VIPAN KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Five accused namely Kulfi Ram alias Ram Saran Dass (A -l), Vipan Kumar (A -2), Smt. Parkasho Devi (A -3), Raj Pal (A -4; and Jasbir Singh (A -5) were tried for offences under section 302 read with sections 147, 148 and 149 of the Indian Peoal Code by Sessions Judge, Una The Sessions Judge acquitted Kulfi Ram alias Ram Saran Dass and convicted A -2, A -4 and A -5 for offence under section 325, I. P. C for causing grievous hurt to deceased Raj Kumar and sentenced to pay a fine of Rs. 10,000 each and in default of payment of fine to undergo simple imprisonment for two years each Out of this amount of fine, each accused is directed to pay Rs. 8,000 as compensation to the wife and children of the deceased and in their absence to the mother, A -2 and A -3 were convicted for the offence under section 323, L P. C. for causing simple injuries to PW Smt. Bhagwani Devi and sentenced to pay fine of Rs. 1,000 each and in default of payment of fine to suffer simple imprisonment for three months each. The entire amount of fine was ordered to be paid as compensation to complainant Smt. Bhagwani Devi. A -5 was also convicted for offence under section 323, I. P. C. for causing simple injury on the person of PW Malkiat Singh and sentenced to pay a fine of Rs. 1,000 and in default of payment of fine to suffer simple imprisonment for three months. The amount of fine is ordered to be paid as compensation to injured Maikiat Singh.

(2.) The accused persons have preferred Criminal Appeal No. 264 of 1990 against their conviction and sentences whereas the State of Himachal Pradesh preferred Criminal Appeal No. 441 of 1990 against the acquittal of the accused persons under sections 143/148/302/323 read with section 149, I. P. C. We proceed to decide both the appeals by this common judgment, as they arise out of the same incident and single judgment of the trial Court.

(3.) The facts that emerge from the prosecution case may briefly be stated: "A -l was having some land dispute with the complainant party. He was the real ˜Devar (huabands brother) of complainant Smt. Bhagwani Devi and their ˜Abadi is joint. A -1 constructed a house over some part of the Abadi in village Bhanjal Tehsil Amb and the shuttering of the lintal was removed on 1 -9 -1958. In front of the newly constructed house of A -l, there is a passage of the complainant party and adjoining to the passage is the land of Raj Kumar son of Complainant Bhagwani Devi. A -l was planning to construct a varandah in that passage, Raj Kumar fenced that portion with the barbed wire in order to desist A -l from doing so. In the morning on the day of occurrence L e. 16 -9 1988 the barbed wire allegedly uprooted by A -l with the help of his family members and in the evening when Raj Kumar and Malkiat Singh two sons of complainant came back in the house they were informed by their mother Smt. Bhagwani about uprooting of barbed wire Raj Kumar questioned A -l at about 7.30 p. m. in this regard while Malkiat Singh was draining out the water from the land with Kassi (spade), A -l denied having uprooted the wire and started exchanging the words arid in the meantime his wife (A -3), son (A -2) and two more relatives namely A -4 and A -5 came there armed with ˜Dandas. The brother -in -law of A -4 snatched the Kassi from Malkiat Singh and hit Raj Kumar, Smt Bhagwani Devi and Malkiat Singh with it and the remaining accused also gave beatings to all the three with Dandas as a result of which they sustained blood injuries. They made a noise; on hearing Smt. Sudesh Kumari reached at the spot and at her sight the accused persons ran away from the scene of occurrence. Smt. Bhagwani Devi informed Member Panchayat Sita Ram Up Pradhan Jagdish Ram and Pradhan Kashmir Singh who removed the injured in the tractor to Primary Health Centre at Amiehar where they were medically examined by Doctor Y. P. Sharma, (PW 8) Medical Officer who also informed the Police on telephone at 10.30 p m. He referred injured Raj Kumar to District Hospital Una as his condition was critical Later on Raj Kumar was referred to Post Graduate Institute at Chandigarh where he ultimately succumbed to the injuries on 21 -9 -l988/ at about 10 -35 p. m." Head Constable Krishan Kumar proceeded to the spot and recorded the statement of Smt. Bhagwani Devi under section 164, Cr. P. C. on the basis of which formal F. L R. (Ex. PGG) was registered at Police Station, Amb on 17 -9 -1988 at 1 a.m. At the first instance the case under sections 147, 148, 149 and 323, I. P. C was registered against the accused persons but lateron it was converted into offence under section 302 read with sections 147, 148 and 149, L P. C, During investigation of the case bloodstained clothes of Smt, Bhagwani Devi and Malkiat Singh were taken into possession. Weapons of offence were also recovered and taken into possession. The post -mortem of Raj Kumar was conducted by Doctor J. R. Chauhan, Medical Officer, Chandigarh Hospital, Sector 16 Chandigarh. On the completion of the investigation charge -sheet was laid before the Sub -Divisional Judicial Magistrate, Amb who committed the case to the Sessions Court for trial,