Dismissed

Jaswinder Ram v. St of Pb

Punjab & Haryana HC13 Feb 2013CRA-D/217/2007

Case brief

AI extract

What is this about?

In an appeal against conviction for murder, the High Court rejected the appellant's claim of self-defense and accidental falling. Relying on medical evidence regarding the injury location and weapon-retrieval, the Court found an intentional killing upheld the conviction under Sections 302, 326, and 323 IPC.

What did the court decide?

Appeal dismissed; conviction and sentence under Sections 302, 326, and 323 IPC affirmed.

Jaswinder Ram Vs St of Pb — Murder and Culpable Homicide | Punjab & Haryana HC (2013)

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CRA No. D-217-DB of 2007

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRA No. D-217-DB of 2007 Decided on : 22 February, 2013

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Jaswinder Ram @ Bodha son of Sohan Lal r/o Village Sarhal Qazian, Police Station Mukandpur, District Nawanshahar

.....Appellant

Versus

State of Punjab

..... Respondent

CORAM: HON'BLE MR. JUSTICE S.S. SARON HON'BLE MR. JUSTICE S.P. BANGARH

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Present: Ms. Sarika Gupta, Advocate for the appellant.

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Mr. S.S. Dhaliwal, Addl. AG, Punjab for the respondent.

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S.P. BANGARH, J

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The appellant has assailed the judgment of conviction and order of sentence dated 06.10.2006, passed by the learned Additional Sessions Judge, Nawanshahar, in Sessions Case No. 74 of 2006, emanating from FIR No. 55 dated 27.02.2004, under Sections 302/307/326/323/324/34 of the Indian Penal Code (for short - 'IPC), Police Station Banga, whereby, he was convicted for commission of offences punishable under Sections 302, 326 and 323 IPC and was sentenced to undergo imprisonment for life and to pay fine of 10,000/- and in default of payment, thereof, to further undergo rigorous imprisonment for six months for commission of offence punishable under Section 302 IPC; to undergo rigorous imprisonment for three years and to pay fine of 5000/- and in default of payment of fine, to further undergo rigorous imprisonment for three months for commission of

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offence punishable under Section 326 IPC and to undergo rigorous imprisonment for six months and to pay fine of `1000/- and in default of payment of fine, to further undergo rigorous imprisonment for three months for commission of offence punishable under Section 323 IPC. All the sentences were ordered to run concurrently.

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It may be mentioned here that vide impugned judgment of conviction and order of sentence, the accomplices of the appellant, namely Sohan Lal, Mulakh Raj and Som Pal were also convicted for commission of offences punishable under Sections 324, 323 and 323 IPC respectively. Sohan Lal was sentenced to undergo rigorous imprisonment for one year and to pay fine of 2000/- and in default of payment of fine, to further undergo rigorous imprisonment for three months for commission of offence punishable under Section 324 IPC. Mulakh Raj was sentenced to undergo rigorous imprisonment for six months and to pay fine of 1000/- and in default of payment of fine, to further undergo rigorous imprisonment for three months for commission of offence punishable under Section 323 IPC and Som Pal was sentenced to undergo rigorous imprisonment for six months and to pay fine of `10000/- and in default of payment of fine, to further undergo rigorous imprisonment for three months for commission of offence punishable under Section 323 IPC.

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This prosecution case was registered against the appellant and his accomplices on the basis of statement of Nirmal Ram (complainant), which was made by him before Harjit Singh SI/SHO of Police Station Banga on 27.02.2004. In his, statement Ex.PK, he stated that he retired from Punjab State Electricity Board, as a Lineman. He was residing in his ancestral house located in village Sarhal Qazian, Police Station Mukandpur along with his family. House of his brother Sohan Lal, adjoins his house, that had fallen to his share in partition. On 27.02.2004, his brother Sohan

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Lal along with his sons Gonda (appellant herein), Mulakh Raj and Som Pal was constructing their house in site, that had fallen to his share. Som Pal nephew of the complainant (Nirmal Ram) was a Mason and they themselves were doing labour work. At about 3.00 P.M. when his brother started raising a wall by leaving a space of about 4”, then he (complainant), as also, his sons namely Balraj and Amarjit Singh and Surinder Kaur wife of the complainant (Nirmal Ram) prevented them from doing so. Due to leaving of the said space, the rainy water that had to be accumulated in that space would have caused damage to his house, but Sohal Lal and others did not relent and they continued raising the wall. They were again dissuaded from doing so. Thereupon, Gonda (appellant herein) son of Sohan Lal, who was having a datar in his hand gave a blow, thereof, on his back from its reverse side.

