IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.384 of 2006 Decided on : November 19, 2009 Deep Chand and another …Appellants. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : Mr. M.S. Guleria, Advocate. For the Respondent : Mr. P.M. Negi, Deputy Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J(Oral) This appeal by appellants Deep Chand and Sanjay Kumar is directed against the judgment, dated 30th September, 2006, of learned Sessions Judge, Hamirpur, whereby they have been convicted of offences, under Sections 457, 504, 341, 324 and 302, read with Section 34 of the Indian Penal Code and awarded the following sentences: Section under which convicted. Sentence awarded 457 To undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-; in default of payment of fine to undergo simple imprisonment for a further period of six months, each. 504 To undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-; in default of payment of fine to undergo simple imprisonment for a further period of three months, each. Whether reporters of the local papers may be allowed to see the judgment? …2… 341 To undergo rigorous imprisonment for one month. 324 To undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/-; in default of payment of fine to undergo simple imprisonment for a further period of six months, each. 302 To undergo imprisonment for life and to pay a fine of Rs.5,000/-; in default of payment of fine to undergo simple imprisonment for a further period of two years, each. 2. Case of the prosecution, which led to the charging, trial and conviction of the appellants, for the aforesaid offences, may be stated. Appellant Deep Chand and deceased Prem Chand were real brothers. They had five more brothers, namely PW-4 Joginder Singh, PW-5 Piar Chand, PW-6 Ramesh Chand, one Dharam Chand and one Suresh. Six of them, i.e. appellant Deep Chand, deceased Prem Chand, PW-4 Joginder Singh, PW-5 Piar Chand, PW-6 Ramesh Chand and Suresh, lived in village Utpur, Police Station Sujanpur, District Hamirpur, while their seventh brother Dharam Chand shifted to Hamirpur Town. Appellant Deep Chand is the eldest of the seven brothers. Some 20-25 years prior to the occurrence, which took place on 13th September, 2005, appellant Deep Chand separated from his brothers and constructed his own separate house in the village. The remaining six brothers continued to live jointly with their mother. About 8-9 years prior to the occurrence, they also separated from each other. They partitioned the family house and made it into several units. Deceased Prem Chand had been allotted a room, which was being used as a …3… kitchen by PW-6 Ramesh Chand, his brother Suresh and their mother. That room is on the ground floor. PW-4 Joginder Singh and PW-5 Piar Chand were allotted some portions on the first floor of the building. PW-6 Ramesh Chand was allotted a portion on the ground floor, where he lived with his family. Another portion, on the ground floor, was occupied by Suresh, another brother, where he lived alongwith his mother. Deceased Prem Chand had constructed a separate house, where he lived with his family. 3. It appears that appellant Deep Chand had a grouse against the deceased and his other brothers, on account of his having not been allotted any share in the joint house. Many Civil Suits were instituted by the brothers against each other. In those suits appellant Deep Chand used to be on one side and the rest of the brothers on the other. 4. On 12th September, 2005, PW-4 Joginder Singh came to the village to avail annual leave. He is employed in the Indian Army. On 13th September, 2005, around 10.30 p.m., when PW-4 Joginder Singh, PW-5 Piar Chand and PW-6 Ramesh Chand were present in their separate residential units, in the joint family house, appellant Deep Chand, his son appellant Sanjay Kumar, accompanied by Shalan Devi (wife of appellant Deep Chand) and Anjali Kumari (wife of appellant Sanjay Kumar), went to the joint family house. Appellant Deep Chand was armed with a Drat Ex. P-1 and …4… appellant Sanjay Kumar with Khukhri Ex. P-2. In fact Ex. P- 2 is not a Khukhri, but a small sized Kirpan, which is normally worn by Baptised Sikhs. The two ladies were armed with Dandas. They hit the doors of the separate residential units of PW-4 Joginder Singh, PW-5 Piar Chand and PW-6 Ramesh Chand, with Dandas and kicks and also tried to break open the doors by use of Drat Ex. P- 1. It appears that they could not succeed in break- opening the doors of the residential portions of the house, though some damage was caused to those doors. However, they managed to separate a plank of that portion of the building, which was used as kitchen by PW-6 Ramesh Chand, his brother Suresh Chand and their mother, which portion had, in fact, fallen to the share of deceased Prem Chand. Nobody was present in that portion. So, the appellants and their abovestated lady accomplices withdrew and went to their house, after hurling abuses and pelting stones. 