State of Punjab vs Budh Parkash

D.S. Tewatia, J.—The point that falls for determination in this State appeal is as to whether on the facts proved the respondent was guilty of an offence u/s 302 I.P.C of which he was acquitted by the trial Court, or of the one u/s 304, Part 1, I.P.C., for which the respondent was convicted and sentenced to four years rigorous imprisonment.

Since before the State appeal became ripe for hearing, the respondent under went his entire sentence of imprisonment ; so on his behalf the facts, as found by the trial Court, have not been disputed, with the result that one can proceed straightaway to take note of only such facts as have a direct bearing on the determination of the question of law. These facts can be stated thus.

3 The respondent at the relevant time had been working as a Chaukidar in the Air Force Station, Halwara. He was also running a barber''s shop known as ''Delhi Hair Cutting Saloon where he used to work in his spare time. He had employed the deceased named Balbir who used to work on his shop in his absence. Some days before the present occurrence the deceased left his employment. On the day of occurrence i.e. 9th June 1971, the deceased borrowed a chair from Ramesh Chander P.W. 4, a shopkeeper whose sweetmeat shop adjoined that of the respondent''s barber shop. The deceased set up himself in front of the shop of Ramesh Chand P.W. with an intention to do barber''s business around 7 am. At about 7.45 a.m. the accused came there. On seeing the deceased having set up himself for doing the barber''s business near his shop, he, asked him not to do so. They exchanged a few words when the respondent caught the deceased by the neck, gave him a few fists and squeezed his neck. Ramesh Chand P.W. 3 and Tirath Ram P.W. 4 separated them. The deceased tell down and became unconscious. He was removed to the Primary Health Unit Sudhar, by the accused in the car which happened to pass that side. After the accused had left for the hospital in the car with the deceased, Ramesh Chand P.W. was advised by others to report the matter to the police post Halwara, which was located at a distance of only three furlongs from the place of occurrence. He did so at about 9 a.m. At about the time of the conclusion of the recording of his statement. Ruqqa Exhibit P.C. regarding the death of the deceased was also received from the Primary Health Unit, Sudhar, located nearby and on its basis a case u/s 302 I.P.C. was registered at the Police Post and a regular F.I.R. was later on drawn up at 9-30 a.m. that day at Police Station, Raikot.

4 A.S.I. Darshan Singh P.W. 5 of Police Post, Sudhar, accompanied Ramesh Chand P.W. to the Primary Health Unit where the former held inquest on the dead body of the deceased and despatched the same for post-mortem examination.

Dr. Ram Singh P.W. 1 performed autopsy on the dead body on 10th June, 1971 at 7.30 a.m. He opined that the death had been caused due to asphyxia caused by strangulation. According to him, death must have occurred immediately and the probable time that elapsed between death and post mortem was stated to be about 24 hours''. On the physical examination of the body, he found bruises red in color on the right side of the neck, upper part of the chest and lower port of face. These were said to be extending on the anterior aspect of neck larynx and there was a bruise 3"x1" on the upper part of the neck left side as well continuous with bruises on the right side. There was found swelling on right side of face and the upper and lower eye lids, lower eye lid being black and there was scratch marks 1/4x1/8" and 1/5x1/8" on the lower lid 1" below the cilia margin. On dissection of the neck, haemorrhage into subcutaneous issue on neck on right side and left side under bruised areas was seen. Larynx and trachea were found congested and blood oozed there from.

Ramesh Chand and Tirath Ram P.Ws. furnished the eye- witness account of the occurrence Dr. Inderjit Singh P.W. 2 deposed to the fact that the deceased had been brought by the accused and on seeing him (the deceased) he pronounced him dead. A.S.I. Darshan Singh P.W. 5 investigated the case and deposed regarding thereto.

The accused when examined admitted the fact that he used to run a barber''s shop on which the deceased was employed as a servant. He also admitted the fact that he bad taken the deceased to the Primary Health Unit where he was declared dead. Regarding the actual : occurrence, he stated that be came to his shop from his residential quarter; that Balbir deceased uttered filthy abuses to him on which he i.e. the respondent replied that the deceased could work anywhere but should not abuse him, whereupon the deceased gave a slap to him and tore his shirt; and that he (the respondent) released himself from Balbir and ran away to police post where he was arrested. He denied that he was arrested in the Health Unit. Regarding Ramesh Chand P.W. , the respondent stated that he was in mica to wards his (Ramesh Chand''s) shop who used to protest and for that reason bad been asking him to quit the shop ; and that be had been even offered by him Rs. 500/- for that purpose, but he i.e. the respondent had not agreed to it, whereupon Ramesh Chand P.W. bad proclaimed that be would get him implicated in some serious case.

The eye-witnesses are natural witnesses of the occurrence, for their shops adjoined that of the respondent and were just near the place of occurrence. They were neither interested in the deceased nor inimical towards the respondent That fact apart, they had been a very consistent and cogent version of the recurrence. In their cross-examination the defence was not abit to surface any infirmity in their statements. The trial Court, therefore, in our opinion, rightly placed reliance on their testimony.

The trial Court was of the opinion that the case fell within the ambit of clause thirdly of section 309 I.P.C. but it was further of the opinion that exception 4 to section 300 I.P.C. was attracted to the facts of the present case and, therefore, the offence full u/s 304 Part I I.P.C.

It had been argued on behalf of the appellant. State that ingredients of exception 4 to section 300 I.P.C. have not been established on the record and, therefore, the provisions thereof were not attracted to the facts of the present case. It has been emphasised by the counsel for the State that, as held in Atma Singh Kahan Singh Vs. The State, it takes two to make a fight in the sense that there should be exchange of blows from both sides, though blows from the side of the deceased may not have found its target, and that since in the present case the fight was a unilateral one in the sense that the respondent caught hold of the deceased by his neck and throttled him and the deceased could not even raise his little finger against the respondent, so the ingredient of fight is not established in the present case.

We do not think there is any merit in the contention advanced on behalf of the State. The expression that is more relevant to judge the application of the exception is ''upon a sudden quarrel''. If It is established that there was no premeditation and that a sudden quarrel proceeded the fight and that in the fight the offender had not taken undue advantage of his opponent or had not acted in a cruel or unusual manner, then exception 4 would be fully applicable even if the actual fight that ensued upon the sudden quarrel was a unilateral one in the sense that the offender struck the first blow which paralyzed the deceased and killed him and he had not been able to raise even his little finger against the accused.

In the present case the respondent and the deceased are said to have merely talked to each other for a few minutes before the incident took place. We are not prepared to accept the testimony of the eye-witnesses at its face value. The witnesses are normally not averse to give little twist to actual facts. What would be an exchange of hot words would normally come to be described by the prosecution witnesses as talking between the deceased and the respondent. We are of the view that hot words must have been exchanged between the two which must have provoked the respondent to grab the deceased by the neck and, therefore, the death of the deceased occurred in the sudden fight that ensued after the sudden quarrel. There was no premeditation also, because it was by chance that the respondent came to the place of the occurrence and saw the deceased thereafter he left his employment. Hence in the circumstances of this case exception A to section 300 I.P.C. was clearly applicable.

In the result, we find no merit la this appeal and dismiss the same.

P.S. Pattar, J.

I agree.