Judgment:
Amaresh Ku. Singh, J.
1. The respondent was tried by the learned Additional District and Sessions Judge No. 1, Hanumangarh on a charge under Section 302 of the Indian Penal Code for having caused the death of one Mala Ram on 27th July, 1978. After conducting the trial, the learned Additional District and Sessions Judge came to the conclusion that the prosecution had failed to bring home the guilt to the accused-respondent. He, therefore, acquitted the respondent of the charge under Section 302 of the Indian Penal Code. Feeling aggrieved by the judgment of acquittal the State has filed this appeal.
2. The prosecution story, in brief, is that on 27th July, 1978 Panna Ram went to the shop of respondent for purchasing 'moonj' at that time the respondent demanded money and pushed Panna. Where-upon some altercation took place between the two. Panna Ram thereafter returned home in the evening when Panna reached his house he told his elder brother about the incident. The amount demanded was a petty sum of Rs. 8/- only. The respondent No. 1 annoyed with the deceased on account of the fact that he had made a quarrel for such a petty amount. Thereafter, some altercation took place between the deceased and the respondent and something which was probably a measuring weight was thrown towards the deceased and it hit him. The respondent also caused a lathi blow on his head. In this manner the deceased was injured by the respondent. The deceased was thereafter taken to the hospital. A first information report of the incident was lodged on 27th July, 1978. The first information report Ex.P.l was written by one Sher Singh and it was forwarded by Dunger Ram Panwar M.L.A. of Tibi area (Sri Ganganagar) to the Station House Officer. The police, however, did not register the case on the basis of that report. When the deceased was in the hospital, the Station House Officer visited him and recorded his statement, which has been marked as Ex.P.8. That particular statement was the basis on which the Police registered the case under Sections 325 and 323 of the Indian Penal Code. The deceased died in the hospital on account of the injuries found on his body. After the death of Mala Ram, post mortem examination was conducted. Before his death his injuries were also examined by a Doctor and a simple injury on his head was found. According to the post mortem report Ex.P.21, the kidney was pyogenic and death was caused by septicaemia, circulatory failure and other complections including bed sores and paraplegia and imbalance in electrolytes. In the post mortem report Ex.P.21 there is no mention that the injuries found on the dead body of Mala Ram were likely to cause death or were sufficient in the ordinary course of nature to cause death.
3. It appears that apart from giving the report Ex.P.-8 to the Station House Officer, Mala Ram made another dying declaration before the Magistrate in which he narrated the incident substantially in the manner in which it was stated to have occurred as stated in Ex.P.-8. The learned Additional District and Sessions Judge, came to the conclusion that there were inconsistencies of substantial character between dying declaration given on different occasions and the version given by the eye witness was not untrust worthy he, therefore, acquitted the respondent.
4. The learned Public Prosecutor has submitted that the findings arrived at by the learned Additional District and Sessions Judge No. 1, Hanumangarh they are not only unreasonable but are also puverse because in significant contradiction have been given excessive importance for discarding the otherwise trustworthy dying declarations and the testimony of the eye witness has been discarded on the basis of conjectures. He has, therefore, prayed that this appeal should be allowed and the respondents should be convicted under Section 302 of the Indian Penal Code.
5. The learned Counsel, appearing for the respondent, has submitted that the finding arrived at by the learned lower Court are fully justified on the basis of material on record and that in appeal against acquittal merely because the appellate Court may reach at a different conclusion, the verdict of acquittal should not be converted into a verdict of convictions. On merits, it is submitted by him that in this case, there is nothing to prove that the injuries found on the dead body of Mala Ram were sufficient in the ordinary course of nature to cause his death. It is also submitted by him that the injury found on the head was simple and at best the injury on the chest was not grievous and so far as the injury found on the back-bone (vertebra No. 21 and 22) is concerned, there is nothing to show that the respondent was responsible for intentionally counsel this injury. It is, therefore, submitted by him that the finding given by the learned lower Court does not deserve to be reversed.
6. We have carefully gone through the evidence produced before the lower Court and considered the reasons given by the lower Court for discarding the prosecution evidence including the dying declarations made by Mala Ram and considered the rival arguments addressed before us. The alleged inconsistencies between the dying declarations made by Mala Ram at different points of time are neither material nor substantial. A dying declaration is basically the statement of the person, who makes it and while making the statement he does not re-produce the statement made by any other persons. Where a person is obliged to re-produce a statement made by some other person it is necessary for him to re-produce the word exactly in the same manner in which they were heard by him but where a person is making a statement of his own belief he need not re-produce the same words on all occasions. Finding out a better language or a better mode of expression is one of the basic trial of humans and, therefore, merely because different words has been used by the deceased it cannot be said that there is inconsistency. In our considered opinion, there is no material inconsistency between the different dying decalarations made by Shri Mala Ram. The story given by the deceased appears to be quite natural and true. He has not exaggerated the account of the incident which took place and the truthfulness of the deceased is indicated by the fact that he did not name the particular weapon which was thrown at him and which struck him at his chest. Had he been an untrustworthy person there was nothing to prevent him from naming a weapon for the purpose of implicating the respondent. In our view, the story given by the deceased in Ex.-P.8 is trustworthy and cannot be doubted. Testimony of Nathu P.W.5 also proves the prosecution case. Therefore, we come to the conclusion that the prosecution evidence has proved that when the deceased went to the shop of the respondent and complained why he had started quarrel for a petty sum of Rs. 8/-, the respondent threw something which could have been a weight used for weighing towards the deceased and also inflicted lathi blows on him.
