PARKASH CHAND Vs. STATE OF H.P

JUDGEMENT

(1.) THIS appeal has been filed by the appellant against the judgment of the Court of learned Presiding Officer, Fast Track Court, Hamirpur, dated 31.12.2005, vide which the appellant was held guilty under Section 307 I.P.C. and convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-. In default of payment of fine, the appellant was to undergo simple imprisonment for a period of 1 1/2 years.

(2.) BRIEFLY stated the facts of the case are that on 30.12.2002 a statement under Section 154 Cr.P.C. was made before the police by Smt. Kamlesh Kumari wife of Bidhi Chand that her husband is serving in Merchant Navy and had come on leave. Today at about 9.30A.M. her husband had gone along with the labourers for cutting of Tuhni tree and Parkash Chand, appellant, (hereinafter referred to as accused) who is the elder brother of her husband came there along with Darat and gave abuses. He asked her husband to leave the place, failing which, he will kill him and will not allow him to cut the Tuhni tree. Her husband told the accused that this Tuhni tree belongs to him and he will get it cut since he is in need of it. Thereafter, Parkash Chand attacked her husband with Darat and gave a blow of Darat on his head and blood started oozing out. She along with Dev Bahadur and other persons present there rescued her husband. It was further alleged that Parkash Chand was having dispute with her husband in regard to the land and had earlier also threatened to take his life. On this report, a case was registered by the police and on investigation, the challan under Section 307/506 I.P.C. was filed against the appellant. The challan was committed to the Court of learned Sessions Judge and it was assigned to the learned trial Court who tried the appellant under Section 307/506 I.P.C. The appellant was held guilty under Section 307 I.P.C. only and was convicted and sentenced as detailed above.

(3.) THE submissions made by the learned counsel for the appellant were that the complainant party had come to the spot along with 6 Charanies sand since they were armed with the weapon used for cutting of the tree, no injury was inflicted by the appellant. It was also submitted that the complainant gave danda blows to the accused and in the process of rescuing himself, a scuffle took place and the complainant fell down on the ground and received the injuries. It was also submitted that the land where the Tuhni tree existed belongs to the appellant and since tree was being forcibly cut, in the alternative he had only given one blow in defence and there was no direct attack. It was also submitted that the appellant had got the possession of the land where the tree stands in family settlement and the right of defence in the alternative was available to the appellant who exercised this right. The presence of the appellant at the spot and cutting of the tree by the complainant party was not disputed. It was also submitted that the Medical Officer has opined that the blow was given with blunt side and not with the sharp side and as such, the provisions of Section 307 I.P.C. are not attracted. It was further submitted that since the injured had received the injury on head by fall or during scuffle, the appellant is not liable and in the alternative, only one injury was caused with blunt side in exercise of right of private defence and, therefore, the appellant cannot be held liable under Section 307 I.P.C. In the alternative, it was pleaded that the quilt is established, if any, under Section 325 I.P.C. On the sentence imposed it was submitted that the appellant had no criminal history and accused is a aged person and because of the relations in between the parties, the appellant deserves leniency of the Court and the sentence awarded deserves to be reduced considerably.