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Sohan Lal gave spade blow, which hit on the little finger of his left hand. Surinder Kaur (deceased) wife of the complainant (Nirmal Ram) came forward, to rescue him, then, appellant aimed a datar blow on her, who ran, to rescue herself, after she ran at a some distance, appellant gave datar blow, hitting on the left side of the neck of Surinder Kaur (deceased), who fell down on the ground and succumbed to this injury. Thereafter, appellant gave datar blow on the head of Balraj son of the complainant (Nirmal Ram). Som Pal also gave a sabbal blow on the left side of the face of the complainant (Nirmal Ram). They raised alarm and the appellant and his accomplices fled away from the spot with their respective weapons.

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Statement Ex.PK (supra) of the complainant (Nirmal Ram) was read over and explained to him by Harjit Singh SI/SHO of Police Station Banga and he signed the same after admitting correctness, thereof. Later, Harjit Singh SI/SHO made his endorsement Ex.PK/1, thereon, and sent the

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statement Ex.PK to Police Station Banga, where formal FIR Ex.PK/2 was recorded by Surinder Kumar MHC. Special report of this case was received by Illaqa Magistrate at 10.55 PM on 27.02.2004 vide endorsement Ex.PK/3. Later, Harjit Singh SHO along with Kashmir Singh ASI, Bhupinder Singh ASI and Nirmal Ram (complainant) went to the place of occurrence at about 4.45 PM. Harjit Singh SHO prepared the site plan Ex.PFF of the place of occurrence. He also got the place of occurrence photographed from Malkiat Singh Photographer. He also prepared inquest report Ex.PR on the corpse of Surinder Kaur (deceased), that was identified by Ram Pal and Bir Dass witnesses and sent the same to mortuary for autopsy through Inderjeet Singh HC and Jaswinder Singh Constable along with request Ex.PO.

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Harjit Singh SHO also lifted the blood stained earth from the place of occurrence, as pointed out by Nirmal Ram (complainant), that was sealed into a parcel with the seal bearing impression 'HS' and that parcel was seized vide recovery memo Ex.PM. Nirmal Ram (complainant) also produced his shirt and trouser stained with blood, as also chunni and parna stained with blood before Harjit Singh SHO. Those were made into a parcel and that parcel was sealed with the seal bearing impression 'HS', and was seized vide recovery memo Ex.PM. He also recorded the supplementary statement of Nirmal Ram (complainant). He also sent an application, copy Ex.PGG, for getting the medico legal examination of Nirmal Ram (complainant) through Nirmal Singh HC.

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Nirmal Ram (complainant) was admitted in hospital and his medical examination was conducted by doctor. Medico legal report of Nirmal Ram (complainant) was produced before Harjit Singh SHO. At about 9.30 PM, the latter received secret information that Sohan Lal accomplice of the appellant is present near liquor vend in the area of

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Sarhal Qazian and he was arrested while he was carrying a spade on his right shoulder. Sketch Ex.PR of the spade was prepared, that was made into a parcel that was sealed with the seal bearing impression 'HS' and seized vide memo Ex.PR/1. Sohan Lal was also wearing a trouser and shirt, that were stained with blood, at the time of his arrest. A constable was sent to bring a trouser and a shirt for him and blood stained clothes were recovered from him, that were made into a parcel, which was sealed with the seal bearing impression 'HS' and that parcel was seized vide memo Ex.PSS.

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Thereafter, Harjit Singh SHO went to Civil Hospital, Mukandpur, where, he recorded the statements of Amarjit Singh and Balraj both injured, after they were declared fit by the Medical Officer to make statement. On 28.02.2004, Inderjit Singh HC and Jaswinder Singh Constable met Harjit Singh SHO on the gate of Police Station Mukandpur and they produced shirt, salwar, undershirt and bra of Surinder Kaur (deceased), that were stained with blood. These clothes were made into a parcel that was sealed with the seal bearing impression 'HS', that was seized vide recovery memo Ex.PU. Inderjit Singh HC also produced a copy of the autopsy report of Surinder Kaur (deceased) along with other papers before Harjit Singh SHO. Thereafter, Harjit Singh SHO deposited the case property with Surinder Kumar MHC. He also directed Kashmir Singh ASI to produce, Sohan Lal accomplice of the appellant, before the Illaqa Magistrate.

