Himachal Pradesh High Court
Nimmo Devi vs State Of Himachal Pradesh on 5 January, 2019
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 356 of 2017 with Cr. Appeals No. 355 and 357 of 2017 .
Reserved on: 12.12.2018
Decided on: 05.01.2019
Cr. Appeal No. 356 of 2017
Nimmo Devi .....Appellant
Versus
State of Himachal Pradesh ......Respondent
Cr. Appeal No. 355 of 2017
Lekh Raj .....Appellant
Versus
State of Himachal Pradesh ......Respondent
Cr. Appeal No. 357 of 2017
Mohinder .....Appellant
Versus
State of Himachal Pradesh ......Respondent
_______________________________________________________________ Coram The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
1Whether approved for reporting? Yes.
For the appellant(s): Mr. Anoop Chitkara and Ms. Sheetal Vyas, Advocates.
For the respondent-State: Mr. Narinder Guleria, Additional Advocate General with Mr. J.S. Guleria and Mr. Kunal Thakur, Deputy Advocates General.
Chander Bhusan Barowalia, Judge.
Since all these appeals arise out of the impugned judgment of conviction and sentence, dated 29.05.2017, passed by 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 08/01/2019 23:02:14 :::HCHP 2learned Additional Sessions Judge (II), Kangra at Dharamshala, H.P., in Sessions Trial No. 5-D/VII/2015, as such, they are heard together .
and are being disposed of by a common judgment.
2. Succinctly, the facts giving rise to the present appeals, as per the prosecution story, are that on 12.03.2015, Hari Charan informed the Police Post Yol that around 1.30 p.m., when he was busy in dismantling his old house, accused Lekh Raj alongwith his wife Nimmo Devi, Mohinder and his nephew came there and started arguing with respect to accumulation of debris. Hari Charan persuaded them that falling of debris here and there is natural in the process of dismantling the house, but, accused Mohinder snatched the spade from the labourers and assaulted him with it on his head. The wife of Hari Charan (Basla Devi), his sister-in-law and his grand son came to his rescue, however, they were also attacked with dandas and spade. On hearing clamor, the people of the vicinity gathered and accused persons on seeing them, fled away from the spot. This information was registered in general diary vide entry, No. 12 of 12.03.2015 and thereafter, the injured were taken to Zonal Hospital, Dharamshala for medical treatment.
On the same day, at about 2.45 p.m. accused Lekh Raj and Shilpa Devi informed the police qua beatings given to them by the complainant party, for which general diary entry, No. 14 was recorded and the injured mentioned therein were also taken to Zonal Hospital, Dharamshala for medical treatment. The Medical ::: Downloaded on - 08/01/2019 23:02:14 :::HCHP 3 Officer referred accused Mohinder and Lekh Raj, Kaushalaya Devi, Hari Charan, Mansa Devi and Basla Devi for x-rays and C.T. Scans.
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Basla Devi and Kaushalaya Devi were further referred to Dr. Rajinder Prasad Government Medical College, Tanda (for short "Tanda Hospital"). Pursuant to aforesaid informations, S.I. Bhupinder Singh went to the spot of occurrence, prepared spot map, photographed the scene of crime and recorded the statement of Lalita Devi under Section 154 Cr. P.C. On the basis of the statement of Lalita Devi, case FIR No. 65/2015, dated 13.03.2015, under Sections 341, 447, 323 and 504 of the Indian Penal Code (for short "IPC") was registered against the accused persons. On 15.03.2015, Basla Devi succumbed to the injuries at Tanda Hospital. Accordingly, accused persons were also charged under Section 302 IPC and were arrested on the same day. On 17.03.2015, Reeta Devi handed over to the police, the slippers, lady shoe, wrist watch and shawl of the accused persons, left by them at the place of occurrence. On 19.03.2015, accused Mohinder gave a disclosure statement regarding weapon of offence, i.e. spade and got recovered the same from his house. Sketch of the weapon of offence was prepared and it was taken into possession by the police. Spot map in this regard was also prepared. After postmortem, final opinion was obtained from the Medical Officer, who opined that the deceased died due to homicidal traumatic brain injury. The injury sustained by Hari Charan was also found to ::: Downloaded on - 08/01/2019 23:02:14 :::HCHP 4 be grievous in nature, so, the accused persons were also charged under Section 325 of IPC. After completion of investigation, challan .
was presented in the Court, under Sections 302, 323, 325, 341, 447 and 504, read with Section 34 IPC.
