IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 95 of 2001. Date of decision: 04.01.2011. State of H.P. ….. Appellant. Vs. Nand Lal & Ors. …. Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellant : Mr R. K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Addl.A.G. For the respondents : Mr. G. D. Verma, Sr. Advocate with Mr. B. C. Verma, Advocate R.B. Misra, J. (Oral. The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 29.7.2000, passed by the learned Sessions Judge, Kinnaur Session Division at Rampur Bushahr, in Sessions Trial No. 42 of 1996, acquitting the alleged accused for the offence under Section 302/34 of the Indian Penal Code. 2. The prosecution case is that Shyam Lal (PW- 1) made a complaint that Roshan Lal, his brother-in- law along with Ravinder Kumar (PW-3), son of her Whether the reporters of the local papers may be allowed to see the Judgment? 2 sister, on 10.7.1996 at about 6.00 P.M. were going together in village Majhewali. When they reached near the house of accused Nand Lal, accused persons assaulted Roshan Lal/deceased with ‘Saria’ and ‘dandas’ whereas, accused Nainu Devi pelted stones which hit on the head of Roshan Lal/deceased, whereby he was injured and had fallen down unconscious, thereupon accused Pritam Dev assaulted him with ‘Saria’ followed by several assaults given by other accused persons. Ravinder Kumar (PW-3) tried to save and taken shelter to the nearby building of Health Sub Centre at Majhewali. When Shyam Lal (PW-1) and Hira Devi (PW-4) came to the spot to rescue Roshan Lal/deceased, they were also assaulted by the accused persons. During assault, Roshan Lal received multiple injuries. A vehicle was arranged and injured Roshan Lal was taken to the hospital on 11.7.1996 in the morning, where he was declared dead. The matter was reported to the police at 8.30 A.M. on 11.7.1996 and FIR No. 94/96 (Ext.PW-8/A) was registered and after investigation the accused/ respondents were charged for the aforesaid offences and trial of the case was conducted by the Sessions Court. 3. In order to prove its case, prosecution examined as many as eleven witnesses, whereas, the accused-respondents, through their statements under Section 313 Cr.P.C. denied the prosecution case. 3 4. PW-7 Dr. M. L. Kashyap conducted post mortem examination on the body of Roshan Lal/deceased and noted the following injuries:- “(1) There was a lacerated wound back occipital region of scalp left side, size was about 2½”x2”x1” in transverse direction dark red in colour. Occipital bone was fractured at the site of wound. (2) There was a lacerated wound forehead upper part right side, size was about 1”x1”x ½” in vertical direction, colour dark brown. Frontal bone at site was fractured. (3) Blood froth was coming out of mouth. No ligature mark was seen around neck.” 5. As per the opinion of PW-7, Roshan Lal died due to head injury leading to fracture of occipital bone left side with fracture of frontal bone right side further, leading to haemorrhage & shock, leading to death. Subsequently, PW-7 has opined that the injuries observed on the person of Roshan Lal/deceased are possible with ‘Saria’ (Ext.P1), ‘Dandas’ (Ext.P2 to Ext.P4) and a stone. PW-7 has also opined that both the injuries mentioned in post mortem report (Ext.PW- 7/F) are possible due to fall on hard stony surface. Injury No.1 was 2” wide. Keeping in view the diameter of ‘Saria’ (Ext.P1), ordinarily an injury of the width of 2” is not possible, however, it depends upon the force used. Injury No.1 was on the backside of the 4 head of the deceased on the occipital region left side. PW-1 Shyam Lal, complainant who is related to Roshan Lal/deceased, in support of the prosecution case has stated that on 10.7.1996 at 6 O’Clock in the evening he was sitting in the Veranda of his house. He observed that Roshan Lal and Ravinder Kumar (PW-3) were proceeding towards village Rattanpur and when they reached near the house of Lehni Ram, accused Nand Lal proclaimed that Roshan Lal be done to death. In response, Roshan Lal uttered “AAO NICHE KHATAM KAR LO”. Thereafter, accused Nand Lal, Rup Lal, Hira Lal and Pritam proceeded towards the field of Yashpal. Accused Pritam Dev was carrying a ‘Saria’ and other accused were armed with ‘dandas’. Accused Nainu Devi hurled stone towards Roshan Lal which hit him on his forehead. Consequently, Roshan Lal fell down on the road. However, Ravinder Kumar (PW-3) ran away without receiving any injury to save himself. When Roshan Lal/deceased was lying on the ground, other accused, namely, Nand Lal, Hira Lal, Rup Lal and Pritam Dev assaulted him with ‘dandas’. Thereafter, PW-1 along with Hira Devi and Gopal Singh went to rescue Roshan Lal. All the accused persons also hurled stones towards them and thereafter they ran away. Roshan Lal received injuries on his head, neck, chest and legs and a bleeding injury on his head. They lifted