Decided on December 12,1952

SHANKAR Appellant
STATE Respondents


- (1.)THIS is an appeal by the accused Shankar Sunar of Ramnagar who has been convicted by the Sessions Judge, Alwar under sec. 304 Part 2 of the Indian Penal Code and sentenced to 5 years' rigorous imprisonment.
(2.)THE prosecution story is that on the 14th of October, 1951 about noon time the deceased Parbhati and the accused Shankar along with his nephew Roshan were smoking and chatting in the temple gate of Baba Sarjudas in village Ramnagar. Balu and Sheodan were also there. THE deceased Parbhati asked Shankar why he had allowed his three children to dine at a feast given by Baba Sarjudas a few days before. Shankar said that it was no business of Parbhati to take him to task for that but Parbhati said that he would have asked the children to stand up and not allowed to take their food had he so chosen. Shankar questioned the authority of Parbhati for doing so, on which Parbhati slapped Shankar on his face. Some of the persons who were sitting there hurried to separate the two but Roshan bodily lifted Parbhati and threw him on the ground, Shankar who was smoking, took his smoking-pipe (hukka) and gave a blow to Parbhati on his head from the metal side of it. This caused a grievous injury in the head and Parbhati began to bleed. Shankar and Roshan took to their heels and Baba Sarjudass and others who were on the spot bandaged Parbhati and thereafter Balu and Sheodan took him to his house. Nathia a relation of Parbhati hurried to the Police Station and made a report sometime in the evening of the same day. THE Police came upon the scene, prepared site plan and seized the blood-stained cap of the deceased produced by Nathia. Parbhati who had become unconscious was taken to Bansur dispensary where he succumbed to his injuries soon after. THE post-mortem of his body was conducted at 12 noon next day by the Medical Officer, Bahror. THE case was challaned in the Court of the Sub-Divisional Magistrate, Bahror against both the accused, but Roshan died during the enquiry. Shankar was committed to Sessions Court at Alwar to take his trial under sec. 304 Part (2) of the Indian Penal Code.
The accused denied the charge and pleaded alibi. The learned Sessions Judge was, however, satisfied from the prosecution evidence that the charge under sec. 304 Part (2) had been brought home to the accused and consequently convicted him. of the said offence and sentenced him as above.

This appeal has been lodged by Shankar from Jail.

I have heard Mr. Ram Avtar Gupta for the State and have also gone through the record of the case. There is no doubt that in the First Information Report which was lodged soon after the occurrence, Nathia had stated that there was an altercation between Roshan and Shankar on one side and Parbhati on another during which Shankar felled Parbhati on the ground and Roshan gave lathi blows and Shankar gave a blow with the metal portion of the smoking-pipe. At the time of the trial, three eye-witnesses, Baba Sarjudas (P. W. 3), Sheodan (P. W. 2) and Balu (P. W. 4) have all deposed that the only blow which was given to Parbhati was with the metal portion of the smoking-pipe by Shankar. They have deposed that Roshan simply threw the deceased on the ground and have denied that Roshan gave any lathi blow to the deceased. There is, therefore, some discrepancy between the statement in the Police Report and the statements of the three eye-witnesses. The three eye-witnesses are, however, altogether independent witnesses and they had no reason to state falsely against Shankar. So far as the blow with the metal portion of the smoking-pipe by Shankar is concerned it is clearly mentioned in the First Information Report. The First Information Report, therefore, bears out the testimony of the three eye-witnesses in this respect. The First Information Report is not a substantive piece of evidence and may be used only for the purposes of corroboration or contradiction. Therefore, whatever is written in the First Information Report can not be taken to be substantive evidence. It is true that it, to a certain extent, gives a version different to that of the eye-witnesses in as much as it mentions the wielding of lathi by Roshan and hitting the deceased with it, but there is no evidence on the record to that effect. The medical evidence also shows that there was only one external injur on Parbhati at the time of his post-mortem examination. Therefore, it appears that the statements about the lathi blows in the First Information Report were not correct. Nathia who made the First Information Report was not an eye-witness. He received information from the other persons in the hurry of the moment and rushed to the Police Station to make the report. It may be that either the person who passed on the information to him gave him some vague and confused information or Nathia himself did not fully grasp what was said to him. The fact, however, remains that the main accusation against the accused about the hitting of Parbhati's head with the metal portion of his smoking-pipe finds a specific mention in the First Information Report and is also proved by the evidence of three disinterested witnesses Baba Sarjudas. Sheodan and Balu. These three witnesses have not at all tried to exaggerate the things. They have given a very graphic description of how the fight took place and there was absolutely no reason to disbelieve their testimony. They did not mince matters and frankly deposed before the court that Parbhati first gave a slap to Shankar's face, on which Roshan threw him on the ground and Shankar gave him a blow with the metal portion of the Hukka. They are corroborated by the Medical evidence which shows that there was only one external injury on the head on left parietal region of the deceased. It is, therefore, quite clear that the accused Shankar gave a blow to the deceased on his head with the metal portion of his pipe.

It appears that in the lower court, the defence argued that whatever the accused did was in the right of private defence as Parbhati had first slapped him. I am in agreement with the learned Sessions Judge that in the circumstances of the case it can not be said that the accused had any right of private defence of person. He was accompanied by his nephew Roshan and all that the deceased did was to slap him once. There is no evidence to show that there was apprehension on the side of the accused that grievous hurt or death would be caused to him if he did not hit the deceased with his Hukka. The accused gave the blow with his Hukka when the deceased had already been felled on the ground by Roshan and thereafter, in any case, it can not be said that there was any apprehension to the accused or his nephew from the side of the man who had fallen. The accused, therefore, had no right of private defence of person and it has been rightly negatived by the learned Sessions Judge. The accused ought to have known that when he was hitting the skull of the deceased with the metal portion of his Hukka, he was hitting a vital part and that death might ensue therefrom. According to the medical evidence the death was due to the injury on the head. The appellant was, therefore, rightly convicted under sec. 304 Part (2) of the Indian Penal Code.

As regards the sentence, there was certainly provocation to the accused from the side of Parbhati. It was Parbhati who first slapped Shankar. Under the circumstances it was not surprising that Shankar lost his balance of mind and dealt a Hukka blow to the accused. The sentence of five years' rigorous imprisonment, therefore, seems to be excessive under the circumstances of the case.

The appeal is partially allowed. The conviction is maintained but the sentence is reduced from 5 years' rigorous imprisonment to 3 years' rigorous imprisonment. .

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