VARINDER PAUL Vs. STATE OF H.P.

JUDGEMENT

(1.) THE present two appeals are directed against the same judgment of the trial Court and, therefore, they are being disposed of by a common judgment. One appeal, titled Varinder Paul v. State, No. 365 of 1995, is directed against that part of the judgment of the trial Court whereby appellant has been convicted of offence, under Section 304 (second part) IPC and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs. 5,000/ - in default of payment of fine to undergo rigorous imprisonment for a further period of one year. Second appeal by the State, which is titled State v. Varinder Paul and others, No. 263 of 1996), is directed against that part of the judgment of the trial Court whereby four other persons, who were put on trial alongwith convict Varinder Paul, appellant in the first mentioned appeal, have been acquitted and also against the finding of the trial Court that the act of convict Varinder Paul amounts to an offence punishable under Section 304 (second part) and not Section 302 IPC, with which offence he was charged.

(2.) FIRST , we may sum up the prosecution case. PW -2 Tara Chand, the father of deceased Sat Pal, had been having a dispute with respondent Ishwar Dass over a piece of land measuring few Marlas. The dispute arose after the consolidation that had taken place in the year 1978 -79. PW -2 Tara Chand filed an application before the Revenue Officers alleging that in the consolidation of 1978 -79 the area of his land had been reduced and shown to be a part of the adjoining land of respondent Ishwar Dass. Respondent Ishwar Dass claimed that the land, which had been shown as part of his holding, was in use as passage to his adjoining property and so it had rightly been excluded from the area re -allotted to PW -2 Tara Chand, on consolidation. Naib Tehsildar (Settlement) told the parties that he would be visiting the spot on 6.9.1993 to verify whether there existed any path or not. On 6.9.1993, the said Naib Tehsildar reached the village and went to Palwarkhana. Respondent Ishwar Dass, accompanied by his three sons, named Varinder Paul, Jatinder Paul, Surinder Paul, who are his co -respondents in the State appeal, and respondent Sanjay Mathur, went to the spot and started uprooting the fence put up by PW -2 Tara Chand. on coming to know that the fence was being uprooted/damaged, PW -2 Tara Chand went to the spot and asked respondent Ishwar Dass and his sons not to disturb the spot position, as the Naib Tehsildar was to carry out the inspection that very day. That enraged the respondents and they started giving beatings to PW -2 Tara Chand. When PW -2 Tara Chand raised alarm, his son deceased Sat Pal rushed to the spot. As soon as he reached the spot, convicted Varinder Paul uprooted a pole, forming part of the fence, and hit deceased Sat Pal on the right temporal region, as a result of which he fell on the ground. Other four respondents also picked up dandas and started hitting the deceased. PW -3 Shukardin, one Pritam Singh, one Rajinder and one Suresh reached the spot on hearing commotion. They rescued PW -2 Tara Chand and his deceased son Sat Pal. PW -4 Sukh Chain, PW -5 Rachna Devi and PW -8 Satya Devi, not named in the FIR as witnesses, also reached the spot and they too helped in rescuing PW -2 Tara Chand and his deceased son Sat Pal. Residents of the village proceeded with injured Sat Pal to the hospital at Dehra. On the way he succumbed to the injuries. Dead body was taken to the said hospital. Medical Officer of the hospital informed the police telephonically. Entry was made in the Rojnamcha. Copy of that entry is Ex.P -30.

(3.) PW -2 Tara Chand was medically examined. PW -14 Dr. Anita Mahajan conducted the medico legal examination. PW -2 Tara Chand complained of pain in the left parietal region, lower half right forearm and left shoulder, but the doctor did not notice any injury, except tenderness of right forearm.