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On 29.02.2004, Harjit Singh SHO along with other police officials visited the house of the complainant (Nirmal Ram) for further investigation, where, latter, produced underwear and vest of Balraj stained with blood, which were made into a parcel, that was sealed with the seal bearing impression 'HS' and was seized vide recovery memo Ex.PM. Amarjit Singh prosecution witness also produced a shirt stained with blood, which was

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made into a parcel, that was sealed with the seal bearing impression 'HS' and was seized vide memo Ex.PS. On 29.02.2004, itself, Jaswinder Ram @ Bodha (appellant), Mulakh Raj @ Mokah and Sohan Lal @ Soma were arrested in this case. Jaswinder Ram @ Bodha (appellant) was interrogated who suffered disclosure statement Ex.PX and pursuant, thereto,he got recovered datar, his underwear and vest stained with blood. Later the sketch of datar Ex.PAA was prepared and that was made into a parcel, which was sealed with seal bearing impression 'HS' by Harjit Singh SHO and was seized vide recovery memo Ex.PZ along with blood stained underwear and vest of Jaswinder Ram @ Bodha (appellant) after sealing those in a parcel that was sealed with the seal bearing impression 'HS' of Harjit Singh SHO. The site plan of place of recovery of datar Ex.PLL was also prepared.

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On 03.02.2004, Malkiat Singh Photographer produced positive copies and negatives of photographs, Ex.P5 to Ex.P15 and Ex.P16 to Ex.P26 before Harjit Singh SHO and those were seized vide memo Ex.PKK. Parcels were sent to Forensic Science Laboratory and the latter, vide report Ex.POO opined that exhibits contained in the parcels were stained with human blood. However, demonstrable blood could be detected on the pyjama, which was contained “parcel D”.

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After completion of investigation, Station House Officer of Police Station Banga, instituted police report under Section 173 Code of Criminal Procedure (Cr.P.C-for short) against the appellant and his accomplices, before the learned Illaqa Magistrate to the effect that it appeared that the appellant and his accomplices have committed offences punishable under Sections 302, 307, 326, 324 and 323 read with Section 34 IPC.

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On presentation of police report, copies of documents, as required under Section 207 Cr.P.C. were furnished to the appellant and his

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accomplices by the learned Illaqa Magistrate, who later committed the case to the Court of Session, which was entrusted to the learned trial court, where charge under Sections 302, 307, 326, 324 and 323 read with Section 34 IPC was framed against the appellant and his accomplices, whereto, they pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.

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At the trial, the prosecution examined Dr. JPS Cheema as PW1, Dr. Ravinder Singh as PW-2, Nirmal Ram-complainant as PW-3, Dr. Gurpal Singh as PW-4, Amarjit as PW-5, Balraj as PW-6, Malkiat Singh, Photographer as PW-7, Buta Singh, Draftsman as PW-8, Kashmir Singh ASI as PW-9, Harjit Singh SI/SHO as PW-10, Surjit SIngh HC as PW-11, Inderjit Singh HC as PW-12 and Surinder Kumar HC as PW-13 and closed the evidence, later.

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After the closure of prosecution evidence, appellant and his accomplices were examined under Section 313 Cr.P.C, wherein, they denied the allegations of the prosecution, pleaded innocence and false implication in this case.

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Appellant gave his own version that they were constructing a house in their own land adjacent to the house of Sohan Lal with the help of labourers and mason, who had gone to have their lunch. It was about 2.00 PM, he was all alone in there in the property, his father Sohan Lal, brothers Som Pal and Mulakh Raj were not there. In the meantime, Nirmal Ram (complainant), his sons Amarjit, Balram and his wife Surinder Kaur (deceased) intruded into their property and exhorted that he (appellant) be beaten and killed for constructing a wall. albeit. their protest and same be demolished and bricks be taken away. After saying so, they all started demolishing the wall constructed by them in their property by pushes. As a result, some of the bricks of the demolished portion fell down upon them

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and they received some injuries. Thereafter, they all started taking away the bricks to their house forcibly and he (appellant) interfered, but all of them pounced upon him in order to kill him and they had a scuffle. He apprehended death and grievous hurt at their hands and in order to protect his person and property, had given a push to Surinder Kaur (deceased) during scuffle and she fell down on the ground in their property on a spade lying near the mud mortar and received injuries on her neck. They (appellant party) received some injuries during the scuffle. He further stated that he was not armed with any weapon nor he caused any injury to Surinder Kaur (deceased). He further stated that the police changed the place of occurrence in connivance with the complainant party to a lane where no occurrence took place. He further stated that the complainant party was the aggressor and he and his accomplices were falsely implicated.