Roshan Lal to the premises of the nearby school. However, at 5 that time, Roshan Lal did not interact with them. Thereafter, Roshan Lal/deceased was removed to his house where Gopal Singh, Ravinder, Hira Devi and Kamla Devi, sister of Roshan Lal also came there. Ravinder and Gopal Singh were deputed to bring a vehicle from Jeori which is at a distance of 16 kms. from his house. They came with a vehicle at about 7 O’ clock on the following morning. Thereafter, Roshan Lal was brought to the hospital at Rampur, where he was declared dead. 6. PW-1 has stated that Roshan Lal/deceased was the brother-in-law/wife’s brother and the accused persons were also related to him as brothers and Bhabies and the motive on the part of the accused to kill Roshan Lal/deceased was to cause harm to PW-1 Shyam Lal by eliminating his close relations. Roshan Lal was murdered by the accused on account of enmity between PW-1 Shyam Lal and the accused persons. PW-1 has further stated in cross-examination that right forearm of accused Hia Lal remained under plasters for 45 days. Further volunteered that accused Hira Lal had sustained injuries on the right forearm, but the same was not at the hands of Ravinder Kumar and instead was caused during the occurrence as a result of danda blows given by a member of the accused party. PW-1 has further stated in cross-examination that when Roshan Lal sustained injuries on the backside of his head 6 with a blow given by accused Pritam Dev with ‘Saria’ Ext.P1, he had fallen on the road and the accused had given further beatings to him with ‘dandas’ hurriedly. The stones said to have been hurled at the deceased by the female accused were lying on the road at the spot scene. The stone with which accused Naino Devi had hit the deceased on the forehead was of a size as could be easily held in one hand and might be weighing 1½ kgs. PW-1 has further stated in cross-examination that the enmity between him and the accused party is of long standing. 7. PW-3 Ravinder Kumar, the son of the sister of Roshan Lal/deceased accompanying on the fateful day to Roshan Lal/deceased, has stated in support of the prosecution case that when on 10.7.1996 at about 6.00 P.M. they reached at some distance ahead of the bus stand at Majhewali towards Rattanpur near the house of accused Nand Lal located on the upper side of the road, accused Pritam Dev, Nand Lal, Rup Lal, Hira Lal, Anpati Devi, Jawala Devi and Naino Devi came from the side of their houses armed with ‘dandas’ and ‘saria’, whereas, accused Pritam Dev was wielding a ‘Saria’ and accused Rup Lal, Nand Lal and Hira Lal were armed with ‘dandas’. The female accused were pelting “Lakkar Pathar”, stones towards them. One of the stones hit Roshan Lal on his forehead. Resultantly, he sustained injury. In the meantime, the accused attacked Roshan 7 Lal, as a result of which he fell down on the road. Out of fear, he ran away from there and hide himself behind the building of Health Sub Centre near the school and kept on observing the occurrence. Accused persons kept on giving beatings to Roshan Lal, but in the meantime, Shyam Lal, Gopal Singh, Hira Devi etc. came there to rescue Roshan Lal from the clutches of the accused. When they intervened the accused persons started giving beatings to them. Some other persons also came there to save Roshan Lal but the accused also attacked them. In those circumstances, the aforesaid persons who came to save Roshan Lal also fled away from there. The accused also fled away to their respective houses after giving beatings to Roshan Lal/deceased. Thereafter, PW-3 went to the spot scene. Shyam Lal, Hira Devi and Gopal Singh also came there and noticed that Roshan Lal had sustained injuries on the forehead and the back side of his head which were bleeding and he was almost half dead and was lying in an unconscious state. Roshan Lal was shifted by them to the nearby school building. Thereafter, he was taken to the house of PW-1 Shyam Lal and PW-3 was deputed to go to Jeori and arrange for a vehicle so that Roshan Lal/deceased could be shifted to the hospital. On reaching Jeori, PW-3 found that no vehicle was available there in the night because of the stones falling on the road due to 8 cutting and widening at Maglar. In these circumstances, PW-3 had spent the night at Jeori and thereafter he returned to Majhewali along with a private taxi and reached there at about 6.00 A.M. Soon thereafter, Roshan Lal/deceased was brought to the hospital at Rampur in the said vehicle, where he was declared brought dead. Thereafter, the matter was reported to the police at Police Station, Rampur. While Roshan Lal/deceased was being taken to the house of PW-1 Shyam Lal, some blood oozed out of the injuries was found on his shirt which was taken into possession by the police vide memo Ext.PW-3/A and the stone with which the deceased was hit on the forehead could not be traced at the place of occurrence for the reason that many stones were lying there. In view of the testimony of PW-3 made in cross-examination that Roshan Lal/deceased was firstly hit by a stone on the forehead and thereafter some other stones had also fallen upon him on the backside of his head. After the deceased had already fallen on the road, the accused kept on giving beatings to him for about 3/4 minutes. 