HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.423 of 2002 with Cr.Appeal No.144 of 2002. Decided on: July 27, 2011. 1. Cr.Appeal No.423 of 2002: State of H.P. …Appellant. VERSUS Ranjeet Singh ….Respondent. For the appellant : Mr.R.K.Sharma, Sr.Addl.A.G. with Mr.Rajinder Dogra, Addl.A.G. For the respondent : Mr.I.S.Chandel with Mr.Neeraj Sharma, Advocates. 2. Cr.Appeal No.144 of 2002: Ranjeet Singh …Appellant. VERSUS State of H.P. …Respondent. For the appellant : Mr.I.S.Chandel with Mr.Neeraj Sharma, Advocates. For the respondent : Mr.R.K.Sharma, Sr.Addl.A.G. with Mr.Rajinder Dogra, Addl.A.G. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 R.B.Misra, Judge (Oral): Criminal Appeal No.423 of 2002 has been preferred under Section 378(3) of the Code of Criminal Procedure by the appellant – State for enhancement of conviction and sentence in reference to the judgment dated 11.3.2002, passed by learned Whether the reporters of the local papers maybe allowed to see the judgment? …2… Sessions Judge, Kullu, District Kullu, H.P., in Sessions Trial No.79 of 2001, regarding the guilt of accused under Section 323 IPC, whereby accused / respondent was convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of `200/- and in default of payment of fine, he was to undergo further simple imprisonment for one month. 2. Criminal Appeal No.144 of 2002 has been preferred under Section 374(2) of the Code of Criminal Procedure, by the appellant / convict, against the conviction and sentence, in reference to judgment dated 11.3.2002, passed by learned Sessions Judge, Kullu, District Kullu, H.P., passed in Sessions Trial No.79 of 2001, in reference to the offence under Section 323 IPC. 2. Both the appeals are in respect of the same impugned judgment as such these are being adjudicated together. The prosecution case, in brief, is that PW-1 Mast Ram / (complainant) was running a shop in village Bagicha with the assistance of his son Rakesh Kumar. One daughter of PW-1, namely, Urmila Devi (PW-9) was married to Shakti Parkash who was also running a shop in that very village. On the evening of 4.5.2001, Shakti Parkash left for Hurla to meet his brother, leaving behind his wife and minor children. However, Urmila Devi (PW-9) requested her father Mast Ram (PW-1) to depute some adult member to spend night in her house, as such, at about 11 P.M. Rakesh Kumar / victim / deceased was asked to sleep in the …3… house of his sister Urmila Devi. As soon as Rakesh Kumar left the house and had hardly gone 40 – 50 steps, PW-1 heard shouts of Rakesh “Bachao – Bachao”. Hearing cries of Rakesh Kumar, the neighbour, namely, Naraian Parkash (PW-3) reached there, followed by Mast Ram (PW-1), his wife and another son Sanjeev Kumar. When they reached at the spot, they noticed that the accused was giving beatings to Rakesh Kumar with danda and was inflicting kick and fist blows. They separated Rakesh Kumar / victim from the clutches of the accused who then left to his house. Urmila Devi (PW-9) also reached the spot and enquired from the accused the cause of beating of her brother and she was told by the accused that Rakesh Kumar /victim had uprooted six saplings of pomegranate plants from his field. However, Rakesh Kumar / victim was brought to the house by his father (PW-1), who noticed injuries on the right side of the scalp and bluish marks on stomach and other parts of the body of the victim. Mast Ram / (PW-1) did not report the matter either to the police or to the Panchayat just to avoid inimical situation. However, on the morning of 6.5.2001, when condition of Rakesh Kumar / victim suddenly deteriorated, while he was being taken to Zonal Hospital, Kullu, he succumbed to his injuries. After completion of investigation, the accused was charged for the offence under Section 302 of the Indian Penal Code. …4… 3. In order to prove its case, prosecution examined PW-1 Mast Ram, PW-2 Amar Chand, PW-3 Narain Parkash, PW-4 Om Chand, PW-5 Dr.Baldev Kumar, PW-6 Yub Raj, PW-7 ASI Hans Raj, PW-8 HC Bhagat Ram, PW-9 Urmila Devi, PW-10 ASI Sant Ram and PW-11 Kaur Singh, Additional S.H.O., whereas, accused / respondent through his statement under Section 313 Cr.P.C. denied the prosecution case. 4. PW-1 (Mast Ram), the father of victim, in support of the prosecution case, has stated that he had sent his son, namely, Rakesh Kumar (victim) to the house of PW-9 at about 11 – 11.30 P.M. and as soon as victim left the house and went 40 – 50 steps, he