3. The prosecution, in order to prove its case, examined as many as twenty six witnesses. Statements of the accused persons were recorded under Section 313 Cr. P.C. The accused persons did not lead any defence in their favour.
4. The learned Court below, vide judgment/order dated 29.05.2017, convicted and sentenced all the accused persons, as follows:
"1) to undergo imprisonment for life and to pay fine of Rs.
25,000/- under Section 302 of the Indian Penal Code. In case of default of payment of fine, they shall further undergo rigorous imprisonment for a period of one year.
2) to undergo rigorous imprisonment for seven years and to pay fine of Rs. 10,000/- under Section 325 of the Indian Penal Code. In case of default of payment of fine, they shall further undergo rigorous imprisonment for a period of one year.
3) to undergo rigorous imprisonment for one year and to pay fine of Rs. 1,000/- under Section 323 of the Indian Penal Code. In case of default of payment of fine, they shall further undergo rigorous imprisonment for a period of two months.
4) to undergo rigorous imprisonment for three months under Section 447 of the Indian Penal Code.
All the sentences were directed to run concurrently, hence the present appeals.
5. Mr. Anoop Chitkara, learned counsel for the appellants/convicts/accused has argued that the prosecution has not explained the injuries received by the mother of appellants ::: Downloaded on - 08/01/2019 23:02:14 :::HCHP 5 Lekh Raj and Mohinder and mother-in-law of appellant Nimmo Devi. He has further argued that even otherwise also the .
prosecution has not proved any case against Lekh Raj and Nimmo Devi and their conviction is solely on the basis of Section 34 IPC and as it was a spontaneous act, it cannot be said that there was any meeting of mind, because there was no actual participation of appellants Lekh Raj and Nimmo Devi in the crime. Lastly, he has argued that as the prosecution has failed to connect the accused persons with the commission of offence, they are required to be acquitted.
6. On the other hand, learned Additional Advocate General has argued that the prosecution has proved the guilt of the accused persons beyond the shadow of reasonable doubt and the judgment of conviction, passed by learned Court below is based upon the proper appreciation of evidence, so the judgment of conviction, passed by learned Court below needs no interference.
7. Complainant Lalita Devi while appearing in the witness box as PW-1, has deposed that on 12.03.2015, around 1.00 p.m., when Hari Charan and the deceased were dismantling their house, accused Mohinder, Lekh Raj and Nimmo Devi came there and objected for the accumulation of the debris. Thereafter, the accused persons started quarreling with Hari Charan and the deceased by asking them to pick up the debris (malwa). Accused ::: Downloaded on - 08/01/2019 23:02:14 :::HCHP 6 Mohinder gave a spade blow on the right forearm of Hari Charan.
The deceased tried to rescue her husband, however accused .
Mohinder also gave a spade blow on her head. In the meanwhile, Mansa Devi came to the spot and she also tried to rescue Hari Charan and the deceased, but accused Nimmo Devi gave a danda blow on her hand. On their clamor, the villagers came there and on seeing them, accused persons fled away from the spot. After the incident, the injured went to Police Post Yol. Police visited the spot on 13.03.2015, prepared spot map and recorded her statement. The deceased was referred from Zonal Hospital, Dharamshala to Tanda Hospital, where she succumbed to the injuries on 15.03.2015. This witness, in her cross-examination, admitted that during the incident, Kaushalaya Devi (mother of accused) also sustained injuries. Though, she feigned ignorance as to which part of her body she sustained injuries, however, stated that she noticed injuries on her face. She volunteered that the injuries were caused to Kaushalaya Devi due to melee going on at the spot. She feigned ignorance whether Kaushalaya Devi remained hospitalized for five days at Tanda hospital. She admitted that she did not mention anything with respect to the injuries on the person of Kaushalaya Devi in her statement, Ext. PW-1/A. She denied that accused Mohinder and Lekh Raj also sustained injuries in this incident. She denied that by accumulation of the debris, there was hindrance on the way, leading to the house of accused ::: Downloaded on - 08/01/2019 23:02:14 :::HCHP 7 persons and it was causing seepage/dampness in the house of the accused. She denied that it was Kaushalaya Devi, who firstly .
sustained injuries. She also denied that the complainant party were the aggressors.
