IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 648 of 2001 Date of decision: 24.05.2011 ____________________________________________________________________ The State of H.P. .....Appellant. Versus Nazroo Ram & other. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? _____________________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Additional Advocate General. For the respondents: Mr. Anand Sharma and Mr. Sunil Chaudhary, Advocates. 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 03.07.2001, passed by the learned Sessions Judge, Solan, District Solan, H.P. in Sessions Trial No. 2-A/7 of 2000, acquitting the respondents-accused for the offence under Section 307 read with Section 34 IPC in reference to FIR No. 14/99, Police Station, Arki. 2. The prosecution story in brief is that on 12.02.1998, Deep Ram (victim/injured) alongwith his wife Smt. Bimla Devi (PW-4) was going to cut and bring bamboo trees. When the victim / injured (PW-3) reached near the house of one Shri Mast 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... Ram, accused-respondent Nazroo Ram allegedly started abusing at him. However, accused-respondent Nazroo Ram was advised not to abuse, but the accused-respondent followed PW-3 and gave a blow of axe (Ex. P-1) from behind causing depressed fracture on his left parital bone and the blood started oozing. PW-3 fell unconscious, victim/injured's brother, Dinesh Kumar (PW-5) when reached there, he was allegedly gripped by accused-respondent Lal Chand and on raising alarm by PW-3 so that PW-5 (Dinesh Kumar) may escape, lest he would also be murdered by them, PW-5 got released himself from the said grip and came to rescue of his brother, PW-3. The victim/injured was taken to the hospital at Arki by PW-5. Thereafter, he was referred to PGI from the said hospital. 3. Smt. Bimla Devi (PW-4) reported the matter to the police vide her statement, Ex. PC. Recoveries were effected and a formal FIR, Ex. PG, was registered by the police and after investigation accused-respondents were charged for the aforesaid offences. 4. In order to prove its case, prosecution examined as many as twelve witnesses, whereas, accused-respondents through their statements under Section 313 Cr.P.C. denied the prosecution case and examined two witnesses in defence. 5. PW-4, Smt. Bimla Devi (wife of victim/injured), on advise of PW-3, Deep Ram (the victim/injured) made a statement to the police under Section 154 Cr.P.C. and in that reference FIR was registered. Smt. Bimla Devi (PW-4) has stated that on 12.02.1999 ...3... at about 3 p.m. she was going with her husband towards the fields. At that point of time her husband started cutting bushes from the banjjar/barren land and PW-3 asked her (complainant) that she may proceed. PW-5 (Dinesh Kumar), devar of Smt. Bimla Devi (PW-4) was also cutting bushes there at that time. One Beli Ram, son of uncle of her husband, was also ploughing in the opposite field. PW-4 has further stated that her jeth/Beli Ram, asked her to bring water and in that reference PW-4 went to the house of Mast Ram and brought a jug full of water, accompanied by the wife of Mast Ram. The moment she reached near her husband, she observed Dinesh Kumar/devar, PW-5, holding her husband PW-3, and the blood was seen oozing from the head of her husband. Latter on, PW-4 came to know that her husband was assaulted by the uncle of PW-3 and his family members. The uncle of her husband i.e. accused Nazroo Ram and his family members quarreled with PW-3 and assaulted on his head. 6. As revealed by Ex. PM, i.e., Daily Diary Report, it appears that PW-3 (victim/injured) has stated that on 12.02.1999 at about 3 p.m., he had gone for cutting wood from the fields near his house where he was assaulted by his uncle accused Nazroo Ram and his family members from behind and in reference to the query that who had hit him, the victim/PW-3 hasstated his uncle had hit him with an axe. In response to the query that the aunty and her children were carrying which weapons, PW-3 stated that all the three were holding darat. In response to the query that when PW-3 ...4... raised alarm who came there first, victim stated that his wife, Bimla Devi (PW-4). In response to the query that after hearing the noise of Bimla Devi who arrived there, he stated that Dinesh Kumar and Beli Ram came on the spot after hearing the noise of Bimla Devi. Lastly, in response to the query that any quarrel took place before making assault, PW-3 replied that a quarrel took place. 7. In view of the testimony of the victim/injured (PW-3) that on 12.02.1998 at about 3 p.m. he alongwith his wife was going to his fields from his house for cutting bamboo trees for fencing purpose and when he reached near the house of Mast Ram, accused-respondent Nazroo Ram met PW-3 and started abusing him. However, PW-3 advised the accused-respondent (Nazroo Ram) not to hurl abuses at him. Thereafter, accused-respondent Nazroo Ram followed PW-3 (victim/injured) and inflicted a blow of axe, Ex. P-1, from behind on the left side of his skull. As per the testimony of PW-3, accused-respondent, Nazroo Ram, came from behind and PW-3 (victim/injured) could not realize his intention and his act of following him to strike with axe, Ex. P-1. However, due to the strike of axe blow, PW-3 fell down unconscious. In the meantime, younger brother of PW-3, Dinesh Kumar, came there, who was gripped by accused-respondent