Himachal Pradesh High Court
Sarwan Singh vs State Of H.P on 21 April, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA Cr.A.Nos.173, 348 and 401 of 2015 Reserved on: 8.4.2016 Date of Decision: April 21 , 2016.
1. Cr.Appeal No.173 of 2015 .
Sarwan Singh .....Appellant.
Versus
State of H.P. ...Respondent.
2. Cr.Appeal No.348 of 2015:
Karmi Devi ... Appellant
Versus
State of H.P. and another ...Respondents.
3. Cr.Appeal No.401 of 2015:
State of Himachal Pradesh ... Appellant
Versus
Sarwan Singh ...Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
Appearing Counsel:
1. Cr.Appeal No. 173 of 2015For the Appellant: Mr. N.K.Thakur, Sr. Advocate with Mr. Rohit Bharol, Advocate.
For the respondent: Mr.M.A.Khan, Additional A.G. 2. Cr.Appeal No.348 of 2015 For the Appellant: Mr. Adarsh Sharma, Advocate.
For the respondent: Mr.M.A.Khan, Additional A.G. for Respondent-State.3. Cr.Appeal No.401 of 2015
For the Appellant: Mr. M.A.Khan, Additional A.G. ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...2...
For the respondent: Mr. N.K.Thakur, Sr. Advocate with .
Mr. Rohit Bharol, Advocate.
Per Sureshwar Thakur, Judge Cr.Appeal No. 173 of 2015 This appeal stands directed by the accused learned against the impugned judgment rendered on 9.3.2015 by the Additional Sessions Judge, Hamirpur in Sessions Trial No. 18 of 2013 whereby the learned trial Court convicted and sentenced the accused to undergo simple imprisonment for one year 10 months and 17 days besides sentenced him to pay a fine of Rs.10,000/- and in default of payment of fine, he was sentenced to further undergo simple imprisonment for three months.
Cr.Appeal No.348 and 401 2015
2. These appeals stand preferred by the State and Karmi Devi complainant against the impugned judgment rendered on 09.03.2015 by the learned Additional Sessions Judge, Hamirpur, in Sessions Trial No.18 of 2013 with a common prayer therein of the conviction of accused under ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...3...
Section 325 IPC being modified to that of conviction under .
Section 302 IPC.
Cr.A.Nos.173, 348 and 401 of 2015
3. The prosecution story, in brief, is that on 4.4.2013 at about 6.30 a.m vide Rapat Ext.PW-9/A M.O. Regional Hospital, Hamirpur informed the police of police station Sadar that one Prakash Chand has been brought dead on account of a quarrel. On this information SI Amar Singh alonwith other police officials visited R.H.Hamirpur and then to village Chhiyorin where complainant Smt. Karmi Devi reported to the police that on 3.4.2013 at about 5.00 p.m the grand son of accused Sarwan Singh alongwith their as well as other children were playing near community centre of the village and while playing the grand son of accused Sarwan sustained some injuries. On 4.4.2013 at about 5.45 a.m accused Sarwan Singh came in the courtyard of their house and raised a voice for Prakash Chand. Prakash Chand on hearing the voice of accused came out in the courtyard. Accused Sarwan was carrying a bamboo stick in his hand. Her husband went ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...4...
to the path near to the courtyard and while standing on the .
retaining wall of the path started talking with the accused but accused gave a blow on his head with the bamboo stick carried by him and threw him down from the retaining wall in the courtyard. In the meantime her son Vipan, daughter Anjana and daughter in law Nisha also reached there upon which accused Sarwan Singh alongwith stick ran away towards his house. Prakash Chand was lying unconscious in the courtyard. On their making hue and cry the persons from the vicinity also reached there. Later Prakash Chand was removed to hospital by Vipan, Vinod and others. Lateron it was conveyed from the hospital that Praksh Chand had died.
On recording of the statement of the complainant, the same was sent with constable Anil Kumar to the police station concerned on basis whereof F.I.R stood registered.
4. On conclusion of the investigation into the offence, allegedly committed by the accused a final report under Section 173 of the Code of Criminal Procedure stood prepared and filed in the competent Court.
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5. The accused stood charged by the learned trial .
Court for his committing offences punishable under Section 302 of the Indian Penal Code, to which he pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution examined as many as 16 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 Cr.P.C. stood recorded, in which he pleaded innocence. On closure of proceedings under Section 313 Cr.P.C. the accused was given an opportunity to adduce evidence in defence which opportunity stood availed by the accused by his examining two witnesses in his defence. On an appraisal of evidence on record, the learned trial Court returned findings of conviction under Section 325 IPC against the accused.
