Judgment:
V.K. Ahuja, J.
1. This is an appeal filed by the appellant under Section 374(2) Cr.P.C. against the judgment of the Court of learned Sessions Judge, Solan, dated 7.11.2002, vide which he convicted the appellant for the offence under Section 304 Part-II I.P.C. and sentenced him to rigorous imprisonment for 5 years and to pay a fine of Rs. 10,000/-. In default of payment of fine, the appellant was to undergo simple imprisonment for one year. The fine if recovered, 50% was payable to the widow of the deceased.
2. Briefly stated, the facts of the case are that Rajesh Kumar, now deceased, was son of Kishori Lal, already dead and Smt. Sheela Devi. After the death of said Kishori Lal, her husband, mother of the deceased Rajesh Kumar, married her husband's younger brother Chaman Lal and during this wedlock she gave birth to four children including the appellant. It is the prosecution case that Rajesh Kumar, deceased, had taken the contract of washing clothes of the Army Public School, Dagshai and his mother, step father and Anil Kumar, appellant, used to help him, while PW Banwari Lal was engaged as a servant. Chaman Lal, step father of the deceased and appellant alongwith other members of the family had some dispute with deceased since they had already been demanding equal share in the contract taken by him for washing clothes of Army Public School, Dagshai. It was further alleged that on 26.12.2001, appellant picked up an altercation with deceased, his step brother, on disconnecting STD facility to his telephone and some abuses were exchanged in between the two. Chaman Lal, step father of the deceased and father of the accused was present in the house but he did not intervene. Thereafter, the appellant hit the deceased with a hammer (Hathori) on the head of the deceased, who suffered an injury and the occurrence was witnessed by his wife PW-1 Smt. Geeta Devi and PW-2 Banwari Lal, servant. The occurrence took place in the room of the house in which all the parties were living. It is alleged that Chaman Lal and his wife Smt. Sheela Devi rather bolted the room in which the deceased was hit and he could not come out. PW-2 Banwari Lal went out and opened the door of the room from other side and thereafter, he took the deceased on the scooter for treatment which was driven by the deceased himself. After some distance, the deceased felt giddiness and stopped there and asked PW-2 Banwari Lal to call PW Anoop, a peon in the Army Public School living nearby. He was not present there and a message was left and after some time, he came to the spot. Both PW-2 Banwari Lal and PW-4 Anoop, took Rajesh Kumar, who had become unconscious by that time, to hospital at Dharampur, where he was declared dead. The dead body was brought back to Dagshai. Police was informed and after registration of the case, the police filed challan as against the appellant and his father Chaman Lal under Section 302/201 read with Section 34 I.P.C. The case was committed to the Court of learned Sessions Judge, Solan, who framed the charge as against the appellant and Chaman Lal under Section 302, 201 and 34 I.P.C.
4. The appellant and Chaman Lal were tried under these sections and on conclusion of the trial, the said Chaman Lal was acquitted of the charge framed against him and the appellant was also acquitted of the charge under Sections 302/201 I.P.C., but was convicted and sentenced as detailed above under Section under Section 304 Part-II I.P.C.
5. I have heard the learned Counsel for the parties and have gone through the record of the case.
6. The first submission made by the learned Counsel for the appellant was that the prosecution case mainly rests upon the testimonies of PW-1 Smt. Geeta Devi and PW-2 Banwari Lal, the servant of the deceased and since both these witnesses are interested witnesses being wife of the deceased and his servant and their testimonies do not inspire confidence. It was also submitted that the deceased has suffered injuries while going on a scooter, but a false case was made out against the appellant and as such, the findings of the learned trial Court to the contrary holding the appellant guilty of the charge are liable to be set aside.
7. I have gone through the prosecution evidence on record which consists of the statements of 11 witnesses examined by the prosecution and two defence witnesses produced by the accused in their defence. The most material witnesses in the case are two eye witnesses, namely, PW-1 Smt. Geeta and PW-2 Banwari Lal and to some extent the testimony of PW-4 Anoop Kumar who came to the spot and took deceased to the hospital. These statements find further corroboration from the statement of Medical Officer PW-7 Dr. Inder Pal Singh who conducted the postmortem on the body of the deceased and gave his report accordingly.
