Punjab-Haryana High Court
Harey Ram vs State Of Punjab on 22 March, 2024
Author: Kirti Singh
Bench: Anupinder Singh Grewal, Kirti Singh
Neutral Citation No:=2024:PHHC:041931-DB
CRA-D-1057-DB-2010 (O&M) 1
2024:PHHC:041931-DB
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Sr. No.533
CRA-D-1057-DB-2010 (O&M)
Reserved on : 29.02.2024
Pronounced on: 22.03.2024
Harey Ram ..... Appellant
VERSUS
State of Punjab ..... Respondent
CORAM: HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL
HON'BLE MS. JUSTICE KIRTI SINGH
Present: Mr. Suram Singh Rana, Advocate and
Mr. Arvind Kumar Sharma, Advocate, for the appellant.
Mr. Aftab Singh Khara, Sr. DAG, Punjab.
*****
KIRTI SINGH, J.
The instant appeal is directed against the judgment of
conviction dated 29.10.2009 passed by the learned Sessions Judge,
Ludhiana whereby the appellant was convicted for commission of offence
under Section 302 IPC in FIR No.63 dated 17.04.2006 registered at Police
Station Division No.7, Ludhiana and vide order dated 29.10.2009 he was
sentenced to undergo imprisonment for life and to pay fine of Rs.2000/-,
in default of payment of fine to further undergo RI for six months.
Factual matrix
2. The genesis of the prosecution is embodied in the FIR to
which Ex.PD/2 is assigned. It is recorded therein that the present case
was registered on the basis of the statement given by the complainant
Ramji Rai (brother of deceased) before the police on 17.04.2006 to the
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effect that he alongwith his younger brother Vajra Rai were present in the
dairy of Kuku No.48, Tajpur Road, Ludhiana and on reaching the dairy
No.48-A they saw his brother Vajra Rai having an altercation with the
appellant Harey Ram. The complainant Ramji Rai and Raju Kumar tried
to pacify the appellant. However, he did not relent and gave a brick blow
on the forehead of Vajra Rai and on an alarm being raised by them, the
appellant ran away from the spot after throwing the brick. Blood was
percolating from the forehead of Vajra Rai, brother of the complainant,
who succumbed to the injuries received at the hands of the accused at the
spot itself. The motive behind the occurrence was that both the deceased
and accused were working in one dairy and they developed some dispute
over nature of work to be done by them.
Investigation
3. The abovementioned statement Ex.PD of Ramji Rai was
recorded by Balbir Singh, SHO, Police Station Division No.7, Ludhiana
near police post Tajpur Road which was read over and explained to the
complainant, who thumb marked the same after admitting the genuineness
and correctness thereof and Balbir Singh Sub Inspector put his
endorsement Ex.PD/1 thereon and sent the same to police station Division
No.7, Ludhiana through Head Constable Devinder Singh where a formal
FIR Ex.PD/2 was registered by Balwinder Singh ASI. Thereafter, Balbir
Singh SI alongwith the complainant and police party reached the place of
occurrence, inspected the spot, prepared inquest report Ex-PC on the
corpse of Vajra Rai and also recorded the statement of Raj Kumar and
Raju Kumar under Section 175 Cr.P.C.
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4. From the place of occurrence Balbir Singh Sub Inspector
seized blood stained earth, blood stained plastic bag and one blood stained
brick which were converted into separate parcels and these parcels were
sealed by Balbir Singh Sub Inspector with his seal bearing impression BS
and seized vide memo Ex.PH. He wrote an application Ex.PB and sent
the corpse of Vajra Rai for autopsy to the mortuary through Gurnam
Singh Head Constable and Bhupinder Singh Constable. He also prepared
the site plan of the place of occurrence Ex.PL and arrested the accused
vide memo Ex.PM and also prepared personal search memo Ex.PN and
intimation of arrest of accused memo Ex.PQ. Accused was wearing
blood stained vest, blood stained pair of shoes which were seized vide
memo Ex.PG, after converting these into separate parcels, which was
sealed by Balbir Singh SI with his seal bearing impression BS.
