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ISHWAR versus STATE OF HARYANA

High Court of Punjab and Haryana, Chandigarh

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ISHWAR v. STATE OF HARYANA - CRA-D-194-1997 [2006] RD-P&H 79 (10 January 2006)

Ishwar Vs. State of Haryana

*****

Present: Mr.Vinod Ghai and Mr.A.S.Virk, Advocates for the appellant.

Mr.B.S.Rana, Senior Deputy Advocate General, Haryana ****

Amar Dutt, J.

Ishwar son of Amar Singh, his brother Ramesh, Basant son of Hoshiara, Attar Singh, Rajpal, Dharampal sons of Nanhe and Satish and Ajit sons of Attar Singh, residents of village Simli, District Rohtak were challaned by the Investigating Agency in case FIR No.141 registered at Police Station Sadar, Rohtak on 22.5.1993 for the offences of rioting and in the prosecution of common object of the unlawful assembly causing murder of Rambir and injuries to Rohtash and Randhir. The case of Ajit who was juvenile was transferred to the Juvenile Court while the remaining seven were tried by the Additional Sessions Judge, Rohtak, whose judgment is now being challenged by Ishwar alone.

Briefly stated, the facts of the prosecution case, as brought out in the testimony of its witnesses, are that on 22.5.1993 between 9.00-10.00 A.M. Rohtash and his brother Randhir were present in their house in village Simli where they heard noise of abuses coming from the side of the house of Rambir and quarrel taking place. Hearing this, the two brothers moved out and went to the spot where they saw Ishwar son of Amar Singh armed with a Pharsa, Ramesh son of Amar Singh, Attar Singh son of Nanhe, Ajit son of Attar Singh, Satish son of Attar Singh, Dharampal son of Nanhe, Rajpal son of Nanhe all armed with jailies and Basant son of Amar Singh armed with a Ballam standing in front of the house of Rambir and pushing at his door. When they reached near the house, Ishwar told the gathering that Rohtash and Randhir had come and they should be finished.

Hearing this, all the persons rushed towards the two brothers. They encircled Rohtash and Randhir in front of the house of Om Parkash son of Gokal and Ishwar gave a Pharsa blow on the head of Rohtash. After this Satish son of Attar gave a jaili blow lathi wise on the right shoulder, Basant alias Maria gave a ballam blow thrustwise on the buttock, Ishwar gave another halberd pharsa blow on the left arm of Rohtash while Ramesh, Attar Singh, Ajit, Satish Dharampal and Rajpal started attacking his brother Randhir and gave him jaili blows. Both the brothers raised raula Mardia Mardia. On hearing this, Rambir came running out of his house and on seeing Rambir, all of them left Rohtash and Randhir and started attacking Rambir. Ishwar gave a blow with Pharsa thrustwise on the head of Rambir as a result of which blow Rambir fell down on the ground. This was followed by all the assailants giving injuries to Rambir while he was lying down.

After causing the injuries, all the persons ran away taking their respective weapons with them. The incident was witnessed by Mahabir son of Chander Singh of Simli.

After occurrence, Mahabir brother of Rambir, Randhir, Rani wife of Rambir and Rohtash removed all the injured in a tractor-trolley to the Medical College and Hospital, Rohtak for treatment, where they were admitted and a VT message was sent by the Incharge, Police Post, Rohtak to the Police Station Sadar, Rohtak, on receipt whereof ASI Sandeep Singh PW 12 went to the Hospital and after collecting medico legal reports in relation Rambir and Rohtash and obtaining a certificate of fitness, he recorded the statement of Rohtash on the basis whereof formal FIR Ex. PZ/1 was initially registered under Sections 148/149/307/324 IPC in Police Station Sadar, Rohtak at 1.40 PM. After registration of the FIR, ASI Sandeep Singh proceeded to village Simli along with witnesses where he inspected the spot and lifted blood soaked earth and took the same into possession through memo Ex. PZ/1. He prepared rough site plan Ex. PBB of the place of occurrence and searched for the accused, who were initially not found in their houses. On 29.5.1993 when ASI Sandeep Singh along with SHO Abdul Majid was present in village Simli, an information was received regarding the presence of Attar Singh, Dharam Pal, Satish, Rajpal, Ishwar and Ramesh at the house of Ishwar.

