Himachal Pradesh High Court
Cr. Appeal No. 275/2015 vs State Of Himachal Pradesh on 29 April, 2016
Bench: Rajiv Sharma, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 275/2015 with Cr. Appeals No. 364/2015 and 394/2015 .
Reserved on: April 27, 2016 Decided on: April 29, 2016 ___________________________________________________________________
1. Cr. Appeal No. 275/2015 Anil Kumar ...Appellant Versus State of Himachal Pradesh ...Respondent of
2. Cr. Appeal No. 364/2015 Suresh Kumar ...Appellant rt Versus State of Himachal Pradesh ...Respondent 3. Cr. Appeal No. 394/2015 Naresh Kumar @ Ashok Kumar ...Appellant Versus State of Himachal Pradesh ...Respondent ___________________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge Whether approved for reporting?1 Yes.
___________________________________________________________________ For the Appellant(s) : Mr. Y.P.S. Dhaulta, Mr. Virender Singh Rathore and Mr. Virbahadur Verma, Advocates, in the respective appeals.
For the Respondent : Mr. Parmod Thakur, Additional Advocate General, in all the appeals.
___________________________________________________________________ Justice Rajiv Sharma, Judge.
Since all the three appeals have been instituted against one and the same judgment, and common questions of law and 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 2
facts are involved in all these appeals, same were taken up together and are being disposed of vide this common judgment.
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2. The present appeals have been instituted against Judgment/Order of conviction dated 22.12.2014/24.12.2014 rendered by the learned Additional Sessions Judge, Ghumarwin camp at Bilaspur in Sessions Trial No. 14/7 of 2012, whereby appellants-accused (hereinafter referred to as 'accused' for of convenience sake) alongwith Sunita Chandel, Bhaskar Chandel and Sanju, who were charged with and tried for offences under Sections 302 and 201 read with Section 34 IPC, have been convicted and rt sentenced to life imprisonment and to pay a fine of `5,000/- each, and in default of payment of fine, to further undergo simple imprisonment for two months, for commission of offence under Section 302 read with Section 34 IPC. They have also been sentenced to undergo rigorous imprisonment for four years and to pay a fine of `2,000/- each, and in default of payment of fine, to further undergo simple imprisonment for one month. Accused Sunita Chandel was sentenced to similar sentence. Accused Bhaskar Chandel was sentenced only under Section 201 read with Section 34 IPC to undergo rigorous imprisonment for a period of four years and to pay a fine of `2,000/-, in default of payment of fine, to further undergo simple imprisonment, for one month.
Accused Sanju was declared proclaimed offender.
3. Case of the prosecution, in a nutshell, is that one Ram Saran (PW-2) was the owner of a building situate at Kallar on National Highway-21 who had rented out the hotel alongwith three ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 3 rooms to accused Sunita Chandel, who was running a Dhaba by the name of Ashok Dhaba. In three rooms, she had her residence.
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Accused Naresh Kumar, Suresh Kumar, Anil Kumar and Sanju were working in the Ashok Dhaba as workers of accused Sunita Chandel.
Accused Bhaskar Chandel, son of accused Sunita Chandel, was residing with her. Manjeet Singh, who was working as an agent in the Life Insurance Corporation, had come in contact with accused of Sunita Chandel. He had been frequently visiting her Dhaba at Kallar. Naresh Kumar @ Ashok Kumar, Anil Kumar and Suresh, who were working in the Dhaba, did not like it. They made a plan to rt teach lesson to Manjeet. Sunita asked Manjeet to bring a gas cylinder to her Dhaba. Manjeet Singh borrowed a gas cylinder from Ateh Mohd on 18.2.2012. He reached the Dhaba at Kallar at around 6/6.30 PM in his vehicle. Manjeet went to the Dhaba and had gone downwards through the stairs to the bed room of Sunita Chandel.
At that time, Sunita was alone in her bed room. Seeing Manjeet Singh going into the bed room of accused Sunita Chandel, accused namely Naresh @ Ashok Kumar, Suresh Kumar and Anil Kumar also went into the room and they all assaulted Manjeet Singh with fist and kick blows. Manjeet Singh at that time was drunk so he was unable to defend himself. Due to the beatings of accused, Manjeet Singh died on the spot itself. Beatings were witnessed by PW-38 Raj Kumar. However, he fled from the spot. Due to the beatings, Manjeet Singh had died on the spot and blood had been splashed all around the room. Blood stains were tried to be removed by accused Bhaskar, Sanju and Sunita Chandel from the walls. However blood ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 4 stains remained on the idol of goddess Kali kept at one side of room.
Dead body after being wrapped in a mat and the legs being tied with .
a bed-sheet, was kept out in the verandah. Blood stains in the verandah were cleaned by accused. Accused Ashok Kumar, who was a driver by profession, brought the vehicle of Manjeet Singh, in front of the Dhaba and the remaining accused alongwith Bhaskar and Sanju put the dead body of Manjeet Singh in the vehicle. As per the of directions of accused Sunita Chandel, dead body was taken by accused Ashok Kumar and Anil Kumar in the vehicle of deceased towards Dehar. A bag containing blood stained clothes and a shoe rt was also kept in the vehicle. The vehicle was taken to the cliff near river Sutlej. From there the vehicle was thrown by accused Anil Kumar into river Sutlej while accused Ashok Kumar had thrown the mobile phone of deceased Manjeet Singh into the river. It could not be recovered. After throwing the vehicle into the river alongwith the dead body of Manjeet Singh, accused Anil and Ashok Kumar through the mobile No. 86796-00117 of Suresh Kumar called taxi of Sanjay Kumar bearing No. HP-01B-0617 to Barmana. From Barmana, Sanjay Kumar had taken both the accused to Kallar and dropped them there. On the way at the petrol pump of M/s Ram Lal Anand and Sons, petrol of `500/- was filled and money was paid by accused Ashok Kumar. On 19.2.2012, ASI Gulab Singh (PW-9) Incharge Police Post, Dehar had received information that tyres of small vehicle were visible in river Sutlej at Dehar. Report Ext. PW-
9/A was entered in the Daily Station Diary and ASI Gulab Singh had gone to the spot for verification of the report. He found a white ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 5 coloured vehicle lying in the river Sutlej. Information was given to Police Station, Sundernagar. Crane was called. Vehicle was taken .
out from the river. It was found to be an Alto Car bearing registration No. HP-69A-4444. A dead body was found inside it.
Both the legs were tied with a bed sheet. Injuries were also present on the head and other parts of the body. On inquiry from Sahil, PW-
18, the car was found to be of his father Manjeet Singh. On being of informed, Sahil, Surjeet and Vikrant had gone to the spot. Sahil identified the dead body of his father. Statement of Sahil under Section 154 CrPC was recorded by Inspector Jagdish Chand (PW-39) rt and forwarded to Police Station, Sundernagar. FIR Ext. PW-27/A was registered. Inspector Jagdish Chand clicked photographs of dead body and the spot vide Ext. PW-39/A-1 to Ext. PW-39/A-18.
He prepared site plan Ext. PW-39/B. Post-mortem examination was got conducted. According to the final opinion, cause of death was opined to be head trauma and Hypovolemic shock. On 20.2.2012, Inspector Jagdish Chand took into possession the clothes of the deceased i.e. inner Ext. P6, shirt Ext. P7 and pullover Ext. P8 vide seizure memo Ext. PW-4/A. House of accused Sunita was searched by inspector Jagdish Chand in the presence of Ram Saran (PW-2) and Balak Ram (PW-30). On 25.2.2012, accused Anil Kumar and Naresh Kumar made disclosure statements Ext. PW-8/A and Ext.
PW-8/B and got the spot identified at Dehar from where they had thrown down the vehicle alongwith dead body. Empty gas cylinder was produced by Sunita Chandel. It was seized vide seizure memo Ext. PW-11/A. It was identified by Ateh Mohd. Anil Kumar made a ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 6 disclosure statement Ext. PW-11/B. In consequence thereof, he got recovered pants Ext. P19, which was seized vide seizure memo Ext.
