HEMRAJ Vs. STATE

JUDGEMENT

(1.) This appeal by Hem Raj and two others has been preferred against the judgment dated 24.11.92 and the order dated 26.11,92 passed by an Additional, Sessions judge whereby all the three appellants have been convicted under Section 302 and 323 read with Section 34 Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500.00 each under Section 302/34 Indian Penal Code and to three months" rigorous imprisonment under Section 323/34 Indian Penal Code each. In default of payment of fine. each of them was to further undergo rigorous imprisonment for six months.

(2.) Case of the prosecution, in brief, is that on 7.11.89 on receipt of copy of DD No.27-A. AS1 Mange Ram Public Witness-26 reached B-4 Block. Sultanpuri. where Puran Public Witness-14 and Radha met him in injured condition and both of them w ere sent to hospital by him. On receipt of copy of yet another DD No.28-A. Public Witness-26 reached RML hospital and collected MLC No. 108685/89 relating to Daulat Ram who was declared unfit for making statement. Lal Chand Public Witness-9. who claimed himself to be an eye-witness of the occurence, met Public Witness-26 in the hospital and he recorded his statement exhibit Public Witness-9/A to the effect that that day at about 8,00 P.M. after he reached the house from the place of his work. he saw Radha, Chunni Lal and Hem Raj. hurling abuses to Public Witness-8 Smt. Heeri. wife of Daulal Ram and Daulal Ram asked all three of them not to hurl abuses. In the meantime, his father Puran Public Witness-14 came there and he too objected to the hurling of the abuses. Thereupon, Chunni Lal exhorted his mother and brother saying "Aaj inkole lo". Thereafter, Radha caught hold of Daulat Ram. Chunni Lal gave a lathi blow on the head of Puran while Hem Raj assaulted with the handle of a hand-pump on the head ofDaulat Ram. As a result of the assaults. Puran started bleeding from his head while Daulal Ram fell on the ground after having become unconscious. On seeing the serious condition of his uncle Daulat Ram he took him to RML hospital. On the basis of this statement, case under Section 308/34 Indian Penal Code was registered against Hem Raj. Chunni Lal and Radha accused. During investigation Public Witness 26 lifted blood, clothes and handle of the handpump from the place of. occurrence besides arresting accused Radha. Daulat Ram expired on 8.11.89 in the hospital. Inquest proceedings were conducted by S I Raghunandan Singh. Public Witness 17 and he also sent the body of Daulal Ram for postmortem to Civil Hospital. On 1.11.90 accused Chhuni Lal and Hem Raj were arrested by ASI Bhirn Singh of the Special Staff. Public Witness 6. Injuries suffered by Puran Public Witness, 14 have been opined to be simple, caused by a blunt object by the concerned doctor. Offence commuted by the accused after the expiry of Daulat Ram was converted u/s 302/308 Indian Penal Code and after completing the investigation challan was. filed against them.

(3.) Contention advanced on behalf of the accused-appellant w as that Chunni Lal and Radha cannot be held vicariously liable with the aid of Section 34 Indian Penal Code along-with Hem Raj for committing the murder of Daulat Ram and further that it being a case of sudden fight in the heat of passion and without pre- meditation is covered by Exception-4 to Section 300 Indian Penal Code and is punishable under Section 304 instead of Section 302 Indian Penal Code. Strong reliance w as placed on the authorities of Hari Ram vs. State of Haryana (1983)1 SCC-193 and Dalla and others vs. State of Rajasthan (1987) Suppl. SCC 179. Reference to the statements of Smt. Heeri. Public Witness 8. Lal Chand. Public Witness 9 and Puran. Public Witness 14. the alleged eye witnesses have become necessary for appreciating the submission referred to above. Public Witness 8 has deposed that the house of the accused is situated just at the back other house and the roofs of both the houses adjoin each other. Roof other house is of asbestos sheets and because of throwing of 'malba" etc. by the accused asbestos sheets of the roof other house had broken. About two-and-a half year back w hen she told Radha. accused not to throw "malba' etc. on the root she started abusing her. At about 8.00 PM Hem Raj accused armed with the handle of hand pump and Chunni Lal. armed w ilh a lathi also came there. Daulat Ram. her husband, Puran,. brother other husband and his son Lal Chand too reached there. When her husband asked Radha, accused not to hurl abuses, she caught hold of him. Chhuni Lal exhorted saying' Aaj inko lelo'. Thereafter Chunni Lat gave a lathi blow on the head of Puranwhile Hem Raj inflicted a blow with the handle of the handpump on the head of her husband, as a result whereof the latter started bleeding from the head profousely. Accused Chunni Lal ran aw ay along with lathi while Hem Raj also fled leaving behind the handle of the hand pump on the spot. Lal Chand removed her husband to RML hospital. EX.PI is the handle of the handpump used by accused Hem Raj for assaulting her husband. It w as seized by the police from the spot in her presence after about two hours of the occurrence. In cross-examination she has stated that the trouble on throwing the 'malba' etc, started about 6.00 P.M. and there had been exchange of hot words between her and Radha accused for about an hour. She had pleaded ignorance that any person by the name Radhey w as living with the accused and used to ply three wheeler scooter. She has emphatically denied the suggestion that Radhey gave a blow w ith the handle of the hand pump on the head other husband and Chunni Lal and Hem Raj accused w ere not present at the spot at the time the occurrence took place. In their depositions Lal Chand Public Witness-9 and Puran Public Witness-14 have fully corroborated the testimony of Public Witness-8 on the points of hurling abuses by Radha accused, exhortation held out by Ghunni Lal accused, catching hold of Daulat Ram deceased by Radha and assault by Hem Raj and Chunni Lal on the deceased and Public Witness-14 respectively with the w eapons they w ere armed w ith. How ever, according to both of them, Radha accused caught hold of the deceased before exhortation was held out by accused Chunni Lal.