8. PW-2, Mansa Devi (sister-in-law of the deceased), has deposed that her house is in front of the house of Hari Charan. On 12.03.2015, Hari Charan was dismantling his house and had accumulated debris there, upon which, the accused persons raised an objection. Thereafter, accused persons started quarreling with Hari Charan and the deceased. Accused Mohinder lifted the spade lying on the spot and gave its blow on the arm of Hari Charan and also on the head of the deceased. As per this witness, when she went for their rescue, accused Nimmo inflicted a blow on her right forearm with some object, owing to which, she immediately became unconscious. Thereafter, she was taken to Zonal Hospital, Dharamshala, where she was medically examined. This witness, in her cross-examination, admitted that Kaushalaya Devi (mother of accused Mohinder) also sustained injuries on her head and she remained hospitalized for 5-6 days. She denied that accused Mohinder also sustained injuries in the incident. She admitted that due to accumulation of debris, there was seepage/dampness in the house of accused Mohinder and it was causing hindrance of passage to his house. She denied that the complainant party were the aggressors, due to which, entire incident took place. She also ::: Downloaded on - 08/01/2019 23:02:14 :::HCHP 8 denied that it was Kaushalaya Devi, who sustained injuries first.
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9. PW-3, Reeta Devi, has deposed that on 12.03.2015, at around 1.00 p.m., she had gone to the road side to check the delivery of iron rods (sariya) and she returned home when accused persons had left the scene after inflicting injuries to the deceased and Hari Charan. The entire incident was narrated to her by her son Rajat, who also sustained injuries on his lower back. As per this witness, she lifted a watch (Ext. P-2), single hawai Chappal (Ext.
P-3), single lady shoe (Ext. P-4) and one lady shawl (Ext. P-5) from the spot and handed them over to the police on 17.03.2015, which were taken into possession by the police vide memo, Ext. PW-3/A. On the same day, she handed over the clothes of the deceased (Exts. P-7 to P-10), worn by her at the time of incident, which were taken into possession by the police vide memo, Ext. PW-3/B. This witness, in her cross-examination, has deposed that she lifted all the articles from the spot on 12.03.2015 and police visited the spot and inquired the facts from her on 13.03.2015. She denied that all the articles were subsequently procured to create false evidence against the accused persons.
10. PW-4, Sarup Lal (Ward Panch), has deposed that on 17.03.2015, in his presence, Reeta Devi handed over the articles, Exts. P-2 to P-5 and Exts. P-7 to P-10 to the police, which were taken into possession by the police vide memos, Ext. PW-3/A and ::: Downloaded on - 08/01/2019 23:02:14 :::HCHP 9 Ext. PW-3/B. He further deposed that in his presence, accused Mohinder did not disclose anything to the police. Since this witness .
has not supported the prosecution case with respect to the disclosure statement made by the accused, thus learned Public Prosecutor cross-examined him, during which, he admitted that accused Mohinder made a disclosure statement to the police that he could get the weapon of offence, i.e. spade, recovered from his house. Accused Mohinder refused to sign his statement.
Thereafter, accused Mohinder led him, Neelam Kumar and the police party to this house, took the spade from the top of tin shed and handed it over to the police, which was taken into possession vide memo, Ext. PW-4/B. Accused Mohinder also refused to sign this memo.
11. PW-5, Hari Charan, has deposed that on 12.03.2015, he was dismantling his old house with his family members and in that process some debris got accumulated by the side of his house. Around 1.15 p.m., accused Mohinder, Lekh Raj and Nimmo Devi came there and objected to the accumulation of debris by saying that this land belongs to them, upon which, he promised that he will lift the debris from there, however Mohinder caught hold of him from his collar. The deceased tried to rescue him, but accused lifted a spade from the spot and gave its blow on his upper arm. Accused Mohinder also inflicted a spade blow on the head of the deceased. Thereafter, the villagers, including his ::: Downloaded on - 08/01/2019 23:02:14 :::HCHP 10 nephew rushed to the spot. Mansa Devi also tried to rescue them, upon which, accused Nimmo Devi lifted a shovel from the spot and .
inflicted a blow of it on her forearm. After inflicting injuries, the accused persons fled away from the spot and accused Mohinder also took spade with him. The deceased told him that she was hit by accused Mohinder, that were her last words, thereafter she vomited and never regained conscious. He was medically examined in Zonal Hospital, Dharamshala, whereas the deceased was referred to Tanda hospital, where she succumbed to the injuries on 15.03.2015. This witness, in his cross-examination, has deposed that when he visited Police Post Yol, his wife (deceased) was accompanying him, but she remained seated in the jeep. He denied that at that time, she was conscious. He feigned ignorance as to the fact whether it was Kaushalaya Devi, who firstly sustained injuries on her head. He denied that fight was started by them.