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PW-11/C. On 27.2.2012 during interrogation accused Naresh Kumar disclosed that currency notes to the tune of `3,000/- were found in the dash board of the vehicle bearing No. HP-69A-4444.
Accused Bhaskar also produced his pants Ext. P9 and shirt Ext.
P10, which were seized vide seizure memo Ext. PW-4/B. On of 29.2.2012, accused Suresh Kumar made a disclosure statement Ext. PW-4/D, in consequence thereof he got recovered two vests Ext.
P20 and Ext. P21 which were seized vide Ext. PW-11/E. Spot map rt was prepared. Demarcation of the room was also carried out.
Statement of Raj Kumar under Section 164 CrPC was got recorded through Anish Garg, the then Judicial Magistrate 1st Class, Sundernagar. Case property was deposited in the Malkhana and same was sent to RFSL Gutkar. Matter was investigated and Challan was put up in the Court after completing all codal formalities.
4. Prosecution has examined as many as forty one witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. Accused Sunita Chandel claimed that a well built man having beard came into her room during the night time and sat on her bed where she was resting alone and started molesting her voluntarily by pressing her breast and thereafter tried to pull the string of her Salwar with an intention to rape her and in order to rescue herself, she gave a slap on his face. She also raised alarm. On her shrieks, workmen who were ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 7 working in the hotel and on the top floor also came downward alongwith numerous persons who were taking meals at that time.
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They rescued her from his clutches by giving him fist and kick blows and dragged him outside the room. Statements of other accused were also recorded under Section 313 CrPC. According to them, they heard cries of Sunita Chandel and went to her room where several other persons had also gathered, who were giving beatings to some of unknown person. Accused were convicted and sentenced, as noticed by us above. Hence, these appeals.
5. Mr. Y.P.S. Dhaulta, Mr. Virender Singh Rathore and rt Mr. Virbahadur Verma, Advocates, for the respective accused, have vehemently argued that the prosecution has failed to prove its case against the accused.
6. Mr. Parmod Thakur, Additional Advocate General, has supported the Judgment/Order of learned trial Court dated 22.12.2014/24.12.2014.
7. We have heard the learned counsel for the parties and gone through the judgment and record very carefully.
8. PW-1 Surjit Singh testified that Manjeet was his real brother. He owned vehicle bearing registration No. HP-69A-4444. On 19.2.2012, his nephew Sahil disclosed to him that vehicle of his father had fallen into water at Dehar into river Sutlej. He went to Dehar. He found vehicle in the water. Said vehicle was of his brother. Dead body of his brother was lying inside the said vehicle.
Vehicle was taken into possession by the police. In his cross-
examination, he has admitted that his statement was recorded on ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 8 19.2.2012. He had disclosed before the police that the vehicle was taken out of the water with the help of a crane. (Confronted with his .
statement, Mark D-1, wherein it is not so recorded). He disclosed to the police that dead body was taken out from the vehicle by breaking window pane. (Again confronted with his statement, Mark D-1, wherein it is not so recorded).
9. PW-3 Ankush Kumar deposed that he was running a of welding shop at Dehar. On 21.2.2012, they were playing cricket.
Cricket ball went into the water where the vehicle had fallen in the river. Vehicle was bearing No. HP-69A-4444. Police was also on the rt spot. Crane was called. Vehicle was taken out of the water. Dead body was taken out from the vehicle.
10. PW-4 ASI Ram Lal deposed that on 20.2.2012, he alongwith ASI Jasbir and Inspector Jagdish Chand was present at the Mortuary at Sundernagar. SHO Jagdish Chand removed clothes from the dead body of Manjeet Singh in his presence. Clothes were, one sweater, one shirt having checks and one cream coloured inner.
Dead body was checked. Clothes were taken and parcelled. Post mortem examination was conducted. He deposited parcels as well as viscera with the MHC Anil Kumar. On 29.2.2012, accused Bhaskar Chandel, while in police custody, disclosed that the clothes which he was wearing were also worn by him at the time of occurrence.
Clothes were taken into possession. On 29.2.2012, accused Suresh Kumar, while in police custody, made a disclosure statement in his presence as well as in the presence of HC Chaman Lal that he had concealed his Banian as well as that of Bhaskar Chandel at Kallar.
::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 9Disclosure statement Ext. PW-4/D was recorded. In his cross-
examination, he has admitted that no witnesses of the locality were .
called at the time of recording statement as well as making recovery.
11. PW-5 ASI Jasbir Singh deposed that on 21.2.2012, he visited the spot of occurrence at place Kallar with the team of Forensic Science, Gutkar. Key of the room was taken from Balak Ram. Room was opened. Team of Forensic Science visited the room.
of Case property was taken into possession. On 29.2.2012, Bhaskar disclosed that the clothes worn by him were also worn on the day of occurrence. Clothes worn by Bhaskar were taken into possession rt vide Ext. PW-4/B in his presence.
12. PW-6 HC Chaman Lal deposed that on 24.2.2012, SHO was conducting investigation in this case. Accused Sunita Chandel was in police custody. She disclosed that the clothes worn by her on that day were also worn at the time of occurrence. SHO asked accused Sunita Chandel to produce the clothes worn by her. LC Leela Devi was present who asked Sunita Chandel to change her clothes. She was taken to bath room by her. Sunita Chandel produced her clothes to the police i.e. Salwar and Kameez. These were taken into possession vide seizure memo Ext. PW-6/A. These were parcelled and sealed. On 29.2.2012, accused Suresh Kumar while in police custody disclosed that the Banians worn by him and Bhaskar on the day of occurrence, were hidden by him at Kallar and he was having exclusive knowledge about that and he could get the same recovered. Disclosure statement Ext. PW-4/D was recorded.
He signed the same. In his cross-examination, he has admitted that ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 10 Sunita Chandel had already produced her clothes. She was in police custody for the last three days. He could not say that Sunita .
Chandel was already informed to bring the clothes for changing. He denied that the clothes Exts. P16 to Ext. P17 were not the clothes which were worn by Sunita Chandel on the day of alleged occurrence.
13. PW-8 Om Parkash Modgil deposed that he was called of by the police to Police Post Dehar. Two boys were in the police custody. One was Anil Kumar. He did not know the other boy. He disclosed that they had firstly stopped the vehicle at Satya Narain rt Mandir Dehar and then brake was applied. Thereafter they had seen the site. Hand brake was removed and vehicle alongwith dead body was pushed down the river by them. They led him and police to the spot. Police prepared spot map. He signed the same. Thereafter, they came to the Police Station. Accused Anil Kumar disclosed that he had thrown mobile into river Sutlej from a place at a distance of 10 feet from the vehicle. He had also thrown blood stained clothes of deceased and other clothes into the river.
14. PW-9 ASI Gulab Singh testified that he proceeded to the spot alongwith other police officials. He also found a vehicle of white colour lying in the water. Its tyres were visible. He informed SHO Police Station, Sundernagar. He sent crane to the spot and also came at the spot. Vehicle was taken out from the water with the help of crane. Vehicle was bearing registration No. HP-69A-4444.
Dead body was lying inside the vehicle. Both the legs of dead body were tied with bed sheet. Injury was on the head and other parts of ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 11 the body. On inquiry, vehicle was found to be of Manjeet Singh.
Dead body was identified by Sahil, son of deceased Manjeet Singh.
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SHO Police Station Sundernagar brought accused Anil Kumar and Naresh Kumar to Police Post Dehar. They were interrogated by SHO.
They disclosed that they could lead them to the place from where vehicle bearing No. HP-69A-4444 alongwith dead body was thrown into river Sutlej.
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15. PW-10 Kumari Indu is the daughter of accused Sunita Chandel. She was a student of 10+2. Sunita Chandel was her mother. She was running a Dhaba at Kallar. Her father was living rt separately since last five years. Accused Bhaskar was her brother.
