Himachal Pradesh High Court
Prem Singh vs State Of Himachal Pradesh on 6 January, 1989
Equivalent citations: 1989CRILJ1903
JUDGMENT Bhawani Singh, J.
1. The appellant, Prem Singh alias Prem Bahadur, has by this appeal challenged his conviction and sentence by Sessions Judge, Solan and Sirmour Districts, whereby he has been convicted under Section 304, Part II of the Indian Penal Code to undergo sentence of 5 years rigorous imprisonment and to pay a fine of Rs. 1,000/- and in default of the payment of fine for further imprisonment of 6 months. Besides, he has also been convicted under Section 460 of the Indian Penal Code whereunder he has been sentenced to undergo regorous imprisonment for 2 years and also to pay a fine of Rs. 500/-. In default of the payment of fine, he was to suffer further imprisonment for 3 months. Both the sentences have been ordered to run concurrently. Needless to say that the appellant has been given benefit under Section 428 of the Code of Criminal Procedure thereby benefitting the appellant to set off the period of detention suffered by him during investigation and trial.
2. The prosecution case, as placed before the Court, has been that the appellant had some relation with one Shri Bhai Lal Gorkha who used to reside in the house of Gurdia deceased as one Shri Basantu, the brother of the deceased, had died and so his daughter Shrimati Santi was also residing with the deceased along with Kaku who was born to her from her marriage before she settled with Bhai Lal Gorkha. The deceased Gurdia, at the relevant time, was living in village Katal.
3. The prosecution case further reveals that on 3-9-1985 at about 9 p.m. the deceased and Kaku were in their courtyard after taking their meals when the appellant came on the scene. The appellant, as the case proceeds, started grappling with Gurdia and in that process they went into a room. The appellant was carrying a Khukhri Ex.P.4 in his hand. In this process, the torch fell down which the appellant had with him in his hand. The appellant is stated to have given a stab blow with Khukhri Ex.P4 in the stomach of Gurdia. While the appellant was running away, the deceased took Katari Ex.P5 lying in the room and gave a blow on the left leg of the appellant. The appellant is stated to have come back after sometime and threatened Gurdia and Kaku with their lives and asked them to handover the entire property to him whereupon Gurdia and Kaku escaped from the room and spent the night in a nearby field owned by one Shri Hira Singh. Next morning Gurdia sent Kaku to a nearby village Seo to inform the Pradhan and others. Up-Pradhan Shri Ram Gopal along with Shri Raghubir Singh and others came to the spot and noticed stab wound on the stomach of Gurdia who was then taken by them to his house. It was during this time, the prosecution states, that the deceased disclosed that he was given stab wound by t he appellant. After this. Ram Gopal P.W. 2 sent Rukka Ex.PA to Police Station Renuka which was thumb marked by Gurdia also. It was given in statement by the deceased t hat he was given stab wound by the appellant. This statement Ex. PB was signed by P. W. Raghubir Singh also. It was on the basis of this that a case was registered initially under Section 326 of the Indian Penal Code which was later on converted under Section 302/460 of the Indian Penal Code when Shri Gurdia died. Inquest Report Ex.P.W.14/C was prepared and recoveries of various articles lying at the spot, like Khukhri, Katri, blood stained clothes, blood stained earth and stones, etc., were made,
4. The prosecution further alleges that the appellant was seen by one Shri Ganga Ram P.W. 6, a resident of village Janincha Majai, near a water tap in an injured state and his leg bleeding on account of these injuries. He was taken to the hospital by Shri Ganga Ram, Randhir and Prem. The appellant is stated to have told on an inquiry that he had suffered this injury with stone and did not disclose the real cause of it. The appellant was medically examined and was found to have a fracture in his left leg. This injury was described by the doctor to be a grievous one. On the other hand, the postmortem examination of the deceased was conducted by P.W. 7 Dr. Mohinder Kumar Sharma and he opined that the death of the deceased was due to shock caused by bleeding and pain from the stab wound in the abdomen.
5. On the basis of the report; the appellant was charged under Section 304-11 of the Indian Penal Code and the appellant having denied the same, the trial ended in the conviction of the appellant as aforesaid.
6. The prosecution examined 14 witnesses whereas the appellant did not lead any defence. His statement under Section 313 of the Code of Criminal Procedure was recorded wherein he has revealed his defence.
