu Ram also came to the spot. They all rescued Narati Devi from the appellant. On 25.1.1998, at about 4 P.M, when complainant Munshi Ram,on hearing the cries from the house of Narati Devi, went to the house of Narati Devi, he found that she had already died. The motive for the appellant to commit this crime was that Narati Devi had ½ acre of land and Sumer Chand wanted to sell the same, which was objected to by Narati Devi. The information regarding the murder of Narati Devi was received on telephone by Sub Inspector Mohinder Singh. He -3- Criminal Appeal No.334-SB of 1999. went to Village Phoosgarh and recorded the statement (Exhibit P.K) of Munshi Ram (complainant). Sub Inspector Mohinder Singh prepared the inquest report (Exhibit P.C) and sent the dead body for post mortem examination. The handle of the hand pump,produced by the accused, was taken into possession vide recovery memo (Exhibit P.F). After completion of investigation, challan against the accused was presented in the Court of the Ilaqa Magistrate, who committed the case to the Court of Session. Charge under Section 302 of the Code was framed against the accused, to which he did not plead guilty and claimed trial. At the trial, the prosecution examined Dr. Ashok Kumar Gupta (P.W.1), Constable Balwinder Singh (P.W.2), Constable Ram Kumar (P.W.3), Assistant Sub Inspector Hakam Singh (P.W.4), Head Constable Kesho Ram (P.W.5), Constable Karamvir (P.W.6), Pala Ram (P.W.7), Rattan Chand (P.W.8), Head Constable Karam Singh (P.W.9), complainant Munshi Ram (P.W.10) and Sub Inspector Mohinder Singh (P.W.11). In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the prosecution allegations and pleaded false implication. He further stated as under:- “ I am innocent. The case is false. I was -4- Criminal Appeal No.334-SB of 1999. the only person to inherit the property of Narati Devi after her death. PW Munshi Ram has deposed falsely as he had a quarrel with me about 15 days prior to the death of Narati Devi on account of money which I was to take from him.” The accused-appellant examined Tejo Devi (D.W.1) in defence. I have heard the learned counsel for the parties and have gone through the records of the case. Dr. Ashok Kumar Gupta (P.W.1), who had conducted autopsy on the dead body of Narati Devi, on 26.1.1998 at

9.30 A.M, found the following injuries on the dead body:- “

1. Contusion on the posterior medial aspect of left wrist. Size 3 “ x 2”. It was bluish in colour. On dissection fracture of radius-ulna at the lower end was seen.

2. Contusions on the right upper arm over lower half antero laterally. Size 3-1/2” x 3” and bluish in colour.

3. Lacerated wound on the right skin 1” below the tibial tuberosity. Size 1-1/2” x 1/2” x bone deep. -5- Criminal Appeal No.334-SB of 1999.

4. Contusion on the antero-medial aspect of right leg near to the injury No.3. Size 3- 1/2” x 3” x bluish in colour. On dissection fracture of right tibia at upper part was seen with haematoma in between the muscles.

5. Contusion over the middle of right shin. Size 5-1/2” x 3-1/2” x bluish in colour. On dissection haematoma was seen under the skin.

6. Contusion on the posterior aspect of left calf. Size 5 “ x 3-1/2” x bluish in colour. On dissection haematoma was seen under the skin and between the muscles.

