Bhawani Singh, J.
1. This appeal arises out of the judgment of Sessions Judge, Kangra Division, in Sessions Case No. 15 of 1982 and Sessions Trial No. 9 of 1982, decided on 13-5-1983. The appellant has been convicted under Section 304-II of the I.P.C. and sentenced to rigorous imprisonment for a period of three years and fine of Rs. 1000/- and in case of default of payment of fine, to undergo further simple imprisonment for six months. The fine, on recovery, was ordered to be paid, as compensation, to the heirs of Jai Karan.
2. The facts, in brief, may be stated thus. According to the prosecution, on 19-2-1982, Ranjit Singh and Roshan Lal were working at the instance of Jai Karan (deceased) and were fencing his land towards the village path at about 10 a.m. The appellant, carrying a latjii, appeared and gave lathi blows on the head of Ranjit Singh and thereafter he gave lathi blows on the head, legs and right arm of Jai Karan. The blow resulted in the fracture of the ulna of Jai Karan. The appellant left the spot and Jai Karan was removed to hospital by Ranjit Singh and Roshan Lal. The statement of Jai Karan was recorded by the police in the hospital under Section 154 of the Criminal P. C. on 20-2-1982 and it was on this statement that a case under Section 325 of the I.P.C. was registered and on the death of Jai Karan on 21-2-1982, the case was changed into Section 302 of the I.P.C.
3. Subsequently, at the stage of the consideration of the charge, the appellant was charged under Section 304 of the I.P.C. as initially the head injury on the person of Jai Karan was declared simple and the age of the deceased being 79 years and as no intention was attributable to the appellant that he wanted to kill Jai Karan. The appellant pleaded not guilty and claimed trial.
4. The case of the appellant appears to be that the deceased was closing the pathway to the village by placing thorny bushes thereby obstructing the same unjustifiably. Further, that Ranjit Singh was inimical towards him on account of land dispute and passage started through his land which he had stopped. Further, he states in this examination under Section 313 of the Criminal P. C. that lathi (Ex. P. 2) belongs to Ranjit Singh, a dhimber by caste, who uses the same to carry water as it has gaps at ends to carry iron hooks on which water buckets are fixed. He pleads innocence and false implication.
5. In order to examine this matter, it is necessary to refer to the statements of prosecution witnesses.
Dr. Jatinder Kumar (P. W. 1) examined the deceased on 19-2-1982. On medical examination, the following injuries were found:
1. Lacerated wound on the middle of right arm on the medial aspect 2' X 1/2'. Margin is red. Bone coming out of the wound Abnormal movement of the arm (compound fracture).
2. Two lacerated wounds on the top of head. Scalp deep, reddish margins. The dimensions of the wound are about 1/4' X 1/2'. One in the midline and other 1' lateral to the first.
3. Lacerated wound on the upper end of the anterior aspect or shin 1/2' X 1/4'. Reddish in colour.
X-ray of the right arm was advised. Fracture both bones revealed.
2 Fractures of Ulna, one in the middle and the other lower end. Fracture radius lower l/3rd.
The doctor found injury No. 1 to be grievous and injuries Nos. 2 and 3 of simple nature but all caused by blunt weapon. He informed the police on 20-2-1982 (Ex. P. A), Medical certificate (Ex. PB) was issued by him. He examined Ranjit Singh also on 20-2-1982 and found two injuries of the following description:
Small abrasions on the medical and superior aspect of left shoulder. Reddish blue in colour.