5. After the appellants and their lady accomplices withdrew, PW-4 Joginder Singh, PW-5 Piar Chand and PW-6 Ramesh Chand, huddled their wives and children in one room and they themselves went out to inform Nambardar Piar Chand (PW-1). On the way they associated deceased Prem Chand with them, because the portion allotted to him, in the joint family house, had been badly damaged. When all the four were proceeding to the house of Nambardar (PW-1 Piar Chand), they felt that they were being followed by some …5… other people. They turned back and saw that the two appellants and their abovenamed lady accomplices were following them. Appellant Deep Chand was carrying Drat Ex. P-1, appellant Sanjay Kumar was carrying sword Ex. P-2 and the ladies were holding Dandas. 6. Appellants and their accomplices shouted at PW-4 Joginder Singh, PW-5 Piar Chand, PW-6 Ramesh Chand and deceased Prem Chand, as to where they were going. When they told that they were going to report about the earlier attack to the Nambardar, appellant Sanjay Kumar shouted back that they would reach Nambardar’s place only if they were allowed to go. Then both the appellants and their lady accomplices charged towards the four brothers and attacked them with their respective weapons. Deceased Prem Chand was dealt a Drat blow on the back of his head by appellant Deep Chand. Another blow was given to him, by means of sword by appellant Sanjay on his pelvic region. PW-4 Joginder Singh was hit on one of his shoulders, with the sword by appellant Sanjay Kumar. PW-5 Piar Chand was also dealt a sword blow by appellant Sanjay on one of his armpits. 7. PW-6 Ramesh Chand, on seeing the appellants and their lady accomplices charging towards him and his brothers, ran away from the spot. Deceased Prem Chand fell on the spot, after he was hit on the head. PW-4 Joginder Singh and PW-5 Piar Chand also ran away from the spot to …6… save their lives. On the way, they were again joined by their brother PW-6 Ramesh Chand. They went to the house of PW-1 Piar Chand Nambardar. He was not at home, as he had gone to see the ailing wife of one Ramesh Chand son of Ram Singh. So, they went to the house of said Ramesh Chand and informed PW-1 Piar Chand Nambardar about the incident. He advised them to report the matter to the Pradhan. They then went to the house of Pradhan of the Panchayat, namely Pawna Devi (PW-9). They reached her house around 12 in the night. Her husband PW-3 Mohinder was also present. When the incident was narrated to PW-9 Pawna Devi and PW-3 Mohinder, the latter advised PW-4 Joginder Singh and his accompanying brothers PW-5 Piar Chand and PW-6 Ramesh Chand to lodge report with the police of Sujanpur and also to seek medical aid at Sujanpur Hospital. 8. PW-6 Ramesh Chand arranged a vehicle and carried his injured brothers PW-4 Joginder Singh and PW-5 Piar Chand to Civil Hospital, Hamirpur, where both the injured were admitted. Police was telephonically informed by Dharam Chand, another brother of appellant Deep Chand and the abovenamed witnesses and deceased Prem Chand. Police reached the Hospital and recorded statement of PW-4 Joginder Singh, under Section 154 of the Code of Criminal Procedure. Record of the said statement is Ex. PW-4/A. That statement was sent to Police Station, Sujanpur, for the …7… formal registration of case. Case was registered, vide FIR No.95 of 2005, copy Ex. PW-15/A. 9. Both the injured brothers, namely PW-4 Joginder Singh and PW-5 Piar Chand were got medically examined. PW-11 Dr. S.K. Kashmiri conducted the medical examination and noticed the following injuries on their person: Injury on the person of PW-4 Joginder Singh One incised wound on the left side chest in the fourth inter costa space in the mid auxillary line measuring 1cm x 0.2 cm x 2 cm (deep/ obliquely) oozing of blood present. Margins were regular. Injury on the person of PW-5 Piar Chand One incised wound on the right shoulder joint measuring 2cm x 0.5cm muscle deep. Margins were regular, fresh bleeding was present with red clotted blood around the wound. The doctor opined that both the injuries could have been caused by sword Ex. P-2. 