Thereafter, he alongwith accused and case property reached Police Station
Division No.7, Ludhiana where Gurnam Singh Head Constable produced
before him the clothes of the corpse of Vajra Rai which were converted
into a parcel and that parcel was sealed by him with his seal bearing
impression BS and seized that parcel vide memo Ex.PR and on return to
the police station, he deposited the case property with seals intact with
Baldev Singh MHC. He also took photographs of the place of occurrence
and those photographs and negatives Ex.P4 to Ex.P11 were seized vide
memo Ex.PS.
5. After completion of investigation by the investigating officer
and all other formalities, the final report under Section 173 Cr.P.C. was
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instituted against the accused for offence punishable under Section 302
IPC.
6. On presentation of police report, copies of documents as
required under Section 207 Cr.P.C. were furnished to the accused and the
case was committed to the Court of Sessions for trial. On 11.09.2006 the
charge under Section 302 of IPC was framed against the accused whereto
he pleaded not guilty and claimed trial.
Trial Proceedings
7. The prosecution examined as many as 09 witnesses and
subsequently, the Public Prosecutor closed the prosecution evidence.
After closure of the prosecution evidence, statement of the accused was
recorded under Section 313 Cr.P.C. and all incriminating evidence was
put to him to which he pleaded innocence and claimed false implication.
However, he did not lead any evidence in his defence.
8. The learned Sessions Judge after examining the entire
evidence led by prosecution held the appellant guilty of an offence
punishable under Section 302 IPC.
9. The appellant filed an appeal against the order of conviction
under Section 302 IPC which was admitted vide order dated 20.12.2010.
Submissions by learned counsel for the parties
10. At the very outset, the learned counsel for the appellant
submits that he is not challenging the conviction per se but confining the
prayer in the appeal to reduce the conviction under Section 302 IPC to
304 Part-I or II IPC. He further submits that the appellant has already
undergone an actual sentence of 16 years, 07 months and 25 days and is
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not involved in any other criminal case. There is nothing adverse against
the conduct of the appellant. The incident took place way-back in the year
2006 and the appellant has been facing the protracted trial ever since then.
In support of this submission, he had relied upon the judgments of the
Supreme Court in Gurmukh Singh Vs. State of Haryana 2009 (15)
SCC 635 and Buddu Khan Vs. State of Uttarakhand 2009 SCC Online
SC 118.
11. Learned State counsel however, submits that in view of the
serious allegations against the appellant, causing injuries on the head of
the deceased, he is not entitled to any concession including any
conversion from Section 302 to 304 Part-I IPC and order of sentence
passed by the trial Court would not call for any interference.
12. We have heard learned counsel for the parties and gone
through the judgment and record very carefully.
Medical evidence
Statement of PW1, Dr. G.P. Mangla
13. Dr. G.P. Mangla conducted the postmortem and examination
of body of Vajra Rai on 17.04.2006 at 4:00 p.m. He noticed following
injuries on the person of the deceased:
(1) Lacerated wound 2.1/2x ¼" x bone deep on the right
eye brow. Underneath bone was fractured.
(2) Lacerated wound 1.1/2x 1/3" bone deep on the right
side of forehead, half inch above injury No.1. Underneath bone
was fractured.
(3) Lacerated wound 1.1/4x 1/3" x muscle deep in the
middle of forehead.
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(4) Abraded contusion with swelling 3"x2" on left
cheek in front of left ear.
(5) Abrasion 3/4" x 1/2" on the left side of forehead, just
above the left eye brow.
(6) Two lacerated wounds 2" x 1/3" x bone deep on the
left side of the occipital region half inch apart from each other
underneath the injuries, bone was fractured.
(7) 2 lacerated wounds 2.1 /2" x 1/4" x bone deep on
the right side of occipital region half inch apart from each other
underneath the injuries bone was fractured.
14. The cause of death in his opinion was due to haemorrhage and
shock as a result of multiple injuries which were sufficient to cause death in
the ordinary course. All the injuries were ante-mortem in nature.
15. FSL Report
Report No. 282/2006/FSL/Pb/Bio./Exam, dt. 16|5|06
Forwarding authority The Sr. Superintendent of Police, Ludhiana
Reference No. 30034/AC-3 dated 24.4.2006
Case Reference Case FIR No. 63 dated 17.4.2006 U/s 302 IPC,
P.S.Div. No. 7, Ludhiana. 25.4.2006
Date of receipt 25.04.2006
Mode of receipt Through C.Bhupinder Singh No.1669
Articles received Six sealed parcels which were marked A,B,C,D,E
and F in the laboratory. The seals were found
intact and tallied with the specimen seal.