2. Small haemathoma on the anterior lateral (left) aspect. No other injury seen.
The injuries were found to be of simple nature caused by blunt weapon and the probable duration was more than 24 hours. Medical Certificate (Ex. PC) has been issued in this connection. He certified, at the request of the police, that the deceased was in a fit condition to give statement and the same was recorded by the police. Injuries of the deceased and Ranjit Singh could be caused by lathi (Ex. P. 2). Ranjit Singh was examined at 3.45 p.m. on 20-2-1982. He admits that at that time the probable time of the injuries was given less than 24 hours. However, he denies that this change was done at the instance of the police. He gives justification for writing 'more than 24 hours duration' on the basis of the nature of the injuries. He further admits that injury No. 1 on the person of Ranjit Singh could be caused by scratching against a shrub and injury No. 2 by a fall on a hard surface. However, both the injuries could not be caused in a scuffle until and unless forcible fist was applied. Police Post Dehra is a few yards away from the hospital. Since there were two fractures of the right arm and the patient was having head injury and X-ray was also done of the injuries, it might have taken sufficient time to manage the patient by him as he was worried about the well being of the patient. He could not give the well being of the patient. He could not give the time when Ruka (Ex. PA) was sent to the police nor could he remember the time the police came to him in connection with this case. He admits that in old age bones become fragile. He further states that he was not definite on the point that ulna bone at old age is likely to be fractured by slight violence. He further states that he could not say that injury No. 1 could result by a fall as there are multiple fractures. He could not say whether injury No. 2 could be caused by a Sanga as he did not know what Sanga is. Injury No. 3 could be caused by a fall.
6. Dr. K. C. Malhotra (P. W. 2) conducted the post mortem examination of the deceased on 22-2-1982 at 2 p.m. According to him there was a linear fracture of the right occipital bone 8 cm. X 1/2 cm. There was intracranial haemorrhage at multiple spots. There was laceration of the membranes of the brain and brain matter. Thorax-walls, ribs and catillages were normal. According to him, death had occurred due to shock on account of fracture of occipital bone, fracture of right forearm and intracranial harmorrhage which was sufficient to cause death in normal course of events. He admits in cross-examination that in old age, bones become brittle but he could not quantify the force in causing the injury. One blow with lathi (Ex. P. 2) was not likely to cause two injuries on the head at a time.
7. Ranjit Singh (P.W. 3) states that he was fencing the Gohar on 19-2-1982 at the request of the deceased at 2 p.m. at village Nangai Gheori along with Roshan Lal and had been fencing for about 3 to 4 days prior to 19-2-1982. The deceased was sitting on their side while they were doing the fencing. The appellant appeared and gave one lathi blow on his head and thereafter inquired as to why they were putting the fence and cleaning the Gohar, On this, the deceased intervened and said that it was he who had asked them to do the job. The appellant gave lathi blows on the head of the deceased and his right arm and legs which resulted in the fracture of the right arm. He further states that Shrimati Shiv Devi (RW. 5) also witnessed the occurrence as she was standing under a tree. They took the deceased on a col to Civil Hospital, Dehra and was admitted there. On 20-2-1982, the appellant produced lathi (Ex. P. 2) in his presence to the police. Memo (Ex. PF) was prepared and he also signed the same. He as well as the deceased received injuries by lathi (Ex. P. 2). He further states that he could not say whether the land belongs to the appellant or the deceased. The deceased had a darati. There was no altercation between the appellant and the deceased. He denies the suggestion that deceased had attacked the appellant with darati. He was using darati and Sangu for fencing like Roshan Lal. He denies the suggestion that he along with the deceased and Roshan Lal attacked the appellant who picked up lathi (Ex. P. 2) and used the same in self defence. He could not say whether there were gaps at the end of lathi (Ex. P. 2). At the time of recovery of lathi (Ex. P. 2), none else except Roshan Lal was present. The appellant had produced the lathi on inquiry by the S.H.O. It was not lying at the place of occurrence as the same was taken away by the appellant. The police came to the hospital for the first time after he had reported the matter. The police did not record his statement when he had hone to report the matter. His statement was recorded in the hospital.
8. Shrimati Shiv Devi (P.W. 5) slates in her examination-in-chief that about 6/7 months back, she saw the appellant giving lathi blow to Ranjit Singh and thereafter to the deceased. She had reached the spot on hearing noise. In cross-examination she stages that there was altercation between the deceased and the appellant. She did not see Jai Karan attacking the deceased with darati, but he was carrying darati in his arm. Jai Karan was standing at that time and she left the spot and could not say whether the deceased aimed duruli at the appellant or not. She did not see the appellant giving lathi blow to the deceased. Panchayat had visited the spot two days prior to the occurrence on the complain of her husband about the closure of the Gohar by Jai Karan. The deceased had refused to comply with the directions of the Panchayat.
