Himachal Pradesh High Court
Om Parkash And Anr. vs State Of Himachal Pradesh on 21 December, 1999
Equivalent citations: 2000CRILJ2675
Author: M.R. Verma
Bench: M.R. Verma
JUDGMENT M.R. Verma, J.
1. This appeal is directed against the judgment dated 23-11-1996 passed by the learned Sessions Judge, Una, whereby while acquitting the co-accused Chanchla Devi, the accused-appellants (here-inafter referred to as the 'accused') have been convicted under Section 304, Part-II read with Section 34, IPC and under Section 325 read with Section 34, IPC and each of them has been sentenced to undergo rigorous imprisonment for five years and to pay a fine in the sum of Rs. 5,000/- each, under Section 304, Part-II, IPC and to undergo rigorous imprisonment for three years and to pay fine in the sum of Rs. 5,000/- each under Section 325, IPC. In default of payment of fine under each count, they have been ordered to sufffer further rigorous imprisonment for six months each. The term of imprisonments awarded on different counts to each accused, have been made to run concurrently.
2. The case of the prosecution in brief is that on 17-9-1994 at about 6.00 a.m. the accused persons and Chanchla Devi with the common intention of causing death caused injuries to Harjal Singh (since deceased), Devinder Singh (PW-3 and Raj Kumari (PW-2). The injured were assaulted by the accused persons for not meeting their demand to partition the land jointly owned by accused Om Parkash and Harjal Singh. The injuries are stated to have been caused by accused Om Parkash with a lathi and by accused Sudhir Kumar with a Fawara which they had brought from their cow-shed. Ram Kumari (P.W. 2) narrated the occurrence to Usha Devi (PW. 1), who in turn, reported the matter to the police whereupon FIR Ext. PA under Sections 307/34, IPC came into being at Police Station, Gagret. In the meanwhile, the injured were removed to hospital and were medically examined and X-rayed. The Medico-Legal Reports about the examination of Harjal Singh and Devinder Singh issued by Dr. Y. P. Sharma (P.W. 6) are Exts. PF and PH, respectively and the X-Ray reports are Ext. P.W-7/A and Ext. PW-7/B. As per Medico Legal Report, Ext. PF at the time of medical examination, Harjal Singh was found unconscious and four injuries, one of which was grievous having been caused with a blunt weapon within 12 hours of his medical examination were found. As per the Medico-Legal Report, Ext. PH, four injuries were found on the person of Devinder Singh, one of which was grievous having been caused within 12 hours of his medical examination with blunt weapon. These opinions are supported by X-Ray reports Ext. PW-7/A and Ext. 7/B. Harjal Singh, however, succumbed to the injuries sustained by him at about 11-30 p.m. on 17-9-1994. The Investigating Agency, therefore, converted the case to one under Sections302/307/34, IPC. The investigation was undertaken by PW-16 Kishan Chand, Sub-Inspector, who visited the spot, prepared the site plan, Ext. PU and took in possession the blood-stained earth and Parna. Ext. P-5 and Ext. P-6, respectively vide memo Ext. PC. He took in possession the Pant (Ext. P-3) and Shirt (Ext. P-4) of Devinder Singh (PW-3) vide memo Ext. PB. The place of occurrence was got photographed from PW Chiranji Lal and the negatives thereof are Exts. P-12 to P-20 and the positives are Exts. P-21 to P-29.
3. During the course of investigation, accused Sudhir Kumar made a disclosure statement (Ext. PD) to the police about the FAWARA (Ext. P.1) and LATHI (Ex. P-2) having been kept in his courtyard and pursuant to the said statement the same were taken into possession vide memo Ext. PE. On production by Devinder Singh injured, his pant (Ext. P-3) and shirt (Ext. P-4) were taken into possession by the police vide memo (Ext. PM). The clothes taken into possession are stated to be an underwear (Ext. P-30), a Banyan (Ext. P-31) and a Kurta (Ext. P-32) which were sealed.
4. The blood-stained earth was taken into possession by the police. The clothes found on the person of the deceased Harjal at the time of post-mortem i.e. Parna. Shirt, a Banyan and underwear were taken into possession by PW-14 and were sealed.
5. FAWRA. Danda, wearing apparels of Devinder Singh, namely, a pant and a shirt were sent to the State Forensic Laboratory, Himachal Pradesh, Shimla for chemical analysis. Vide report Ext. PB received from the said laboratory, the blood-stained earth was found to contain blood, but nothing further could be ascertained. Parna was found stained with human blood, but the blood group could not be ascertained. Shirt, pant and another shirt were found stained with human blood of group A-B, Blood stains were found on FAWARA. Banyan and underwear but no further opinion could be given and the blood stains were not detected on Danda(Ext. P-l).