10. Next day, i.e. on 14th September, 2005, police visited the spot. Dead body of Prem Chand was found lying down the edge of the road, at a depth of about 35 feet. Inquest was conducted and necessary forms Ex. PW-10/A and Ex. PW-10/B were filled-in. Dead body was sent to the Civil Hospital, Hamirpur, for postmortem examination. PW-19 Dr. R.K. Abrol conducted the postmortem examination. He noticed the following ante-mortem injuries on the dead body: …8… 1. Incised wound on right femoral triangle about 3 cms in length. Linear in shape, major vessels incised. 2. Incised wound over the scalp on right temporal region, temporal bone fracture 4-5 cms in length, 5 cms. Superior to right pinna. Brain tissue exposed. He gave the opinion that Injury No.1 (above) could have been caused by means of sword Ex. P-2 and Injury No.2 with Drat Ex. P-1. 11. Clothes of both the appellants as also the clothes of the deceased and PW-4 Joginder Singh and PW-5 Piar Chand were taken into possession. Appellant Deep Chand and his wife Shalan Devi made statements leading to the discovery of Drat Ex. P-1 and Khukhri Ex. P-2. The weapons of offence and the clothes of the deceased, appellants Deep Chand and Sanjay Kumar and witnesses PW-4 Joginder Singh and PW-5 Piar Chand were sent to the Chemical Examiner, who, vide report Ex. PX, gave the opinion that there were stains of blood on some of the clothes of the deceased and the shirts of PW-4 Joginder Singh and PW-5 Piar Chand, and shirt of one of the appellants, but the group of the said blood could not be determined. 12. Prosecution examined PW-4 Joginder Singh, PW-5 Piar Chand, PW-6 Ramesh Chand, brothers of deceased Prem Chand and appellant Deep Chand, as eye witnesses of the incident. Prosecution also examined deceased Prem Chand’s wife, PW-8 Sarla Devi, PW-1 Piar Chand Nambardar, …9… PW-3 Mohinder Singh and PW-9 Pawna Devi, Pradhan of the Panchayat, to seek corroboration to the testimony of abovenamed eye-witnesses. Prosecution also examined the doctor, who conducted the medico legal examination of Joginder Singh and Piar Chand, namely PW-11 Dr. S.K. Kashmiri, and the doctor, who conducted postmortem of dead body of Prem Chand, namely PW-19 Dr. R.K. Abrol. 13. Appellants took the plea that as a matter of fact witnesses PW-4 Joginder Singh, PW-5 Piar Chand, PW-6 Ramesh Chand and deceased Prem Chand had constructed a joint building, consisting of rooms and shops, by the side of road at village Utpur, in which deceased Prem Chand had half share and that since there was no approach to the lower storey of the building from the road side, PW-5 Piar Chand and PW-6 Ramesh Chand got constructed 4-5 steps by the side of that building on a piece of land, which deceased Prem Chand claimed to be in his exclusive ownership and possession and that deceased Prem Chand got those stairs demolished a few days prior to the occurrence and when PW- 4 Joginder Singh came on leave to the village, only a day before the occurrence, he was apprised of the demolition of those steps by his brothers, PW-5 Piar Chand and PW-6 Ramesh Chand, upon which all of them went to deceased Prem Chand’s place, called him out and attacked him, as a result of which he died and then they threw his dead body …10… down the road. They examined one mason, namely Hem Raj, who allegedly constructed those stairs, but the said witness did not prove the defence plea. 14. Learned trial Court disbelieved the defence story. It believed the testimony of PW-4 Joginder Singh, PW-5 Piar Chand and PW-6 Ramesh Chand, as corroborated by PW-1 Piar Chand Nambardar, PW-3 Mohinder, PW-9 Pawna Devi, Pradhan of the Panchayat, and PW-8 Sarla Devi, widow of deceased Prem Chand, and convicted and sentenced the appellants, as aforesaid. However, their female accomplices were acquitted. 15. We have heard the learned counsel for the appellants as also the learned Deputy Advocate General representing the State and gone through the evidence. 