7. Mr.N.K.Thakur, learned Senior Counsel appearing for the appellant/accused/convict, has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing not based on a proper ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...6...
appreciation of evidence on record, rather, theirs standing .
sequelled by gross mis-appreciation of material on record.
Hence, he contends qua the findings of conviction being reversed by this Court in the exercise of its appellate jurisdiction and theirs standing replaced by findings of acquittal.
8. to The State of Himachal Pradesh and Mr. Adarsh Sharma, learned counsel for complainant Karmi Devi have also filed appeals respectively bearing Criminal Appeal No.348 and Criminal Appeal No. 401 of 2015 for modification of judgment of conviction rendered by the learned Trial Court qua accused from Section 325 IPC to one under Section 302 IPC.
9. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record.
10. The accused with Bamboo danda Ext.P-2 recovered under memo Ext.PW-5/A struck a blow on the head of the deceased sequelling his falling from a height of ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...7...
1-1/2 to 2 feet in the court yard of Lekh Ram. In .
consequence to the deceased falling in the courtyard of Lekh Ram from a height of 1-1/2 to 2 feet in sequel to his head standing struck by the accused with Bamboo danda Ext.P-2, he sustained a fatal head injury depicted at page No.3 of the post mortem report. PW-14 who conducted post mortem on the body of the deceased has during the course of his deposition on oath proved post mortem report comprised in Ext.PW-14/B besides has voiced therein an opinion qua the demise of the deceased standing aroused by a head injury leading to sub archival and sub dural hemorrhage. The aforesaid opinion of PW-14 qua the cause of demise of the deceased stands recorded in Ext.PW-14/F. Ext.PW-14/G records the factum of the head injuries mentioned in the post mortem report being sufficient in the ordinary course of nature to cause death. Bamboo danda Ext.P-2 stood produced by the Investigating Officer before PW-14 at the time contemporaneous to his subjecting the body of the deceased to post mortem examination whereat PW-14 voiced an ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...8...
opinion displayed in Ext.PW-14/D of the fatal head injury .
elucidated in the post mortem report standing sequelled with the user of Bamboo danda Ext.P-2. The relevant portion of the post mortem report comprised in Ext.PW-14/B stands extracted hereinafter:
"External Appearance:
Dead body of a male moderate built body had cooled down to room temperature, rigor mortis had appeared in upper part of the body, hypostasis present on back purple and in mottled patches and not fixed. Flothes dark grey check shirt, Bariyan, white lower and underwear had no tear.
List of Antemortem External injuries:
Abraded contusion 12x5 cm on upper part of neck left side just below pinna and reddish blue, extending over the lobule of left pinna.
Cranium and Spinal Cord Scalp skull and vertebrae:
On reflecting scalp, contusion 5x3 cm on right parieto occipital region of skull without any fracture of scalp. Membranes and brain:
Subdural haemorrhage present on left side and gross sub arachnoid haemorrhage present all over the brain.
Thorax:
Walls, ribs and cartilages, Pleurea,
Larynx and trachea : Normal
Right and left lungs : Congested.
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Pericardium, heart and large
Vessels : Showed atherosclerotic changes
.
Abdomen:
Walls, peritoneum, small and large intestines, liver, spleen, kidneys and organs of generations : Normal.
Bladder Empty.
Mouth, pharynx and Oesophagus:
There was linear fracture of mandible on left side, mouth showed clotted blood and blood stains on right angle of mouth with mucosal laceration."
11. In his cross examination PW-14 has admitted the suggestion put to him by the learned defence counsel of the fatal hemorrhage being ensuable by a fall. However, he has denied the suggestion put to him of the antemortem injury/injuries detected by him to be occurring on the body of the deceased being sequelable by a fall on blunt object. He has proceeded to in his cross-examination admit the suggestion of the defence counsel of the antemortem injury reflected at page 2 of the post mortem report being not fatal rather the injury enumerated at page 3 thereof being fatal in the ordinary course of nature. The voicing of by PW-14 in his cross-examination qua the injury elucidated by him at page 3 ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...10...
of the post mortem report being fatal yet his in the concluding .
sentence of his examination in chief PW-14 echoing qua the injury aforesaid being possible if a person falls from a height after his standing struck on the left side by a Danda, has held a ground for the learned defence counsel to contend of the fatal injury standing not begotten by a blow of Danda struck on the deceased by the accused rather its occurrence being sequel to a fall which the deceased suffered in succession to his standing struck with a danda by the accused. In other words, the contention of the learned defence counsel is of the fall of the deceased from a height of 1-1/2 to 2 feet rather leading to his demise than it being attributable to his standing struck by the accused with a bamboo danda Ext.P-2. The aforesaid contention reared by the learned defence counsel of hence the demise of the deceased standing not aroused by his standing struck a bamboo blow by the accused is a feeble attempt to merely mitigate the rigour of the incriminatory role ascribed by the prosecution to the accused. Obviously it does not negate nor benumb the participation of or the prime ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...11...
factum of the accused striking the deceased with Bamboo .
danda Ext.P-2.