6. The report marg prepared by the police is Ext. PQ. The post-mortem report Ext. PR has been prepared and issued by Dr. M. K. Pathak (PW-14). He has found the following injuries on the dead body of Harjal Singh:-
Sympton observed before death Head injury deep coma.
External Appearance.
Body of a well built old man around 70 years by apparent look with massive bleeding from nostrils (blakish red), wearing white underwear, white Banyan, Asmani colour Kurta (sky blue) Post-mortem staining and rigor mortis present. Lacerated wound 2" x 3/4" x bone deep. Fracture of occipital bone seen. Cloth soiled with blood. No mark of ligature on neck II-Cranium and Spinal Cord.
1. Lacerated wound 2" x 3/4" on occipital area horizantly placed. Fracture of occipital bone seen. Subdural and subarachnoid haemorrhage seen. Laceration of corresponding lobe of brain present.
7. He has opined that Harjal Singh died due to head injury leading to cardiac arrest.
8. On completion of investigation, the Officer Incharge, Police Station, Gagret sub-mitted a charge sheet against the accused persons and their co-accused Chanchla Devi under Sections 302, 307, 325, 323/34, IPC.
9. The accused were tried by the learned Sessions Judge, Una on a charge under Sections 302 and 325/34, IPC. Finally accused Chanchla Devi was acquitted, but the present accused persons were convicted and sentenced as aforesaid. Hence, appeal by the accused persons against their conviction and sentence.
10. I have heard the learned counsel for the accused and the learned Additional Advocate-General for the State and have also gone through the records.
11. It is indisputably established that Harjal Singh had died and the cause of his death was head injury leading to cardiac arrest as opined by PW-14 Dr. M. K. Pathak vide post mortem report Ext. PR and stated by him on oath. The question for determination before this Court, therefore, is as to who caused the fatal injuries to the deceased.
12. The learned counsel for the accused has argued that the prosecution evidence consists of interested witnesses who are closely related to the deceased. Injuries were found on the person of Chanchala Devi also and prosecution has failed to explain these injuries. According to the eye-witnesses only two blows were given to the deceased which could cause only two injuries to him whereas more than two injuries were found on the person of the deceased. In these circumstances, the inference can be drawn that the complainant party was the aggressor, hence injuries were sustained by Chanchala Devi and accused acted in self defence leading to scuffle in which the deceased sustained the injuries because only in such situation the injuries on the person of Harjal Singh over and above those stated by the witnesses can be explained and injuries to Devinder were also caused in scuffle.
13. The prosecution has examined two eye-witnesses of the occurrence, namely, PW-2 Raj Kumari and PW-3 Devinder Singh. P.W. 2 Raj Kumari has stated that on 17-9-1994 at about 6-30 a.m. she along with her husband Devinder Singh (PW-3 and father-in-law Harjal Singh was standing in their courtyard, the accused including Chanchala Devi came there and accused Om Prakash asked Harjal Singh to partition their remaining joint land. Harjal Singh told accused Om Prakash to wait for sometime as the crop was standing at that time on the land to be partitioned. This infuriated the accused persons who went to their cattle shed and armed respectively with Fawara Ext. P-2 and Lathi Ext. P-l, Sudhir and Om Parkash along with Chanchala Devi returned to the spot and again asked the deceased as to whether he was prepared to partition the land. On his reply in the negative, accused Sudhir Kumar gave a Fawara blow on his head which was followed by a Lathi blow by accused Om Parkash. When PW-3 Devinder Singh intervened to rescue Harjal Singh, he was also given blows by Sudhir Kumar and Om Parkash with Fawara and Lathi. When the witness tried to intervene, she was caught hold of by Chanchala and was given fist and kick blows. Due to injuries Harjal Singh and Devinder Singh fell unconscious on the spot and the accused fled away. She has further stated that thereafter she went to PW-1 Usha Devi, narrated the occurrence to her and called her to the spot. PW-1 Usha Devi arranged a van, called the Pradhan on the spot and they took the injured to the hospital.
14. PW-3 Devinder Singh has fully corroborated the statement of PW-2 Raj Kumari about the arrival of the accused to the spot, demanding partition of land, on refusal of Harjal Singh to partition the land, leaving the spot by the accused, their returning after visiting the cattle shed armed with Fawra and Panda and causing injuries to him and Harjal Singh.
15. There is nothing in the cross-examination of these witnesses which may render their statements suspicious. On the contrary, PW-1 Usha Devi has stated about the occurrence on the basis of what PW-2 Raj Kumari had narrated to her. PW-4 Jagdish Singh who was called to the spot saw the deceased and PW-3 Devinder Singh lying unconscious on the spot.