7. Having come to the conclusion that the prosecution story to the extent as mentioned above is true, the next important question, which is to be decided is as to what offence has been committed by the respondent. The prosecution evidence proves only this much that the deceased went to the shop of the respondent and protested against raising of a quarrel for a petty sum of Rs. 8/- and thereafter the respondent threw something towards the deceased and that landed on his chest and also inflicted a lathi blow on his head. There is nothing to show that the accused intended to cause death of Mala Ram. There is no evidence to show that the fracture of the vertebra of the deceased was caused by any act of the appellant. Therefore, the injuries found on the vertebra of the deceased cannot be attributed to the respondent and consequently, the complications, which arose on the account of injuries to the back-bone and the ultimate death that has occurred on account of like septicosemia and paralysis, cannot be attributed to the respondent. At best the respondent can be held responsible for causing simple injury with a lathi on the head of the deceased and simple hurt on the chest by throwing upon him something like a weight used for measurement of goods. In these circumstances, the only offence, which the respondent has committed is the offence under Section 323 of the Indian Penal Code.
8. For reasons mentioned above, this appeal deserves to be partly allowed. Acquittal of the respondent from charge under Section 302 of the Indian Penal Code does not deserve to be set aside and the only offence which the respondent appears to have committed is offence under Section 323 of the Indian Penal Code and we allow the appeal partly and convict him under Section 323 of the Indian Penal Code.
9. So far as the question of sentence is concerned the learned Counsel for the respondent has submitted that this appeal had been pending for a long time and that the respondent has grown to be an old man and, therefore, on humanitarian grounds he may be directed to pay compensation and sentence of imprisonment should not be imposed on him.
10. We have carefully considered the submissions made by the learned Counsel for the appellant. In adversory system, the trial is conducted for the purposes of giving opportunity to the accused so that he may demolish the prosecution case and prove his own case. The principles of natural justice are observed by apprising the accused as to what is the charge against him or what is the accussation against him. An accused has the liberty to plead guilty to the charge if he so likes. If an accused pleads guilty he may be convicted and sentenced. In such cases the trial of the case does not take much time. On the other hand, if the accused, after he was apprised of the charge or accusation against him pleads not guilty to the charge, a trial is to be conducted so that the accused may get full opportunity to show that the prosecution case is not true and he is innocent. Keeping in view the above, fact if a case remains pending for any length of time for the purposes of completing the trial, the delay is for the purpose of affording an opportunity to the accused to show that the prosecution case is untrue. Therefore, merely because the proceedings remain pending in the court for a long time, it cannot be said that the liability of the accused is reduced on account of the delay in the disposal of the case. The rights and liabilities are the two pillars on which the concept of justice is founded and these two pillars cannot be permitted to be undone by lapse of time. People, therefore, expect justice by restoration of their rights and enforcement of the liabilities and for the purpose of obtaining justice they not only submit to the authority of the State. They go on waiting for years with the pious hope that on some day justice would be vindicated by restoration of rights and enforcement of liabilities. In our view, simply because much time was taken during the trial, the rights and liabilities cannot be diluted to any extent. In a criminal trial, the society is interested in the ultimate consequence of the trial. The society is interested not only in conviction which is a declaration of the offence committed by the offender, it is further interested in prevention of crime. The courts are, therefore, expected to pass such orders as are necessary for the prevention of crime. One of the modes in which the crime can be prevented is by imposition of sentence which acts as deterrent to the criminal. Therefore, the punishment is not only relevant, it is necessary for the purpose of giving effect to the object of penal laws and imposition of sentence according to law has always been relevant in the administration of justice by the courts. The fact that in some cases reformatory approach is to be adopted for correcting the criminal does not have the effect of wiping out the importance of punishment which acts as a deterrent.
11. In this connection, it would be useful to quote the observations of their Lordship of the Supreme Court in Dhananjoy Chatterjee @ Dhana v. State of West Bengal reported in 1994 Cr.L.R. (S.C.) 82. At page 96 of the judgment their Lordship observed as below:
In our opinion, the measure of punishment in a given case must depend on the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
We have been guided by the observations of the Hon'ble Supreme Court and having regard to the facts and circumstances of the case, we deem it fit to sentence the respondent to rigorous imprisonment for one year and impose a fine of Rs. 1,000/- under Section 323 of the Indian Penal Code and sentence him to undergo rigorous imprisonment for one year and pay a fine of Rs. 1000/- and to undergo regorous imprisonment for three months for default in payment of fine.
12. The respondent is on bail. His bail bonds are hereby cancelled. He shall surrender before the learned Additional District and Sessions Judge No. l Hanumangarh within 2 weeks failing which the District and Sessions Judge, Hanumangarh will enforce the attendance of respondent by issuing warrant of arrest against him and send him to judicial custody to serve out the sentence awarded to him.