9. Shri Karam Chand (P.W. 6) states that on receipt of Ruka (Ex. PG), he had recorded formal First Information Report (Ex. PG/1) under his signatures and the endorsement on the Ruka is Ex PG/2 and investigation was conducted by Shri Ravi Dutt, ASI. He states that the First Information Report was recorded at 3.05 p.m. and the First Information Report was sent by Dak and was signed by the S.D.J.M. on 23-2-1982 at 5 p.m.
10. Assistant Sub-Inspector of Police Shri Ravi Dutt (P.W. 11) investigated the matter. He recorded the statement of the deceased (Ex, PG) in the hospital. He slates that lathi (Ex.P. 2) was taken into possession on the production of the appellant at the spot. He further states that Ruka (Ex. PA) was received by him at 11.55 a.m. on 20-2-1982. Roshan Lal and Ranjit Singh, PWs. had not come to the police post before the receipt of Ruka Ex, PA. He does not remember whether they had come after the receipt of Ruka Ex. PA. He denies the suggestion that Roshan Lal and Ranjit Singh took him to the hospital on the plea that Jai Karan was in a serious condition. He recorded the statement of the deceased at about I p.m. and there were 4/5 persons with the deceased who were his relations. He recorded the statements of Roshan Lal and Ranjit Singh on 20-2-1982 at the spot. He took the Patwari to the spot who prepared the site plan (Ex. PH), He denies the suggestion that he had changed the place of occurrence by issuing directions to the Palwari at the time of the preparation of the site plan. He denies the suggestion that the appellant did not produce lathi (Ex. P.2) and that the same was recovered from the house of the deceased or from the spot
11. Shri Kashmir Singh (D.W. 1) states that the village common path abuts the land of the appellant and the deceased on either side. In his absence from the village, the deceased had closed the village path and he was informed about this fact by his children through a letter. Thereafter, he sent a complaint to the Panchayat on 16/17 Feb. 1982 and when he came to his village in the first week of May, he found the path closed, with the result that another passage had been started from the land of the appellant. Ranjit Singh (P.W. 3) was also using the passage through the land of the appellant. The villagers, including his family members, were using the path through the land of the appellant.
12. Shri Mehar Din (D.W. 2) states that he was deputed by the Up-Pradhan to visit the spot where he found the path closed. The deceased had stated that the path was part of his land and, therefore, he closed the same. The Panchayat did not take any action as the present case had started. The village path is still closed and the villagers are using a part of the land of the appellant as path.
13. Shri Sher Singh (D.W. 3) is the Panchayat Secretary. He states that an application moved by Shri Kashmir Singh (D. W. 1) was received in the Panchayat under registered cover on 26-2-1982. The original copy (Ex. D.W. 3/4), is dated 19-2-1982.
14. Paras Ram (D.W. 4) states that he had advised the deceased to demarcate the land. Bushes were removed from the land of the appellant and new passage was also prepared in the land of the appellant. Ranjit Singh (P.W. 3) had encroached 2 ghumaon of land belonging to the appellant.
This is what witnesses of the prosecution and the appellant have said on the issue.