They were living with their mother. In February 2012, she did not see anybody visiting their room. She did not see anybody sitting in the room of her mother. She also did not see anybody going away from the room of her mother. She was declared hostile and cross-
examined by the learned Public Prosecutor. She did not know whether on 18.2.2012, Manjeet Singh came to the room of her mother. Self stated that she saw some person in the room of her mother. She did not know the name of said person was Manjeet Singh. She did not know Manjeet Singh was working in LIC. She denied that Manjeet Singh used to visit earlier in connection with LIC work. She denied that on 18.2.2012, Manjeet Singh straightway went inside the room of her mother. She denied that room was bolted from inside by her mother. She also denied that the room was bolted from outside. She denied that it was opened by her mother.
She denied that when she was going to bathroom, she saw Manjeet ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 12 Singh sitting on the sofa and her mother was sitting on the bed.
Volunteered that he was molesting her mother. Her mother slapped .
him. She denied that thereafter she straightway went to her room.
She denied that she heard shrieks of Manjeet Singh. Volunteered that her mother was crying. On this she made hue and cry and workers came in the room of her mother. She did not remember the names of the persons. She did not know since when they were of working in the hotel. In her cross-examination, she has admitted that a large number of people used to park their vehicles outside the Dhaba and used to take meals in the Dhaba.
rt She admitted that when she came out of room, she found one person was outraging modesty of her mother. She admitted that said person was trying to pull the string of her mother. She admitted that her mother was resisting his attack and was raising alarm. Workers came down alongwith other persons and gathered there. They gave fist and kick blows to the person who was dragged out of the room. He was given beatings outside the room by these persons. Thereafter, she went to her room and bolted the door. After half an hour, when there was no noise, her mother came to her room and disclosed the incident to her and told that said person was trying to outrage her modesty.
16. PW-11 Satish Kumar deposed that he was running a mobile phone shop at Kallar. Adjoining to his shop, a Dhaba was situated. It belonged to Naresh Kumar. Sunita, Bhaskar, Anil and Suresh were also there. He did not remember the number of the SIM. He could not recollect the ID. On 26.2.2012 accused Anil was produced by police at the hotel. He was declared hostile and cross-
::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 13examined by the learned Public Prosecutor. In his cross-
examination, he has admitted that he had given SIM No. 86796- .
94616 to Sunita Chandel. He denied that ID proof of Ashok Kumar was with respect to this SIM. He admitted that on 18.2.2012, accused Sunita Chandel, Ashok, Suresh, Sanju, Anil and Bhaskar were in the said Dhaba. He admitted that on 26.2.2012, accused Sunita Chandel produced one Gas Cylinder which was kept in the of room, before the police. He admitted that accused Anil Kumar disclosed before the police that he could get recovered his own pants hidden by him. Ext. PW-11/B was prepared and signed by him. He rt admitted that accused Anil Kumar led them to bathroom in first floor and got recovered his pants out of other clothes kept in the said bathroom. Pants were sealed with six seals of 'Y' and recovery memo Ext. PW-11/C was prepared, which was signed by him. On 29.2.2012, accused Suresh was produced by the police at Dhaba.
He led them to place situate downwards Dhaba near Nalla. He got recovered two vests (Banians) hidden near check dam. Vests were parcelled and sealed. Recovery memo Ext. PW-11/E was prepared.
Sant Ram was having key of the main gate of the Hotel. After opening the gate, Sunita Chandel led them to her room. She disclosed that Manjeet came to her room and a fight took place with him.
17. PW-12 Nand Lal deposed that accused Sunita produced a cylinder before the Police from the room. Memo was prepared.
Accused Anil on 26.2.2012 disclosed that he had kept his pants in the bathroom. These pants were taken into possession.
::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 1418. PW-13 Sant Ram deposed that he was running a cloth shop at Kallar. On 29.2.2012 police came to the spot. Accused .
Sunita and Suresh were with them. Suresh was taken to a Nalla by the police. He did not go with them. He was again called by the police. Police took them to Nalla. Accused Suresh got recovered two vests from a place nearby check dam. Memo Ext. PW-11/E was prepared which was signed by him.
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19. PW-14 Sher Ali deposed that on 18.2.2012, at abut 3 PM, Manjeet came to his shop. He asked whether he had a gas cylinder. He was having one gas cylinder. He remained sitting in his rt shop for some time.
20. PW-15 Ateh Mohd. deposed that Manjeet Singh made a telephone call to him. He required gas cylinder. He came in his car to his place. He demanded cylinder from him assuring that he would return the same to him next morning. He handed over one gas cylinder of Indane Company.
21. PW-16 Sanjay Kumar deposed that he was a taxi driver and plying taxi at Kandraur. He did not know accused Suresh Kumar. He was not related to him. Nothing had happened in his presence. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied that he was called by the police at Sundernagar on 26.2.2012. He denied that in the intervening night of 18 and 19.2.2012, a call from Suresh came on his mobile from Mobile No. 86796-00117. His mobile number was 98168-25343. He denied that on that day Suresh did not speak to him but Ashok had talked to him. He denied that Ashok told him ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 15 that they were on the road at Barmana and asked him to take them to Kallar. He denied that thereafter he went to Barmana where Anil .
and Suresh met him. He denied that they came to Bilaspur via Chandpur and filled petrol for `500/- and bill was paid by Ashok Kumar who was sitting in front seat of the vehicle. He denied that he dropped them at Kallar.
22. PW-17 Pankaj Kumar deposed that on the intervening of night of 18 and 19.2.2012, he alongwith Vinay Kumar was on duty at petrol pump. One vehicle bearing No. HP-01B-0617 came at about 3/3.30 AM at petrol pump for filling fuel. Petrol worth `500/-
rt was filled and money was paid by driver. He did not know how many persons were sitting in the vehicle. He did not identify them. He did not even identify them in the court. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-
examination, he has admitted that he identified the person who had given money. He admitted that he identified the person because of the reason that in the night time, less number of persons visit petrol pump for filling petrol. No receipt was taken by them. He denied that he disclosed to the police that two other persons were sitting in the vehicle besides driver. He could not identify the accused Ashok Kumar in the court. He denied that Ashok Kumar was present in the Court. In the cross-examination by the learned defence counsel, he admitted that he did not know by whom payment of petrol was made and how much fuel was filled and in which vehicle. He admitted that bill is necessarily issued after filling the fuel. He also admitted that entry is made in the register about filling of fuel. He ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 16 admitted that police came to him and asked him that he had to state about filling of petrol by the aforesaid vehicle. He did not know .
whether the said vehicle came to the petrol pump at night or not. He also admitted that he named the accused persons at the instance of the police.
23. PW-18 Sahil deposed that he was a student. Deceased Manjeet Singh was his father. On 18.2.2012 Manjeet Singh had of come to Bilaspur. He had talked to him on his mobile phone at about 4/4.30 PM. He disclosed to him that he was with Sher Ali and would be going to attend a marriage so he could return back home rt late. Thereafter he could not contact his father over the phone. Next evening, two police officials had come to his house and asked whether car No. HP-69A-4444 belonged to them. He answered in the affirmative. It was informed that the vehicle had been found in river Sutlej at Dehar. When they reached the spot, vehicle had been taken out. Dead body was shown to him. He identified it to be of his father. Body was bearing a cut on the left side of forehead and both the legs had been tied with a bed sheet. His statement Ext. PW-
18/A was recorded under Section 154 CrPC. In his cross-
examination, he has admitted that the place was quite steep and goes downwards upto the river. He admitted that on the top there was a ground and many people parked their vehicles in that ground.
It was possible that while reversing a vehicle it can fall into river.
Volunteered that legs of his father were tied. He could not say in which areas, his father worked as LIC agent.
::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 1724. PW-19 Mohinder Singh deposed that he was going back home in the evening at about 8/8.30 PM on 18.2.2012. On the .
way he saw vehicle bearing No. HP-69A-4444 parked. In his cross-
examination, he has admitted that he could not tell the registration numbers of other vehicles. He had written number of vehicle on his left hand. From his tea stall, vehicle had been parked at a distance of 40-50 metres.