8. PW-7 had noticed only two injuries on the body of the deceased, which could have been caused by Saria Ext.P1, dandas Ext. P2 to P4 and a stone. 9. In view of the testimony of PW-1, accused Pritam Dev was wielding ‘saria’ and other accused were armed with ‘dandas’. Accused Naino Devi hurled stones 9 towards Roshan Lal, which hit him on his forehead and PW-3 Ravinder Kumar ran away from the spot to save himself without any injury, whereas accused Nand Lal, Hira Lal, Rup Lal and Pritam Dev assaulted Roshan Lal with ‘dandas’. In view of the testimony of PW-1, Roshan Lal/deceased received injuries on his head, neck and legs, contrary to the medical opinion of PW- 7, who had noticed only two injuries on the person of the deceased. In view of the testimony of PW-1, Roshan Lal/deceased was removed to his house by Gopal Singh, Ravinder Kumar, Hira Devi, Kamla Devi, sister of Roshan Lal/deceased. PW-1 Shyam Lal has not mentioned that the persons who came to rescue Roshan Lal/deceased were also assaulted by the accused persons, contrary to the testimony of PW-3 who had stated that when Shyam Lal, Gopal Singh and Hira Devi etc. came to rescue Roshan Lal/deceased from the clutches of the accused, the accused persons started giving beatings to them also and when other persons also came to rescue Roshan Lal/deceased, accused persons attacked them. In these circumstances, other persons who came to rescue Roshan Lal/deceased, fled away to save themselves. Such aspect is missing from the testimony of PW-1 who had been observing by sitting at his Veranda of his house at the time of incident. 10 10. In view of the testimony of PW-1, the stones with which female accused hit the deceased on the forehead were lying on the spot scene, contrary to it in view of testimony of PW-3, the stone which hit on the forehead of deceased could not be traced at the place of occurrence for the reason that many stones were lying there. In view of the testimony of PW-1, accused Pritam Dev was wielding a ‘saria’ Ext.P1 and other accused were carrying ‘dandas’ Ext.P2 to P4 during occurrence. In view of the testimony of PW-3, accused Pritam Dev was wielding a ‘saria’. PW-3 Ravinder Kumar has not stated that first stone was hit by accused Nainu Devi, contrary to him, female accused were pelting stones towards Roshan Lal and over him and one of the stones hit Roshan Lal/deceased on his forehead. PW-3 has not stated that in whose hands Roshan Lal/deceased had suffered such first head injury with stone. In view of the testimony of PW-3, Roshan Lal had fallen down consequent upon the attack and assault by other accused persons and PW-3 had also sustained injuries in the incident, whereas, no such injury was ever noticed on the body of PW-3 Ravinder Kumar. PW-1 Shyam Lal has also not indicated that PW-3 was injured during occurrence. There are apparent contradictions from the testimonies of PW-1 & PW-3 about the incident. Doubt is created under whose hands Roshan Lal/deceased was hit by stone, as all the 11 female accused were pelting stones towards him and PW- 3 Ravinder Kumar. Injuries could have been caused by ‘Saria’, ‘dandas’ and ‘stone’, as per the testimony of PW-7. Neither PW-1 nor PW-3 has indicated that ‘Saria’ was used by accused Pritam Dev. As such, the injuries caused by ‘Saria’ become doubtful. In view of the testimonies of PW-1 & PW-3, accused persons Nand Lal, Rup Lal and Hira Lal were armed with ‘dandas’ but nothing is proved as to who had assaulted with ‘danda’. Nothing definite about assault and injury is emanating from the testimonies of PW-1 & PW-3, the star prosecution witnesses who are said to have observed the occurrence. PW-1 had been observing the occurrence from the Veranda of his house, whereas PW-3 was accompanying Roshan Lal/deceased. Testimony of PW- 3 creates doubt in respect of the assault having been given by the accused persons. In view of the testimony of PW-3 made in cross-examination, Roshan Lal/deceased was firstly hit by stone on the forehead and thereafter some other stones had also fallen down on the backside of his head and when the deceased had fallen down on the road, accused persons kept on giving beatings to him for about 3-4 minutes. Nothing definitely could not be inferred from the testimonies of PW-1 & PW-3 that out of the accused persons who had hit fist stone on the forehead of Roshan Lal/deceased and the second stone was hit by whom. If the 12 testimony of PW-3 is relied upon, in such condition both the injuries would