heard noise of “Bachao – Bachao”. On hearing this, PW-1, his wife Kashmira Devi, his other son Sanjeev Kumar and wife of Sanjeev Kumar reached to the spot by running had observed that the victim was lying on the ground. At that time, Narain Parkash, Berthi Devi, Yuv Raj, Parkasho Devi, Mool Raj and Sannu Ram were already present on the spot who were trying to rescue the victim from the clutches of the accused. Accused was beating the victim with legs, fist and danda. Thereafter, accused went to his house and PW-1 brought his injured son to his house and had observed in the light at home that victim / injured had sustained injuries on the right side of the scalp and bluish marks were also noticed on the abdomen and other parts of the body. …5… 5. PW-1 has further stated that he had purchased a piece of land from relation of the accused in village Bagicha, which was subsequently sold to Mool Raj, brother-in-law of PW-1. That was the ground of quarrel by the accused. PW-1 also stated that while leaving the victim, the accused uttered that he would have finished Rakesh Kumar / victim, had PW-1 and others not saved him. Then Mast Ram (PW-1) brought the victim to his house and noticed injuries on his head and scratches on his stomach, legs and some signs of dragging and danda blows. Rakesh Kumar / victim was given massage. Next morning, he was brought to hospital at Bhuntar as he was having pains and such medicines were taken from a private doctor. PW-1 has further stated that on that day he did not report the matter to the police because accused met PW-1 at Bhuntar Police Post and requested PW-1 not to report the matter as he had given little beating to the victim and not to exaggerate the petty issue. As stated by PW-1, the victim was talking slowly, did not take meal in the house and also did not take medicines prescribed by the doctor as the same could not be swallowed by him. PW-1 has further stated that on 6.5.2001, the victim was again taken to Bhuntar to the same doctor by jeep driven by his elder son Sanjeev Kumar and while he was being taken to the doctor at Manikaran Chowk Bhuntar, yellowish liquid found coming out of …6… nose and mouth of victim and as per the doctor’s advise he was taken to hospital and on way he expired at the Chowk. Mast Ram (PW-1), in his cross examination, has stated that he was not able to say that how many danda blows were inflicted to Rakesh Kumar / victim by the accused and after the arrival of PW-1, beating continued for one - two minutes. PW-1 was also not able to say the name of the doctor to whom the victim was brought. PW-1, in his statement under Section 154 Cr.P.C., has stated that he heard weeping of his son Rakesh / victim and cry of “Bachao – Bachao”. However, beating was not mentioned in his testimony before the Court. PW-1 has also stated that on 6th May, 2001, when he brought his son to Bhuntar, first he went to Sabji Mandi, Bhuntar and thereafter he went to the doctor, during that time Rakesh / victim was sitting in the vehicle. However, within half an hour of lodging the report, accused was apprehended by the Police at Bhuntar. These were the improvements which were not narrated while making complaint initially. 6. PW-2, Amar Chand, had observed that he saw six trees of pomegranate on the land of Ranjit, police put those trees in a bag which were sealed on the spot. 7. PW-3, Narain Parkash, said to be present on the spot, has stated that on 4.5.2001, at about 11 – 11.30 PM, the victim was shouting “Bachao – Bachao”. On hearing the cries of …7… Rakesh / victim, he woke up and went to the spot which was about 20 – 25 meters from his house and observed that accused was beating Rakesh / victim with danda. PW-3 tried to save the victim. While PW-3 was rescuing the victim, Yuv Raj, Sanjeev Kumar, Indru and parents of victim reached there. When PW-3 reached on the spot, Rakesh / victim was lying on the road. After reaching on the spot, Rakesh / victim was saved by PW-3 and others and then accused Ranjit went to his house proclaiming that victim had uprooted his pomegranate trees. In cross examination, PW-3 has stated that on the third day of the incident, at about 2 – 2.30 PM, police came to the spot. PW-3 has further stated that when he reached on the spot, accused was giving danda blows to the victim but he did not count number of blows inflicted in his presence. However, while accused was giving danda blows to victim, PW-3 caught him and thereafter