Manoj Kumar vs The State Of Himachal Pradesh

Thereafter, he prepared the site plan (Ext.

PW18/A), got the injured Yashwant Singh (PW 13)

medically examined and seized his bloodstained

shirt (Ext.PW13/B). During the course of

investigation, the I.O. visited the place of

occurrence and collected bloodstained earth,

stones (Ext. PW16/A), belcha (Ext.P2) and

recovered one sickle (Ext.P1) and sticks (Ext.P3) 6

from the possession of A5 vide seizure memo

Ext.PW17/A. From the possession of appellant—

accused No. 1 (Rangeel Singh) his bloodstained

clothes were recovered vide Ex.PW14/A and sent

the same for forensic examination.

6. On completion of investigation, the case was

presented to the learned SDJM, Dalhousie who in

turn committed the same to the Court of learned

Sessions Judge, Chamba who framed charges

against the accused for the offences punishable

under Sections 147/149, 148/149, 341/149,

323/149, 302/149 and 506/149, IPC. Rangeel

Singh (accused no. 1), Mohinder Singh (accused

no. 2) Surinder Singh (accused no. 3), Manoj

Kumar (accused no. 4), Rekha Devi (accused no.

5), Veena Devi (accused no. 6) and Biaso Devi

(accused no. 7) pleaded not guilty and claimed to

be tried. To bring home the guilt of the accused,

prosecution has examined as many as 18

witnesses and there was one witness for the 7

defence. Carrying out a full fledged trial, learned

Sessions Judge formed the opinion that the

accused were proved to be guilty of the offences

with which they were charged except for the

charge against Section 506/149, IPC.

Accordingly, they were convicted and sentenced

as indicated below, with the direction that all

sentences were to run concurrently.

NAME OF THE SECTIONS PUNISHMENT ACCUSED

Imprisonment for life and fine of Rs. 10,000/- each. In case of default in 302 r/w. 149 of All the accused payment of fine, each one of them would be IPC liable to suffer further imprisonment of two years.

Rigorous imprisonment for a period of six months and fine of Rs. 1000/- each. In All the accused 147 of IPC case of default in payment of fine, each one of them would be liable to suffer further imprisonment of two months.

Rigorous imprisonment for a period of six months and fine of Rs. 1000/- each. In All the accused 148 of IPC case of default in payment of fine, each one of them would be liable to suffer further imprisonment of two months.

Rigorous imprisonment for a period of six months and fine of Rs. 1000/- each. In 323 r/w. 149 of All the accused case of default in payment of fine, each one IPC of them would be liable to suffer further imprisonment of two months.

All the accused 341 r/w, 149 of Simple imprisonment for one month and IPC fine of Rs. 500/- each. In default of payment of fine, each one of them shall undergo simple imprisonment for a period 8

of seven days more.

7. It would be relevant to state the brief reasoning of

the trial court which led to the conviction of the

accused-appellant herein-

i. That the witnesses having interest in the property or being a close friend of the deceased, would not qualify them as interested witnesses.

ii. Non-examination of two witnesses, who are alleged to have accompanied the deceased, is not fatal for the case of the prosecution.

iii. That the DW-1 has not denied the incident wherein the deceased was beaten by the accused.

iv. The court cannot place reliance on the theories introduced by DW-1, as his statements are contradictory.

v. That the blood stains found on the Belcha (alleged weapon used) is indicative of the occurrence of the crime.

vi. That no alcohol was found in the viscera of the deceased.

vii. That the prosecution was able to prove the case beyond reasonable doubt.

8. The aggrieved accused preferred appeal before the

High Court against their conviction and sentence

passed by the trial Court. By the judgment

impugned herein, the High Court while partly

allowing their appeal, acquitted the accused 9

Mohinder Singh (A2), Biaso Devi (A7), Rekha Devi

(A5) and Veena Devi (A6) extending them the

benefit of doubt. However, the High Court

affirmed the conviction and sentence passed by

the trial Court against Rangeel Singh (A1),

Surinder Kumar (A3) and Manoj Kumar (A4) on

the following grounds-

i. That the motive of the crime was due to the prior land dispute.

ii. That the statement of DW-1 was not believable.

iii. That the blood group found on the clothes of accused no.

1 matched with that of the deceased.

iv. That the High Court, accepted that the prosecution case was exaggerated to the extent of roping other unconnected family members.

9. Aggrieved by the impugned judgment of the High

Court, Manoj Kumar (Criminal Appeal No. 795

of 2017), Surinder Singh (Criminal Appeal No.