Parcel 'A' contained Soil alleged to be stained with blood.
Parcel 'B' contained Bori Plastic alleged to be stained with blood
Parcel 'C' contained Brick alleged to be stained with blood.
Parcel 'D' contained Banian alleged to be stained with blood.
Parcel 'E' contained Shoes alleged to be stained with blood.
Parcel 'F' contained The following exhibits alleged to be stained with
blood:-
(i) kameez marked F-1 in the laboratory
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(ii) nikker marked F-2 in the laboratory
16. As per the FSL report, the exhibits contained in parcels A, B, C,
D, E and F were found to be stained with human blood of group 'A'.
Statement of relevant witnesses
Statement of PW4, Avtar Singh
17. "PW4 Avtar Singh, HC, testified that on 17.4.2006 at
about 12.30 p.m, when he was posted as MHC in Police Post
Tajpur, Harey Ram accused now present in the dock came to
him, confessed before him about the murder of his companion
Vajra Rai by causing injuries to him with brick and at that time,
he was wearing a knicker and shirt of turquoise colour; he was
also wearing plastic shoes of black colour; there were blood
stains on his vest and shoes and he made him to sit by his side,
thereafter, he inquired about his name and address and brought
these facts to the notice of Balbir Singh SHO, who directed him
to keep him (accused) sitting by his side and in his presence,
Balbir Singh SHO, on the same day, took shoes and vest of
accused into his possession by turning the same into two
different parcels, sealed with his own seal bearing impression
BS, vide memo Ex.PG attested by him and Rajinder Kumar,
HC. He also testified that his statement was recorded by the
Investigating Officer."
Statement of PW-5, Ramji Rai
18. "PW5, Ramji Rai testified that Vajra Rai, his brother was
working on the dairy of Kuku. On 17.4.2006, at about 10:00
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a.m, he went to meet his brother Vajra Rai, Raju met him on
by-pass, who has been working in some other dairy; he along
with Raju went to the dairy of Kuku where he saw the accused
now present in the dock quarrelling with his brother Vajra Rai.
He along with Raju dissuaded the accused, but he did not relent
and gave brick blows on the forehead of Vajra Rai and his
brother fell down on the ground and accused gave 2-3 more
brick blows on his head and when he along with Raju raised
alarm, then accused ran away from the spot by leaving the brick
at the scene of crime. PW5 also identified the brick Ex.P1. PW5
examined in this case is not alleged to have any animosity or
hostility against the accused prior to the occurrence which
would impel him to testify falsely against the accused. PW1
Dr. G.P. Mangla categorically testified that the injuries on the
corpse of Vajra Rai could be possible with the brick blows. So
in this manner, this medical evidence of PW1 to the effect that
these injuries were caused with brick stands corroborated with
the testimony of PW5 who also in candid words testified that
brick blows were given by the accused upon forehead of his
brother in his presence."
19. The Hon'ble Supreme Court in case of Sudhakar Vs. State of
Maharashtra (2012) 9 SCC 725 held that in a spur of moment, quarrel
between the father and the son took place and father took out a knife and
inflicted stab injury, thus, in such circumstances, the sentence was converted
from Section 302 IPC to Section 304 Part I IPC. The relevant extract of the
judgment is reproduced as below:-
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"Going by the narration of the facts disclosed, there was
nothing to suggest that there was any premeditation in the mind
of the appellant to cause the death of the deceased. Taking into
account the statement of P.W.1 that the deceased was under the
influence of liquor and that whenever he was under the
influence of liquor he used to throw the household articles and
create a ruckus in the house was a factor which created a heat of
passion in the appellant who as a father was not in a position to
tolerate the behaviour of his son whose misbehaviour under the
influence of liquor was the torment. Therefore, unmindful of
the consequences, though not in a cruel manner the appellant
inflicted a single blow which unfortunately caused severe
damage to the vital organs resulting into the death of the
deceased. In such circumstances, as rightly contended by
learned counsel for the appellant, we are convinced that the
offence alleged and as found proved against the appellant can
be brought under the First Part of Section 304 of Indian Penal
Code. Accordingly, while affirming the conviction of the
appellant, we are only altering the same as falling under
Section 304 Part I of Indian Penal Code in place of
Section 302 of Indian Penal Code. As far as the sentence
imposed on the appellant in as much as we reached at the
conclusion that the conviction should fall under
Section 304 Part I of Indian Penal Code, taking note of the
sentence already undergone, we find from the Imprisonment
Certificate that the appellant is in jail from 12.07.2004 and he is
60 year old, P.W.1, who is the wife of the appellant, is left all
alone and the appellant having suffered imprisonment for more
than eight years, we hold that the sentence already undergone
would be sufficient punishment apart from the fine imposed
with the default sentence as per the judgment of the Trial Court
and as affirmed by the High Court. The appeal stands partly
allowed with the above modifications of the charge and the
sentence imposed on the appellant."