accused did not give any danda blow to the victim but when PW-3 caught accused, he freed himself from his grip and in the meanwhile other witnesses also reached there. PW-3 has also stated that after the arrival of witnesses on the spot and separation of accused from the victim, wordy duel between them continued for about half an hour. At that time all the witnesses, namely, Yuv Raj, Sanjeev Kumar, Indru, Mast Ram and Kashmira Devi were there. PW-3 did not report the incident to any authority because in the morning he was to go with his taxi …8… as he was a taxi driver. However, as stated by PW-3, victim was lifted from the spot by PW-3 and others and at that time he was talking slowly. As per the testimony of PW-1, when he, along with his wife Kashmira, elder son Sanjev Kumar and his wife Indru, went to the spot, PW-1 observed Ranjit accused beating the the victim, who was lying on the road. At that time, Narain Parkash, Yuv Raj, Prakasho and Sannu Ram were there. They were separating the victim from accused Ranjit and Ranjit was giving kick, fist and danda blows to victim and they all saved the victim from the clutches of the accused who then went to his house, whereas, PW-3, when reached on the spot, he observed accused Ranjit Singh beating victim with danda and also kicking him and when PW-3 was trying to save victim, Yuv Raj, Sanjeev Kumar, Indru, his wife and parents of the victim reached there. As such, there is contradiction between the testimony of PW-1 and PW-3. As per the testimony of PW-3, he reached earlier when he was trying to save the victim. Thereafter, other persons, mentioned above, reached there. As per testimony of PW-1, while leaving the spot accused Ranjit uttered that he would have finished the victim, had PW-1 and others not saved him. However, PW-1 has not stated anything about the wordy duel between accused Ranjit and the victim continued for about half an hour, as has been stated by PW-3 in his cross-examination after separation of accused from the victim. As per testimony of …9… PW-1, it appears that the persons present on the spot were separating the victim from accused, whereas, as per testimony of PW-3, the accused was being separated from the victim. As per testimony of PW-1, after his arrival on the spot beating by accused Ranjit continued on victim for 1 – 2 minutes, whereas, in view of the testimony of PW-3, made in the cross-examination, when he reached on the spot, accused was giving danda blows to the victim but he did not count number of blows inflicted in his presence and when accused was giving danda blows, PW-3 caught accused. Thereafter, accused did not give any danda blow to the victim. Such contradiction also goes to the root of the case when PW-3 Narain Parkash reached first and caught hold the victim, thereafter no danda blow was given then how PW-1 could have observed that after his arrival on the spot, the beating continued for 1 – 2 minutes. Such contradiction shows that either PW-1 was not present on the spot or PW-3 Narain Parkash was not present on the spot. 8. PW-4, Om Chand, associated with the investigation, has observed danda being taken into possession by the police from the heap of firewood. 9. PW-5, Dr.Baldev Kumar, Medical Officer, who conducted post-mortem examination of victim / Rakesh Kumar, has observed as below:- …10… “Rigor mortis present on all the four limbs. Abrasions of reddish brown in colour present over both the knees, both elbows and dorsum of left wrist and on the back at lumber second spine. In the neck dissection no ligature marks were present. In scalp, skull and vertebra, no injuries were there. The membranes were congested. Brain and spinal cord tissue were normal. In thorax all organs were normal. In heart left chamber was empty and right chamber contained little amount of blood. Large vessel were empty. In the abdomen the peritoneum was congested. Cavity was full of yellow coloured fluid. Mouth, phanx and esophagus mucosa was normal and congested and yellow coloured regurgitated fluid present. Stomach and its contents: there was yellow coloured secretion and mucosa was congested. In small intestine omentum was congested, gathered at one point where there was 2.5 cm perforation in distal part of jejunum with everted mucosa. No regional lympth modes palpable. Scattered patches of reddish brown mesenteric contusion. Lumen contained semi digested yellow material and congested mucosa. In large intestine there was minimal