Crl.Appeal No.6-DB of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl.Appeal No.6-DB of 2008
Date of Decision: December 9, 2009
Satish Kumar son of Mohinder Sada, aged 20 years, Labour, resident of
Parel Wagra, District Khangria (Bihar) at present resident of near Hazrat
Peer Baba Sunet Shahwali Mazar, Backside PAU, Ludhiana.
.....Appellant
v.
State of Punjab
.....Respondent
Crl.Appeal No.209-DB of 2008
1. Billu son of Vasudev and
2. Chalitar Sada son of Vasudev, both residents f Parel Waghra, District
Khagria (Bihar), at present resident of near Hazrat Peer Baba Sunet
Shahwali Mazar, Backside PAU, Ludhiana.
.....Appellants
v.
State of Punjab
CORAM: HON'BLE MR.JUSTICE MEHTAB S.GILL
HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.Vikrant Rakra, Advocate
for the appellant in Crl.Appeal No.6-DB of 2008.
Mr.Kuldeep S.Sandhu, Advocate
for the appellants in Crl.Appeal No.209-DB of 2008.
Mr.S.S.Gill, Additional Advocate General, Punjab.
.......
Crl.Appeal No.6-DB of 2008 -2-
RAM CHAND GUPTA, J.
1. Both the above-mentioned appeals, i.e., Criminal Appeal
Nos.6-DB and 209-DB of 2008 are being disposed of by this common
judgment as they have arisen out of one judgment of conviction and
order of sentence dated 29.11.2007 passed by the Court of Additional
Sessions Judge, Ludhiana, vide which appellant-accused Billu was
convicted for offence under Section 302 of the Indian Penal Code (for
short `IPC’) and appellants-accused Chalitar Sada and Satish Kumar
were convicted for offence under Section 302 read with Section 34 IPC
and all the three appellants-accused sentenced to undergo imprisonment
for life and to pay fine of Rs.2000/- each, and in default of payment of
fine to further undergo rigorous imprisonment for six months.
2. Briefly stated, the case of the prosecution, as unfolded by
complainant Chand Kishore in his statement Ex.PG, got recorded with
Balwinder Singh, SI/SHO of Police Station Sarabha Nagar, Ludhiana,
on 26.1.2003, when he was present at bridge canal of Village Sunet,
Ferozepur road in connection with special nakabandi, runs as under:
3. Chand Kishore, complainant, used to reside near
Gurudwara Sahib Haibowal Khurd, Ludhiana alongwith his cousin
Sanjay. Billu son of Vasudev accused is a building contractor.
Complainant alongwith his cousin Sanjay used to work under Billu
Contractor. On 25.1.2003 at about 8.30 p.m., Chand Kishore alongwith
Sanjay and Dalip had gone to Billu for taking remuneration of the work
done by them, however, Billu refused to pay the amount. Billu used to
reside in a hut situated near Mazar of Baba Sunet Ali, near Punjab
Crl.Appeal No.6-DB of 2008 -3-
Agricultural University. Billu instead of making payment took out a
burning wooden log and gave blow on the head of Sanjay. Satish
Kumar and Chalitar Sada were also present in the hut, at that time.
Satish Kumar caught the complainant from the neck and Chalitar Sada
abused him and raised lalkara that Sanjay be killed and he should be
taught a lesson for demanding money. Sanjay fell on the ground after
being hit on the head. Complainant and his companions raised alarm
and thereafter all the accused ran away from the spot. Sanjay was taken
to their house. He was taken to 2-3 hospitals, however, he was not
admitted. Thereafter, he was taken to Civil Hospital, Ludhiana.
However, on 26.1.2003 he succumbed to injuries.
4. Balwinder Singh, SI made his endorsement Ex.PG/1 on
statement Ex.PG, and sent the same to the police station for registration
of the case, on the basis of which formal FIR Ex.PG/2 was recorded for
offence under Section 302 read with Section 34 IPC. He prepared
inquest report on the dead body of Sanjay and got conducted the post
mortem examination on the same. He also visited the place of
occurrence and prepared the rough site plan Ex.PW7/B at the instance of
Chand Kishore, complainant. He had also taken into possession the
clothes being worn by the deceased after post mortem examination.
5. The accused were arrested by the Investigating Officer on
28.1.2003 on the identification of Chand Kishore. He recovered one
half burnt wooden log as per disclosure statement of accused-Billu and
the same was taken into possession.
6. Statements of witnesses were recorded and after completion
Crl.Appeal No.6-DB of 2008 -4-
of the investigation, report under Section 173 of the Code of Criminal
Procedure (for short `Cr.P.C.’) was filed against all the three accused in
the Court of Illaqa Magistrate, who committed the case for trial to the
Court of Sessions.