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Appellant and his accomplices were called upon to enter in defence, but they closed the same without examining any witness in defence.

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After hearing both the sides, the learned trial Court vide impugned judgment of conviction and order of sentence, convicted and sentenced the appellant and his accomplices, as described in the first paragraph of this judgment. Aggrieved, thereagainst, the appellant, who was accused before the learned trial Court has come up in this appeal with prayer for acceptance, thereof, and for his acquittal of offences punishable under Sections 302, 326 and 323 IPC

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We have heard learned counsel for the appellant and learned Additional Advocate General for the respondent and perused the record of the learned trial Court with their assistance.

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PW-1 Dr. JPS Cheema, testified that on 28.02.2004, he

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conducted the X-ray examination of Balraj-injured.

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PW-2 Dr. Ravinder Singh testified that on 27.02.2004, he conducted the medico legal examination of Amarjit Singh and found the following injuries on his person:

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Lacerated wound 3 cm x 0.5 cm over scalp. It is skin deep. Fresh blood was present. It is above 15 cm above the upper pole of left ear pinna:

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He proved the carbon copy Ex.PA of the medico legal examination of Amarjit Singh. He also proved the pictorial diagram Ex.PA/1, showing the seats of injuries.

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PW-2 Dr. Ravinder Singh also conducted the medico legal examination of Balraj and found the following injuries:

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An abrasion 1.5 cm x 1 cm, just below the lateral border of left eyebrow. Fresh bleeding was present.

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A defuse swelling around the left eye present. It was black in colour, conjunctive or left eye is red in colour.

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An incised wound 3 cm x 0.5 cm over dorsum of and inner side of left middle finger. It is 2 cm distal to the base or left middle finger. Fresh bleeding present. It is muscle deep. Advised X ray and orthopedic surgeon's opinion.

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An incised wound 3 cm x 0.5 cm over dorsum and inner side of left ring finger. It is 3 cm from the base of finger. It is bone deep. Fresh bleeding present. Advised X ray and orthopedic surgeon's opinion.

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An incised wound 3 cm x 0.5 cm over dorsum of left little finger. It is 4 cm distal to the base of finger. It is muscle deep. Fresh bleeding present advised X ray and orthopedic surgeon's opinion.

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PW-2 Dr. Ravinder Singh, declared the nature of injuries No.1 and 2, as simple in nature, while kept injuries No.3, 4 and 5 under observation. He also stated that kind of weapon used was blunt for injuries Nos.1 and 2 and sharp for injuries Nos. 3, 4 and 5. He also proved Ex.PB, the carbon copy of the medico legal examination of Balraj, as also, Ex.PB/1, the pictorial diagram showing the seats of injuries. He also

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testified that after X-ray examination, nature of injuries Nos. 3, 4 and 5 was declared as grievous in nature. He also proved the report of Radiologist Ex.PC, as also, his report Ex.PC/1. He also proved the orthopedic opinion Ex.PD.

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PW-2 Dr. Ravinder Singh, on the same day, also conducted the medico legal examination of Nirmal Ram (complainant) and found the following injuries:

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A bruise 18 cm x w cm over right side of back. It is 2 cm lateral to the mid line and the 30 cm. Below the right acromion process. It is raddish in colour, advice X-ray.

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A defused swelling is present on head of right radius. It is red in colour. advised X-ray.

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An incised wound 2 cm x 0.5 cm is present over the palmur surface of left little finger. It is skin deep. Clotted blood was present.

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He testified that the nature of injury No.3 was simple and injuries Nos. 1 and 2 were kept under observation. He also testified that kind of weapon used was blunt for injuries No. 1 and 2 and sharp for injury No.3. He also proved the carbon copy of medico legal report Ex.PE and pictorial diagram Ex.PE/1 showing the seats of injuries. He also declared injuries No.1 and 2 as simple in nature, after X-ray report vide his opinion Ex.PF.