16. PW-4 Joginder Singh and PW-5 Piar Chand stated, with one voice, that when they were present in the joint house, in their separated portions, appellants accompanied by their wives came to their courtyard and started hurling abuses at them and challenged them to come out and that when they did not come out, they threw stones at them, through the windows, which they had opened on hearing the commotion made by the appellants and their lady accomplices. They also stated that the appellants tried to break open the doors of their residential units, by means of Drat, which appellant Deep Chand was carrying but they could not succeed, though the doors of their units were …11… damaged to some extent. They further stated that the appellants then went to that portion of the building on the ground floor, which had fallen to the share of deceased Prem Chand, but was being used by PW-6 Ramesh Chand and his mother, for cooking their meals and they succeeded in breaking open that door. They further stated that when the appellants and the women accompanying them could not reach them, on account of their failure to break open the doors, they withdrew and thereafter they huddled their family members in one room and accompanied by their third brother PW-6 Ramesh Chand went to the house of deceased Prem Chand and took him along to report the mater to the Nambardar, namely PW-1 Piar Chand. 17. PW-6 Ramesh Chand also testified that he accompanied PW-4 Joginder Singh and PW-5 Piar Chand to the house of deceased Prem Chand and from there they all proceeded to the house of PW-1 Piar Chand Nambardar. All the three brothers further stated that when they reached the road head, they felt that they were being followed by some other persons and when they turned back they saw that the appellants and their lady accomplices were following them with appellant Deep Chand wielding a Drat, appellant Sanjay Kumar carrying a Khukhri and the ladies carrying Dandas, and that the appellants and their wives asked them as to where they were going and on being told that they were going to report the incident of house breaking to the …12… Nambardar, appellant Sanjay Kumar shouted back that they would go to the Nambardar, only if they were allowed to proceed further and then both the appellants and their wives charged towards them, brandishing their weapons. 18. PW-6 Ramesh Chand stated that on seeing appellants, in a furious mood, he ran away from the spot, but PW-4 Joginder Singh and PW-5 Piar Chand and deceased Prem Chand remained there. PW-4 Joginder Singh and PW-5 Piar Chand stated that appellant Deep Chand dealt a Drat blow on the head of deceased Prem Chand, as a result of which he fell on the road and then appellant Sanjay Kumar dealt a Khukhri blow on the pelvic region of deceased Prem Chand. They also stated that appellant Sanjay Kumar dealt Khukhri blows to both of them and that the blow given to PW-4 Joginder Singh hit him on his left shoulder, while the blow aimed at PW-5 Piar Chand caused injury in his armpit. PW-4 Joginder Singh and PW-5 Piar Chand further stated that after they sustained the injuries they also ran away from the spot and on the way they were joined by PW-6 Ramesh Chand and then all of them went to PW-1 Piar Chand Nambardar, but he was not at home and was stated to have gone to the house of one Ramesh Chand son of Ram Singh to see his wife, who was stated to be sick and so they went to the house of said Ramesh Chand, where PW-1 Piar Chand Nambardar met them and they narrated the sequence of events to him and the latter advised them to report the …13… mater to the Pradhan of the Panchayat. They further testified that they then went to the house of PW-3 Mohinder Singh, whose wife PW-9 Pawna Devi is the Pradhan of the Panchayat and that on being apprised of the incident, PW-3 Mohinder Singh advised them to go to Sujanpur for medical aid and also for reporting the matter to the police. They stated that then a vehicle was arranged and they went to Hamirpur and on the way to Hamirpur they looked for their brother Prem Chand, who had fallen on the road near Post Office with a head injury, but he was not there. They further testified that at Hamirpur, first they went to their brother Dharam Chand, who accompanied them to the Hospital and also informed the police, telephonically. 19. Ocular account of the incident given by PW-4 Joginder Singh, PW-5 Piar Chand and PW-6 Ramesh Chand is corroborated by PW-8 Sarla Devi, widow of deceased Prem Chand, who testified that around 10.30 or 11 p.m., PW-4 Joginder Singh, PW-5 Piar Chand and PW-6 Ramesh Chand, all brothers of her husband Prem Chand, came to their house and told that the appellants and their women folk had tried to break open the doors of their residential units and in fact they had succeeded in breaking open the door of the portion allotted to deceased Prem Chand and so they wanted to report the mater to the Nambardar immediately and asked her husband Prem Chand to accompany them, upon which her husband went out with them. …14… 20. Eye-witness account given by abovenamed three brothers is further corroborated by PW-1 Piar Chand Nambardar, who stated that when he was at the