8. Coming to the testimony of two eye witnesses, there is statement of PW-1 Smt. Geeta wife of the deceased that she was present in the house and the appellant picked up a quarrel with her husband in regard to the STD facility, which had been got disconnected by her husband. She further stated that the accused started hurling abuses and demanded keys of the scooter from her husband which he refused to give. Thereafter, the accused started hammering the scooter and on this, her husband told him that it is insured. Thereafter, the accused came inside and accused tried to hit her husband with the hammer but he escaped. Thereafter he attempted another blow with hammer which hit the deceased on the left side near the ear. The blood started oozing out of the injury. Her father-in-law Chaman Lal and Sheela Devi bolted the door and did not allow Rajesh Kumar deceased to come out. The deceased was loosing his senses and she sent him alongwith PW-2 Banwari Lal, their servant, who went on his scooter and she gave money to her husband also. She followed on foot to some distance but came back and does not know what happened thereafter. Since she was in advance stage of pregnancy, she was informed on the third day that her husband has expired. This information was given to her by Banwari Lal. She proved her statement Ext. PA which was signed by her.
9. A perusal of her cross-examination shows that neither her presence at the post nor the presence of PW-2 Banwari Lal at that time in the house was shattered. During her cross-examination, she had given specific reasons for the discord in between the family i.e. contract of washing of clothes taken her husband and the disconnection of the STD facility by her husband. There is nothing to hold that the injury with the hammer in question was not inflicted by the accused.
10. PW-2 Banwari Lal, servant, has materially corroborated this statement and has stated that the second attempt was made by the accused which hit the left side near the ear of the deceased. The accused threw the hammer inside and went away from the spot and he applied detol on the wound of Rajesh Kumar and then took Rajesh Kumar on the scooter which was driven by Rajesh Kumar. At Kainchi Moar. Rajesh Kumar told that he was feeling giddy, stopped the scooter and asked him to call Anoop Kumar, a peon in the school. He went to his house who was not there but he informed his wife and she was asked to send him at Kainchi Moar. When he came back, Rajesh Kumar was in a semi conscious condition. In the meanwhile, Anoop came and then brought a taxi and took Rajesh Kumar in a taxi to Dharampur where he was declared dead. The dead body was brought back. His statement was also not shattered in cross-examination to hold that he has deposed falsely or that he was not present in the house or that he had any enmity with the accused to depose falsely as against him. Even his presence at the spot has not been shattered in cross-examination by the accused.
11. From the above discussion, it follows that statements of both these eye witnesses clearly prove that the injury in question was caused by the accused with a hammer which proved fatal and the deceased died. There are no contradictions or infirmities in the statements of both these eye witnesses to disbelieve them and as such, their statements inspire confidence.
12. Apart from the above, the prosecution had also examined PW-4 Anoop Kumar, who was called on way and had accompanied Rajesh Kumar and Banwari Lal from Kainchi Moar in a taxi and Rajesh Kumar was declared dead at Dharampur. He also stated that he enquired from Banwari Lal as to what had happened to Rajesh who informed that the accused had hit him with hammer. He brought the dead body to the residence of the deceased. He also stated that the relation in between the deceased and family members were not cordial and they used to quarrel. He denied the suggestion that he was informed by Banwari Lal PW that Rajesh Kumar has died because of scooter accident.