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PW-3 Nirmal Ram the injured, as also, complainant of this case, deposed as per his statement Ex.PK, that has been reproduced in the earlier part of this judgment. He categorically testified that on 27.02.2004 at about 3.00 PM, Sohan Lal and his sons namely Som Pal, Mulakh Raj, Jaswinder @ Gonda (appellant) were constructing a wall after leaving 4”/5” gap from his wall. Thereupon, he along with his wife Surinder Kaur (deceased) and sons Balraj and Amarjit told them that the gap which they have left will damage their property during the rainy season, but they did not listen to them and continued their work and they were again told not to

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do this and, thereupon, Sohan Lal accomplice of the appellant raised lalkara and, thereupon, Jaswinder @ Bodha (appellant) gave a datar blow from its reverse side on his back and his brother Sohan Lal picked up a spade and tried to gave blow on his head and to save himself, he raised his left hand and blow hit on the little finger of his left hand and, thereafter, his wife Surinder Kaur (deceased) came forward to rescue him, then appellant ran after her with datt and in order to save herself, she ran, but after covering about 60-65 feet, appellant gave datar blow on the left side of her neck and after receiving the blow, she immediately fell down and died at the spot.

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He further testified that when his son Balraj came forward, Jaswinder @ Bodha (appellant) again gave datt blow towards the head of his son Balraj, but he saved the same by raising his left hand and that blow hit on the back side of palm. He further testified that they raised hue and cry and people gathered there and the appellant and his accomplices ran away with their respective weapons.

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He also testified that the police lifted the blood stained earth and put that into a small plastic box that was sealed into a parcel and was seized vide memo Ex.PL. He also testified that he produced his own shirt and pyjama before the police, as also, salwar, kameez and chunni of his wife and a parna before the police, that were stained with blood and those were seized vide memo Ex.PM, which was signed by him. Parna Ex.P1, chunni Ex.P2, shirt Ex.P3, Pyjama Ex.P4 were produced in the Court during his deposition.

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PW-4 Dr. Gurpal Singh testified that on 28.02.2004, he conducted the autopsy on the corpse of Surinder Kaur (deceased) and found the following injury, thereon:

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Incised wound 7.5 cm x 2 cm, present on the left side of neck

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starting 3 cm from the mid line extending upward and backward, 5.5 cm. below the left ear, clotted and fluid blood was present, underlying muscles, soft tissue, blood vessels and bones were cut. Injury was tendentially present going downwards.

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He further testified that all the injuries were ante mortem in nature and the cause of death in this case was shock, as a result of hemorrhage and injury to the spinal cord, which was sufficient to cause death in the ordinary course of nature. He further testified that he handed over to the police stitched dead body, carbon copy of the autopsy report and police papers in original (1 to 22 pages) initialled by him. He also testified that probable time between injury and death was about within a few minutes and between death and postmortem examination was within about 12 to 24 hours. He also proved the police request Ex.PO for conducting autopsy on the corpse of Surinder Kaur (deceased). He also proved Ex.PQ, the carbon copy of the autopsy report, Ex.PQ/1 pictorial diagrams and papers consisting 1 to 22 pages.

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PW-5 Amarjit, who was also injured in this incident, narrated the occurrence and corroborated the testimony of his father Nirmal Ram (PW-3), which need not to be reproduced.

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PW-6 Balraj was also injured in this incident, he also narrated the occurrence and corroborated the testimonies of PW-3 and PW-5.

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PW-7 testified that on 27.02.2004, he had gone to village Sarhal Quazian and took the snaps of the place of occurrence. He proved the positives of photographs Ex.P5 to Ex.P15 and negatives, thereof, Ex.P16 to Ex.P26.

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PW-8 Buta Singh Draftsman prepared the site plan Ex.PT.

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PW-9 Kashmir Singh ASI deposed on the line of investigation that was conducted by Harjit Singh SI/SHO, which has been reproduced in the earlier parts of this judgment.

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PW-10 Harjit Singh SI/SHO is the investigating officer of this case and he deposed on the line of investigation, which has been reproduced in the earlier parts of this judgment.

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PW-11 Surjit Singh HC tendered in evidence, his affidavit Ex.PW11/A.

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PW-12 Inderjit Singh HC got conducted autopsy on the corpse of Surinder Kaur (deceased) and deposed on those lines.

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PW-13 Surinder Kumar HC tendered in evidence his affidavit, Ex.PW12/A.

