IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeals No.488 & 503 of 2005 Reserved on : May 22, 2008. Decided on : May 29, 2008 Cr.A No.488 of 2005 Pawan Kumar …Appellant. Versus State of H.P. …Respondent Cr.A No.503 of 2005 Kamal Bhardwaj …Appellant 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 Appellant : Mr. Anoop Chitkara, Advocate, in Cr. A No.488 of 2005, and Mr. Rakesh Jaswal, Advocate, in Cr. A No.503 of 2005. For the Respondent : Mr. P.K. Sharma, Additional Advocate General, in both the appeals. Surjit Singh, Judge These two appeals have been filed by two different persons, who have been convicted of offences, punishable under Sections 302 and 307, read with Section 34 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay fine of Rs.5,000/- each, for offence under Section 302 read with Section 34 of the Indian Penal Code and to undergo rigorous imprisonment for seven years and to a fine of Rs.2,000/- each, for offence under Whether reporters of the local papers may be allowed to see the judgment? Yes. …2… Section 307 of the Indian Penal Code, by the same judgment, i.e. judgment dated 20th October, 2005, of the Sessions Court. 2. Appellants alongwith two other persons, named Manup alias Manu and Devender Kumar Chauhan, were tried together, in a case instituted by the police. Prosecution case, as it emerges from the evidence adduced during trial, may be summed up thus. On 6th February, 2004, around 8 p.m., PW-11 Sandeep Rana, accompanied by deceased Rohit, went to a liquor vend at Jogindernagar to find out if PW-12 Balwant , a cousin of PW-11 Sandeep Rana working in the Ahata of the said vend, was free and could go with him to his village, as he was related to him, being his cousin. PW-12 Balwant told them that he would not be free before 10 or 11 p.m. Thereafter, PW- 11 Sandeep Rana accompanied by deceased Rohit came out of the Ahata. In the meanwhile, appellants Kamal Bhardwaj alias Bablu and Pawan Kumar came on a motorcycle. Appellant Kamal Bhardwaj took out a Chopper (Ex. P-10), which he had concealed inside the jacket, which he was wearing, and aimed a blow on the head of PW-11 Sandeep Rana. The blow hit PW-11 Sandeep Rana on his face and blood started flowing. He fell down on the ground. In the meanwhile, both the appellants started giving beating to Rohit. Appellant Kamal Bhardwaj alias Bablu hit him on the head with the said Chopper. PW-11 Sandeep Rana managed to escape. He ran towards the shop of Pappu in Laxmi Bazaar, where he fell unconscious and was carried to the hospital by the people present in the bazaar. Several incised wounds were inflicted to deceased Rohit by appellant Kamal Bhardwaj alias Bablu. Three of the wounds were on the head. …3… 3. Someone informed the police that two persons had injured one person seriously and that that person was lying in a pool of blood in Laxmi Bazaar and one person, who too had been inflicted injuries, managed to escape. Information was entered in the Rojnamcha, vide report No.27 dated 6th February, 2004 at 8.30 p.m. PW-2 HC Daya Ram was deputed to look into the matter. On reaching the spot, he found deceased Rohit lying in a pool of blood. He managed to take him to the hospital. At the hospital, he came to know that PW-11 Sandeep Rana was in the hospital with serious injuries. He submitted an application Ex. PC to the doctor, PW-5 Dr. Partap Chand, to seek opinion if PW-11 Sandeep Rana was fit to make statement. Doctor certified that he was fit. Then statement, Ex. PD, of PW-11 Sandeep Rana was recorded. It was sent to the Police Station for formal registration of the case. In the meanwhile, Rohit was declared dead. PW-2 HC Daya Ram then made a telephonic call at the Police Station informing about the death of Rohit. This call was made at 9.45 p.m. Entry was made in the Rojnamcha, copy whereof is Ex. PB. 4. On getting the information, on telephone about the death of Rohit, SHO, Police Station, Jogindernagar, PW-22 Inspector Narender Kumar, went to the hospital. From there he went to the spot. He got the scene photographed. Photographs are Ex. PQ/1 and Ex. PQ/2. He collected blood stained earth and some hair from the spot. He also prepared site plan Ex. PT. Next day, he arrested both the appellants. He recorded supplementary statement of PW-11 Sandeep Rana, in which the latter named Devender Kumar Chauhan and Manup alias Manu also as accused in the case. So, these two …4… persons were also arrested. Inquest was conducted and the doctor was requested vide application Ex. PG to conduct postmortem examination. 