Parkash and anr vs State of Haryana

A. P. Chowdhri, J.

Parkash, 21, was convicted under Sec. 302 IPC by learned Sessions Judge, Rohtak. He was sentenced to life imprisonment. Coaccused Satbir, 24, was convicted under Section 323 IPC and was released on probation under Section 4 of the Probation of offenders Act by order dated May 12, 1990. The accused have preferred this appeal against their conviction and sentence.

Briefly stated the prosecution version as given by Jage Ram PW4 in the first information report is as follows :

He along with his son Sajjan, 20, deceased in this case, and Kali Ram PW5 and other members of the family were residing at village Kharak Jatan. Adjoining his house, is the house of Parkash and Satbir accused, who are brothers. On 861989 his son Sajjan took some goats and sheep through the lane which runs from west to east on the southern side of his house and that of the accused. Parkash prevented Sajjan from taking the goats and sheep on the ground that the place from where he was taking them was not a passage but the same was his plot. An altercation took place between the two. Barey PW6 separated Parkash and Sajjan and both were sent to their respective homes. After some time one lamb ran away in the street. Sajjan wanted to catch hold but it ran in front of house of Parkash accused. Parkash accused gave a lathi blow on the head of Sajjan. Coaccused Satbir threw brickbat hitting Sajjan below his right eye. The occurrence was seen by Kali Ram PW5 and Zile Singh. On seeing them the accused ran away. Sajjan was removed to Primary Health Centre, Meham, 12 kilometre away. Dr. Raghbir, Singh PWI examined him at 8.50 AM and prepared medicolegal report. He sent ruqa at 9.25 a.m. to Police Station. Head Constable Rohtash Singh PW7 reached Primary Health Centre, Meham. The doctor declared Sajjan unfit to make statement whereafter Head Constable Rohtash Singh recorded statement of Jage Ram at 1.45 p.m. and on the basis of the said statement, Daily Diary Report No. 31 was entered at Police Station Meham at 7.30 pm. From Primary Health Centre, Meham, the injured was referred to Medical College Hospital. Rohtak. He died on 961989. ASI Rameshwar Dass received the message regarding death of Sajjan whereupon he recorded first information report on the basis of Daily Diary, Report No. 31, referred to above. Special report was received by Judicial Magistrate Ist Class, Rohtak at 11.25 a.m. the same day. ASI Rameshwar Dass then came to Medical College Hospital, Rohtak, held inquest on the deadbody and forwarded the same for postmortem examination He went to the spot and prepared site plan. He did not find any blood at the spot. The accused were arrested on 1161989. On 1361986 Parkash accused made disclosure statement and got recovered lathi Exhibit P1 in pursuance thereof from the roof of his kotha.

At the trial, the prosecution examined Kali Ram PW5 as an eyewitness. Sage Ram, father of the deceased, who was immediately informed about the occurrence, was also examined. Zile Singh another eyewitness was given up as unnecessary. The prosecution also examined Dr. Raghbir Singh, who conducted the medicolegal examination of the injured and Dr. R. K. Chaudhary PW3, who conducted the postmortem examination, besides the investigating officers Head Constable Rohtash Singh and AS.I. Rameshwar Dass.

The plea of the accused was one of denial, The trend of cross examination showed that accused set up a counterversion. According to them, Mukhtiari, Inderawati and Nirma along with Sajjan deceased had gone to the house of the accused at about 800900 a.m, on the day of occurrence. Parkash accused was not there. The aforesaid persons wanted to beat the wife of Parkash in his absence. The wife of Parkash picked up a danda lying there and hit Sajjan on his head. In support of the above version, the accused examined Chand Kaur DW1 a neighbour of the accused in defence.

On an evaluation of the evidence, the learned Additional Sessions Judge accepted the prosecution version and convicted and sentenced the accused as aforesaid. It was also held that there was no justification to hold accused Satbir vicariously liable for the principal offence. He was, therefore, convicted only for offence under Section 323 IPC and directed to be released on probation. The State has not filed any appeal in so far as Satbir accused is concerned.

The occurrence in this case took place near the house of the accused which is adjoining that of the deceased. The time of occurrence was about 7.30 in the morning. At that time the presence of Kali Ram, brother of the deceased, who claimed to have witnessed the occurrence becomes at once natural. The presence of Jage Ram PW4, father of the deceased, who reached the spot immediately after the occurrence, is also rendered natural. The earlier part of the incident in which the accused and the deceased had an alteration stands proved from the independent testimony of Barey PW6. The first information report in this case was lodged without any undue delay. :The testimony of Kali Ram is fully corroborated by the medical evidence.

The question remains as to what offence is made out against the accused. Except the altercation over taking of goats and sheep from a certain place, regarding which there was a dispute, whether it was a thoroughfare or plot of the accused, there was no other background of enmity. The altercation stopped when Barey PW6 intervened and separated Sajjan deceased and Parkash accused. Later on a young one of goat strayed out of the house and Sajjan had gone to bring it when the occurrence took place. Only single blow was given to the deceased. In our considered view, the case squarely falls under Exception 4 to Section 300 IPC as it occurred without premeditation in a sudden fight upon a sudden quarrel without the offender''s having taken undue advantage or having acted in a cruel or unusual manner. We, therefore, partly allow the appeal and set aside the conviction and sentence under Section 302 IPC and instead convict, the appellant under Section 304 PartII PC and sentence him to undergo rigorous imprisonment, for ten years. The appeal so far as coaccused is concerned is dismissed.