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Learned counsel for the appellant contended that the occurrence had taken place in the house of the latter and the police change the same to a lane. She also contended that there was a scuffle and Surinder Kaur (deceased) fell on the spade and received injuries, whereto, she later succumbed. She also contended that PW-3 (Nirmal Ram) pronto after the occurrence went to the police station and got recorded DDR Ex.DA, wherein, he had not given detail of the injuries allegedly ascribed to the appellant and his accomplices, as also suffered by him and the injured witnesses, as also his deceased-wife (Surinder Kaur). She also contended that later, Nirmal Ram (PW-3) in connivance with the police altered the entire version and got recorded the statement Ex.PK and digressed from report Ex. DA and changed his version different from the version, that was recorded in the DDR, copy Ex.DA.

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It was also contended that DDR copy Ex.DA was lodged at 3.45 PM on 22.02.2004, while statement Ex.PK was suffered by PW-3 (Nirmal Ram) at 4.30 PM and during this period of 45 minutes, PW-3 (Nirmal Ram) in connivance with the police introduced an entirely different version. She also contended that there was a scuffle and in the melee, Surinder Kaur (deceased) fell on the spade, received injuries and succumbed, thereto,

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later. She also contended that the appellant did not cause any grievous hurt to any witness and, therefore, he is entitled to be acquitted of offence punishable under Sections 302 and 326 IPC.

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On the other hand, the learned Additional Advocate General, Punjab contended that there is no infirmity or illegality in the impugned judgment of conviction and order of sentence, therefore, the appeal may be dismissed.

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There is no gainsaying about the occurrence having been taken place in village Sarhal Quazian on 27.02.2004 at 3.00 PM. There is no gainsaying about the fact that the appellant and his accomplices were raising a wall by making a space of 4”-5” from the house of PW-3 (Nirmal Ram). In order to lodge protest, PW-3 (Nirmal Ram), his sons Balraj and Amarjit and his wife Surinder Kaur (deceased) went there. It is, however, not made out from the record that PW-3 (Nirmal Ram), PW-5 (Amarjit) and PW-6 (Balraj) and deceased (Surinder Kaur) were armed with any weapon. There is no injury on the persons of the appellant and his accomplices.

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When, PW-3 (Nirmal Ram), PW-5 (Amarjit) and PW-6 (Balraj) and the deceased (Surinder Kaur) were not carrying any weapon. Obviously, they could not be termed as aggressors, as also, they could not be held to have provoked, appellant and his accomplices to cause injuries to them.

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Testimonies of PW-3 (Nirmal Ram), PW-5 (Amarjit) and PW-6 (Balraj) corroborate each other and no motive can be ascribed to them to testify falsely in this case. Their protest was genuine and that should have been taken care of by the appellant and his accomplices. It was not required of them to get provoked to the extent of causing death of Surinder Kaur (deceased) and injuries to PW-3 (Nirmal Ram). All the eye witnesses were subjected to searching cross-examination by the learned counsel for

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the appellant before the learned trial Court, but the long cross-examination, conducted, thereon, fail to elicit anything worth the name, which could possibly cause any dent in their testimonies. No motive can be ascribed to them to testify falsely in this case. The ocular evidence has been corroborated by the medical evidence of PW-1 (Dr. JPS Cheema), PW-2 (Dr. Ravinder Singh) and PW-4 (Dr. Gurpal Singh) .

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It is not doubt true that there are two versions in this case. One is by DDR Ex. DA, the other version is vide FIR Ex.PK. In the examinationin-chief, Nirmal Ram (PW-3) testified that his wife Surinder Kaur (deceased) came to rescue him, then Jaswinder @ Bodha (appellant) ran after her with dat and she in order to save herself ran out. After covering about 60-65 feet, appellant gave dat blow on the left side of her neck, who after receiving the blow immediately, fell down and died on the spot. PW-3 (Nirmal Ram) was cross-examined on 17.09.2005 and 14.06.2006. However, it was not put to him during his cross-examination that it was wrong that he ran after deceased (Surinder Kaur) to cause injury, which is not mentioned in the first and second version.

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Indeed, appellant chased the deceased (Surinder Kaur) and inflicted injury on the vital part of her body i.e neck, with dat, which is a sharp edged weapon. This reveals that the plea of self defence taken by the appellant is not made out. Such plea could be held to have been proved in this case, if, deceased had been carrying any weapon and attacked the appellant, therewith.