12. PW-6, Rakesh Kumar, has deposed that on 24.03.2015, police visited the house of accused Lekh Raj and inspected the spot, whereupon beneath the debris they found a left foot Relaxo Hawai Chappal, having size of 6 number, which was sealed by the police in a parcel and taken into possession vide memo, Ext. PW-6/A. This witness, during his cross-examination, admitted that Hari Charan is his collateral. PW-7, Dr. Tilak Bhagra, Radiologist, has deposed that on 13.03.2015, he examined the X-
::: Downloaded on - 08/01/2019 23:02:14 :::HCHP 11ray films of right forearm and right wrist of Mansa Devi and issued his report, Ext. PW-7/C. He also filmed the X-rays of the right .
shoulder of Hari Charan and issued his report, Ext. PW-7/E.
13. PW-8, Dr. Kumar Sourav, has deposed that on 13.03.2015, he medically examined Hari Charan, Mansa Devi, Rajat Chaudhary and the deceased and issued MLCs, Exts. PW-8/B to PW-
8/E. He opined that the injuries on the person of Hari Charan and the deceased are possible with the spade, whereas the injury on the person of Rajat Chaudhary is possible by the pointed side of the spade. This witness, in his cross-examination, has deposed that he did not inspect the CT Scan report of the deceased and it can only be opined after going through the CT Scan report, as to whether the injury was sufficient in the ordinary course of nature to cause death or not. As per this witness, on 13.03.2015, he also examined Kaushalaya Devi vide MLC, Ext. Dx and the injury mentioned in MLC is possible with a danda blow.
14. PW-9, Saroj Kumari, has deposed that on 12.03.2015, at about 1.15 p.m. when she was returning home, she heard noise of some fight near the house of Hari Charan. She saw accused Mohinder, Lekh Raj and Nimmo Devi arguing with Hari Charan and the deceased. In the meantime, accused Mohinder hit Hari Charan on his left arm with a spade, the deceased on her head and Mansa Devi on her hand. When people started gathering there, the accused persons fled away from the spot. They also took the spade ::: Downloaded on - 08/01/2019 23:02:15 :::HCHP 12 with them. This witness, in her cross-examination, admitted that her statement was recorded by the police after the lapse of one .
month. She further admitted that Kaushalaya Devi also sustained injuries on her head. As per this witness, the fight did not start in her presence, therefore, she could not say as to who initiated the fight.
15. PW-10, Pushpinder Kumar, Circle Patwari, has deposed that he demarcated the scene of crime on an application moved by the police and issued his report, Ext. PW-10/B, on the basis of Jamabandi, Ext. PW-10/C and Aks, Ext. PW-10/D, which are in conformity with the original record. PW-11, Sandip Kumar, Store Incharge, Police Station Dharamshala, has deposed that on 18.03.2015, S.I. Bhupinder Singh, deposited with him several sealed cloth parcels, containing clothes of the deceased and other material collected by the Investigating Officer, which he placed in the store vide entry, Ext. PW-11/A. On 19.03.2015, S.I. Bhupinder Singh again deposited a cloth parcel containing the spade with him, which was placed in the store vide entry, Ext. PW-11/B. On the same day, HHC Bas Raj deposited a sealed parcel, containing viscera of the deceased and other documents with him, which he placed in the store vide entry, Ext. PW-11/C. On 24.03.2015, S.I. Bhupinder singh, deposited with him cloth parcel, containing Relaxo Chappal, which he placed in the store vide entry, Ext. PW-
11/D. On 20.03.2015, he sent some of these parcels through HHC ::: Downloaded on - 08/01/2019 23:02:15 :::HCHP 13 Ashok Kumar vide RC, Ext. PW-11/E and on 04.04.2015, other parcels were sent through Constable Arjun Kumar, vide RC, Ext.