20. The Hon'ble Supreme Court in Sanjeev Vs. State of Haryana
2015 (4) SCC 387 held that if there was no premeditation and the offence is
committed by the accused in the spur of moment, it will be covered by
Exception 4 to Section 300 IPC i.e. culpable homicide not amounting to
murder, as such the same is punishable under Section 304 Part-I, IPC. The
relevant extract of the judgment is reproduced as under:-
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"16. In the present case, from the evidence of PW-12 Om
Prakash, it reflects that while making extra judicial confession,
the appellant narrated that after both he and Raj Pal got drunk,
they engaged into an altercation whereafter scuffle took place,
and the appellant caused injuries on the forehead and chest of
the deceased. This fact gets corroborated from the statement of
PW-13, Dr. C.P. Arora, who recorded wound measuring 22 x
02 x 2 to .5 cm in the medical report soon after the time of the
incident, on the person of the appellant.
17. Exception 4 to Section 300 I.P.C. provides that
culpable homicide is not murder if it is committed without pre-
meditation in a sudden fight in the heat of passion upon a
sudden quarrel and without the offender having taken undue
advantage or acted in a cruel or unusual manner. Explanation to
Exception 4 to the Section further provides that it is immaterial
in such cases which party offers provocation or commits the
first assault.
18. In our opinion, when the prosecution evidence
relating to extra judicial confession made before PW-12, Om
Prakash, is believed by the courts below to examine as to
whether act committed by the accused constitutes culpable
homicide amounting to murder or not, they should have read
the statement as a whole, and the circumstances, in which the
injuries were caused by the appellant to the deceased, should
not have been ignored. Having gone through the evidence on
record and considering the submissions of the learned counsel
for the parties, we are of the view that the act committed by the
appellant in the present case is covered by Exception 4 to
Section 300 I.P.C., i.e., culpable homicide not amounting to
murder, as such the same is, punishable under Section 304 Part
I, IPC."
Analysis and conclusion
21. This Court is conscious of the fact that the incident occurred in
the year 2006 when a sudden fight took place between the accused and
deceased, there was no premeditation and the offence was committed in the
spur of the moment. The appellant was unarmed and the injury was caused
by a brick blow. This Court is of the view that conviction of the appellant
would not fall under Section 302 IPC but fall under Section 304 Part-I IPC.
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We would now consider as to what would be the appropriate sentence for the
appellant. The appellant has been facing protracted criminal proceedings for
about 14 years, not granted the benefit of suspension of sentence and has
undergone an actual sentence of over 16 years. There is nothing to indicate
that he is involved in any other criminal case and after the incident, there is
nothing adverse against his conduct. The ends of justice would meet, if the
sentence of the appellant would be reduced to the period already undergone
by him.
22. Consequently, the appeal is partly allowed. We direct that the
sentence of 16 years undergone by the appellant would be adequate for the
offence under Part-I of Section 304 IPC. The impugned judgment/order of
sentence dated 29.10.2009 is modified and the sentence is reduced to the
period already undergone by him subject to payment of fine, if not
deposited. Accused be released forthwith, if not required in any other case.
23. Pending miscellaneous application(s), if any, also stands
disposed of.
(KIRTI SINGH) (ANUPINDER SINGH GREWAL)
JUDGE JUDGE
22.03.2024
Ramandeep Singh
Whether speaking / reasoned Yes
Whether Reportable Yes
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