Satish vs State of Haryana

Sabina, J.—Accused-Satish, appellant was sent up for trial by the Police of Police Station Sadar Jind under Sections 323, 506, 308 and 304 of the Indian Penal Code (for short `IPC'') . Vide judgment dated 7.2.2008 passed by the Sessions Judge, Jind the accused was convicted for an offence under Sections 323 and 304 Part II IPC and was acquitted of other charges framed against him and vide his order dated 11.2.2008, appellant was sentenced as under:

Name

Offence

Sentence

Satish

304 Part II

To undergo rigorous imprisonment for a period of 7 (seven years and to pay a fine of Rs.7000/-, in default of payment of fine, the defaulter accused shall further undergo RI for seven months

323 IPC

To undergo rigorous imprisonment for a period of 6 (six) months and to pay a fine of Rs. 1000/- in default of payment of fine, the defaulter accused shall further undergo RI for one month

Both the sentences were ordered to run concurrently. Hence, the present appeal by the accused-appellant.

Prosecution case, as noticed by the trial Court in para No. 2 and of its judgment, is reproduced herein below:

The prosecution case against the accused, put in a narrow compass is as under:

Mahabir resident of village Dalamwala (Jind) was retrieved from a well on 17.4.2007 and was taken to General Hospital, Jind. Information was received by the police whereafter ASI Azad Singh alongwith other police officials had reached General Hospital, Jind. However, injured Mahabir had been referred to PGIMS, Rohtak. Brother of injured met the police but he did not give his statement. Statement of the injured Mahabir could be recorded only on 20.4.2007 by ASI Azad Singh when the Medical Officer had declared the injured fit to make statement.

As per prosecution version coming from the mouth of injured Mahabir, on 16.4.2007 accused Satish had asked him to recite holy songs. Satish had come to his house at about 7.00 p.m. Mahabir, his brother Ram Niwas and his uncle Umed son of Baru Ram were sitting together, they were gossiping. Satish requested them to accompany him to his fields. They all went to the fields of the Satish in village Shri Rag Khera. They had taken dinner together at about 9.00 p.m. Mahabir (since deceased) started reciting holy songs. They also had liquor. At about 3.00 A.M. in the morning accused Satish had asked Mahabir to recite Ragni. Mahabir had pleaded excuse saying that he did not know how to sing Ragni. Accused Satish abused him. He threw him into the well. Mahabir had suffered injuries. He became unconscious. His brother Ram Niwas and uncle Umed with the help of other villagers had removed him from from the Well. He was taken to General Hospital, Jind. On his statement (Ex. PS) FIR (Ex.PF) was registered. Site plan (Ex.PJ) was prepared. Accused was arrested. Witnesses were recorded. After completion of necessary investigation, the report u/s 173 Cr.P.C. was prepared.

I have heard the learned Counsel for the parties and have carefully gone through the record of the case.

Learned Counsel for the appellant has submitted that the eye witnesses had not supported the prosecution case. Rather PW10 Umed Singh had stated that the deceased had accidentally fallen in the Well. The trial Court had erred in convicting the appellant on the basis of the statement of the deceased. As per the statement of the brother of the deceased Exhibit PQ dated 17.4.2007, he had stated that they would make a statement after consulting the family members. Statements u/s 161 Cr.P.C. were recorded after registration of FIR on 2 1.4.2007. Hence, the FIR was the result of due deliberation.

Learned State counsel, on the other hand, has submitted that the deceased had made a statement before the police that he had been thrown in the Well by the appellant as he had not been able to sing ragni as per the wishes of the appellant.

In the present case although the eye witnesses have not supported the prosecution case but the deceased had suffered a dying declaration before the Investigating Officer to the effect that he had been thrown in the Well by the appellant as he had been unable to sing ragni as per the wishes of the appellant.

PW9 Ram Niwas alleged eye witness was declared hostile. The said witness deposed that the deceased was unmarried and issueless and was habitual of consuming liquor and smoking. There was no previous enmity between the deceased and the appellant. He had heard in the village that the deceased had fallen in the Well of the tubewell accidentally.

PW10 Umed Singh deposed that the deceased was blind by birth and had fallen accidentally in the Well. He has not been pushed in the Well by Mahabir.

PW2 Dr. Viney Kumar in his cross-examination deposed that the right kidney of the deceased was already damaged which could have been damaged due to excessive drinking of alcohol. It could not be ruled out that the deceased was habitual of consumption of alcohol.

Exhibit PS is the statement made by deceased on 20.4.2007 before the Investigating Officer. As per the same, the deceased had been thrown in the Well by the appellant as he was unable to sing ragni. The deceased and the appellant were sitting and talking to each other along with Ram Niwas, his brother and Umed Singh, his uncle.

Exhibit PQ dated 17.4.2007 is the statement made by Balbir brother of deceased to the effect that they would make a statement after consulting the family members. The said fact is also duly stated by PW1 3 ASI Azad Singh while appearing in the witness box. Thereafter, the statement of the deceased was recorded on 20.4.2007. Since the deceased himself had suffered a dying declaration to the effect that he had been thrown in the Well by the appellant, there is no reason to disbelieve the said statement. Hence, the conviction of the appellant is liable to be upheld.

However, keeping in view the facts and circumstances of this case, it would be just and expedient to reduce the sentence qua imprisonment of the appellant to already undergone by him. Appellant is in custody for more than three years.

Accordingly, the conviction of the appellant under Sections 323 and 304 Part II is maintained. However, the sentence qua the imprisonment of the appellant is reduced to already undergone by him subject to deposit of fine, if not already deposited by the appellant.

Appeal stands disposed of accordingly.