796 of 2011) and Rangeel Singh (Criminal

Appeal No. 797 of 2011) are in appeal before this

Court. We propose to dispose of these appeals by 10

this common order as all the accused-appellants

are challenging the same impugned common

judgment.

10. While taking us through the evidence on

record vis-a-vis the portions of the findings of trial

court as well as the High Court, the Ld. counsel

for the appellants argued that the entire case of

the prosecution rests on the motive of pending

civil litigations between the parties and there is

absolutely no proof that the appellants have

pre-meditated to attack the deceased and his

party at the given place and given time as

propounded by the prosecution. According to him

the occurrence has taken place near the disputed

property which is not on the way to the village

proceeded by the deceased and this would show

that the deceased had arrived at the disputed

property to attack the appellants or to cause

damage or otherwise destroy the property of

appellants. He then, maintains the stand that 11

where several accused persons attacked the

deceased with multiple weapons and with

intention to do away with his life, presence of

negligible simple injuries found on the body of

deceased does not support the presence of

intention to cause death of deceased so as to

attract punishment under Sec. 300 read with Sec.

302 IPC. The Ld counsel relied upon the medical

evidence also to buttress this argument.

11. On the other hand, the learned counsel

appearing on behalf of the State has supported

the judgment of the High Court and sought

dismissal of these appeals before this Court.

12. Heard the arguments on either side and

perused the material available on record. A mixed

question of law and fact which falls for our

consideration is whether the accused-herein are

liable to be punished for the offence of culpable

homicide amounting to murder or not? 12

13. PW-1 (Jaram Singh), states that he is the

brother of the deceased. He is not an eyewitness

to the incident and his evidence is not an

important piece of evidence, being the hearsay

evidence. The only aspect which can be looked

into is the existence of dispute over the landed

property. He states that the accused had forcibly

constructed shops over the disputed land and he

had filed a civil suit for eviction before the

Dalhousie Court.

14. PW-4 (Dr. Parveen Kumar) was the Doctor

when the deceased (Prem Dass) was referred to

the hospital. He states that the referred patient

was calm, conscious and well-oriented to time and

place. He further states that injury no. 1 and 2

appears to have been caused by sharp weapon,

while the third injury on the sacral region was

opined to have been caused by a blunt weapon.

He states that the patient was thereafter referred

to RPMC Dharamshala, for further treatment. 13

After two-two and half hours, deceased was

declared as brought dead.

15. In the cross examination he accepts that his

advice for an x-ray, to RPMC Dharamshala is not

reflected anywhere in the OPD records. It is of

some significance to note that PW-4 accepts that

the deceased was brought to the health center in

a private van and the deceased returned to his

house in the same vehicle. Although he has

denied later that the patient returned to the home

instead of going to RPMC Dharamshala. On the

aspect of treatment, he states that the condition

of the patient was not so serious.

16. PW-5 (Dr. Arvind Kanwar), stated the nature of

injuries on opening of the scalp in the following

manner-

On opening the scalp cap extradural and sub-Dural hematoma seen in the right parietal temporal region. Extensive in size. The brain was congested, no fracture was seen on the scalp.

It may be relevant to note his cross examination 14

Self stated that injury No. 2 on scalp was grievous in nature which caused brain hemorrhage. It is correct to suggest that there was no facture on the head injury. It is correct that Dr. Modi is authority on medical jurisprudence. I have seen the 18 th edition of Dr. Modi in which, at page 229, he has defined the grievous injury, I agree with this definition. I did not see the weapon of the offence at the time of post mortem examination. The injury No. 2 can be caused by blade of the Dr at Ex. P-1 shown to me in the court. It is correct that the injury No. 2 can be caused by striking with sharp-edged object but it depends on force and speed. … I have not mentioned the depth of the scalp injury in post mortem report. It is correct that without ascertaining the depth of the scalp injury, it was not possible to opine that it was grievous injury.

(emphasis supplied)

17. PW-12 (Jeewan), son of the deceased is stated

to be an eye witness to the alleged incident. He

has repeated the prosecution story in entirety to

the effect that in the presence of himself,

Yashwant Singh (PW-13) and Narso Ram (DW1),

the accused-party suddenly attacked the

deceased. When Yashwant Singh intervened to

save the deceased, he was also beaten up by the 15

accused party. As the accused were rushing

towards PW-12 (Jeewan), he ran from the spot.