5. PW-5 Dr. Partap Chand, Medical Officer at Civil Hospital Jogindernagar, conducted the postmortem. He noticed the following injuries on the dead body and gave the opinion that all the injuries were ante-mortem. He found that there was fracture of occipital skull bone. Cause of death was opined to be injury to the brain underlying the fractured occipital part of the skull. The doctor, while in the witness-box, testified that the injuries could have been caused by means of Chopper (Toka) Ex. P-10. Appellant Kamal Bhardwaj alias Bablu made a statement leading to the discovery of Chopper Ex. P-10. 6. To bring the charge home to the appellants and other two persons, who were co-accused with the appellants, prosecution examined PW-6 Rakesh Chand, PW-7 Raju Walia, PW-8 Sunil Kumar, PW-11 Sandeep Rana and PW-12 Balwant, as eye- witnesses. All of them, except PW-11 Sandeep Rana, turned hostile. To prove the recovery of Chopper Ex. P-10 at the instance of appellant Kamal Bhardwaj, prosecution examined PW-9 Bhuvnesh Kumar, PW-10 SI Kapur Chand and PW-22 Inspector Narender Kumar. PW-9 Bhuvnesh Kumar did not support the prosecution version but the other two witnesses, who are police officials, stated that appellant Kamal Bhardwaj made a disclosure statement leading to the discovery of Chopper Ex. P-10. 7. Appellants took the plea that there lived a girl in Jogindernagar Town, who was attracted towards appellant Kamal …5… Bhardwaj, but PW-11 Sandeep Rana started claiming that she was in love with him. This led to a dispute between the two and with a view to settling the same PW-11 Sandeep Rana sought the help of deceased Rohit, as an intervener, and on 6th February, 2004, PW-11 Sandeep Rana, deceased Rohit and the two appellants had a meeting in Uhl Hotel, where it was agreed that till 1.15 p.m., on the next following day, nobody would approach the girl, but PW-11 Sandeep Rana did not stick to that agreement and went to the house of the girl, situated near Uhl Hotel. In the evening, the two appellants met a common friend and went to Pooja Restaurant with the intention of having drinks in the company of the said friend and deputed one Deepu to fetch a bottle of Whisky, on the motorcycle of appellant Kamal Bhardwaj. When said Deepu did not return for quite some time, he was contacted on his mobile phone. He told that he had been beaten up by PW-11 Sandeep Rana and deceased Rohit and the ignition key of the motorcycle had also been taken away by them from him. Upon this, the two appellants went to the wine shop and when after taking the ignition key from PW-11 Sandeep Rana, the two appellants started towards their places, appellant Pawan Kumar said that the matter (perhaps the issue regarding the girl) would be looked into next morning. Upon this PW-11 Sandeep Rana and deceased Rohit came and stood in front of their motorcycle and asked why the matter could not be settled there and then. This they did to have a confrontation. Deceased Rohit then threw appellant Pawan Kumar on the ground and hit him with some weapon, as a result of which he sustained injuries. When appellant Kamal Bhardwaj tried to rescue appellant Pawan Kumar, PW-11 Sandeep …6… Rana took out some weapon, which was already with him and hit appellant Kamal Bhardwaj, as a result of which he also sustained some injuries. A scuffle ensued, in which the weapon fell from the hand of PW-11 Sandeep Rana and he ran away. In the meantime, one of the several persons, who had gathered on the spot, picked up that weapon and hit the deceased to get released appellant Pawan Kumar from the clutches of deceased Rohit and PW-11 Sandeep Rana. Deceased Rohit and PW-11 Sandeep Rana are known bullies of the area and are involved in many cases. 8. Trial Court believed the prosecution version, relying upon the statements of PW-11 Sandeep Rana and PW-5 Dr. Partap Chand and the statements of police officials regarding recovery of weapon. The other two persons, who were also charged with offences under Sections 302 and 307 read with Section 34 of the Indian Penal Code, were, however, acquitted. 9. Appellants are aggrieved by the judgment of the trial Court. Their contention is that deceased Rohit and PW-11 Sandeep Rana were the aggressors and that it were they who attacked them with some sharp edged weapon and that since the deceased and PW-11 Sandeep Rana are the bullies of the area, several persons gathered on the spot to teach them a lesson and one of those persons picked up the weapon, which fell from the hand of PW-11 Sandeep Rana, and hit deceased Rohit. 