16. The eye-witness PW-2 Raj Kumari is related to the injured and the deceased. PW-3 Devinder Singh is the injured and son of the deceased. Thus the eye-witnesses and the deceased are closely related to each other. However, their statements cannot be disbelieved on the sole ground of close relations. There is no proposition of law that a close relation is not a competent witness. It is only a rule of caution that their testimony has to be read with greater care and caution. In case there are no inherent discrepancies in their statements and they are otherwise found reliable, their testimony can be relied upon.
17. It was submitted for the accused that it is admitted by PW-2 Raj Kumari that there were other persons who saw the occurrence but they have not been produced by the prosecution. No doubt, it is stated by PW-2 Raj Kumari that there were people who saw the occurrence from their houses at distant places but none came to the place of occurrence. However, the answer to the question as to why they were not produced is available in the statement itself. It is well known that people are often insensitive to administration of criminal justice. For various reasons, they avoid to be witnesses in criminal cases. In this case, it is reaffirmed by the fact that people from their houses at distant places though saw the occurrence but did not brother to come to the spot to intervene or render help in the removal of the injured to the hospital. In such a situation if no such person came forward or could be found to make statement about the occurrence, it is not a deliberate lapse but because of insensitive attitude of the people for which ends of justice should not suffer.
18. The statements of the eye-witnesses are further corroborated by circumstantial evidence, it emerges from the evidence on record and is admitted by the accused in their statements under Section 313, Cr. P.C. that some joint ancestral land of accused Om Parkash and Harjal Singh was yet to be partitioned. It is case of the accused that Harjal Singh and Devinder Singh (PW-3) had started selling portions of unpartitioned land to which accused Om Parkash objected. Thus, accused have their reasons to assault the victims.
19. Accused Sudhir Kumar has taken a false plea of alibi in his defence which is a circumstance against him.
20. During investigation accused Sudhir Kumar made a disclosure statement Ext. PD about the weapons of offence and on the basis of such statement got recovered Panda Ext. P-1 and Fawara Ext. P-2 vide memo Ext. PE. Statement Ext. PD was made by the accused to PW-15 Sita Ram, Inspector who recorded it as is evident from his statement. The recovery has also been effected by him at the instance of the accused vide memo Ext. E. No suggestion has been put to the witness to show that the disclosure statement was not voluntary or the recovery was fake. Thus his statement regarding making of disclosure by the accused and consequential recovery of weapons of offence remains unchallenged.
21. PW-5 Harpal Singh a witness of Ext. PD and PE who turned hostile has not supported the prosecution version about making of the disclosure statement by the accused or consequential recovery of weapons but he has admitted his signatures on Ext. PD and PE. He is admittedly a matriculate and does not sign papers blindly but has no reason to assign as to why he signed Exts. E and PE without knowledge of its contents. Evidently the witness is lying. Therefore, his not supporting the prosecution version regarding disclosure and recovery under reference is of no help to the accused. On the contrary, the disclosure statement Ext. PD and recovery memo Ext, PE whereby Panda Ext. P-l and Fawara Ext. P-2 were recovered at the instance of the accused are proved in view'of the unchallenged testimony of PW-15 Sita Ram.
22. PW-5 Dr. Y.P. Sharma who medically examined Harjal Singh and Devinder Singh has opined that the injuries sustained by them were capable of being caused by Fawara Ext. P-l and Lathi Ext. P-2. Similarly, PW-14 Dr. M. K. Pathak has stated that injuries including the fatal injury on the head of the deceased could be caused by Fawara Ext. P-2 and Lathi Ext. P-1. In the cross-examination of PW-5, the defence suggested that injury No. 2 that is swelling defuse margin on the left temporal region of Harjal Singh and injury No. 2 that is swelling and tenderness on left elbow joint of Devinder Singh could be caused by a fall on hard surface like stone and the witness has admitted the suggestion. However, by this admission it is not necessarily meant that these injuries were caused by fall. In any case, it is case of the prosecution that after sustaining the injuries both of them had fallen unconscious on the spot. Any injury caused in the process of falling or received a fatal injury will have to be attributed to the person who caused the injury which led to fall.
23. The eye account of the occurrence given by the PWs and the medical opinion as discussed above establish beyond suspicion that injuries sustained by the deceased and the injured were caused by the accused persons with Fawara. Ext. P-2 and Lathi Ext. P-l.