Accordiongly, the house of Ishwar was raided and the accused were apprehended.

All of them except Ishwar were carrying their weapons with them and consequently Jailies Ex. P2 to Ex. P6 were taken into possession through recovery memo Ex. PY. On 30.5.1993 Ishwar was interrogated in the Police Station and he made a disclosure statement to the effect that he had kept concealed the Pharsa in the Tura room of his house and that none else was knowing about it. His disclosure statement Ex.PBB was recorded and accused was produced in Court.

Thereafter, on 31.5.1993 he was taken to the village where he got recovered Pharsa Ex.P1 from the disclosed place which was taken into possession vide recovery memo Ex. PQ/1. On 1.6.1993 ASI Sandeep Singh apprehended Basant, who was carrying Balam and Ajit, who was carrying Jaili and after their arrest their weapons were taken into possession through recovery memo Ex.PR.

On 2.6.1993, the police received a message from Medical College and Hospital, Rohtak about the death of Rambir, whereupon the offence under Section 302 IPC was added and the Investigating Officer proceeded to the Hospital where he prepared an inquest report and got conducted the post-mortem on the dead body.

On conclusion of the investigation, challan was put in Court where the case of Ajit was segregated and transferred to the Juvenile Court while against seven other accused charges were framed under Sections 148,149,324,307 and 302 of the Indian Penal Code. When the appellant pleaded not guilty to the charges, the prosecution was called upon to lead its evidence.

To bring home the charges, the prosecution examined Dhani Ram Saini as PW1, Dr.Kulbir Singh as PW 2, Dr. Mahabir Singh as PW 3, Dr. Rajeev as PW 4, Dr.Indu Lalit as PW 5 Dr. Rajesh Goel as PW 6, ASI Hari Singh as PW 7, HC Amarjeet Singh as PW 8, ASI Abdul Majid as PW 9, Rohtash as PW 10, Randhir as PW 11 and ASI Sandeep Singh as PW 12 and Public Prosecutor tendered in evidence affidavit Ex. PB of Constable Suraj Bhan and affidavit Ex.PC of constable Dilbag Singh in terms of statement dated 2.12.93. Affidavit of constable Balbir Singh (Ex.PM), affidavit of constable Devender Singh (Ex.PN) and report of Chemical Examiner (Ex.PO & Ex.PO/1) were tendered in evidence in terms of statement dated 1.12.94. Ex.PS copy of FIR No.29/93, Ex.PT copy of FIR No.87/93, Exs. PU, PV & PW copies of calenderas were tendered in evidence subject to objection in terms of statement dated 9.12.1995.

When the incriminating circumstances were put to the appellant, he denied all of them and asserted that he was innocent and examined Hawa Singh Malik as DW1 and Om Parkash as DW 2.

After hearing the learned counsel for the parties, the Trial Court convicted Ishwar under Section 302 IPC for committing the murder of Rambir and under Section 324 IPC for injuries caused to Rohtash and sentenced him to life imprisonment and to pay a fine of Rs.2000/- and in default thereof to further undergo imprisonment for one year under Section 302 IPC. He was further sentenced to the imprisonment for the period already undergone by him while in custody during the pendency of the trial under Section 324 IPC. Ramesh was convicted under Section 323 IPC for having caused injuries to Randhir and sentenced only for the period for which he had already remained in custody Basant was convicted under Section 324 IPC for having caused injuries to Rohtash and sentenced only for the period for which he had already remained in custody. Satish was convicted under Section 324 IPC for having caused simple injuries to Rohtash and Randhir and sentenced only for the period for which he had already remained in custody. Attar son of Nanhe, Rajpal son of Nanhe and Dharam Pal are acquitted on account of the fact that none of the three had caused any injury to any person. Hence, the present appeal on behalf of Ishwar only.

On behalf of the appellant, the findings relating to the role played by Ishwar in the incident in which Rambir lost his life are not being assailed and argument has only been confined to the submission that even taking the factual matrix of the prosecution case as correct, the judgment of the Trial Court has got to be upset inasmuch as it comes to the conclusion that Ishwar was guilty under Section 302 IPC. It is submitted that the case against the appellant would at best fall under Section 304 IPC as Exception 4 to Section 300 IPC would be attracted to the facts of the case.