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PW-11/F to RFSL, Dharamshala. The parcels sent though Constable Arjun Kumar were returned and were again sent to RFSL, Mandi through HHC Kuldeep Singh, vide RC, Ext. PW-11/G.
16. PW-18, Dr. Ankit, has deposed that on 12.03.2015, the deceased was admitted in Tanda Hospital. He on her examination found that there was a lacerated wound of size 2x1 cm over left front parietal region, black eye (left side). CT Scan of head was suggestive of SDH with maximum thickness 6.5 mm along left frontal temporal and parietal region with hemorrhage and no-
hemorrhagic multiple contusions left cerebral hemisphere with mass effect and mid-line shift of 9 mm towards right side with traumatic SAH with linear undisplaced fracture of frontal bilateral temporal and bilateral parietal bones. Patient was managed conservatively with consultation with ophthalmology, neurosurgery and anesthesia. Patient was intubated as GCS deteriorated and put on ambubag ventilation. Patient was re-intubated on 14.03.2015 with consultation of anesthesiologist. Patient's condition further deteriorated and could not be revived and declared dead on 15.03.2015 at 9.00 a.m. He issued treatment summary, Ext. PW-
18/A. He opined that injuries on the person of the deceased are possible with spade and these injuries are sufficient to cause death in the ordinary course of nature. This witness, in his cross-
::: Downloaded on - 08/01/2019 23:02:15 :::HCHP 14examination, admitted that the death took place on the fourth day of the occurrence and it was not instantaneous. He further .
admitted that in Ext. PW-18/A, he did not mention that the injury in question was sufficient in the ordinary course of nature to cause death.
17. PW-25, Dr. Rahul Gupta, has deposed that on an application, Ext. PW-25/A, moved by the police, accompanying inquest papers, Exts. PW-25/B and PW-25/C, he conducted the postmortem examination of the deceased and observed following anti-mortem injuries:
(1) A laceration of 2cm x 0.3cm skin deep present vertically over left side of forehead in region of frontal eminence. Adherent brown scab is present. There is no evidence of grazing over surrounding sin. (2) A contusion 3 x 3cm purple in colour present over mid of left breast just above nipple.
(3) The black eye is present on both sides. (4) A contusion 3 x 3cm purple in colour present over middle half of front of left arm.
(5) A contusion 2 x 2cm purple in colour present over middle half of back of left forearm.
This witness, after receipt of the RFSL reports, Exts. PA and PB, opined that the deceased died due to homicidal traumatic brain injury. He further opined that the injuries sustained by the deceased over head are possible with the spade. He issued postmortem report, Ext. PW-25/D, on which he gave final opinion, Ext. PW-25/F, as per which, the injury on the head of the deceased was sufficient to cause her death in the ordinary course of nature.
This witness, in his cross-examination, admitted that the injured ::: Downloaded on - 08/01/2019 23:02:15 :::HCHP 15 died on the fourth day of the alleged occurrence and the death was not instantaneous.
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18. PW-26, Inspector Bhupinder Singh (Investigating Officer of the case), has deposed that on 12.03.2015, on an application moved by Hari Charan, alleging beatings given by the accused persons, G.D. entry, Ext. PW-19/A, was made and Injured persons namely Mansa Devi, Hari Charan, Rajat and the deceased were sent to Zonal Hospital, Dharamshala for medical examination with HHC Parveen Kumar. After their examination, HHC Parveen Kumar handed over to him the MLCs of the injured persons. The deceased was referred to Tanda hospital. On 13.03.2015, he visited the place of occurrence for verifying the correctness of rapat, Ext.