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Blood stained datar in this case was also recovered from the appellant, pursuant to, his disclosure statement by the Investigating Officer. That was sent to the Forensic Science Laboratory and the latter, vide report Ex.POO opined that the same was stained with human blood. If, the appellant did not intend to commit the murder of Surinder Kaur (deceased),

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in that event, he would not have run after her and caused injury on the vital part of her body with datar.

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Version of the appellant shoving the deceased during scuffle and she having fallen on the ground, on a spade lying there is also not established, as the injury as per the testimony of PW-4 (Dr Gurpal Singh) is on the left side of the neck of the deceased (Surinder Kaur), starting 3 cm from the mid line extending upward and backward 5.5 cm below the left ear. Seat of injury is such that it was inflicted in a specific area with intention to murder Surinder Kaur (deceased). Seat of injury is not such, which could be due to fall on the spade.

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PW-4 (Dr. Gurpal Singh) in the cross-examination testified that there is possibility of injury having been suffered on the neck of the deceased (Surinder Kaur) by fall on the sharp side of spade lying on the ground with force cannot be ruled out. He has only given a possibility. It was not a definite opinion that this injury, on the neck of the deceased (Surinder Kaur), could be suffered by a fall on a spade lying on the ground.

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Injury is on the left side of neck of Surinder Kaur (deceased), therefore, possibility of, it being suffered by fall on the spade lying on the ground, is ruled out. If it would have been on the throat or on the back of the neck, only then, it could be said to have been suffered by fall on the spade lying on the ground. Injury on the left side of the neck of the deceased (Surinder Kaur) could only be given by the appellant with his right hand by datar. So, the contention of the learned counsel for the appellant that the injury was suffered by the deceased by fall on the spade being devoid of merit, ought to be and is, hereby repelled.

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This Court in Satnam Singh v. State of Punjab, 2004 (1) RCR

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(Criminal) 974; held that accused gave fist blow hitting amblicus of victim causing her death. It was held that accused cannot be posted with the

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knowledge that the death was likely to result. Offence would fall under Section 323 IPC. Conviction under Section 304 IPC was set aside.

¶126

Learned counsel for the appellant placed reliance upon the judgment (supra), but it does not apply in the case in hand, as the injury was caused by datar by the appellant on the neck of the deceased (Surinder Kaur), but in the judgment (supra), only fist blow was given, so no benefit can be accorded to the appellant on the basis of this judgment.

¶127

Learned counsel for the appellant also placed reliance upon Jagat Singh v. State of H.P., 2011 (2) SCC 234; wherein, conviction of accused under Section 302 IPC was converted to one under Section 323 IPC. There was a free fight over land dispute at spur of moment. There was no intention to kill. Main accused who gave blow on chest of deceased died during pendency of appeal before High Court. Appellant, who had caused hurt on body of deceased, was held guilty of offence under Section 323 IPC. His conviction under Section 302 was set aside.

¶128

We fail to understand, as to how this judgment is applicable to accord benefit of doubt to the appellant, as there was no free fight in the case in hand between the parties. While on the contrary, the blow on the neck of the deceased (Surinder Kaur) is such that reveals the intention of the appellant to kill the deceased (Surinder Kaur). If, the appellant had no intention to kill the deceased, in that event, he should have allowed her to run and should not have chased her for killing. The very chasing of deceased (Surinder Kaur) by the appellant is manifests that he did this act of chasing the deceased (Surinder Kaur) in order to kill her.

¶129

In these circumstances, the learned trial Court rightly held the appellant guilty for commission of offence punishable under Section 302 IPC.

¶130

Appellant also caused one hurt to PW-3 (Nirmal Ram) with datar,

¶131

CRA No. D-217-DB of 2007

¶132

- 18-

¶133

that falls within the ambit of Section 323 IPC

¶134

The learned trial Court rightly held the appellant guilty for commission of offence punishable under Section 323 IPC

¶135

Appellant is also held guilty for causing grievous hurt to Balraj (PW-6) and, therefore, he was rightly convicted for commission of offence punishable under Section 326 IPC.

¶136

There is, thus, no illegality or impropriety in the impugned judgment and order of sentence, ought to be and are, hereby upheld and affirmed.

¶137

Resultantly, the appeal fails and is, hereby dismissed.

¶138

(S.P. BANGARH) (S.S. SARON) JUDGE JUDGE

¶139

February 22, 2013 sham

Jaswinder Ram v. St of Pb

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Jaswinder Ram v. St of Pb

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