7. The case of the appellant, in nutshell, is that the deceased had tied his cattle in the room which was owned by him and further that on the day of the occurrence when he asked the deceased as to why he had done so, he was given beating by the deceased and Kaku and an injury was inflicted on his leg with a Katari. So far as the injury of the deceased is concerned, the appellant stated that the deceased might have got the same with the Khukhri" which he got during the scuffle.
8. Shri M. S. Guleria, Assistant Advocate General appearing for the State of Himachai Pradesh, made efforts to defend the conviction of the appellant and submitted that the dying declaration was an important piece of evidence in the case besides the statement of Kaku, P.W. 1, Ram Gopal, P.W. 2 and Raghubir Singh, P.W. 3. On the other hand, Shri D. K. Khanna, appearing amicus-Curiae for the appellant, vehemently urged that the prosecution has, in fact, failed to prove any offence against the appellant and, therefore, he is entitled to acquittal. He submits that the story of the prosecution as to the incident is thoroughly incredible and therefore, the same should not be believed at all. Once the same is discredited, the learned Counsel for the appellant submits, the whole case of tht prosecution fails with the result that tht appellant deserves to be acquitted of the charges against him.
9. It is contended that the most important thing in the case is to find out as to who actually is the aggressor. On this aspect it is contended that the facts on the record conclusively indicate that it was the deceased who was actually the aggressor and in this aggression he was assisted by Kaku, P.W. 1.
10. After analysing the evidence on the record, I am of the opinion that there is force in the submissions of Shri D. K. Khanna. The prosecution in this case has shown an inclination to suppress material aspects of the case while investigating the matter. The occurrence, as has been described, could not have taken place in the manner as has been set-up by the prosecution with the result that the same does not, in my opinion, inspire confidence. The material evidence of the prosecution oh this aspect is that of P.W. 1, P.W. 2 and P.W. 3 besides the so-called dying declaration of the deceased. I examine this aspect of the matter.
11. It is the case of the prosecution that the appellant came on the scene and started grappling(Kusti) with the deceased and then in that process they went into a room where the deceased was given a blow in the abdomen and while running away from the place, the deceased gave a Katri blow in the leg of the appellant. The prosecution further alleges that the appellant appeared again and demanded money from the deceased and went away after giving him threatenings. This case of the prosecution is unbelievable. It is the case of the prosecution that the appellant appeared on the scene. He had a Khukhri in grappling with the deceased. This story of the prosecution cannot be believed because if the object of the appellant was to kill the deceased and he had a Khukhri in his hand, because the deceased had tied cattle in his room, in that event, there was no question of grappling with the deceased; rather he would have straightway attacked the deceased with the Khukhri and not grappled with him. More particularly, use of weapon by him at that particular occasion was natural because both of his hands were occupied. On the other hand, the explanation of the appellant that he was given beatings by P.W. 1, Kaku, as well as the deceased and taken to the room and there given a Katri blow seems to be reasonable because the appellant was only one whereas the deceased was with P.W. 1, Kaku, who cannot be expected to be a mute spectator to the whole incident where his Nana (maternal grandfather) was involved in grappling with the deceased. The explanation of the appellant has been found to be correct by the Investigating Officer who during his statement in the Court says "It was also revealed that the injuries to accused Prem Singh were caused by deceased. The Katri used by the deceased was recovered from the spot. Katri and Khukhri were lying at the spot. The quarrel between deceased and the accused took place in the compound and thereafter went to the room. Both the weapons were used by the deceased and the accused in the room. Prem Singh accused suffered a grievous injury on his left leg. It was revealed during the investigation that Prem Singh accused was the brother of Bhai Lal. Kaku had stated before me that Prem Singh accused had constructed an Obra where deceased Gurdian had tied his cattle."
12. Now, it is essential to examine the conduct of P.W. 1, Kaku, in the light of the whole incident because it is he who has actually seen the occurrence and influences the subsequent case of the prosecution at various stages.
13. This witness is thoroughly unbelievable. In his statement, he has made an effort to confuse the nature of the weapon used in the incident. Sometimes he talks of Khukhri while on other occasions he talks of chura but does not talk of any use of Katri by the deceased. These three weapons have their distinct names and well-known to everyone. The prosecution has also confused itself on this aspect of the matter because it has used it interchangeably at various places as, for example, in Ex.PA, Ex.PB, Ex.PD, Ex.PW 14A and Ex. P.W., 14/C. It appears that it was only the appellant who has come forward with a straight forward statement that it was a Khukhri which was used by him. Further, P.W. 1, Kaku, states that he had become senseless after seeing "kusti" between the appellant and the deceased and he came to senses after 2 1/2 hours. This statement is utterly false. In case it is correct, then he did not see anything after the start of the kusti. If it is wrong, then he is one of the participants in the whole incident, as explained by the appellant. Therefore, it can be safely concluded that the incident has not rightly given by him, P.W. 2 and P.W. 3, who were called to the spot and are signatories to the so-called dying declaration to which I make reference now.