PW-19/A and recorded the statement of Lalita Devi, on the basis of which, FIR, Ext. PW-20/A was registered. He took photographs of the spot and prepared spot map. Besides the statement of Lalita Devi, he also recorded the statements of Mansa Devi, Hari Charan and Rajat. Thereafter, he went to Tanda hospital and presented an application, Ext. PW-26/C to the Medical Officer qua recording the statement of the deceased, however, the doctor declared her to be unfit to give statement. On 15.03.2015, the deceased expired. He filled up inquest forms, Exts. PW-25/B and PW-25/C and moved an application, Ext. PW-25/A, for conducting the postmortem of the deceased. He charged the accused persons for the commission of offence punishable under Section 302 IPC, interrogated them and ::: Downloaded on - 08/01/2019 23:02:15 :::HCHP 16 on finding sufficient evidence against them, arrested them vide memos, Exts. PW-26/J1 to PW-26/J3. On 17.03.2015, he again .
visited the spot, where Reeta Devi produced salwar kameej, pajami and shawl worn by the deceased at the time of occurrence, he sealed these articles in a parcel and took them into possession vide memo, Ext. PW-3/B. On the same day, Reeta Devi produced one Relaxo slipper, one brown shoe, sonata watch and a shawl, which were sealed by him in a cloth parcel and took into possession vide memo, Ext. PW-3/B. On 19.03.2015, accused Mohinder, while in police custody, gave a disclosure statement that he could get recovered the spade, which he had concealed in his house. The accused refused to sign the disclosure statement.
Pursuant to this statement, accused led the police party and the witness to his house, where he had thrown the spade towards temporary structure near his cowshed. On checking, the spade was found lying over the shed of the said structure, the same was recovered, measured and its sketch was prepared. He also prepared spot map in this regard. The spade was sealed in a cloth parcel and taken into possession vide memo, Ext. PW-4/B. Accused also refused to sign the memo. On 24.03.2015, he again visited the spot, taken into possession one Relaxo chappal and sealed it in a cloth parcel vide memo, Ext. PW-6/A. Spot map in this regard was prepared. The scene of crime was got demarcated through revenue agency and demarcation report was procured. On receipt ::: Downloaded on - 08/01/2019 23:02:15 :::HCHP 17 of forensic report, he procured final opinion regarding cause of death, vide application, Ext. PW-25/E, alongwith treatment .
summary, Ext. PW-18/A of the deceased. On 03.06.2015, he moved an application to Medical Officer, Zonal Hospital, Dharamshala and obtained opinion regarding nature of injury received by Hari Charan and on finding the injury to be grievous in nature, he charged accused person under Section 325 IPC. This witness, in his cross-examination, admitted that Kaushalaya Devi had also sustained head injury in the alleged occurrence and she remained hospitalized w.e.f. 12.03.2015 till 17.03.2015 at Tanda Hospital. He also admitted that Kaushalaya Devi was got medically examined at the instance of the police of Police Post Yol in Zonal Hospital Dharamshala, however, her MLC, Ext. DX, was not attached with the police challan. He denied that he intentionally not attached the MLC of Kaushalaya Devi with the police challan in order to suppress the genesis of the occurrence.
19. Besides aforesaid witnesses, the prosecution has also examined PW-12, HHC Ashok Kumar, PW-13, HHC Kuldeep Singh, PW-14 HHC Sumesh Kumar, PW-15, HHC Parveen Kumar, PW-16, Constable Shiv Charan, PW-17, Constable Sunil Kumar, PW-19, HHC Bishanu, PW-20, HHC Bas Raj, PW-21, ASI Jitender Kumar, PW-22, HC Sant Ram, PW-23, Parveen Kumar and PW-24, Inspector Mool Raj, who are formal witnesses.
::: Downloaded on - 08/01/2019 23:02:15 :::HCHP 1820. From the evidence, which has come on record, following facts emerge:
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(i) Accused Mohinder asked Hari Charan to lift the debris of the dismantled house, as it was causing seepage/dampness in their house and Hari Charan promised the accused to lift the same.
(ii) Mother of accused Mohinder and Lekh Raj and mother-in-law of accused Nimmo Devi had also received injuries on her head in the alleged occurrence and she remained hospitalized for five days.
From the aforesaid facts, it appear that when the debris were being stored in the land of accused Mohinder, it was causing seepage/dampness in the house of accused persons. The mother of the accused objected to it and in that altercation, she received injuries, but who started the altercation first, is not clear from the record. However, it appears that some altercation was going on between the accused persons and complainant party and when mother of accused No. 1 and 2 and mother-in-law of accused No. 3 received injuries, accused No. 1 snatched the spade from the labourer of the complainant party and hit the deceased, as a result of which, she died. However, the injuries received by the mother of the accused were not explained by the prosecution, but from the evidence it is evident that she also received injuries in the same incident.