7. Learned trial Court charged all the three accused for
offence punishable under Section 302 read with Section 34 IPC, to
which they did not plead guilty and claimed trial.
8. In order to prove the allegation against the accused, the
prosecution has examined as many as 8 witnesses.
9. PW1 is Dr.Sanjeev Hans, who conducted the post mortem
examination on the dead body of Sanjay on 27.1.2003 at 2.00 p.m. and
found the following injuries on his person:
“1. A black left eye with sub conjunctival haemorrhage.
2. A defuse swelling 3″ x 3″ present in left temporal area.
(seen on shaving of hair).”
10. He further deposed that on exploration of skull he found
clotted blood in the left temporal parietal area and on removal of clot he
found fracture of temporal bone extending upto parietal area obliquely,
linear about 3-3/4″ in length and there was a big haematoma on the left
side of cranial cavity and also found laceration and congestion of
membranes and brain matter. He opined that cause of death in this case
was shock and haemorrhage and injury to vital organ, i.e., brain due to
head injury, which was sufficient to cause death in he ordinary course of
nature. He has proved carbon copy of post mortem report as Ex.PA and
pictorial diagram as Ex.PA/1.
Crl.Appeal No.6-DB of 2008 -5-
11. PW2 is Dr.U.S.Sooch, the then Medical Officer, Civil
Hospital, Ludhiana, who medico legally examined Sanjay on 26.1.2003
at 10.00 p.m. and found the following injury on his person:-
“Alleged history of blow on the head yesterday
evening the left eye was blackened and pupil was dilated.
The injury was referred to surgical specialist for expert
opinion. X-ray and C.T. Scan of the the head was also
advised.”
12. Dr.U.S.Sooch kept the injury under observation and opined
that duration of injury was 12 hours and was caused with blunt weapon.
He has proved copy of medico legal report as Ex.PC and pictorial
diagram as Ex.PC/1.
13. PW3 is Mohinder Singh, ASI, who was deputed by
Balwinder Singh, SI, for getting the postmortem examination done on
the dead body of Sanjay.
14. PW4 is Harsukhdevpal, Constable, in whose presence half
burnt piece of wooden log Ex.P4 was got recovered by accused Billu,
which was taken into possession vide recovery memo Ex.PE/1.
15. PW5 is Ram Saran, Constable, who prepared scaled site
plan Ex.PF of the place of occurrence at the instance of Chand Kishore.
16. PW6 is Chand Kishore, complainant, who proved his
statement Ex.PG, on the basis of which the present case was registered.
17. PW7 is Balwinder Singh, SI, who investigated this case
after recording statement of the complainant.
18. PW8 is Dalip Kumar, another eye-witness of the
Crl.Appeal No.6-DB of 2008 -6-
occurrence, who corroborated the version of complainant Chand
Kishore.
19. Statements of accused under Section 313 Cr.P.C. were
recorded in which they denied all the incriminating evidence coming
against them and claimed to be innocent.
20. Accused Billu contended that deceased never worked under
him as Mason and that he never caused injury to him. Accused Chalitar
Sada has also taken the similar plea. Accused Satish Kumar took the
plea that he has been falsely implicated in this case due to suspicion and
that he never worked with accused Billu contractor and that he was not
present at the time of alleged occurrence as he was working with one
Brajesh Kumar Mason alongwith his brother Vinod. He has further
taken the plea that on 25.1.2003 at about 8.30 p.m., he alongwith
Brajesh Kumar, Sunil Kumar, Vinod Kumar and Kishan Sagar was
performing kirtan at his residence and that he alongwith Brajesh and
Vinod used to work with Askylyne Construction Building Company at
the time of alleged occurrence.
21. Accused examined witness Brajesh Kumar as DW1 in their
defence.
22. After hearing learned counsel for the appellants-accused
and learned Public Prosecutor for the State, learned trial Court came to
the conclusion that prosecution has been able to prove its case against
all the three accused beyond any shadow of reasonable doubt and hence
the accused were convicted and sentenced, as aforementioned, vide
impugned judgment against which the present appeals have been filed.
Crl.Appeal No.6-DB of 2008 -7-
23. We have heard learned counsel for the appellants-accused,
learned State counsel and have gone through the whole record carefully.