house of Ramesh Chand son of Ram Singh, PW-4 Joginder Singh, PW- 5 Piar Chand and PW-6 Ramesh Chand, eye-witnesses, came there and apprised him of both the incidents, details of which he testified. He further stated that he directed the three brothers to go to the Pradhan of the Panchayat and inform her. 21. PW-9 Pawna Devi, Pradhan of the Panchayat and her husband PW-3 Mohinder Singh stated that PW-4 Joginder Singh, PW-5 Piar Chand and PW-6 Ramesh Chand came to their house and that PW-4 Joginder Singh and PW-5 Piar Chand were having bleeding injuries. They testified that they narrated the details of both the incidents to them, upon which PW-3 Mohinder Singh advised them to seek medical aid at Sujanpur Hospital and also to lodge report with Police Station Sujanpur. 22. Undoubtedly, there are some contradictions in the statements of the three brothers, namely PW-4 Joginder Singh, PW-5 Piar Chand and PW-6 Ramesh Chand, but they are minor and do not affect their credibility, particularly when their testimony is corroborated by the statement of the widow of the deceased, namely PW-8 Sarla Devi and the testimony of PW-1 Piar Chand Nambardar, PW-9 Pawna Devi, …15… Pradhan of the Panchayat and PW-3 Mohinder Singh, husband of PW-9 Pawna Devi. 23. Learned counsel for the appellants submits that PW-4 Joginder Singh, PW-5 Piar Chand and PW-6 Ramesh Chand cooked up a false story to save their own skin, because they were responsible for causing the death of Prem Chand. The plea cannot be accepted for the simple reason that within a few minutes of the second incident, they reported the matter to PW-1 Piar Chand Nambardar and then to PW-9 Pawna Devi, Pradhan of the Panchayat, and her husband PW-3 Mohinder Singh. It is not believable that within such a few minutes they could have cooked up a false story and also injured themselves and damaged the doors of their residential portions, in the joint house and broken open the door of the portion allotted to Prem Chand. Also, PW-8 Sarla Devi, widow of deceased Prem Chand, would not have been won over by them to become a party to their alleged concocted version, within a few minutes. 24. As a matter of fact, there should be no reason to disbelieve the testimony of PW-8 Sarla Devi, widow of deceased Prem Chand, especially when her statement to the effect that her husband’s three brothers, namely PW-4 Joginder Singh, PW-5 Piar Chand and PW-6 Ramesh Chand, came to her house, in the night around 11, and took the deceased with them, for reporting the incident of house …16… breaking to the Nambardar has not been challenged in the cross-examination by the defence. 25. The defence plea that a few staircases had been constructed by PW-5 Piar Chand and PW-6 Ramesh Chand and those staircases had been demolished by deceased Prem Chand and on account of that he was done to death by them and PW-4 Joginder Singh, is shown to be false even from their own evidence. DW-1 Hem Raj, examined by the appellants themselves, stated that he was asked by PW-5 Piar Chand and PW-6 Ramesh Chand to construct a Danga, adjacent to the new building, but Prem Chand did not allow him to raise the construction and so no construction was carried out by him. Otherwise also, from the suggestions, which were thrown to the witnesses of the prosecution, it is clear that no stairs had been constructed. Suggestions were put to the witnesses that the stairs had been removed in such a manner that no trace thereof had been left on the spot, which indicates that there was no trace of stairs on the spot, meaning thereby that stairs were never there. 26. Another submission made by the learned counsel for the appellants is that this is not a case of murder, but a case of voluntarily causing grievous hurt or at the most a case of culpable homicide not amounting to murder. 27. We have considered the submission. Before inflicting the fatal blow to deceased Prem Chand, both the appellants accompanied by their wives went to attack PW-4 …17… Joginder Singh and PW-5 Piar Chand at their houses. They tried to break open the doors of their residential units, but could not succeed. The fact stands proved not only from the testimony of PW-4 Joginder Singh and PW-5 Piar Chand, but also the testimony of Investigating Officer of the case, namely PW-19 SI Raj Kumar and the site plan Ex. PW-18/F, prepared and proved by him. As per the testimony of the Investigating Officer and site plan Ex. PW-18/F, not only that the doors of the portions of the house in occupation of PW-4 Joginder Singh and PW-5 Piar Chand were found damaged, but the