feecalmatter and was normal and congested mucosa. Liver, spleen and kidneys were normal and congested. Bladder was empty. Internal and external organ of generation were normal. There were no findings in muscles, bones and joints.” …11… In the opinion of Dr.Baldev Kumar (PW-5), the deceased died of shock, due to intestinal perforation and peritonitis. According to the chemical report Ex.PW.5/B there was no presence of poison or alcohol in the viscera. He has further opined that it is possible to suffer stomach injury i.e. intestinal injury due to forced blow with danda Ex.P-7. This injury is also possible if the kick blows of the shoes are given on the abdomen wall. PW-5, Dr.Baldev Kumar, has further observed as under:- “It is not always that shock should appear soon after the injury because the cause of shock are multiple. The shock in the instant case is delayed on because it is due to the peritonitis leading to septicaemia and then septic shock. Septicaemia in other words is internal infection. In this case the septicaemia stage was in early stage having no frank pus formation. This development septicaemia could have prevented if proper treatment including administration of antibiotics was started at proper time. In such type of case massage was not required, because massage would aggravate the peritonitis. The peritonitis is a condition of inflammation of peritoneum which is possible also in diseases such as tuberculosis, ulcers, amoebic perforations etc. At the time of post mortem it is clear that such type of diseases were not found (present) in the intestines of deceased.” PW-5, Dr.Baldev Kumar, has further observed as under:- “No abrasion and external injury was present on abdomen. There were also no external injuries on skull and face of the deceased. On the corresponding part of perforation in …12… intestine, there was no abdominal injury. These injuries were not possible due to fall. It is not always possible that blows with blunt weapon like danda will lead to contusions or apparent injury on the body. In the present case such injuries were not present on the body of deceased. The abrasions present on the knees, elbows and wrist as we have mentioned are not possible with danda blows but possible with kick blows and dragging. Contusions with danda blow are possible only if it hits the area of the body where there are hard bony surfaces such as scalp, chest, back and limbs. In case of dragging on hard surface like road leading to the abrasions on the knees there should be corresponding tearing of the clothes.” 10. PW-6, Yuv Raj, in his endeavour to support the prosecution case, has stated that he heard voice of victim who was shouting “Bachao – Bachao”. Hearing this, he came out of his shop, which was at a distance of 40 – 50 steps from there and accused was giving danda blows to victim who was lying on the road with back downwards. Accused was also kicking him and Narain Parkash (PW-3) was separating them. In the meantime, Mast Ram, Sanjeev Kumar, sister of victim also reached there and PW-6 and all others separated victim from the accused. Accused Ranjit thereafter fled to his house and victim was lifted by the eye-witnesses to his house. PW-6, in his cross-examination, has further stated that when he reached the spot, Narain Parkash (PW-3) had already reached there. PW-6 observed Narain Parkash (PW-3) on the spot after reaching there and …13… Sanjeev Kumar and Mast Ram reached thereafter. PW-6 has further stated in his cross examination that in his presence 2/3 danda blows were inflicted by the accused on the abdomen of victim and was beaten for 2 – 3 minutes and PW-6 and all others present on the spot jointly separated Rakesh / victim from the accused and thereafter wordy duel between them continued for about half an hour. As per testimony of PW-6, it was Narain Parkash (PW-3) who reached first and PW-6 had observed 2 – 3 danda blows having been inflicted by the accused to the victim in his presence on the abdomen of victim, PW-6 has also stated in his cross examination that the victim was beaten by the accused for 2 – 3 minutes, such version is self contradictory as during beating for 2 – 3 minutes, it is improbable that only 2 – 3 danda blows would be inflicted. The version that wordy duel took place between accused Ranjit and victim thereafter, whereas, such statement is self contradictory as has been indicated by PW-6 in his examination-in-chief that when the victim was separated