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25. PW-22 Tek Chand Assistant Director Biology has proved Exts. PW-22/B and PW-22/C.
26. PW-28 rt Navjeet Singh Sangwan deposed that he was requested by SP Mandi to issue Call Detail Report with respect to mobile number 86796-00117 which was Ext. PW-28/A. He also gave Call Detail Report of mobile No. 86797-70735 as Ext. PW-28/B. Mobile No. 86796-00117 belonged to Sandhya Devi. Mobile No. 86797-70735 belonged to Naresh Kumar. In his cross-examination, he has admitted that he has not brought any record with him.
Volunteered that he was not asked to do so. He admitted that Ext.
PW-28/C does not bear any stamp nor it was attested. Volunteered that it was computer generated print out. Alongwith Ext. PW-28/C, nothing was attached showing address proof of the persons holding these mobile numbers. He has not brought any proof showing that aforementioned SIM cards were issued to the persons mentioned above.
27. PW-29 Dr. Ranesh has conducted the post mortem examination. He observed that body was of an adult male of average stout built naked upto middle of legs, legs tied with Galicha with ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 18 brown periphery and blue and black colour in middle and knot on the Galicha in front of right ankle joint. Probable duration between .
death and post mortem was 12-36 hours. Viscera was preserved.
Death was a combined result of head trauma and hypovolemic shock. Report showed alcohol level of 111.52 mg%. Post-mortem report is Ext. PW-29/B.
28. PW-30 Balak Ram deposed that on 20.2.2012, police of visited the spot. Room of the Dhaba owned by one lady was sealed in his presence. On the next day, a team of RFSL Gutkar visited the spot. rt
29. PW-35 Ganpat Ram deposed that he was an agriculturist by profession he owned truck bearing No. HP-24A-
7873. He has engaged Raj Kumar as driver for the last 3 years. On 18.2.2012, he and Raj Kumar had gone to workshop of Sukh Ram at Kallar. They met Sukh Ram and he asked them to bring vehicle to the workshop. A phone call was received by Raj Kumar to bring vegetables. They purchased vegetable and went in truck towards Kallar. They stopped the vehicle. They had gone to nearby Dhaba.
Raj Kumar and he slept in the truck. In his cross-examination, he has admitted that he did not show log book of the vehicle as well as register.
30. PW-36 Vikrant Sharma deposed that he and Dinesh Kumar accompanied Sahil to Dehar. They firstly went to Police Post.
From there they went to river bed where Alto Car was taken out.
Dead body had already been taken out by the side of the river.
::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 1931. PW-39 Raj Kumar testified that on 18.2.2012 he alongwith Ganpat was going towards Kallar for the repair of the .
vehicle No. HP-24A-7873 at the workshop of Sukh Ram. During evening at Bilaspur he had received a call from Ashok Kumar who had asked him to bring vegetables. Ashok had worked with him as a Cleaner for three months. They had firstly gone to workshop. They were told by the mechanic that the vehicle would be repaired the of next day in the morning. He asked him to park the vehicle near his workshop. He and Ganpat then had gone to Ashok Dhaba to deliver the vegetables he delivered the vegetables to Ashok Kumar. Sunita rt Chandel was also present there. He sat in the Dhaba for about 5 minutes when Suresh asked him to come to his room down below.
Suresh had disclosed to him that Sunita and Ashok had been harassing him and had been asking to take a separate room. Ashok and Sunita also came in the room. Sunita was talking to some one on telephone and was asking to come soon. Ashok had sent Anil to bring beer. He took beer. Ashok also took beer. Then they heard a noise coming from the room of Ashok. They all went to that room, he also followed them. He saw a quarrel taking place there with a man having beard. He could not make out who was beating whom. He left the spot and went to the workshop. Ganpat was already sitting in the vehicle. They both stayed in the vehicle during night. His statement was recorded on 12.3.2012 vide Ext. PW-38/A by the Judicial Magistrate at Sundernagar. He signed the same. In his cross-examination, he has admitted that he remained in the police station for one hour. He had told the police that he would disclose ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 20 the facts only before the Magistrate. He was then taken to the Court.
It took 10 to 15 minutes in the Court. The Magistrate was sitting in .
the Court and the Court work was going on. He did not know how many cases were called during that time. He remained standing in the Court. His statement was recorded under the dictation of the Magistrate. The workshop of Sukh Ram at Kallar is towards Bilaspur at a distance of half a kilometre. He made a statement that of he alongwith Ganpat had gone to Ashok Dhaba (confronted with his statement Ext. PW-38/A, wherein name of Ganpat was not recorded). Only Suresh had taken him to his room. Ashok remained rt present in the Dhaba upstairs. Suresh also took beer. It took them 5 to 7 minutes to finish one bottle of beer. When they were taking beer, Sunita was not in the room. She came afterwards. He advised Suresh Kumar to leave the room and make alternative arrangements. Sunita kept standing near the door of room. She did not enter inside the room. A man with beard was sitting in the room of Sunita (confronted with his statement Ext. PW-38/A, wherein it is not so recorded). He heard cries of Sunita. He admitted that on hearing cries of Sunita, he, Suresh and Ashok Kumar had gone to the room of Sunita. He also admitted that a number of drivers and cleaners were also present in the Dhaba to have meals. He admitted that Sunita was speaking loudly that the man with beard was molesting her. He also admitted that all the persons firstly had dragged the man out of room of Sunita and then assaulted him with fist and kick blows and shoes. He did not know where that man had gone thereafter. He fled from the spot. He has admitted the ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 21 suggestion that he had given statement before the Magistrate at Sundernagar as desired by the police. He admitted that on .
18.2.2012, he was not having mobile phone with him. He received phone call on the mobile of his uncle Ganpat to bring vegetables. He did not disclose this fact either to the police or to the Magistrate. He did not know how many workers were there at Ashok Dhaba on 18.2.2012. Except Ashok, he did not recognize any other worker. In of his re-examination he admitted that he did not disclose before the Magistrate regarding hue and cry being raised by Sunita Chandel.
Volunteered that he was never asked to. He had never disclosed to rt the Magistrate that Sunita Chandel was being molested by the man with a beard.
32. PW-39 Inspector Jagdish Chand deposed that on 19.2.2012, he received an information from Incharge Police Post Dehar that a car had been seen floating in Sutlej river. He visited the spot and found the car lying in the river. Car was dragged to the bank of the river. It was bearing registration No. HP-69A-4444. Car was found to be of Manjeet Singh. Family members were informed.
Sahil, Surjeet and Vikrant had come on the spot. Inside the car, a dead body was found with legs tied with bed sheet. Sahil identified the body to be of his father Manjeet Singh. His statement under Section 154 CrPC was recorded vide Ext PW-18/A. Photographs Ext. PW-39/A-1 to Ext. PW-39/A-18 were clicked. Clothes of the deceased were taken into possession on the next day i.e. 20.2.2012.
On 25.2.2012, accused Anil and Naresh had identified the spot at Dehar from where they had thrown the vehicle down alongwith the ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 22 dead body of deceased. Memo Ext. PW-39/E in this regard was prepared. Both the accused made disclosure statements Ext. PW-
.
8/A and Ext. PW-8/B. Disclosure statement of Anil Kumar was recorded, pursuant to which his pants were recovered. Sunita also produced gas cylinder Ext. P18. On 27.2.2012, during interrogation, accused Naresh Kumar disclosed that currency notes of `3,000/-
were found in the dash board of the vehicle No. HP-69A-4444. He of disclosed that five currency notes of the denomination `500/- each to the tune of `2500/- and five currency notes of the denomination of `100 to the tune of `500/- each were there. Out of this amount, rt `500/- were paid by accused Naresh Kumar at the petrol pump. On 29.2.2012 accused Bhaskar Chandel during investigation had produced his pants Ext. P-9 and shirt Ext. P-10 which were stated to have been worn by him on the day of occurrence. These were taken into possession vide Ext. PW-4/B. Statement of Raj Kumar was recorded under Section 164 CrPC vide Ext. PW-38/A on 7.3.2012. In his cross-examination, he has admitted that he did not know the time when he received information. Thereafter he deposed that he received information at 5.30 PM. He also admitted in the cross-examination that in the first storey of the Dhaba, accused Sunita and her family members resided. He also admitted that deceased Manjeet Singh was present alone in the room of Sunita.