7. Visible deformity was seen at the lower end of left thigh. On dissection fracture supracondylar of left femur was seen with haematoma in between the muscles.” In the opinion of the Doctor, the death was due to shock and haemorrhage as a result of the above-mentioned injuries which were sufficient to cause death in the ordinary course of nature. The injuries were ante mortem in nature. The probable time that elapsed between injuries and death was within two to twelve hours and between death and post mortem it was within forty eight hours. -6- Criminal Appeal No.334-SB of 1999. In this case complainant Munshi Ram (P.W.10), who is an independent witness having no relationship either with the deceased or the accused, has fully supported the prosecution version. On 24.1.1998 at about 3 P.M, when Munshi Ram was going to his fields and reached near the house of Narati Devi, he had heard the shrieks of Narati Devi. He, thereafter, entered the house of Narati Devi and found that appellant Sumer Chand, a grand son of Narati Devi being her daughter's son, was giving her blows with the handle of a hand pump. In his statement (Exhibit P.K), leading to the registration of the instant case against the accused, Munshi Ram had stated that Pala Ram (P.W.7) and Rattan Chand (P.W.8), who are brothers, had also came to the spot and had witnessed the occurrence. Narati Devi died on 25.1.1998. The motive for the appellant to commit this crime was that Narati Devi had ½ acre of land which Sumer Chand wanted to sell. It was not to the liking of Narati Devi. However, both Pala Ram (P.W.7) and Rattan Chand (P.W.8), who were related to Narati Devi, she being their aunt, did not support the case of the prosecution. They stated that appellant Sumer Chand used to live with Narati Devi at her house in village Foosgarh. However, they did not support the case of the prosecution on the material particulars and were got declared hostile by the Public Prosecutor. Pala Ram (P.W.7) and Rattan Chand (P.W.8) were cross-examined by the Public Prosecutor. It appears that both of them were -7- Criminal Appeal No.334-SB of 1999. suppressing the material facts either out of their relationship with the accused or they had been won over by the accused. However, a verdict of acquittal cannot follow the moment the witnesses turn hostile and dispensation of justice is not dependant upon the witnesses who make efforts to hold the law to ransom. Once the prosecution case is established on record by the other cogent and trustworthy evidence led by the prosecution, non-supporting of its case by the witnesses who appeared to have been won over by the accused or were doing so out of their relationship with the accused, does not at all affect the prosecution case. As stated above Munshi Ram complainant (P.W.10) is an independent witness. He had no axe to grind against the accused. No doubt, appellant Sumer Chand, in his statement recorded under Section 313 of the Code of Criminal Procedure, stated that Munshi Ram had deposed falsely as he had a quarrel with the appellant about 15 days prior to the death of Narati Devi on account of money which the appellant was to take from him, but this assertion is not substantiated by way of any evidence, either oral or documentary. The suggestion put to Munshi Ram (P.W.10) was denied by him. Admittedly, the appellant was the only legal heir of Narati Devi and, therefore, according to the learned counsel for the appellant, he had no reason to cause the death of Narati Devi to inherit her property. However, I do not find any merit in this argument of the learned counsel for the appellant. The appellant wanted to sell ½ acre -8- Criminal Appeal No.334-SB of 1999. of land owned by her, which was not to her liking. She had told about this to Munshi Ram (complainant), who further told the same to the police while making his statement (Exhibit P.K) leading to the registration of the instant case. It appears that the appellant was in a hurry to dispose of the land owned by his grand-mother i.e the deceased and therefore indulged in this henious crime of murdering her. Dr. Ashok Kumar Gupta (P.W.1), who had conducted autopsy on the dead body of Narati Devi had observed contusion on the posterior medial aspect of left wrist and on dissection fracture of radius-ulna at the lower end was seen. Contusions on the right upper arm over lower half were also observed. Besides, lacerated wound below the tibial tuberosity which was bone deep was also observed. There was also contusion on the antero-medial aspect of right leg and on dissection fracture of right tibia at upper part was seen with haematoma in between the muscles. Contusions over the middle of right shin, bluish in colour and on the posterior aspect of left calf were also observed. There was visible deformity at the lower end of left thigh. On dissection fracture supracondylar of left femur was seen with haematoma in between the muscles. In the opinion of the Doctor, the death was due to shock and haemorrhage as a result of the said injuries which were sufficient to cause death in the ordinary course of nature. The injuries were ante mortem in nature. The charge framed against the accused was under -9- Criminal Appeal No.334-SB of 1999. Section 302 of the Code. However, the learned trial Judge, in the presence of such impeccable evidence led by the prosecution, did not hold the appellant guilty of the charge under Section 302 of the Code. The deceased was an elderly female of weak built and poorly nourished, as has been observed by Dr. Ashok Kumar Gupta (P.W.1) while conducting post mortem examination on her dead body. For bringing the offence of the appellant under Section 325 of the Code, the learned trial Judge, in para No.11 of the judgment, observed as under:- “ xx xx xx. In the present case though the injuries are seven in number and caused to an old lady of about 75 years (as mentioned in the post mortem report Ex.PA) yet all those injuries were caused either on the arms or on the legs and none of the injuries was caused on any vital part of the body. If the accused had intention to cause the death, he would have given injuries on the head or on any other vital part of the deceased. But as he gave injuries only on the arms and legs his intention was to cause injuries and not to cause the death of his maternal grand-mother Narati Devi. The -10- Criminal Appeal No.334-SB of 1999. offence committed by the accused, thus, falls within the parameters of Section 325 IPC.” Precisely speaking, the above finding of the learned trial Judge, in a nutshell, could not be made basis for keeping the offence committed by the accused away from the purview of Section 304 Part II of the Code. The above finding of the trial Judge itself brings the offence committed by the appellants within the purview of Section 304 Part II of the Code which prescribes that whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death,or to cause such bodily injury as is likely to cause death. However, since the State has not chosen to file appeal against the impugned judgment and the complainant has not come forward with a revision to enhance the sentence awarded to the appellant by taking appropriate grounds enshrined in criminal jurisprudence, my hands are tight and I have no option but to restrict myself to the dismissal of this appeal filed by the appellant challenging his conviction and sentence awarded to him by the learned trial Judge under Section 325 of the code. -11- Criminal Appeal No.334-SB of 1999. Resultantly, this appeal is hereby dismissed being without any merit. January 25, 2010. ( MOHINDER PAL ) JUDGE