21. Now, second question which arises for consideration is, whether accused No. 2 and 3 were having common intention to kill the deceased? If their participation in the act is analyzed, it ::: Downloaded on - 08/01/2019 23:02:15 :::HCHP 19 appears that neither they participated in the act of beating the deceased, nor they were having any common intention to kill the .
deceased, as it was a simple case of altercation with regard to the storage of debris, leading seepage/dampness in the house of the accused persons and suddenly without any prior meeting of mind accused Mohinder inflicted injuries on the head of the deceased with spade and due to brain injury, the deceased died after four days. He also in that sudden altercation without any prior meeting of mind with co-accused and without their participation, caused grievous injury to Hari Charan by trespassing his land. So, he is the only person, who is liable to be convicted for the commission of crime.
22. The prosecution has failed to prove the guilt of accused No. 2 and 3 under sections 323, 325 and 447 IPC also, as there is nothing on record that either they caused grievous hurt or trespassed the land of Hari Charan. Though, Hari Charan in his statement deposed that accused Nimmo Devi inflicted shovel blow to Mansa Devi, however, Mansa Devi has stated that accused Nimmo Devi inflicted a blow on her right forearm with some object and thereafter she became unconscious. There is contradiction in the statements of both these witnesses with respect to unconsciousness and object, with which, a blow was alleged to be given. So, their statements qua accused Nimmo Devi seem to be an afterthought and are not reliable. In these circumstances, it is ::: Downloaded on - 08/01/2019 23:02:15 :::HCHP 20 more than safe to hold that learned Court below has committed illegality in convicting accused No. 2 and 3, under Section 302, .
323, 325 and 447 IPC, as they were nothing more than mere spectators.
23. On the other hand, as per learned counsel for the appellants, the act of accused No. 1 was in self defence, as his mother was injured, but while analyzing the evidence, including medical evidence and the postmortem report, it is clear that injuries caused on the head of the deceased were of such a nature which any prudent person will know that these are sufficient to cause death in all probabilities. So, the act of accused Mohinder, giving spade blow on the head of the deceased and that it will cause death in all probabilities, was within his knowledge. There is nothing on record that when he caused the injuries there was any danger to his life or to the life of his mother from the complainant party. Further, there is also conclusive evidence against accused Mohinder that he caused grievous injury on the person of Hari Charan. The defence has failed to prove anything that accused Mohinder has lost control of his senses, rather from the prosecution evidence, it is clear that he with intention to do so, inflicted injuries on the head of the deceased, causing her death. In these circumstances, this Court finds that the learned Court below has committed no illegality in convicting accused Mohinder for the commission of offence punishable under Sections 302, 323, 325 ::: Downloaded on - 08/01/2019 23:02:15 :::HCHP 21 and 447 of IPC, as such, his conviction needs no interference.
24. So, in view of what has been discussed hereinabove, .
this Court this Court finds no material on record to suggest that accused No. 2 and 3, i.e. Lekh Raj and Nimmo Devi, caused any injury to the deceased or the complainant party, nor anything has been proved which can establish their common intention to kill the deceased. Thus, learned Court below has committed grave illegality in convicting accused No. 2 and 3, applying Section 34 IPC. Consequently, accused No. 2 and 3, i.e. Lekh Raj and Nimmo Devi are acquitted of the commission of offence punishable under Section 302, 323, 325 and 447. They be released forthwith, if not required in any other case, however, subject to their furnishing personal bonds in the sum of Rs. 50,000/- (each), with one surety in the like amount (each) to the satisfaction of learned Additional Sessions Judge (II), Kangra at Dharamshala, undertaking specifically therein that in the event of an appeal is preferred against this judgment, they shall appear before the Hon'ble Supreme Court.
25. The Registry is directed to prepare the release warrants of accused Lekh Raj and Nimmo Devi and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.
26. Accordingly, the appeals filed by appellants/convicts Nimmo Devi and Lekh Raj are allowed, whereas appeal filed by ::: Downloaded on - 08/01/2019 23:02:15 :::HCHP 22 accused Mohinder is dismissed. The appeals, so also pending miscellaneous application(s), if any, stand disposed of.
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(Dharam Chand Chaudhary) Judge ( Chander Bhusan Barowalia) Judge January 05, 2019 (raman) r to ::: Downloaded on - 08/01/2019 23:02:15 :::HCHP