12. The defence has led DW-1 into the witness box.
He in his examination in chief has opined of injury No.1 recorded in Ext.14/B being the only antemortem external injury detected to be occurring on the body of the deceased on PW-14 subjecting it to post mortem examination. He for reasons extracted hereinafter has dispelled the occurrence of injury No.1 recorded in Ext.PW-14/B to the user thereon of bamboo Ext.P-2:
"1. The width of the injury mentioned is 5 cm, whereas the maximum impact of the weapon is just 3 cm.
2. If severe blow is given on head where the skin is tightly stretched over the skull, there is every possibility that this area would be lacerated alongwith fracture of the skull below which is not present in this case."
13. Moreover, he has proceeded to dispel qua user of Ext.P-2 sequelling the contusion occurring below parieto occipital area of the body of the deceased, on the score of ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...12...
no corresponding external injury standing detected thereat, .
rather he has proceeded to ascribe the cause of injury No.1 occurring at Page 2 in Ext.PW-14/B to a fall on a pointed object. He has proceeded to also dispel the user of bamboo danda Ext.P-2 in the begetting of fracture of mandible reflected in Ex.PW-14/B on the score of no corresponding external injury occurring thereat. The reasons as assigned by DW-1 for dispelling the purported user of Bamboo danda Ext.P-2 on the person of the deceased by the accused besides its concomitantly not sequelling either injury No.1 recorded at Page No. 2 of Ext.PW-14/B or the injury detailed at page No.3 of Ext.PW-14/B, falter in the light of DW-1 in his cross-examination admitting the suggestion put to him by the learned public prosecutor, of the deceased suffering a fall in sequel to his head standing struck with Ext.P-2 and his ensuingly begetting the injury detailed at page No. 3 of Ext.PW-14/B besides the admission aforesaid of DW-1 concomitantly also wanes the effect of his deposition comprised in his examination in chief wherein for non ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...13...
occurrence of a corresponding external injury upon the portion .
whereat on account of a fall in sequel to his head standing struck with bamboo danda Ext.P-2 he suffered a fatal injury thereon, he stood constrained to dispel the user thereon of Danda Ext.P-2, moreso with his also voicing therein of their being no indefeasible rule of a person who suffers a fall ought to necessarily beget any external injury on his head.
r In sequel, even if no external injury occurred on the parieto occipital area of the deceased, portion whereof struck the path on the deceased falling thereon from a height of 1-1/2 to 2 feet, in sequel to his standing struck a blow by the accused with bamboo danda Ext.P-2 leading to his demise, cannot at all benumb the striking of a blow of danda thereat by the accused. DW-1 in his cross-examination has therein articulated of the possibility of fracture of mandible being an imminent sequel to a person standing struck with a blow of danda. He has also proceeded to depose of injury No.3 occurring at Page 4 of the post mortem report being possible with blow of Danda. However, he has in quick succession ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...14...
dithered therefrom on account of no external injury existing .
thereon. Even if assumingly the ditherings of DW-1 inasmuch as in the earlier portion of his cross-examination his deposing of user of Danda Ext.P-2 sequelling the fracture of mandible yet in quick succession his for lack of any corresponding for reasons r assigned to external injury occurring thereon overruling its user does not hereinabove disables hence his vacillatory opinion qua the cause of fracture of mandible of the deceased especially when besides previously it stands underscored by him in his deposition comprised in his cross-
examination of it being attributable to user of Bamboo danda Ext.P-2 also predominantly when in quick succession, he digressed therefrom qua hence its garnering any probative vigour or its holds any conclusive evidenciary worth nor the latter ditherings by him of lack of corresponding external injury over the face overruling the user of danda thereon by the accused hold any evidenciary sinew rather his ditherings wane the effect of his deposition qua absence of corresponding external injury on the face of the deceased overruling the user ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...15...
of Danda thereon. Moreover, DW-1 deposing of the fatal .
injury being sequelable to a fall suffered by the deceased ensuing from his standing struck with a danda blow rather appears to concur with the opinion voiced by PW-14 qua the fatal head injury being possible if a person suffers a fall from danda. to a height after his standing struck on the left side with a With complete unanimity occurring intra se PW-14 and DW-1 qua the sequelling cause of the fatal head injury, the defence cannot borrow any succor from the testimony of DW-1 on the anvil of the reasons pronounced in his examination in chief alluded to ad nauseam hereinbefore wherein he for starkly frail reasons dwelt upon hereinabove has dispelled the user of Bamboo danda Ext.P-2 on the deceased by the accused. DW-1 to whom Bamboo danda Ext.P-2 stood shown during the course of the recording of his deposition has underscored therein of the impact of its blow on the person of the deceased not exceeding dimensions of 5 centimeters, consequently he stood disabled to assign any reason qua the occurrence of an injury holding a dimension of ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...16...