Volunteered that he was there for some time and had been called there. He did not carry out any investigation why deceased used to come there. He could not narrate since when the deceased was ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 23 coming there and what was their relation. He admitted that it had come in the investigation that Sunita had given beatings to Manjeet .
Singh.
33. PW-41 Anish Garg deposed that on 7.3.2012, he recorded the statement of Raj Kumar under Section 164 CrPC. Raj Kumar was given time for reflection and his statement was recorded as per his version on 12.3.2012. It was read over to him. He, after of admitting the same to be correct, appended his signatures on both the sheets, in red circle.
34. Case of the prosecution, precisely, is that the deceased rt Manjeet was a visitor to the Dhaba of Sunita Chandel. Accused Naresh Kumar @ Ashok Kumar, Anil Kumar and Suresh Kumar were the workers at Dhaba owned by Sunita. Sunita alongwith other accused made a plan to teach a lesson to Manjeet. Sunita called Manjeet to bring a gas cylinder to her Dhaba. Manjeet Singh borrowed a gas cylinder from Ateh Mohd. on 18.2.2012. He reached the Dhaba at Kallar at around 6/6.30 PM in his vehicle. Manjeet went to the Dhaba and had gone downwards through the stairs to the bed room of Sunita Chandel. At that time, Sunita was alone in her bed room. On seeing Manjeet Singh going into the bed room of accused Sunita Chandel, other accused namely Naresh @ Ashok Kumar, Suresh Kumar and Anil Kumar also went into the room and they all assaulted Manjeet Singh with fist and kick blows. Manjeet Singh at that time was drunk so he was unable to defend himself.
Due to the beatings of accused, Manjeet Singh died on the spot itself. It is the further case of the prosecution that thereafter the ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 24 deceased was taken in his car to Dehar and car alongwith body was pushed down the river. Car was recovered. It was identified by the .
son of the deceased namely Sahil (PW-18). Post-mortem examination was got conducted.
35. The motive attributed to the accused is that they did not like the visits of deceased Manjeet Singh to Ashok Dhaba owned by Sunita Chandel. According to the prosecution, Naresh Kumar @ of Ashok, Anil Kumar and Suresh Kumar, who were working in the Dhaba did not like the visits of Manjeet. These persons, who were merely working in the Dhaba, owned by Sunita Chandel, could not rt be disturbed by the visits of Manjeet. Version of the prosecution, that the accused alongwith Sunita Chandel made a plan to invite Manjeet Singh under the pretext of bringing a gas cylinder to Ashok Dhaba to teach him a lesson, is not believable. The only person who could be disturbed by the presence of Manjeet Singh was the son of Sunita Chandel namely Bhaskar Chandel. However, it is not the case of the prosecution that he did not like the visits of Manjeet Singh. The defence put up by the accused is that the deceased entered the room of Sunita who was alone in the bed room and tried to outrage her modesty. She raised alarm and workmen came down and gave fist and kick blows to the deceased. Prosecution has not proved the case against the accused beyond reasonable shadow of doubt. The accused, on the other hand, have only to probablise their defence. According to the prosecution, there were two eye-witnesses to the incident viz. PW-10 Indu Chandel and PW-38 Raj Kumar. PW-
10 Indu Chandel was a student of 10+2 class. She was declared ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 25 hostile and was cross-examined by the learned Public Prosecutor. In her cross-examination by the learned Public Prosecutor, she stated .
that the person with beard molested her mother. Her mother slapped the said person. She also raised hue and cry. Workers came down. In her cross-examination by the defence counsel, she admitted that a large number of people used to park their vehicles outside the Dhaba and used to take meals in the Dhaba. She also of admitted that on that day, she was sleeping in her room. She got up at 9.30 PM. She admitted that when she came out of her room she found one person was outraging the modesty of her mother. She rt admitted that said person was trying to pull the string of the Salwar of her mother. She also admitted that her mother was resisting the attack and raised alarm. Workers came down alongwith other persons and gathered there. They gave fist and kick blows to the person who was dragged out of the room. He was given beatings outside the room by these persons. Thereafter, she went to her room and bolted the door. After half an hour, when there was no noise, her mother came to her room and disclosed the incident to her and told that said person was trying to outrage her modesty. PW-38 Raj Kumar, in his examination-in-chief testified that he saw a quarrel taking place there with a man having a beard. He could not make out who was giving beatings to whom. He had seen a shoe being used as a weapon. He fled from the spot. He then started the vehicle and took the vehicle to the workshop. Ganpat was already sitting in the vehicle. They both stayed in the vehicle during the night. Ashok thereafter contacted him. His statement was recorded on 12.3.2012.
::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 26He has admitted specifically in the cross-examination that he had given statement before the Magistrate at Sundernagar as desired by .
the police. He ran away from the spot. Thus, the presence of PW-38 Raj Kumar on the spot is doubtful. According to prosecution, PW-
35 Ganpat Ram, was the owner of truck whereas Raj Kumar was his driver. They wanted to get the truck repaired. Mechanic said that the same would be repaired on the next day. Thereafter, Ashok of Kumar asked them to bring vegetables. PW-35 Ganpat Ram, stated that they went to Kallar. They had parked their vehicle at some distance from the Dhaba. Raj Kumar went inside the Dhaba. He rt kept sitting in the truck for about half an hour. He contacted Raj Kumar on phone. He then came to the vehicle after 5/7 minutes. If Raj Kumar and Ganpat Ram had gone together, both of them should have gone to the Dhaba to deliver the vegetables. There was no purpose for PW-35 Ganpat Ram to sit in the truck that too for half an hour alone. PW-35 Ganpat Ram deposed that he has deployed Raj Kumar as his driver. He has not produced any record that Raj Kumar was engaged by him as a driver. He has admitted in his cross-examination that they keep records qua payments made to the drivers and cleaners. He has not shown any log book and record of wages of the driver and cleaner. He could not produce the bills qua the repair of the truck on 19.2.2012.
36. PW-38 Raj Kumar, in his cross-examination, has admitted that Sunita was standing near the door of the room. She did not enter the room. The man with a beard was sitting in the room of Sunita (confronted with his statement Ext. PW-38/A, ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 27 wherein it is not so recorded). He heard the cries of Sunita. He admitted that on hearing cries of Sunita, he, Suresh and Ashok .
Kumar had gone towards her room. He also admitted that a number of drivers and cleaners were also present there. He admitted that the people had come down towards the room of Sunita. He admitted that Sunita was speaking loudly that the man with the beard was molesting her. He admitted that the persons present there dragged of the person out of room and then assaulted him with fist and kick blows.
37. PW-29 Dr. Ranesh has conducted post mortem.
rt According to him, probable duration between death and post mortem examination was 12-36 hours. Deceased died due to head trauma and hypovolemic shock. Chemical report showed alcohol level of 111.52 mg% in the blood sample of the deceased. It is also probable that the deceased under the influence of liquor had gone to the Dhaba of Sunita Chandel and has tried to outrage her modesty finding her all alone in the room. Sunita Chandel raised alarm.