from accused Ranjit, the accused thereafter fled to his house, then is improbable how the wordy duel continued for about half an hour. The observance of PW-6 about beating by accused Ranjit to victim also appears to be improbable. As per testimony of PW-3, he reached first to the spot and caught hold of accused Ranjit and thereafter accused did not give any danda blow to victim also shows that how in …14… view of the testimony of PW-6, the beating continued for 2 – 3 minutes thereafter. Such contradiction also goes to the root of the case. 11. PW-7, ASI Hans Raj, recorded F.I.R. Ext.PW-7/A on the basis of Ruqua, received from PW-10 Sant Ram, ASI. PW-8, HC Bhagat Ram, deposited viscera of deceased Rakesh vide RC No.119/2001 to FSL Junga, through Constable Santosh Kumar. PW-9, Urmila Devi, sister of the victim, in her endeavour to support the prosecution case, has stated that on 4.5.2001, her brother was beaten by accused Ranjit with danda. Narain Parkash (PW- 3), Yuv Raj (PW-6), her parents, brother Sanjeev, Mool Raj, Sannu etc. had gathered there and separated the victim from accused. PW-9 has further stated that thereafter accused went to his house and the victim was lifted from the spot to the house of her parents and after leaving the victim in the house, PW-9 went to the house of the accused which was nearby and enquired from accused as to why he gave beatings to her brother / (victim), upon which, accused told that the victim had uprooted his pomegranate plants. PW-9, in her cross- examination, has stated that when she reached the spot, her parents, brother, Sannu etc. were already there and the incident took place in front of house of PW-3 Narain Parkash on the right hand side of the road while going from Bhuntar to Dyar. PW-9 has also stated that when she reached the spot, other persons …15… were separating the accused and this endeavour had been continued for five minutes before she reached on the spot. After arrival of PW-9, 3 – 4 blows of danda were inflicted by the accused on the abdomen of the victim and in that episode, mother and Bhabhi of PW-9 were also injured and mother of PW- 9 suffered injury on the arm and Bhabhi was pushed by the accused. PW-9, being sister of the victim, however, was not named in the F.I.R and PW-1 (Mast Ram / father of the victim) has also not mentioned anything about the presence of PW-9 on the spot. The testimony of PW-9 is in derogation to the testimony of PW-3 Narain Parkash who is said to have reached the spot firstly and testimony of PW-9 is in derogation to the testimony of PW-6 Yuv Raj, an eye-witness, who had only stated that in his presence 2 – 3 danda blows were inflicted by the accused on the abdomen of victim and PW-6 had already reached at the spot prior to reaching of PW-9 and he had observed victim being beaten for 2 – 3 minutes. In our considered view, the presence of PW-9 at the spot becomes doubtful. 12. PW-10, ASI Sant Ram, prepared inquest report Ext.PB and Ext.PC and arranged for post-mortem examination of the victim. PW-11, Kaur Singh, Additional S.H.O., in his endeavour to support the prosecution, has stated that he prepared site plan Ext.PW-11/A and on 8.5.2001, accused took out and produced a danda Ext.P-7 which was taken into possession vide memo …16… Ext.PW-2/C. Testimony of PW-11 is also formal as the same has been made in the due discharge of his official duty. 13. On analysis of prosecution witnesses and materials on record, doubt is created that the victim had been beaten by accused Ranjit. On proper appraisal of prosecution evidences and materials on record, in our considered view, finding arrived at by the learned Sessions Judge, is not legally sustainable. In view of the above analysis, benefit of doubt could be given to the accused / respondent and the punishment so awarded to the accused / respondent by the learned Sessions Judge, is legally not sustainable. Therefore, the verdict / judgment, passed by the learned Sessions Judge, is set aside and Criminal Appeal No.144 of 2002, preferred by the respondent, is allowed. 14. In view of the aforesaid analysis also, we do not find any merit in Criminal Appeal No.423 of 2002, preferred by the State of H.P. for enhancement of sentence under Section 378 of the Code of Criminal Procedure, being devoid of any merit, is dismissed. Bail bond, furnished by the accused / respondent, at any point of time, is hereby discharged. (R.B.Misra), J. July 27, 2011. (Sanjay Karol), J. (soni)