12 centimeters as marked in Ext.PW-14/B comprising the .
post mortem report. Though the learned defence counsel argues of hence the user by the accused of Danda Ext.P-2 standing dispelled nonetheless the aforesaid submission succumbs in the light of DW-1 in his cross-examination conceding to the suggestion put to him by the learned defence counsel of fracture of mandible standing begotten by use of even 5 pounds of force whereas it remaining unbegotten by user of even 90 pounds force. Be that as it may, even if the impact or the force of danda blow struck by the accused on the head of the deceased remains uncalibrated yet the mere factum of its impact remaining uncalibrated cannot overrule its user thereon, as the fatal head injury stood attained by the deceased on his falling on a path from a height of 1-1/2 to 2 feet on his standing struck thereat with a blow of danda Ext.P-2.
14. Both PW-1 and PW-11 eye witnesses to the occurrence depose with intra se corroboration qua the factum probandum of the accused armed with Bamboo danda Ext.P-
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2 striking the deceased on his head sequelling his begetting .
injuries entailing his suffering a fall onto the courtyard of Lekh Ram from a danga carrying a height of 1-1/2 to 2 feet. Both PW-1 and PW-11 ocular witnesses to the occurrence withstood the rigours of an exacting cross-examination for dispelling the factum of their presence at the site of occurrence. In sequel, the echoing by both with intra se corroboration the prime factum of the accused striking the head of the deceased with danda sequelling his suffering a fall onto the courtyard of Lekh Ram from a danga carrying a height of 1-1/2 to 2 feet stands bereft of any taint of prevarication or falsehood, contrarily implicit reliance is enjoined to be placed by this Court qua the prime ocular fact unanimously deposed by each.
15. The recovery of bamboo stick Ext.P-2 stood effectuated under Ext.PW-5/A preceding whereof disclosure statement of the accused comprised in Ext.PW-4/A stood recorded by the Investigating Officer. Both PW-5 and PW-13 witnesses to the memos aforesaid have in tandem deposed ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...18...
the factum of the investigating officer effectuating at the .
instance of the accused recovery of Ext.P-2 from a place about 10 feet below the retaining wall of the road. The testimonies of both aforesaid omit to unfold of any taint ingraining their respective testimonies for rendering unworthy their depositions qua the unanimously testified factum qua the efficacious recovery of Ext.P-2 by the Investigating Officer at the instance of the accused in pursuance whereof Ext.PW-
5/A stood prepared. Consequently, the prosecution has succeeded in proving the recovery of Danda by the Investigating officer at the instance of the accused. With efficacious proof standing adduced by the prosecution qua recovery of Danda by the Investigating Officer at the instance of the accused obviously it adds vigour to the ocular account qua the occurrence rendered in unanimity besides in tandem by PW-1 and PW-11 also it imputes sanctity to the deposition of PW-14 and DW-1 qua theirs voicing therein of the fatal head injury noticed by them on the person of the deceased ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...19...
being sequelable by his suffering a fall in consequence to his .
standing struck with blow of danda Ext.P-2.
16. Be that as it may, with PW-11 identifying Ext.P-2 subsequent to its recovery also corroborates her deposition of it being the weapon standing sighted by her to be used by the accused for delivering blows on the head of the deceased. A feeble attempt has been made to displace the efficacy of recovery of Ext.P-2 under memo Ext.PW-5/A on the strength of Ext.PW-15/A constituting the video graphy of the site at the time contemporaneous to the recovery of danda Ext.P-2 by the Investigating Office at the instance of the accused especially with its purportedly unraveling the factum of PW-13 alongwith DW-2 tutoring the witnesses qua recovery of Ext.P-
2 even prior to the recording of the disclosure statement made by the accused before the Investigating Officer.
However, the aforesaid submission is rendered frail in the wake of the CFSL Chandigarh whose opinion stood requisitioned qua the voice samples of PW-13 and DW-2 on comparison with their purported questioned voices occurring ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...20...
in Ext.PW-15/A belonging to each, withholding its apposite .
opinion on the score of the questioned voices being not obtainable.