24. It has been argued by learned counsel for the accused that
there was no prior information with accused Billu regarding arrival of
deceased Sanjay and the witnesses, as admitted by the witnesses and
hence it cannot be said that accused had prior meeting of minds to
commit murder of Sanjay. It is further contended that even if the
prosecution version is believed, the occurrence took place at the spur of
moment in a fit of anger and injury was caused by Billu accused only
when Sanjay allegedly insisted for payment and had an altercation with
Billu and that Billu had suddenly took a half burnt wooden log from
the hearth situated nearby and gave its blow on the head of Sanjay. It is
further contended that Chalitar Sada and Satish Kumar were not
residing with Billu accused and that they were simply present in the hut
of Billu as they used to reside in the adjoining huts and that dispute
was also between Billu and deceased and that altercation had taken
place between Billu and Sanjay deceased. Hence, it is contended that
accused Chalitar Sada and Satish Kumar cannot be held liable for the
act of Billu. It is further contended that even Billu accused cannot be
held liable for offence under Section 302 IPC because his intention was
not to cause death of Sanjay as he simply gave a blow with the wooden
log suddenly picked up from the hearth lying nearby and that the blow
was not repeated by him and that no blow was also given by the other
accused. It is further contended that if acused Billu had the intention
of causing the death of Sanjay, then he would have used some other
Crl.Appeal No.6-DB of 2008 -8-
weapon like knife or spade present in his hut, as PW6 admitted in the
cross-examination that Billu used to keep Tasla, an iron pot for taking
earth, sand etc. and spade in his hut and usually knife is also found in
the house and that however, accused allegedly picked only half burnt
wooden log and hence he had no intention of causing death of Sanjay.
Hence, it is argued that at the most case for offence under Section 304
Part II IPC is made out.
25. It is correct that only one blow was given by accused Billu
on the head of Sanjay and that too with a wooden log, which proved
fatal and that the blow was also not repeated. It is also correct that no
injury was caused to deceased by co-accused Satish Kumar and Chalitar
Sada, however, it has been proved from deposition of Chand Kishore,
PW6 that accused Satish Kumar and Chalitar Sada also took part in the
occurrence. Accused Chalitar Sada is brother of accused Billu.
Accused Chalitar Sada and Satish Kumar grappled with the complainant
as Satish Kumar caught complainant from the neck and accused
Chalitar Sada abused him and also raised lalkara that Sanjay be killed
and he should be taught a lesson for demanding money. Moreover
previous meeting of minds is not always necessary to impute common
intention to the accused as common intention can be developed even at
the spot during the occurrence.
26. Hence taken into consideration the sequence of occurrence,
as deposed by the complainant and the eye-witness, common intention
to cause injury to Sanjay on the part of all the three accused can be
easily inferred and accused Satish Kumar and Chalitar Sada rightly held
Crl.Appeal No.6-DB of 2008 -9-
responsible for the act of Billu accused by the learned trial Court.
27. However, there is force in the argument of learned counsel
for the accused that taking into consideration the fact that there was no
prior information with accused Billu regarding arrival of deceased
Sanjay and witnesses to his hut and further taking into consideration the
fact that an altercation took place between Billu and Sanjay deceased,
as he demanded money from Billu accused and further taking into
consideration the fact that Billu picked up a log of wood from nearby
hearth and gave only one blow on the head of Sanjay deceased and did
not repeat the blow and that he did not use any other sharp edged
weapon like spade, though available in the hut, the only inference
which can be drawn is that none of the accused intended to commit
murder of Sanjay nor did they intend to inflict such an injury which in
the ordinary course of nature was sufficient to cause death.
28. There are three types of culpable homicide under Indian
Penal Code. The first is defined in Section 300 IPC as murder and the
second may be termed as culpable homicide of 2nd degree which is
punishable under Ist part of Section 304 IPC and there is culpable
homicide of 3rd degree, i.e., culpable homicide punishable under IInd
part of Section 304 IPC.
29. However taking into consideration the peculiar facts and
circumstances of the case, as detailed above, we are of the view that the
offence committed by appellant-accused Billu would come under
Section 304 Part II IPC, whereas offence committed by accused Satish
Kumar and Chalitar Sada would come under Section 304 Part II read
Crl.Appeal No.6-DB of 2008 -10-
with Section 34 IPC.
30. Hence conviction of appellant-accused Billu for offence
under Section 302 IPC is converted to offence under Section 304 Part II
IPC whereas conviction of appellants-accused Satish Kumar and
Chalitar Sada for offence under Section 302 read with Section 34 IPC is
converted to offence under Section 304 Part II read with Section 34 IPC
and while setting aside their sentence to undergo life imprisonment for
offence under Section 302 and Section 302 read with Section 34 IPC,
they are sentenced to undergo rigorous imprisonment for six years each,
for offence under Section 304 Part II and for offence under Section 304
Part II read with Section 34 IPC. However, the imprisonment already
undergone by the accused during investigation, trial and during
pendency of this appeal after conviction shall be set off as provided
under Section 428 Cr.P.C. With this modification in the quantum of
sentence, the appeals filed by appellants-accused, namely, Satish
Kumar, Billu and Chalitar Sada are dismissed.
(Mehtab S.Gill) (Ram Chand Gupta)
Judge Judge
December 9, 2009
meenu
Note: Whether to be referred to reporter? Yes/No.