10. Learned counsel representing appellant Pawan Kumar made an additional submission. He urged that prosecution’s own evidence, particularly the suggestions, which were thrown to PW-7 Raju Walia during the course of his cross-examination by the …7… prosecution, show that there had not been any pre-concert between the two appellants with regard to the commission of the alleged crime and, therefore, Section 34 of the Indian Penal Code was not attracted and both the appellants were liable for their individual acts. 11. Learned counsel representing appellant Kamal Bhardwaj alias Bablu also made an alternative submission. He submitted that if the Court came to the conclusion that the appellant was responsible for infliction of fatal injuries to deceased Rohit, in that event it was not a case of murder, punishable under Section 302 of the Indian Penal Code, but a case of culpable homicide not amounting to murder, punishable under Section 304 of the Indian Penal Code, because the incident took place on the spur of the moment, without any pre-meditation. 12. We have considered the submissions of the learned counsel for the appellants to the aforesaid fact, in the light of the evidence on record. 13. PW-11 Sandeep Rana testified that on 6th February, 2004 at about 8 p.m., he accompanied by deceased Rohit went to the liquor vend, where his cousin, PW-12 Balwant, was working in the Ahata those days, and that when he and Rohit came out of that Ahata, appellants Kamal Bhardwaj alias Bablu and Pawan Kumar appeared on a motorcycle and appellant Kamal Bhardwaj took out a weapon from inside the jacket, which he was wearing, and tried to hit him on his head, but the blow landed on his face causing bleeding injuries on the face and the left eye, due to which he fell down on the ground. He further stated that both the appellants then started giving beating to deceased Rohit and appellant Kamal Bhardwaj dealt …8… blows on the head and arms of deceased Rohit with the weapon he was carrying and, in the meanwhile, he managed to run away towards the shop of Pappu where he fell down and became unconscious. Prosecution did not show the Chopper, Ex. P-10, to PW-11 Sandeep Rana nor did this witness say that he and deceased Rohit were hit by appellant Kamal Bhardwaj by a Chopper. 14. Learned counsel for appellant Kamal Bhardwaj argued that PW-11 Sandeep Rana’s failure to identify Ex. P-10, Chopper, as the weapon of offence, disproved the prosecution story totally and in any case rendered it highly doubtful. 15. No doubt, the submission appears to be quite attractive, but in fact it is not. PW-11 Sandeep Rana, no doubt, did not say that the weapon that was used was Ex. P-10, but he is not to blame for this omission in his statement. In fact, the Public Prosecutor was supposed to have shown the weapon to him when he was in the witness-box. In any case, the omission by itself does not create doubt, muchless a reasonable doubt, entitling the appellants to acquittal. In a case of murder or voluntarily causing hurt, it is not the requirement of law that the weapon must be named or identified by the injured or the witnesses. 16. In the present case, the offence was committed in the darkness of night. In the FIR, Ex. PE, as also in his testimony as PW-11, Sandeep Rana did not name the weapon. He simply stated that appellant Kamal Bhardwaj alias Bablu took out some weapon from inside the jacket, which he was wearing, and first assaulted him aiming the blow on his head and when he fell down, he hit deceased Rohit on his head with that weapon. Injuries, which were there on …9… the person of PW-11 Sandeep Rana and the dead body of Rohit were incised wounds. PW-5 Dr. Partap Chand testified that there were six incised wounds on the dead body of Rohit and the same had been caused by some sharp edged weapon and that weapon could have been Chopper Ex. P-10. PW-21 Dr. Raj Kumar, who conducted the medico legal examination of PW-11 Sandeep Rana, on the very day of the incident at 8.15 p.m., testified that there were three incised wounds on the person of Sandeep Rana and the same had been caused by means of a sharp edged weapon and the weapon could have been Chopper Ex. P-10. 17. Testimony of PW-11 Sandeep Rana and the abovenamed two doctors prove beyond reasonable doubt that the injuries found on the dead body of Rohit and on the person of PW-11 Sandeep Rana were caused by means of a sharp edged weapon and that weapon could have been Chopper Ex. P-10. Under these circumstances, lack of definite evidence whether the weapon of offence was Chopper Ex. P-10 or some other sharp edged weapon is of little consequence. 