While running he turned back and saw deceased

(after receiving multiple injuries including a head

injury), Yashwant Singh and Narso Ram were

running from the spot. With respect to the

treatment, he states that the deceased was taken

to the PHC Sihunta wherein he was preliminarily

treated and referred further to the Hospital at

Dharmashala. As the deceased was not

responding, he was brought back to the PHC

Sihunta, wherein he was declared dead.

18. Another important witness, who was alleged to

have been present at the scene of the crime, is

PW-13 (Yashwant Singh). He has re-iterated the

prosecution story. It may be noted that this

witness has specifically stated that the deceased

was taken back to the home after taking

treatment at PHC Sinhunta. As the condition of

the deceased worsened thereafter, he was brought 16

back to the PHC Sinhunta, wherein he was

declared as brought dead.

19. Having observed the prosecution evidence, we

need to concentrate on the defense witness. DW1

—Narso Ram was in fact a prosecution witness

initially and even according to the prosecution

theory, DW1 was the eyewitness. According to

DW1, he was accompanying Yashwant Singh

(PW13) and while they were proceeding towards

village Thukrla, the deceased Prem Dass met them

at a distance of 50 yards and they went to a

liquor shop and nearby the disputed property

wherein certain shop rooms were constructed, the

accused were found closing the shops and at that

time the deceased and PW13 started abusing the

accused persons and he saw accused Surinder

Singh and Manoj Kumar (appellants in Criminal

Appeals No. 796/2011 and 795/2011

respectively) coming from the house with empty

hands.

17

20. The High Court however has disbelieved the

evidence of DW1 to the extent of deceased and

PW13 consuming alcohol since the FSL report (Ex

PW-18/C) does not indicate presence of alcohol in

the intestine of the deceased. Except this, the

High Court has taken into consideration the part

of the statement of DW1. Merely because one part

of the evidence of certain witness is not believed,

it does not mean that his entire evidence shall be

discarded. To the extent that DW1 was present at

the time of occurrence is admitted even according

to the prosecution. His evidence that the deceased

started abusing the appellants’ group who were

present at the relevant time is acceptable for that

reason and this behavior of deceased must have

instigated the appellants to retaliate. This view is

substantiating the plea of the defense to some

extent as propounded by them in their 18

examination under Sec. 313 of the Code of

Criminal Procedure.

21. Having taken into consideration, the statement

of witnesses on questions of fact, it would be

appropriate to have thorough look at the question

of law pertaining to Culpable Homicide. Learned

counsel for the appellants contended that the

defense emerging from the evidence is that the

deceased party arrived at the place of the incident

wherein PW-13 started verbally abusing the

accused which ensued a sudden fight resulting in

the injuries being caused to the deceased and

while so the High Court failed to appreciate that

there was no premeditation on behalf of the

appellant-accused and the entire incident was

due to a sudden fight and the High Court ought to

have invoked Exception 4 to Section 300 IPC.

22. Exception 4 to Section 300 IPC reads as under:

Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a 19

sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

23. There is no dispute about the ingredients of

Exception 4 to Section 300 IPC, the following

conditions are to be satisfied namely:

(i) that the incident happened without premeditation;

(ii) in a sudden fight;

(iii) in the heat of passion;

(iv) upon a sudden quarrel and

(v) without the offender having taken undue advantage or acted in a cruel or unusual manner.

24. It may be relevant to note that in the case of

Sridhar Bhuyan v. State of Orissa, (2004) 11

SCC 395, it was held as under-

For bringing in operation of Exception 4 to Section 300 Indian Penal Code, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

The fourth exception of Section 300 Indian Penal Code covers acts done in a sudden 20

fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is 21

caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 Indian Penal Code is not defined in Indian Penal Code. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".

25. Thus, the totality of circumstances of the case

on hand would amply show that there was a

sudden verbal quarrel and evidently there was no

pre-meditated plan to attack the deceased. In view 22

of the civil disputes already pending between both

the families, a minor verbal exchange bloated into

a sudden physical attack.

26. In Camilo Vaz vs. State of Goa, (2000) 9 SCC

1, referring to the ambit of Section 304 of the

Code, this Court in similar set of circumstances

held thus:

“This section is in two parts. If analysed the section provides for two kinds of punishment to two different situations. (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here important ingredients is the "intention"; (2) if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation case will fall in part II of Section 304 IPC as in the present case.”

27. Again, this Court in Deo Nath Rai vs State of

Bihar and Others etc, AIR 2017 SC 5428

observed-

23

“Looking to the totality of the facts and circumstances of the case and the evidence on record, it is clear that it was only the accused - Parsuram Rai who had assaulted Mohan Rai with the help of sword, whose assault resulted grievous injury, and the deceased Mohan Rai ultimately succumbed to the said injury during the course of transit to the hospital.