We have carefully considered the arguments and perused the record.

For deciding the issue raised before us, it would be but appropriate to advert to the portion of the evidence which pin-point to the fatal injury which was caused to Rambir. As already indicated by us, in the narration of events by eye witness Rohtash, who himself was injured in the incident, it is clear that Ishwar is stated to have given a Pharsa blow on the head of Rambir and because of this single injury Rambir fell down on the ground and thereafter, the accused withdrew from the scene of occurrence. When Rambir was brought to the hospital he was examined by Dr. Mahabir Singh PW3, Causality Medical Officer, Medical College and Hospital Rohtak who found the following injuries on his person:- "1. Incised wound with clear cut margins of size 10 X 3 cm.

extending from left maxillary prominent face to left occipital protuberance of scalp with fresh bleeding with brain matter coming outside.

2. Swelling and deformity of right little finger.

3. Swelling of left ring finger." The Doctor had sought the expert opinion from other Doctors and the injury was kept under observation. After the death of Rambir, Dr. Indu Lalit, PW 5 found the following injuries:-

"1. There was a stitched wound with one stitch on the right ankle on right medical mallelous.

2. There was a stitched wound 23 cm. in length starting from protuded part of the left maxillary region. It is 5 cm. away from the left ear, from its middle and going upwards backwards and ending up to left parietal region. It was having 16 stitches.

3. Stitched wound with 5 stitches and 8 cm. in length starting from left to injury No.2 about middle of the left parietal region and crossing the injury No.2 at its upper part and ending up to 5 cm above left eyebrow.

4. There was swelling of the left hand. On opening the scalp there was fracture of fronto parietal region corresponding to injury No.2 & 3. A piece of the bone in an area of 10 cm. was lying loose in the left fronto parietal region. Left orbital bone was fractured.

Brain matter was exposed. There was one external wound on the right thigh which was 23 cm. in length starting from 18 cm. below right interior iliac spine and going downwards." She further said that cause of death was coma as a result of head injury and other injuries as described which were ante- mortem in nature and sufficient to cause death in ordinary course of nature. There is no challenge to this opinion of Dr. Indu Lalit. When an accused is held responsible for intentionally causing an injury, which in the opinion of Doctor is sufficient in the ordinary course of nature to cause death, it is now well settled that it will have to presume that the person had the intention and Section 300 Thirdly IPC would apply to the facts of the case.

Once the intention to cause the injury is proved then the only question which has to be determined on the basis of objective inference is whether the injury is sufficient in ordinary course of nature to cause death for holding the accused guilty under Section 302 IPC as has been held in Virsa Singh Vs. State of Punjab, AIR 1958 Supreme Court, 465, which reads as under:- "The prosecution must prove the following facts before it can bring a case under S.300 "thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder under S.300 "thirdly". It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death."

Since the appellant has not challenged in cross examination the objective opinion given by Dr.Indu Lalit, it would not be possible to take the case of the appellant out of the purview of the afore-mentioned section and absolve him of the responsibility of murder.

Learned counsel for the appellant, as a matter of fact, has not assailed the conclusion arrived at by the Trial Court but argues that even in a case where provisions of Section 300 Thirdly IPC are attracted it would be open for the court to inquire into and assess the applicability of Exception 4 to 300 IPC, which reads as under:-

"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner."

A perusal of the above provision shows that this Exception comes into operation when without pre-meditation, acting in the heat of passion, in a sudden fight arising out of a sudden quarrel a blow is given in a manner from which it cannot be inferred that the assailant has taken any undue advantage or acted in a cruel or unusual manner. The emphasis in this Exception is on the suddenness of the quarrel, which leads to a fight in which without any pre-meditation a blow is given. The word "sudden", according to the 'Judicial Dictionary' by K.J.Aiyer, Thirteenth Edition (2001) implies that the:-

"fight should not be pre-arranged or unpremeditated." Corpus Juris Secundum Volume LXXXIII dilates upon the word "sudden" as under:-

"While the word "sudden" is of somewhat varied signification, it does have a primary and lexical meaning, and is defined to mean happening without previous notice or with very brief notice; coming unexpectedly; unexpected; unusual; unlooked for; unforeseen; unprepared for.