have been sustained by stones only. In the circumstances, stones were pelted by the female accused persons, as such, possibility of pelting of stones by other accused is ruled out. In view of the testimonies of PW-1 and PW-3, the accused persons had assaulted Roshan Lal/deceased by ‘danda’ also. Surprisingly, no ‘danda’ blow was noticed by PW-7 11. PW-2 MHC Dula Ram has maintained Daily Diary Report. PW-4 Hira Devi belonging to the same village, in her endeavour to support the prosecution case has stated that when Roshan Lal/deceased and Ravinder Kumar (PW-3) were going for evening walk on the road leading towards Rattanpur, at about 6 P.M., verbal altercation took place between the accused and Roshan Lal/deceased and Ravinder Kumar (PW-3). Consequently, the accused started hurling stones towards Roshan Lal/deceased and Ravinder Kumar (PW-3). During that assault one of the stones hit the deceased on his forehead, as a result of which he fell down on the road. The accused ran away and caused injuries to him with ‘Saria’ and ‘Dandas’. Accused Pritam Dev was armed with ‘Saria’ and accused Nand Lal, Hira Lal and Rup Lal were armed with ‘Dandas’ and Roshan Lal/deceased was lying injured on the road. However, he was removed to the nearby school building by Shyam 13 Lal, Gopal, Kamla Devi, Hira Devi and Ravinder and, thereafter, he was taken to the house of Shyam Lal (PW-1). PW-4 has stated in cross-examination that only one blow was given to the deceased with ‘Saria’ on the backside of his head and she had not counted the Danda blows. Testimony of PW-4 is also contradictory to the testimony of PW-3 (who had been accompanying Roshan Lal/deceased). PW-4 has stated that accused started hurling stones towards Roshan Lal/deceased and Ravinder Kumar (PW-3) and one of the stones hit the deceased on the forehead, as a result of which he fell down and, thereafter the accused persons caused injuries to him with ‘Saria’ and ‘Dandas’, contrary to this PW-1 and PW-3 have stated that the stones were hurled by the women accused only. It appears PW-4 had not seen the occurrence. Testimony of PW-5 Hari Dass is also not supporting the prosecution case to the expectation of the prosecution. Testimonies of PW-6 Diwan Singh, Patwari, PW-7 Dr. M. L. Kashyap, PW-8 HC Prakash Chand, PW-9 C. Atma Ram, PW-10 Inspector Bhajan Dev and PW-11 Dy. S.P. Rikpa Giachho are formal and in their endeavour they have supported the prosecution case to the extent the role assigned to them. 12. DW-1 Dr. Rajan Bisht has noticed injury on accused Hira Lal, which was of reddish blue contusion measuring 3cmx3cm on the right elbow joint on its 14 flexor surface. It was said to be of within 96 hours prior to medical examination made on 12.7.1996 at 3.30 P.M. However, this injury cannot be linked with the incident, as the said incident took place on 10.7.1996 at about 6 P.M. 13. DW-2 Yashpal Singh has endeavoured to built up a different story by saying that the accused persons stated that Shyam Lal, Roshan Lal, Ravinder and Gopal Chand proceeded to the houses of the accused persons on 6.7.1996, at that time, they were not present in their respective houses. However, when they went to the house of Roop Dass on 9.7.1996 again Ravinder Kumar (PW-3) had caused hurt to the accused person Hira Lal with stones, whereupon brothers of Hira Lal had rushed to his rescue and at that time Roshan Lal had rushed for safety where he had fallen down into the road below a distance of 8 feet and sustained injuries. DW-2 has also stated that Shyam Lal (PW-1) was beaten by the accused persons 3-4 times prior to the present event. Shyam Lal (PW-1) had also lodged complaint against the accused persons at Police Station, Jhakri. DW-2 has also indicated that the accused persons had been entertaining ill will against Shyam Lal (PW-1). In our considered view, the version of DW-2 is also not forceful except indicating that the accused persons were inimical to the complainant. 15 14. On analysis of the prosecution witnesses and the materials on record and the medical evidence, we find that the contradictions are emanating from the testimonies of PW-1, PW-2, PW-3 & PW-4. The manner of assault has not coherently been described by the prosecution witnesses. Injuries could not be linked with the assault and with the accused using a particular weapon. In these circumstances, sufficient doubt is created about the role of the accused persons. As such, the accused/ respondents are entitled to be given benefit of doubt. In our considered view, learned Sessions Judge has rightly arrived at its conclusion that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view, the prosecution has also failed to bring home the guilt to the accused. Criminal appeal being devoid of merit is, therefore, dismissed. Bail bonds furnished by the accused are discharged. (R.B. Misra) Judge (Sanjay Karol) Judge January 4, 2011 (rana)