14. The learned Counsel for the appellant refers to it as a worthless piece of evidence and submits that the same does not contain accurate account of the incident. He refers to the statement of P.W. 2, Ram Gopal, Up-Pradhan Gram Panchayat Prara, when he in his examination-in-chief states that he recorded whatever was stated by the deceased and contradicts himself when cross-examined where he says that he recorded whatever was relevant It appears that the dying declaration, whereon the so-called thumb impression of the deceased was also obtained, was, in fact, a statement prepared by P.W. 1, P.W. 2 and P.W. 3 in order to save the villagers from the possible police harassment. Further more, the fact that the deceased and P.W. 1, Kaku, spent the whole night in the field of Hira Singh cannot be believed. The statement of P.W. 3 that the appellant gave a chura blow to the deceased contradicts other prosecution witnesses who say otherwise. The strangest part of his statement comes when he states that the Katri was in the hands of the deceased when he reached the field of Hira Singh. It is pertinent to say here that these witnesses reached the field of Hira Singh the next day in the morning when called by P.W. 1, Kaku. There are material contradictions in the statements of the prosecution witnesses with the result that the whole story of the prosecution becomes doubtful.
15. Now, I examine the second aspect of the case which deals with the part played by the appellant including his conduct.
16. The appellant explains that he had a room in the premises and the deceased had tied his cattle therein. He asked the deceased as to why he had done so whereupon he was beaten by the deceased and P.W. 1, Kaku. He further says that he was taken to a room and given a Katri blow and in the process he had a Khukhri with which the deceased may have got a stab blow which he did not intend.
17. It is pertinent here to examine the nature of the injuries inflicted by the parties on each other and to know whether either of them took undue advantage of the other.
18. In the case of the deceased, the injuries as well as the opinion of the Doctor is as under:
A stab wound penetrating in abdominal cavity present, incised wound of size 2" with everted margins and gaping situated on the left side to the mid-line in epigastric region penetrating in abdominal cavity through which stomach filled with semidigested food and distended with gases was coming out.
....
Opinion of the Medical Officer.
After receiving report of the chemical examiner, I came to the conclusion that the death of the deceased occurred due to shock caused by bleeding and pain from the stab wound in the abdomen.
In the case of the appellant, the injuries have been described by Dr. R.K. Sood, P.W. 8, as under:
An incised wound oblique in direction over the lateral side of the left knee joint six centimetres into 2.5 c.m. Pus present in the wound. On pressing straw coloured fluid came out. Movements of knee joint restricted and joint was swollen. Edges sharp and clean cut. The underlying muscles and tendon and ligaments were cut.... No callus formation seen hence injury No. I was declared to he grievous.
19. From the perusal of the medical reports, it is clear that the deceased as well as the appellant inflicted one blow on each other and left the weapons of offence at the same place which were subsequently recovered during the investigation of the case. From the nature of the injuries and the evidence on record, I am of this opinion that it was the deceased as well as Kaku who were the aggressors and inflicted the first blow to the appellant and the appellant also gave only one blow to the deceased and did neither take undue advantage of the situation nor caused more harm than the situation demanded. It is a cardinal principle of law that a person when faced in such a situation cannot be expected to modulate his defence step by step and gauge the thrust of his blow in golden scales and the appellant has also not exceeded these limitations.
20. In the facts and, circumstances of this case, I am of the opinion that the prosecution has not unfolded the material aspects of the case while investigating the matter as to the incident nor succeeded in proving the guilt against the appellant not only under Section 304, Part. II but also under Section 460 of the Indian Penal Code which is absolutely inapplicable in the present case.
21. Now, the question is whether the appellant is entitled to acquittal or benefit of doubt. In my opinion, the appellant is entitled to clear acquittal.
22. The appeal is accepted and the conviction of the appellant for the offences under Section 304, Part II and under Section 460 of the Indian Penal Code as well as the sentences imposed for the same are set aside. He is stated to be in jail. He shall be released forthwith and bail bonds, if executed at any stage, are discharged.