"Sudden" does not mean instantaneous, but it may mean quick; rapid; hasty by nature; abrupt; precipitate; rash; violent." Webster's Third New International Dictionary, Volume III, 1976 Edition explains word "sudden" as under:- "unexpected, 1.a happening without previous notice or with very brief notice: coming or occurring unexpectedly: not foreseen or prepared for"

and The Oxford English Dictionary, Volume X, 1933 Edition defines word "sudden" as under:-

"Of actions, events, conditions: Happening or coming without warning or premonition; taking place or appearing all at once.

Of actions, feelings: Unpremeditated, done without forethought" The word "sudden" which has been used in the Exception at two places as a prefix for fight and quarrel, in our opinion, seeks to emphasise the necessity of both the fight and quarrel having taken place on the spur of the moment without any pre-meditation on the part of assailant.

The term "fight" too has been explained both in the Dictionaries and judicial pronouncements as under:-

The Oxford English Dictionary Volume IV, talks of it as under:- "1.The action of fighting

2. A combat, battle. a. A hostile encounter or engagement between opposing forces; = BATTLE."

The word "fight" has been explained in the Words and Phrases, Permanent Edition Volume 16, which reads as under:- "Fight" means combat or battle, as hostile encounter or engagement between opposing forces, suggesting primarily the notion of a brawl or unpremeditated encounter, or that of a pugilistic combat.

The word "fight" is explained in the Webster's Third New International Dictionary, Volume I, 1976 Edition as under:- "a hostile encounter between opposing forces or individuals: BATTLE, COMBAT."

In Nafe Singh Vs.State of Haryana(1972) 74 Punjab Law Reporter, 990 the word "fight" has been dilated upon as under:- "The word "fight" implies mutual assault. It takes two or more to make a fight. One sided attack cannot constitute a fight. An incident will be a fight, if the parties are pitched and arrayed against each other and an act of violence of one party is met and countered by similar act of the other."

The word "fight" has been described in Bhagwan Munjaji Pawade Vs. State of Maharashtra, AIR 1979 Supreme Court, 133, which reads as under:-

"Fight' postulates a bilateral transaction in which blows are exchanged."

In this view of the matter, before a Court of law can invoke Exception 4 to Section 300 IPC, it will have to analyse as to whether incident owed it genesis to a sudden quarrel which led to a sudden fight and in the heat of passion as a result of unpremeditated act of an offender has resulted in injury without the offender having acted in a cruel or unusual manner or taking undue advantage of a situation.

Taking into consideration the facts and circumstances of the case, we find that here we have a case where the appellant and his companions are stated to have reached the house of Rambir and were pushing the door of his house when Rohtash and Randhir, who were present in their house heard the abuses coming from the side of the house of Rambir and a quarrel taking place and thereupon when two brothers moved out and reached the house of Rambir, Ishwar told his companions that both of them had come and they should be finished. Thereafter, an attack was opened on Rohtash and Randhir and when Rambir came out in response to the cries raised by two brothers all of them had left Rohtash and Randhir and started attacking Rambir. It is in this situation, Ishwar had given a Pharsa blow on the head of Rambir, for which there was no provocation as a result whereof he fell down. The defence has not been able to bring on record anything in the statements of PWs from which it could be inferred that the fatal injury caused to the deceased was given in a fight in which the deceased had even while trying to defend himself had caused any injury to any one of the assailants.

In these circumstances, in our opinion, as there is no material on the record to suggest that any fight had suddenly taken place between appellant Ishwar and Rambir and the injury given by Ishwar having been found to be sufficient in the ordinary course of nature to cause death so as to attract the provisions of Section 300 Thirdly IPC, we have no option but to reject the argument advanced by learned counsel for the appellant and uphold the finding of the Trial Court.

For the reasons recorded above, this appeal fails and the same is hereby dismissed.

(Amar Dutt)

Judge

July 19,2005 (Kiran Anand Lall)

Pa Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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