Workers of the Dhaba came down and gave beatings to the deceased. Prosecution case is also that the accused put dead body of deceased Manjeet in his own car and car was rolled down the river Sutlej. Thereafter, Suresh Kumar contacted PW-16 Sanjay Kumar to bring his taxi. He, Suresh Kumar and Anil Kumar thereafter in the taxi went back to Kallar. However, PW-16 Sanjay Kumar deposed that he did not know accused Suresh Kumar. He is not related to him. Nothing has happened in his presence. In his cross-examination, he had denied the suggestion that on the ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 28 intervening night of 18 and 19.2.2012 a call came on his mobile from mobile No. 86796-00117 of Suresh. He denied that Ashok had .
talked to him. He denied that they told that they were on road near Barmana and asked him to take them to Kallar. He denied that thereafter, he went to Barmana and Anil and Suresh met him. He denied that they came to Bilaspur via Chandpur and filled petrol of `500/- and bill was paid by Ashok Kumar who was sitting in front of seat of the vehicle. PW-17 Pankaj Kumar was examined to prove that accused had paid `500/- at the petrol pump. He deposed that one vehicle bearing registration No. rt HP-01B-0617 came at about 3/3.30 AM at the petrol pump for filling petrol. Petrol for an amount of `500/- was filled and money was paid by the driver. He did not know how many persons were sitting in the vehicle. He did not identity them. He could not even identify them in the Court. In his cross-examination, he denied the suggestion that he has disclosed to the police that two other persons were sitting in the vehicle besides driver. He could not identify the accused Ashok Kumar. In the cross-examination by the learned defence counsel, he admitted that he did not know by whom payment of petrol was made and how much fuel was filled and in which vehicle. He admitted that bill is necessarily issued after filling the fuel. He also admitted that entry is made in the register about filling of fuel. He admitted that police came to him and asked him that he had to state about filling of petrol by the aforesaid vehicle. He did not know in fact if the said vehicle came to the petrol pump at night or not. He also admitted that he named the accused persons at the instance of the police.
::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 2938. Now, as far as the recovery of gas cylinder is concerned, PW-14 Sher Ali deposed that the deceased contacted him to supply .
one gas cylinder. He stated that he was having only one cylinder.
PW-15 Ateh Mohd. deposed that the deceased came to him in his car and he demanded cylinder from him. He handed over to him one gas cylinder. In his cross-examination, he admitted that whenever gas cylinder is supplied, entry of the same is made in the consumer of copy by the gas agency. According to him, he has handed over gas cylinder in good faith. He also admitted that Sher Ali was his good friend. Manjeet was his customer. He did not remember the date on rt which he got the gas cylinder refilled. He did not know the gas cylinder used to be numbered. He was unable to read the number of gas cylinder due to weak eye sight. He admitted that customer number is recorded in the record. PW-39 Inspector Jagdish Chand in his cross-examination admitted that he has not made verification qua cylinder Ext. P18 as to whom it was issued by the gas agency.
No recovery of `3,000/- alleged to have been found in the dash board of the vehicle, was made.
39. The Call Detail Report, Exts. PW-28/A, PW-28/B and PW-28/C have not been proved in accordance with Section 65B of the Indian Evidence Act. A certificate is required to be issued under Sub-section 4 of Section 65B identifying the electronic record containing the statement and describing the manner in which it was produced, giving such particulars of any device involved in the production of that electronic record as may be appropriate for the propose of showing that the electronic record was produced by a ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 30 computer, dealing with any of the mattes to which the conditions mentioned in sub-section (2) relate. Certificate is required to be .
signed by a person occupying responsible official position in relation to the operation of the relevant device on the management of the relevant activities. Exts. PW-28/A, PW-28/B and PW-28/C have not been proved in accordance with Section 65B of the Indian Evidence Act. There is no certificate given by the competent authority that the of computer from which these Call Detail Reports were obtained, was working in order.
40. The prosecution has also failed to prove its case against rt the accused that they tried to destroy the evidence on the spot.
Room from where case property was recovered, was not sealed immediately and it was sealed only on 20.2.2012. Thus, the possibility of other people entering the room in a milieu can not be ruled out. It is also not believable that the accused were wearing same clothes which they wore at the time of incident and at the time of recovery. Common sense view is that they were supposed to change the clothes. Now, so far as plea of the prosecution that accused have tried to throw dead body alongwith vehicle in Sutlej is concerned, said version has not been supported by Sanjay Kumar (PW-16) and Pankaj Kumar (PW-17).
41. PW-39 Jagdish deposed that legs were tied with bed sheet. PW-9 ASI Gulab deposed that the legs of dead body were tied with a bed sheet. PW-18 Sahil also deposed that the legs were tied with bed sheet. However, PW-29 Dr. Ranesh Kumar deposed that ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 31 legs were tied with Galicha, with brown periphery and blue and black colour in the middle.
.
42. Statement of accused Sunita was recorded under Section 313 CrPC. She stated in an answer to question No. 99 that a person of well built having beard came into her room during the night time and sat on her bed where she was resting alone and started molesting her by pressing her breast and thereafter tried to of pull the string of her Salwar with an intention to rape her and in order to rescue herself, she gave a slap on his face. She also raised alarm. On her shrieks, workmen who were working in the hotel and rt on the top floor also came downward alongwith numerous persons who were taking meals at that time. Accused in their statements under Section 313 CrPC, have stated that they heard crises of Sunita Chandel and went to her room where people were giving beatings to some unknown person. They rescued her from his clutches by giving him fist and kick blows and dragged him outside the room. After some time, she also came out of room, no person was there except her daughter. PW-39 Jagdish in his cross-
examination admitted that deceased Manjeet was alone in the room of Sunita. Volunteered that he was there for some time and had been called. He also admitted that during the course of investigation, it transpired that Indu Chandel was present in the adjoining room. It has come on record, in his statement that during the investigation, Sunita had given beatings to Manjeet Singh.
43. Learned Advocates appearing for the accused have vehemently argued that the deceased was beaten up by the accused ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 32 to protect the honour of Sunita Chandel. Accused have not denied their presence in the Dhaba. We have already discussed that the .
deceased has entered the room of Sunita Chandel when she was all alone and tried to outrage her modesty. This act was seen by PW-10 Indu. Sunita Chandel raised alarm, accused came down and gave beatings to the deceased to save her from the clutches of deceased, who was trying to rape Sunita Chandel. Accused has entered the of room of Sunita Chandel under the influence of liquor. The alcohol content in the blood of the deceased was found 111.52 mg%.
44. In this case, accused have not acceded their right to rt private defence while saving Sunita Chandel from the deceased, who entered her room, fondled with her breasts and tried to open the string of her Salwar. According to plain reading of Section 100 IPC, the right of private defence of body extends, under the restrictions mentioned under Section 99 of the Indian Penal Code to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions enumerated there under, including assault with the intention to commit rape.
45. Their Lordships of the Hon'ble Supreme Court in Yeshwant Rao v. State of Madhya Pradesh reported in AIR 1992 SC 1683 have held that in a case where accused assaulted victim on seeing his minor daughter being sexually molested by victim right of private defence is extendable to such case. Fact whether sexual intercourse was with or without consent of daughter was not material. Fact whether the cause of subsequent death of victim was ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 33 internal injury due to fall or result of blow by accused is also not material. Their lordships have held as under:
.
9. It will be noticed that before the Sessions Judge the appellant had pleaded the right of private defence also but the Sessions Judge after noticing that the assault was an act of sudden and grave provocation did not pursue the matter further. It appears to us that it is a case where the right of private defence arises and the case is fully covered by Sections 96, 97 read with Section 100 of the Indian Penal Code. Whether it was a case of sexual intercourse with consent or without consent the fact remains that according to the case of the prosecution Chhaya was of 15 years of age and, therefore, the act of Lakhan Singh, deceased, would amount to rape of within the meaning of Section 375 Clause (6) of the Indian Penal Code. The Panchanama Ext. P-4 shows that the attempt of rape or actual sexual intercourse was not fully complete and it is in that state of affairs that the appellant is alleged to have assaulted the deceased with spade on his head. As per the medical evidence the cause of death is not by spade but it was due to the rupture of the rt liver which could be either by fall on hard object, as the appellant stated that the deceased tried to run away but hit against the wall and fell on the ground or it could be as a result of blow given by the appellant. The fact remains that the right of private defence is extendable to the facts of the present case when the daughter of the appellant was being sexually molested. It appears that this part of the case of the appellant was not brought to the notice of the High Court. The judgment of the High Court mainly deals with the prosecution case only. The right of private defence is fully applicable to the facts of the present case. We thus find that the appellant is entitled to acquittal. We would accordingly hold the appellant not guilty of the offence Under Section 325, I.P.C. as well.