18. It was also argued on behalf of the appellants that other eye-witnesses, including PW-12 Balwant, a cousin of PW-11 Sandeep Rana, who, according to the earliest version Ex. PD, was among those who had witnessed the occurrence, did not support the prosecution version and thus the testimony of PW-11 Sandeep Rana remained uncorroborated and he being an interested witness, because of his friendship with deceased Rohit, could not be believed, without corroboration. …10… 19. Law of evidence does not require that the testimony of an interested witness must be corroborated by independent evidence in every case, even in a case where such witness himself is also a victim, as in the present case and the injuries on his person vouchsafe his presence on the scene of occurrence. Requirement of the law is that the testimony of such a witness should inspire the confidence of Court. Therefore, the submission made on behalf of the appellant deserves to be rejected on this sole ground. On facts also the submission is not correct. Even though the testimony of PW-11 Sandeep Rana is not corroborated by other eye-witnesses, all of whom turned hostile and stand contradicted by their statements, under Section 161 of the Code of Criminal Procedure, medico legal evidence and the earliest version Ex. PD, which this witness gave to the police, however, corroborate his testimony. 20. As will be seen from the discussion in the following paragraphs, the defence plea about deceased Rohit and PW-11 Sandeep Rana having assaulted the appellants is false and unbelievable. The falsity of the plea of the appellants can also be used as an additional corroboration to the testimony of PW-11 Sandeep Rana. 21. Defence plea, as already noticed hereinabove, is that appellant Kamal Bhardwaj alias Bablu and PW-11 Sandeep Rana had a dispute over a girl living in Jogindernagar Town and that the two appellants and the deceased and PW-11 Sandeep Rana had a sitting during day time on 6th February, 2004 to amicably settle that dispute and the four dispersed after agreeing that neither side would approach the girl till 1.15 p.m. on the next following day. PW-11 …11… Sandeep Rana is alleged to have violated that agreement. After that a friend of the two appellants met them and the three went to a restaurant from where they deputed one Deepu on the motorcycle of appellant Kamal Bhardwaj alias Bablu to fetch a bottle of Whisky but he was beaten up by PW-11 Sandeep Rana and deceased Rohit and the ignition key of the motorcycle had been snatched from him and on coming to know about this happening the two appellants went towards liquor vend and there the deceased and PW-11 Sandeep Rana allegedly assaulted the appellants with some weapon. The appellants put suggestions to PW-11 Sandeep Rana on the lines of this plea. However, no suggestion on the lines of this plea was put to other eye-witnesses inspite of the fact that all of them turned hostile. Not only this, Deepu, who was allegedly beaten up and from whom the ignition key of the motorcycle had been forcibly taken away was also not examined. 22. Otherwise also, defence plea is nothing but a cock and bull story. It is stated that first Rohit hit appellant Pawan Kumar with a weapon and when appellant Kamal Bhardwaj tried to rescue him, PW-11 Sandeep Rana took out a weapon and hit him. That means, according to defence plea there were two weapons, one with Rohit with which he hit appellant Pawan Kumar and second with PW-11 Sandeep Rana, which he allegedly took out when appellant Kamal Bhardwaj tried to rescue appellant Pawan Kumar. PW-11 Sandeep Rana’s weapon fell on the spot and was used by one of the persons, who had gathered on the spot, according to the defence plea. Rohit died on the spot and, therefore, his weapon was also supposed to be on the spot, because Sandeep Rana had already fled. But, no …12… weapon was found on the spot, even though the police reached there within a few minutes. 