The incident had taken place when the deceased was returning from the disputed land and the accused persons were busy in the adjacent field transplanting paddy seedlings from where they saw Mohan Rai crossing their land. There was no premeditation of any kind on the part of the accused to commit the murder of the deceased. However, the eye witnesses have deposed that accused - Wakil Rai came and started quarreling with Mohan Rai when other family members also joined. The quarrel not only suddenly erupted but also escalated without any premeditation. As rightly concluded by the High Court, the whole incident was spontaneous and went out of hand that too within short spell of time.

In the facts and circumstances of the case, though the High Court was justified in altering the conviction of the accused from Section 302 and 302/149 IPC to Section 304 Part-II IPC, it was not justified in imposing lesser sentence on the accused…” 24

28. It is important to have a look at the evidence of

PW 5-Dr. Arvind Kanwar who has conducted Post

mortem and according to him there was an

incised wound on the right parietal region of size

4” and 10” above right ear and another incised

wound of 1” in size on the right index finger. He

has deposed that “the brain was found congested,

yet no fracture was seen on the scalp”. Though in

the cross examination he has stated at one place

that the injury No 2 on the scalp might be

‘grievous’ that caused brain hemorrhage. This

particular fact is not noted in the postmortem

report. Regarding the cause of such injury, PW5

stated that it can be caused by striking with

sharp edged object and the depth of the scalp

injury depends upon the force and speed. He

maintains the stand that it was a ‘scalp injury’

and not ‘skull injury’. Moreover, he did not

measure the depth of the head injury which was

necessary for classification of injury. 25

29. We may note that the injury to the head

resulted in Extra-Dural and Sub-Dural

Hematoma. We are conscious of the fact that such

symptoms of the same may take some hours to

develop in many cases as has happened in this

case at hand.1 We are also apprised that in such

cases a detailed post-mortem may be necessary

and it is important to know the existence of prior

medical history and condition. In this case a

generalized statement by the Doctor conducting

the post-mortem that he had causally enquired

about any existing medical condition with the

deceased. It may further be relevant to note the

extract from the Modi, A Textbook of Medical

Jurisprudence and Toxicology, wherein it is noted

that-

It must be born in mind that a slight injury on the head may cause cerebral hemorrhage in a

1 Modi, A Textbook of Medical Jurisprudence and Toxicology, 25th Eds., p.

701. 26

person previously predisposed to it from age or disease.2

30. The above opinion goes to show that the injury

no. 2 on the scalp resulted in hemorrhage which

has not been duly accounted for. Moreover, the

force and gravity of assault indicates that the

aforesaid assault was carried out with only

sufficient knowledge of likely death of the

deceased in a free fight situation. Had he got

intention to commit the murder of the deceased

by inflicting such injury, he might have used the

weapon with sufficient force and in that case,

definitely it would have caused a deep injury

causing fracture of skull. This court is bound to

show some deference to this particular aspect

while evaluating the facts and circumstances of

this case at hand.

31. In the case on hand, the death is not

instantaneous, but the deceased died after

2 Id. At 704.

27

sometime, due to hemorrhage. When several

persons of the accused group wielding weapons

attacked the deceased, it is surprising to see only

two injuries, that too, two simple injuries alone

are inflicted; of course, one such simple injury

turns out to be fatal sometime later. This

circumstance demonstrates that the appellant

had no intention to cause death, though he has

knowledge that the weapon used by him to inflict

injury on the scalp of the deceased may cause

death. But in the absence of intention to cause

death or to cause such bodily injury as is likely to

cause death, the offence does not fall within the

scope of Section 300, IPC but it will fall within

Section 304, Part II of the IPC.

32. We, therefore, hold that the appellants Manoj

Kumar, Rangeel Singh and Surinder Singh are

guilty for an offence punishable under Section

304 Part II IPC and not for the offence under Sec.

300 IPC. Their conviction under Section 302 IPC 28

is, therefore, set aside. While modifying the

conviction accordingly, the appellants are

sentenced to suffer rigorous imprisonment for a

period of ten years. However, we are informed that

the appellants have already undergone more than

11½ years imprisonment so far, consequently, the

appellants are directed to be released forthwith, if

not required in any other case.

33. Accordingly, these appeals are disposed of in

the above terms.

…………......................J. (N.V. RAMANA)

..................................J. (S. ABDUL NAZEER) NEW DELHI, MAY 15, 2018.