17. The summum bonum of the above discussion is of the prosecution succeeding in proving by credible ocular evidence assuredly corroborated by medical evidence, the factum of the accused striking the deceased on his head with Danda Ext.P-2.
18. The learned trial Court had on the strength of both PW-14 and DW-1 underscoring in their respective depositions of the fatal head injuries being sequelable to a fall suffered by the deceased on his standing struck with a danda blow by the accused concluded therefrom of the accused not carrying either the mens rea to commit murder nor his carrying knowledge of the apposite injury likely to cause death.
Accordingly, the learned trial Court convicted the accused under Section 325 IPC. The reasons assigned by the learned trial Court for recording findings of conviction against the accused under Section 325 IPC are misconceived besides ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...21...
misfounded. Moreover they unveil a gross mis appreciation .
by it of the evidence on record. Needless to say the learned trial Court had mis applied the law applicable to proven facts on record. With this Court concluding of both PW-14 and DW-1 with complete unanimity underscoring in their respective depositions of the fall of the deceased which begot the fatal head injury being sequelable to his head standing struck a blow of danda Ext.P-2 by the accused, factum whereof of the head of the deceased standing struck by a bamboo danda by the accused stands proven by unflinching intra se corroborative testimonies of ocular witnesses both of whom unfailingly depose qua the suffering of a fall by the deceased onto the courtyard of Lekh Ram from a danga carrying a height of 1-1/2 to 2 feet standing entailed by his head standing struck with bamboo danda Ext.P-2 by the accused, obviously there was a causal connection inter se the striking of the head of the deceased by the accused with Danda and his suffering a fall onto the courtyard of Lekh Ram from a danga carrying a height of 1-1/2 to 2 feet, which fall ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...22...
proved fatal. With a close causal connection or nexus arising .
inter se the striking of the head of the deceased by the accused with a Danda and his suffering a fall onto the courtyard of Lekh Ram from a Danga located at a height of 1-1/2 to 2 feet dispels any segregation as untenably done by the learned trial Court inter se the act of the accused striking of the head of the deceased with a danda and his in sequel thereto suffering a fall onto the courtyard of Lekh Ram from a danga carrying a height of 1-1/2 to 2 feet, contrarily with absolute synchronization existing inter se the striking of the head of the deceased by the accused with a Danda vis-à-vis his in quick succession thereto suffering a fall onto the courtyard of Lekh Ram from a danga carrying a height of 1- 1/2 to 2 feet which fall proved fatal, necessarily the fatality of the head injuries sustained by the deceased by a fall ensuing from a danda blow struck thereat by the accused, obviously fosters an inference of the mind of the accused standing ingrained with a necessary mens rea to commit the murder of the deceased. In other words the inference of the accused ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...23...
carrying in his mind the necessary mens rea to commit the .
murder of the deceased stands aroused by the factum of his striking the head of the deceased with a Danda while the deceased stood perched on a danga especially when the blow of danda delivered by him on the head of the deceased held the natural consequence of his suffering a fall therefrom.
In aftermath when the deceased ultimately fell onto the courtyard of Lekh Ram from a danga carrying a height of 1- 1/2 to 2 feet, his fall while being ascribable to the impact of the danda blow delivered on his head by the accused which fall sequelled a fatal injury on his person, reinforcingly when PW-14 and DW-1 voice with unanimity of the fatal head injury attained by the deceased by his suffering a fall onto the courtyard of Lekh Ram from a danga carrying a height of 1- 1/2 to 2 feet, an apt sequitur thereof is of the vital injury occurring only on a blow of danda standing struck on the head of the deceased by the accused, preeminently when the fact of the deceased suffering a fatal fall is linkable to his head standing struck a danda blow by the accused. In ::: Downloaded on - 15/04/2017 18:02:10 :::HCHP ...24...
aftermath with the deceased standing struck with a blow of .
danda by the accused satiates the ingredient of the accused striking thereat with an intention to commit the murder of the deceased, this Court is constrained to modify his conviction from Section 325 to that under Section 302 IPC.
19. Accordingly, the appeal filed by the accused bearing Cr.Appeal No.173 of 2015 is dismissed. However, the Criminal Appeal No.348 and Criminal Appeal No. 401 of 2015 filed respectively by the complainant and by the State stand allowed. The conviction of accused recorded under Section 325 IPC by the learned trial Court is modified to one under Section 302 IPC.
20. Let the accused/convict be produced before this Court on 25/5/2016 for his being heard on quantum of sentence.
(Rajiv Sharma)
Judge
April 21, 2016 (Sureshwar Thakur)
(soni/TM) Judge
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