The result is that the appeal is allowed and the conviction and sentence of the appellant is set aside.
46. Their Lordships of the Hon'ble Supreme Court in Raghavan Achari and Njoonjappan vs. State of Kerala reported in AIR 1993 SC 203 have held that when accused found deceased in compromising position with his wife and deceased causing multiple injuries including grievous injury to accused, accused thereafter using chopper and causing death of deceased, accused thus cannot be said to have exceeded his right of private defence and thus was entitled to acquittal. Their Lordships have held as under:
8. We have already noticed the injuries received by the appellant vide Ext. P. 7 as well as those confirmed at the time of discharge, ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 34 Ext. P. 13. There can be no doubt also that the compromising position in which the appellant found the deceased with his wife it gave the appellant the grave and sudden provocation. This .
provocation was further aggravated when the appellant found the deceased taking further offence of causing grievous injury of the nature referred earlier to him and in the circumstances the right as envisaged under Section 100 became available to the appellant. No court expects the citizens not to defend themselves particularly when they have already suffered grievous injuries. It is clear that though the appellant has a chopper in his hand he of did not initially use it against the deceased and it was only when the deceased succeeded in using the oil lamp, which is described as dangerous weapon by the High Court, which caused multiple injuries rtincluding grievous injury, that the appellant's provocation got further aggravated and it cannot be said on the facts and circumstances of the case that the appellant has exceeded his right of private defence.
9. The result is that the appeal is allowed and the conviction and sentence of the appellant are set aside and he is acquitted.
47. A Division Bench of the Orissa High Court in State of Orissa v. Nirupama Panda, reported in 1989 Crl. LJ 621 has held that when accused stabbed deceased person as he outraged her modesty, she was entitled to acquittal. The Division Bench has held as under:
8. Along with the evidence of dying declaration it is necessary to consider the statements made by the respondent before P.W. 10, For this purpose, it is necessary to make a further reference to his evidence where he stated that after hearing from the deceased about the cause of the chest wound, the witness found the respondent standing on the verandah of Bansidhar Das and enquired from her. The respondent told him that she stabbed the deceased, because he outraged her modesty (Atyachar). The above statement of the respondent was inculpatory in part and exclupatory in the other part. But considered as a whole, it did not tantamount to an extrajudicial confession for the reason that she had justified her action of stabbing the deceased in exercise of her right of private defence. Even if the statement is received ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 35 as a piece of extrajudicial confession because of its inculpatory part, yet on the basis thereof and on consideration of the exculpatory part, it cannot be used as an incriminating piece of evidence against her, because she had every right to save her .
honour even by causing the death of the person who either committed rape on her or attempted to commit the same. The above being the position, the statement made by the respondent on the query of P. W. 10 instead of supporting the prosecution actually worked as a defence which was quite acceptable.
10. The evidence of P. W. 4 discloses that the respondent was married, but after her widowhood she led an immoral life by living as a mistres of Bansidhar Das. Even though for the sake of argument it is accepted that she was the mistress of Bansidhar of Das, yet she was within her rights to save her honour from a rapist. Even a whore is entitled under law to protect herself from attacks of an intending rapist. Therefore, immoral character of the respondent, even if it is true, is of little consequence.
48. rt A Division Bench of the Rajasthan High Court in Badan Nath vs. State of Rajasthan reported in 1999 Cr. LJ 2268 has held that the deceased is alleged to have taken opportunity of absence of mother of prosecutrix and after alluring the accused/appellant to consume liquor made an attempt to commit rape upon daughter of accused, who was pregnant. Accused in anger stabbed deceased with sword lying in the room. Accused was entitled to benefit of right of private defence of person of his daughter. The Division Bench has held as under:
13. The circumstances of the instant case do indicate that during the night of occurrence, deceased Arjun Singh's wife namely Nand Kanwar (PW 3) was not in his house. She along with her mother-in-law had gone to Kumadu Kura and returned to home on the next day after getting information from a messenger. It is noticed from the statement of DW 1 Smt. Kusum that during the night of occurrence her mother was also not present in accused appellant Badan Nath's house. Only DW 1 Smt. Kusum, accused appellant Badan Nath, her younger ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 36 brother and sister were present. From the aforesaid circumstantial evidence it can be inferred that deceased, taking the opportunity of absence of her mother, after alluring accused-
.
appellant Badan Nath to consume liquor, made an attempt to commit rape upon DW 1 Smt. Kusum who was pregnant. It is established from the statement of PW 4 Smt. Guddi that DW 1 was in advance pregnancy and she gave birth to a child after one or one month and a half following the date of occurrence. It is admitted by PW 4 Smt. Guddi that on the date of occurrence DW 1 was sleeping in the first floor of her home along with her sister of who was about 9 or 10 years old. It is highly probable that as she was in advance pregnancy, she resisted the sexual intercourse with deceased and this resistance caused reasonable apprehension in the mind of accused appellant Badan Nath who rt reached on the spot and found deceased Arjun Nath, under the influence of liquor, was making attempt to commit rape upon his daughter and so he, in anger, stabbed to the deceased from the sword lying in the room.
14. There is yet another reason to arrive at the aforesaid conclusion. We are of the opinion that it is not necessary that every part of the evidence of the victim Smt. Kusum (DW 1) should be confirmed in the minutest details by independent evidence. Such corroboration can be sought either from direct evidence or from circumstantial evidence or from both. The circumstantial evidence on record leads towards an irresistible conclusion that blood was found on the bed where DW 1 Smt. Kusum was sleeping at the night of occurrence. The Investigating Officer has taken pieces of plastic niwar of the bed in his possession which are proved to be soaked with blood on which victim Smt. Kusum (DW 1) was sleeping at the night of occurrence. The trail of blood stains were found on the upstairs and on the wall leading to the room where Smt. Kusum (DW 1) was sleeping. However, no blood was found on the boundary wall of accused appellant embedded with glasses and in the Courtyard where the deceased is alleged to have jumped in the house of accused appellant. The aforesaid fact is fully ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 37 established from the statement of PW 12 Madan Nath Son of Kishore Nath who, soon after the incident, saw the place of occurrence and found blood on the plastic niwar of bed of DW 1, .
he also found blood stains on the upstairs of the wall leading to the room of DW 1 where she was sleeping but found absence of blood on the wall of accused appellant embedded with glasses and in the Courtyard. The statement of PW 12 inspires our confidence and it is held that deceased Arjun Singh did go to the room of DW 1 Smt. Kusum on the first floor of house of accused appellant where she was sleeping. The existence of blood on the of plastic niwar of the bed where DW 1 was sleeping and blood stains on the upstairs and on the wall leading to the room leads towards a strong inference that DW l is a truthful witness and deceased Arjun Singh did make attempt to commit rape with DW rt 1 against her will. In such a situation within the meaning of Section 100, IPC the right of private defence of accused appellant extends to causing death of deceased Arjun Singh.
15. Another strong reason attributable to arrive at the aforesaid conclusion is that in the Indian Society refusal to act by the Courts on the testimonial value of a victim of sexual assault in absence of any corroboration as a rule tantamounts adding insult to injury. We are of the opinion that woman in tradition-
bound, impermissible Indian Society would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity has been committed by anyone. In the case on hand we are of the view that DW 1 must be deemed to be conscious of the danger being ostracized by the Society including by her husband, her own family members, relatives and neighbours. The statement of DW 1 Smt. Kusum who alleged herself to be victim of sex offence deserves to be given a great weight in the facts and circumstances of the present case as discussed here in above. To our mind the probabilities factor taken into account by the learned Sessions Judge does not render the sworn testimony of DW 1 unworthy of credence. DW 1 Smt. Kusum is put to a searching cross-examination by Public ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 38 Prosecutor but nothing has been brought to our notice which may lead to discredit her sworn testimony.