23. Again, it is alleged that after the weapon fell from the hands of PW-11 Sandeep Rana, he ran away. At the same time, it is stated that that weapon was used by one of the persons, who had gathered there to rescue appellant Pawan Kumar from the clutches of deceased Rohit and PW-11 Sandeep Rana. Now, when PW-11 Sandeep Rana had run away after the weapon fell from his hand, where was the question of someone using the weapon to rescue appellant Pawan Kumar from the clutches of both the deceased and PW-11 Sandeep Rana. 24. Therefore, there cannot be any escape from the finding that the defence plea is false and the falsity of the plea also corroborates the testimony of PW-11 Sandeep Rana. 25. Moreover, when the occurrence is admitted but there are two different versions of the incident, one put forth by the prosecution and the other by the defence and one of the two versions is proved to be false, the second can safely be believed, unless the same is unnatural or inherently untrue. 26. In the present case, as noticed hereinabove, the manner of occurrence, as pleaded by the defence, is not true. The manner of occurrence testified by PW-11 Sandeep Rana is not unnatural nor is it intrinsically untrue; therefore, it has to be believed. 27. It was also argued that the charge of murderous assault upon PW-11 Sandeep Rana could not be said to have been established, even if the prosecution version were taken on its face value. It was pleaded that no serious injury had been caused to PW- …13… 11 Sandeep Rana and that all the injuries, according to the testimony of PW-21 Dr. Raj Kumar, which he noticed on the person of Sandeep Rana, at the time of his medical examination, were simple in nature. 28. Trial Court, while dealing with this aspect of the matter, has observed that it is not necessary that in a case of attempt to murder some injury of serious nature, endangering human life, should be sustained by the victim. Trial Court has placed reliance upon a judgment of the Hon’ble Supreme Court in taking this view. The citation is State of Madhya Pradesh Vs. Saleem alias Chamaru and another, 2005 Cri.L.J. 3435, wherein it has been held that to justify conviction for an offence under Section 307 of the Indian Penal Code there should be intent on the part of the accused coupled with some overt act in execution thereof and that it is not essential that bodily injury capable of causing death should have been inflicted. 29. Legal proposition has correctly been stated by the trial Court and it is supported by a judgment of the Hon’ble Supreme Court. However, in the present case, evidence of intent, requisite for the offence of murderous assault, is lacking. We have gone through the testimony of PW-11 Sandeep Rana very carefully. He has nowhere stated that he ducked or turned aside or withdrew or took some other measure or did something else to minimize the impact of the blow which appellant Kamal Bhardwaj alias Bablu aimed at him. If it is so, we have no option but to gather the intention of the said appellant, while aiming and giving blow to PW-11 Sandeep Rana with a sharp edged weapon, by reference to the consequence of the …14… blow, viz. the nature of the injury actually sustained by him (Sandeep Rana). 30. According to PW-21 Dr. Raj Kumar, Sandeep Rana sustained three incised wounds. One was on the forehead measuring 5 cm x 1 cm x bone deep, another on the left side of nose extending from eye upto lower part of the tip of the nose measuring 4 cm x ½ cm x muscle deep and another on the left side of the nose 4 cm x ¼ cm x muscle deep. All the injuries were simple in nature. In the cross-examination, the witness admitted that if a weapon, like Ex. P-10 (Toka), is used, even with moderate force, it would cut the bone of the forehead as also the wall of the nose through and through upto the cavity. He further admitted that incised wounds of the type noticed on the person of PW-11 Sandeep Rana could have been caused with slight force, if weapon, like Ex. P-10, were used. The nature of the injuries on the person of PW-11 Sandeep Rana, when seen in the light of the aforesaid admissions by PW-21 Dr. Raj Kumar in the cross-examination, suggests that the appellant (Kamal Bhardwaj alias Bablu) did not intend to cause death or injury, which was likely to cause death in the ordinary course of nature, when he hit PW-11 Sandeep Rana with Ex. P-10 or some other sharp edged weapon. Therefore, conviction of the appellants for the offence of attempt to murder, under Section 307 read with Section 34 of the Indian Penal Code, cannot be upheld. This is a case of voluntarily causing hurt, with a sharp edged weapon, so far as assault on PW- 11 Sandeep Rana is concerned. 31. It was also argued, though half heartedly, that the act of appellant Kamal Bhardwaj, as against deceased Rohit, did not …15… amount to an offence, under Section 302 of the Indian Penal Code but, at the most, it was an offence under Section 304 of the Indian Penal Code.