15. In face of the evidence on record, it can be easily ascertained that the dispute relates to the village path. The deceased was closing it and thereby rendering the villagers to adopt another course through the land of the appellant. Decidedly, dispute is going on between the villagers and, more particularly, Kashmir Singh (DW 1) and the appellant regarding the closure of this path. The matter has been reported to the Panchayat as well. Coming to the occurrence, it appears that the prosecution has not correctly and truly depicted the genesis of the crime. It cannot be reasonably and easily inferred that the incident took place all of a sudden. It appears to have been preceded by altercations between the parties. It cannot be believed that the appellant just came and started hitting Ranjit Singh (P. W. 3) and then the deceased, as narrated, rather the statement of Shrimati Shiv Devi(P. W. 5) discloses that the deceased had a darati and Ranjit Singh (P. W. 3) and Roshan Lal had also daratis as well as Sanga in their hands. Shrimati Shiv Devi (P. W. 5) states that there was altercation between the deceased and the appellant. Obviously so, the appellant may have naturally asked as to why they were closing the path and this must have been followed by an altercation between the parties. Use of lathi (Ex. P. 2) cannot be disputed, although there is doubt as to its recovery, as stated by the prosecution witnesses; there being conflicting evidence as to the place of its recovery. The appellant (72) is also an old man. It looks doubtful whether he could inflict blows not only to the deceased but also to Ranjit Singh (P. W. 3), a young man of 19 years. Injuries on his person appear to be doubtful and not as a result of this incident. The fight appears to have taken place only between the deceased and the appellant and it did not affect any of these two persons. The appellant inflicted only one blow on the head, severity of which cannot be assessed precisely, looking to the ages of the deceased and the appellant. The medical opinion is also not clear, cogent and precise on this aspect. The medical experts admit that bones, at this age, become brittle and it cannot be stated definitely as to with what force they may get fractured.
15A. The first information report has been recorded after unreasonable delay. No effort has been made to explain it. Ranjit Singh (P. W. 3) states that he went to the police station to report the matter along with Roshan Lal (P. W. 4) but their statements were not recorded at the police station and Ravi Dutt (P. W. 11) states that their statements were recorded at the spot; Ravi Dutt (P. W. 11) is not clear as to whether he received the information from the Doctor first in point of time, as compared to the information given to him by Ranjit Singh (P. W. 3) and Roshan Lal (P. W. 4).
16. The crux of the matter is that there is delay in the lodging of the First Information Report although the Police Station is at a short distance from the hospital. The importance of lodging of the First Information Report cannot be lost sight of. Unless delay is satisfactorily explained, the story of the prosecution is bound to slide into the zone of doubt due to the possibilities of embellishments, exaggerations and concoctions coming in with the result that the occurrence is not specifically, clearly and accurately described and analysed. In my opinion, this had happened in the present case also. However, the question for determination ultimately remains as to what offence has actually been committed by the appellant. Circumstances of the case and evidence on the record has been discussed and analysed above. There is no evidence of any intention on the part of the appellant either to cause death of the deceased or cause such injuries of which the appellant could have the knowledge that they were likely to cause death of the deceased although it cannot be doubted that the appellant had the intention to cause grievous hurt to the deceased by the lathi. The act of the appellant cannot be considered to be thoroughly without any justification. The deceased had closed the village path. Villagers had started passing through the land of the appellant. The deceased had also a darati in his possession. So also had Ranjit Singh (P. W. 3) and Roshan Lal (P. W. 4). Placed in such a situation, appellant resorted to inflicting blows or else he would have faced retaliation. However, as already said his act lacks that degree of criminality which imputes him knowledge as to consequences of Section 304-II of the IPC, as concluded by the learned Sessions Judge. All said and done, facts and evidence on the record, at the most, make him liable for committing an offence under Section 325 of the IPC and I convict him accordingly and set-aside the conviction and sentence imposed by the learned Sessions Judge.
17. Shri S. S. Kanwar, learned Counsel appearing in defence of the appellant, submits that the appellant is now about 75 years of age and, therefore, jail sentence will be absolutely inappropriate in the present case. The appellant may, therefore, be given the benefit of Section 4 of the Probation of Offenders Act.
18. Looking to the fact that the offence was committed on 19-2-1982 and a period of more than seven years has passed and the appellant is an old man of about 75 years, so it is not just to award jail sentence to him. Instead of sentencing the appellant, I, therefore, release him on probation with a direction to keep peace and be of good behaviour for a period' of two years under Section 4 of the Probation of Offenders Act, 1958 on his executing a bond to appear and receive sentence when called upon during this period. The bond will be filed before the Sessions Judge, Kangra, within a month from today.