24. The contention of the learned counsel for the accused that prosecution has failed to explain injuries on the person of Chanchala which belies the prosecution version is also not tenable. Chanchala Devi was medically examined by DW-3 Dr. Y. P. Sharma on 17-9-1994 at 4 p.m. He has issued the MedicoLegal Certificate in this regard a photo copy whereof is Ext. DW-3/A. The occurrence took place at 6-30 a.m. on 17-9-1994, At the time of medical examination of Chanchala Devi at 4 p.m. the duration of injuries i.e. two fresh sockets in her lower jaw was of 12 hours i.e. a period slightly longer than the time between the occurrence and the medical examination. As per medical opinion, no corresponding injury on her lips was found. Her teeth showed signs of dental carries and pyorhea. Extraction was possible in view of the condition of other teeth. The bleeding noticed could be due to pyorhea. Chanchala was referred to the Dental Surgeon who alone could give final opinion in the matter. The Dental Surgeon who examined her could not be produced but Medico-Legal Certificate issued by the Dental Surgeon was produced and proved in her handwriting by Dr. Ashish Negi as Ext. PW-18/B. As per the opinion in Ext. PW- 18/B it was a case of self traumatic extraction. Reliance however cannot be laid on this opinion because it is not proved by the doctor who gave it and is not supported on oath. Accused has no opportunity to cross-examine the person giving this opinion. However, certain facts in this regard are duly established. The patient was not in possession of the allegedly knocked of two teeth. Had the teeth been knocked out due to assault as claimed, those would have been preserved and produced to the police or the doctor. Had they fallen on the spot search therefore would have been conducted by Chanchala or the police after the registration of the case. This is however nobody's case that the teeth were preserved or search therefor carried out either, by the complainant or the police. The remaining teeth of Chanchala showed signs of dental carries any pyorhea most probable reason for teeth decay and gum bleeding. Two fresh sockets were found in the lower jaw of chanchala and she claimed in her statement under Section 313, Cr. P.C. that two of her teeth were knocked off by accused Devinder Singh. However it has been suggested to PW-2 Raj Kumari and PW-3 Devinder Singh that only one tooth of Chanchala was knocked off at the time of the occurrence. These suggestions also belie the defence version of two teeth of Chanchala having been knocked off. Above all in the event of a blow given on the mouth of a person resulting in knocking off two teeth, it is bound to cause corresponding injury on the mouth particularly the lips but no such injury was found on the mouth/lips of Chanchala. It cannot be therefore held that Chanchala was given blow by Devinder Singh which knocked off her two teeth. In all probabilities this is a case of self-extraction of her tooth/teeth by Chanchala Devi.
25. The ocular evidence led by the prosecution is further corroborated by the circumstantial evidence discussed hereinabove and the learned Sessions Judge has rightly believed such evidence to convict the accused persons.
26. It was urged by the learned counsel for the accused that accused Sudhir Kumar is a young student and accused Om Parkash is an old man, therefore, they should have been given to benefit of Section 6 of the Probation of Offenders Act. It was, therefore, further contended that in the event of maintaining the impugned conviction, the accused may be given benefit of the provisions of the Probation of Offenders Act. To substantiate his submissions in this regard and to show that even in cases of serious nature, an acpused person can be given the benefit of probation thereby afford him an opportunity to reform himself, the learned counsel has cited a number of authorities.
27. In view of the provisions of Section 6 of the Probation of Offenders Act, age and nature of offence committed, accused Om Parkash has no case for giving him the benefit of probation and the learned Sessions Judge rightly refused such benefit to him.
28. Regarding accused Sudhir Kumar, the main thrust is on his age and his being a student. Be it stated that to be a student is no reason by itself for showing leniency to a culprit. Section 6 of the Probation of Offenders Act, however, provides to give benefit of Section 3 or Section 4 of the said Act to a person who is below 21 years of age at the time of commission of an offence if such offence is not punishable with life imprisonment. These provisions, no doubt, are of mandatory nature. However, the Court is not to give the benefit of probation if it is not warranted in view of the circumstances of the case, nature of the offence and the character of the accused. In this case, neither it has been put to nor has been stated by any witness that the character and behaviour of accused Sudhir Kumar before and after the occurrence has been good. The circumstances in which the offence has been committed and the nature of the offence are also such which warrant awarding of sentence to him instead of giving the benefit of probation. When his uncle the deceased refused to partition the land because of the crops standing thereon, he without anybody's instigation brought a Fawara from the cow-shed as a weapon to assault a close and elderly relation. He.is the person who gave the first blow to the deceased on his head. Then beat up his cousin and thereby committed offences one of which is causing death of his uncle. Then without any remorse or regrets defended himself on the false plea of alibi. Thus, in view of his character, the circumstances of the case and nature of the offence committed he is not entitled to the benefit of probation. The learned Sessions Judge had considered these aspects of the matter and it was only on being satisfied that accused Sudhir Kumar does not deserve such benefit that he proceeded to sentence him.
29. The above discussion leads me to the conclusion that the impugned conviction and sentences imposed by the learned Sessions Judge do not call for any interference by this Court.
30. As a result, the appeal merits dismissal and is accordingly dismissed. The accused persons shall surrender to their bail bonds and present themselves before the learned Sessions Judge, Una who shall commit them to prison to serve out the sentences awarded to them. In the event of failure of the accused to surrender, the learned Sessions Judge to procure their presence by issue of non-bailable warrants and then to commit them to prison, as aforesaid.