13. A plea has been taken by the accused in his statement under Section 313 Cr.P.C. and from the cross-examination of the witnesses that the deceased had died because of the injury sustained by him from the scooter in the accident. These suggestions were denied by all these three witnesses and there is nothing on record to hold that their statements do not inspire confidence. These statements find further corroboration from the testimony of the Medical Officer PW-7 Inder Pal Singh, who conducted the postmortem examination and gave his report Ext. PL. He has clearly stated that the cause of death in his opinion was due to head injury. He gave his final opinion after the receipt of the report of Forensic Laboratory. He has also given the time that elapsed between the injury and death as 0 to 6 hours, which corroborates with the version of the eye witnesses. He has clearly ruled out the possibility that these injuries were possible in a scooter accident since there would have been other corresponding injuries on the parts of the body which were not there. He specifically stated that this skull injury has been sustained not by fall from a speeding vehicle and in case a person falls from a scooter in an accident, injuries are bound to occur on the other part of the body and not can result only in one injury as in the present case. It was observed by the Medical Officer that it was C shaped semi circular wound about 1.5 inches in diameter size and situated about 1.5 inches behind and 1.5 inches above left ear. The description of the injury also finds corroboration from the testimonies of the eye witnesses, who have deposed that this injury was sustained by the deceased near his left ear. Nothing was extracted from the Medical Officer to hold that this injury was not caused with hammer or was not likely or that the injury was possible by a fall from the scooter. The statement of the Medical Officer, therefore, clearly corroborates the ocular version put up by the witnesses and as such, his statement gives credence to the prosecution story as putforth by the two eye witnesses and another witness as detailed above.
14. The prosecution has also led other evidence with regard to recovery of the hammer and the statement of the Investigating Officer etc., but no infirmity was pointed out in their testimonies so as to hold that they do not corroborate the prosecution story or cause any dent in the persecution story putforth by the prosecution.
15. In view of the above discussion, I accordingly hold that this fact stands established that the accused had caused the fatal injury on the head of the deceased with a hammer, which fact has been established from oral evidence as well as medical evidence as discussed above. No arguments were advanced by either side that the offence under Section 304 Part-II was not made out and I accordingly hold that the findings of the learned trial Court holding that the offence under Section 304 Part-II was made out call for no interference by this Court and these findings are accordingly affirmed.
16. The second and last point raised by the learned Counsel for the appellant during the course of arguments was that the appellant is a married person, has no criminal background and was closely related to the deceased being his step brother, but since the injury in question was inflicted when both the parties were exchanging abuses, therefore, the appellant deserves leniency of this Court and his sentence deserves to be reduced considerably. To substantiate his point that for a conviction under Section 304 Part-II I.P.C. lesser sentence can be awarded by the Court, the learned Counsel for the appellant had placed reliance upon two decisions.
17. The decision in Venkatesh v. State of Tamil Nadu : AIR 1993 Supreme Court 1230, shows that the accused was convicted under Section 304 Part II and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs. 3000/- by High Court for having hit the deceased with wooden reaper. Accused after realizing the grievous misdeed tried to commit suicide. Their Lordships reduced the sentence to the period already undergone and enhanced the fine to Rs. 1,00,000/- to be paid to widow and daughter of deceased. A perusal of the judgment shows that the appellant had already been in jail for 7 months and 5 days and he was to undergo imprisonment 2 years, 10 months and 16 days at the time of hearing of the appeal. Accordingly, the sentence was modified by the Hon'ble Apex Court as detailed above.
18. Reliance was also placed upon the decision in State of Punjab v. Tejinder Singh and Anr. : 1995 CRI. L.J. 4169. In that case, the appellant was held guilty under Section 304 Part-I and keeping in view the fact that the offence was committed more than 11 years ago, the appellant was sentenced to rigorous imprisonment for 7 years.
19. Keeping in view the facts and circumstances of the case and age of the appellant, which is at present about 30 years, since he gave his age as 21 years at the time of framing of charge in 2002 and the fact that no previous criminal conviction is pending or proved against him, I am of the opinion that he deserves the lenience of the Court. The sentence imposed is reduced to three years rigorous imprisonment and fine of R.50,000/- shall be payable to the widow of the deceased in full. In default of payment of fine, the appellant shall undergo rigorous imprisonment for a period of one year. He shall be entitled to set off under Section 428 Cr.P.C. for the period during which he remained in custody during investigation and trial of the case. Accordingly, the appeal filed by the appellant is partly allowed as detailed above. The appellant shall surrender to the Court immediately, failing which, the learned trial Court shall take steps for arrest of the appellant and sending him to imprisonment to suffer the sentence imposed upon him. Intimation in regard to the surrender and sending of the appellant to Jail shall also be given to this Court forthwith for record.