.
16. Looking into the facts and circumstances of the present case we are of the view that the accused appellant deserves to be given benefit of right of private defence of person of his daughter Smt. Kusum (DW 1) as envisaged under Section 100, IPC wherein it is provided that the right of private defence of body extends, under the restrictions mentioned under Section 99 of the Indian Penal Code to the voluntary causing of death or of of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions enumerated there under. The case on hand squarely falls under Clause (3) of Section 100 which clearly provides that an assault with the rt intention of committing rape gives right of private defence which extends up to causing of death. In the present case, deceased Arjun Singh gave an assault with intention to commit rape with DW 1 Smt. Kusum who is daughter of accused appellant Badan Nath, therefore, in such a situation he is entitled to be given benefit of right of private defence of person of his daughter Smt. Kusum (DW 1) as envisaged under Clause (3) of Section 100, IPC and an argument contrary to it advanced by learned Public Prosecutor is not acceptable to us.
49. In the instant case also, the plea taken by the defence is that deceased tried to outrage modesty of Sunita Chandel. She raised alarm. Accused came down and gave beatings to the deceased. In this case, accused can be said to have exercised their right of private defence by giving beatings to the deceased person to save the modesty of Sunita Chandel.
50. A learned Single Judge of the Rajasthan High Court in Bhadar Ram vs. State of Rajasthan reported in 2000 Cr. LJ 1174 has held that the accused on hearing his widowed sister-in-law's cry ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 39 for help rushed to her house with Gandasa, her house was found open by accused and injured was found grappling with her and .
trying to outrage her modesty, accused saved his sister-in-law from clutches of injured and inflicted Gandasa blow while injured was running away. Act of accused can be said to be in exercise of right of private defence and accused was entitled to acquittal. The learned Single Judge has held as under:
of
15. Accused appellant admitted even under Section 313, Cr.P.C.
thatatabout 10-11 P.M. his sister-in-law Mohra cried to save rt her. He rushed to her house and found that the door of her house was opened and appellant was grappling with her. The appellant assaulted on Nand Ram and inflicted gandasi blow which he had taken when going to the house of Mohra. Then Nand Ram ran away from where. Smt. Mohra was examined in defence by the appellant. She stated that she was asleep in the courtyard of her house. It has small boundary wall. At about 10- 11 P.M. Nand Ram grappled her body, she woke up and started crying. Then Bhadar Ram, whose house is adjacent, came armed with a gandasi, Nand Ram left her. He was chased by Bhadar Ram and two injuries were inflicted by Bhadar Ram on Nand Ram infront of her. She admitted that Nand Ram was a married person and it was submitted by the prosecution that Nand Ram, being a married man, could not have indulged in this activity. He is not right. Nand Ram as told by him as PW-4 is aged about 40 years. Mohra is a widow aged about 30-35 years and it was possible that Nand Ram could have gone there in order to outrage her modesty for attempt to commit rape. It is not always correct to say that a married man could not indulge in such activity. She stated that blood was found outside her house when police came in the morning. She stated that her father-in- law is a blind man and she told the story of her woe to the Sarpanch named as Girdhari. No report could be lodged because her father-in-law was a blind man and the Sarpanch did not ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 40 help her. Ordinarily Mohra who is a widow lady would not involve her honour in order to save appellant in case defence was not true. The learned Sessions Judge did consider the .
defence but was of the view that since right of defence was a right subject to restrictions indicated in Section 99 of IPC and one of the conditions is that harm indicated in self defence must be no more than is legitimately necessary for the purpose of defence and since the appellant exceeded his right, he was punished. Learned Sessions Judge relied on AIR 1974 SC 1550 :
1974 Cri LJ 1015, On karnathSingh v. The State of U.P., the of facts of which were completely different than the facts of the present case. In that case on the day of occurrence when Deep Narain returned home Girja Singh complained to him how Onkarnath had beaten him without any rhyme and reason. Deep rt Narain Singh assured him that he would censure and correct Onkarnath. When Jagdish Narain reached home Deep Narain told him how Onkamaih had beaten Girja Singh at about noon. Thereafter the two brothers Narain and Deep Narain proceeded together to their cotton field. When they were coming back from the field, they met Onkarnath and Chhabi Nath. Deep Narain asked Onkarnath as to why he had beaten Girja Singh. Onkarnath insolently replied that he had done so that he would repeat the feat and would see what Deep Narain could do. A scuffle ensued. Both the parties then proceeded to their respective houses. The deceased and his brother had hardly gone 70-80 paces and reached near the Darwza of Hanuman Prasad, when all the five appellants and Amar Nath Singh came there in a body and surrounded them. Chhabi Nath attempted gandasa blows on the head of Jagdish Narain which the latter warded off on his hands. Vijai Bahadur Singh snatched away the gandasa from Chhabi Nath. The assailants then ran away leaving Deep Narain and Jagdish Narain injured at the spot. The facts in the citation relied by the learned Sessions Judge were quite different. But the principle laid down is that the harm indicated in self defence must be no more than is legitimately necessary for the purpose of defence and the right is conterminous with the commencement and existence of a ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 41 reasonable apprehension of danger to body from an attempt or a threat to commit the offence. It avails only against a danger, real, present and imminent.
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16. Applying this principle itself in this case, I find that there was a real danger to the body of Mohra who at the dead hour of night was grappled by Nand Ram in order to outrage her modesty for committing rape. She is a widow lady, nobody to help as her father-in-law was a blind man. She came later on, made complaints to Sarpanch about the incident who did not pay any heed. It was appellant who after hearing her noise and of whose duty as her deceased husband's younger brother was to save her, came after hearing her hue and cry. He was a young boy of 23-24 years of age. He saved her from the clutches of Nand Ram and assaulted him with gandasi when he was rt running. It cannot be said that it was done in excess of right as a right of reprisal for punishment. Appellant saw Nand Ram grappling with his widow sister-in-law, was enraged because of grave and sudden provocation. He came prepared having a gandasi in his hand when he heard hue and cry of his sister-in-
law at the time of dead hour of night on his part. Had he a firearm with himself he could have come with a firearm and could have shot at Nand Ram seeing that Nand Ram was grappling with his widow sister-in-law at that dead hour of night. To say that it was not in a right exercised in defence then what else could be. Section 100 of IPC gives a right of private defence of the body to the extent of causing death when an assault is made with an intention of committing rape. Accused appellant had seen Nand Ram grappling with his sister-in-law and he has probabilised the defence. I am of the view that he had a right of private defence in assaulting Nand Ram. Reference may be made to Salikram v. State, (1990) 1 Crimes 630 (Madh Pra). In this case accused was entitled to right of private defence under Section 100 (thirdly) IPC and consequently entitled for acquittal.
9. It will be noticed that before the Sessions Judge the appellant had pleaded the right of private defence also but the Sessions Judge after noticing that the assault was an act of sudden and grave provocation ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP 42
51. Accordingly, all the appeals are allowed.
Judgment/Order of conviction dated 22.12.2014/24.12.2014 .
rendered by the learned Additional Sessions Judge, Ghumarwin camp at Bilaspur in Sessions Trial No. 14/7 of 2012 is set aside.
Accused are acquitted of the offence under Sections 302 and 201 read with Section 34 IPC. They are ordered to be released forthwith, if not required in any other case. Fine amount, if any paid by them, of be also refunded to them.
52. The Registry is directed to prepare and send the release warrants of all the three accused to the Superintendent of Jail rt concerned, forthwith.
(Justice Rajiv Sharma) Judge (Chander Bhusan Barowalia) Judge April 29, 2016 vikrant ::: Downloaded on - 15/04/2017 20:13:06 :::HCHP