Lal Chand. At that time, PW-3 cautioned Dinesh Kumar (PW-5) that he should escape as he will be killed by Nazroo Ramm too. PW-3 has further stated that when he went about 10-15 feet ahead he was given axe blow by the accused- respondent. Thereafter, PW-3 was picked up by his brother, Dinesh ...5... Kumar, and was taken to the hospital from there he was referred to PGI, Chandigarh. Victim/PW-3 has further stated that the house of accused-respondents is about one k.m away from his house. The house of Mast Ram is half k.m. away from his house. The house of Beli Ram is further away from the house of Mast Ram by half k.m. distance. The house of Nazroo is not visible from the house of Mast Ram. PW-3 has further stated in cross-examination that before occurrence accused-respondent/Nazroo Ram never met him on that day and the wife of victim/injured, Smt. Bimla Devi, accompanied him up to the house of Mast Ram. The victim/injured reached the house of accused-respondent Nazroo Ram at about 3 p.m. at that time he was not accompanied by any person. PW-3 has further stated that his brother, Dinesh Kumar (PW-5), was also cutting bushes near his house and he (PW-3) could not see accused- respondent, Nazroo Ram, when he was going on his way. PW-3 has further stated that the younger brother of accused-respondent Lal Chand, namely, Sham Lal, gripped his brother when he came out on the spot of occurrence. When PW-3 was talking with the sons of accused-respondent Nazroo Ram, at that time he (Nazroo Ram) attacked him from behind. It has further been stated by PW-3 that his brother, Dinesh Kumar, reached the spot of occurrence after two minutes from the attack made on him (PW-3). PW-3 has also stated that Nazroo Ram's courtyard is of stony wall, however, PW-3 denied that he had jumped from the top of the wall and sustained injuries on his head and leg. PW-3 has also stated that accused- ...6... respondent, Nazroo Ram, had thrown the axe towards his house/courtyard after inflicting injury upon him. 8. In view of the above narration, it appears that at the instance of PW-3 (victim/injured), his wife, namely, Bimla Devi (PW-4) lodged a complaint giving altogether a different story, stating that, she was not accompanying her husband (PW-3) as her husband had asked her to go ahead and PW-3 kept himself engaged in cutting the bushes at that time and her devar, Dinesh Kumar (PW-5) was also engaged in cutting the bushes. When PW-4, Bimla Devi, alongwith the wife of Mast Ram was coming with a jug of water from the house of Mast Ram, PW-4 observed the victim/injured/PW-3 in an injured condition. 9. As per the testimony of PW-3 he had gone to cut the bamboo trees and in his statement under Section 154 Cr.P.C. he has stated that he had gone to cut wood from the barren land. As per the testimony of PW-3 when he came across accused- respondent, Narzoo Ram, the later one had started abusing PW-3, however, PW-3 advised him not to abuse, whereas, in his cross- examination PW-3 has stated that he had not met accused- respondent/Narzoo Ram, prior to the assault. PW-3 has never stated that when he met accused-respondent/Narzoo Ram, he was holding axe in his hand. PW-3 has stated that when he was talking to the sons of accused-respondent, Narzoo Ram, had hit from behind by axe. PW-3 has also stated that his brother was engaged in cutting the bushes and he came for rescue, but he was gripped ...7... by accused-respondent Lal Chand and when he went 10-15 feet further from the spot, he was given axe blow by the accused. PW-3 has never stated in his examination-in-chief that at that time Dinesh Kumar (PW-5), his brother, accused-respondent Lal Chand and Narzoo Ram were present at one place. The presence of accused- respondent Lal Chand as well as of Dinesh Kumar (PW-5) is also doubtful. The statement of PW-3 that he has not seen accused- respondent Narzoo Ram carrying axe before assault and following him then his testimony that when he came across accused- respondent Narzoo Ram he started hurling abuses at him also becomes doubtful. The statement of PW-3 (victim/injured) made under Section 154 Cr.P.C. was recorded by ASI Joginder Singh, which was mainly in the form of question and answer. The manner of occurrence was differently revealed through such reply/statement. 10. On medical examination of PW-3 by Dr. Ram Kumar (PW-1), the following injury has been noticed: “1. Depressed fracture of the left parital bone. The patient has slurred speech. C.T. Scan was conducted.” 11. As per the opinion of PW-1, injury sustained by the victim/injured was grievous, having been suffered on the left parital region. PW-1 has further stated that if a person falls from a distance of 10 to 15 feet on a stony surface, such an injury could be sustained. 12. PW-2 Dr. Yashwant Singh Verma, also examined the ...8... victim/injured on 12.02.1999 and noticed following injuries. “Injury No. 1. Insized would 7cmx2cmx1.3 cm on the temporal parital region. The margins of the wound were clear out with under lines tissues contused. The under line bone was depressed. Clinically, I observed that the under line bone was also fractured. I referred the patient to skull X ray to CHC, Arki.” 13. PW-2 has also opined that injury was grievous in nature and was sufficient to cause death of the victim in the ordinary course of nature. The injury appears to have been caused by sharp edged weapon. The injuries appear to have been inflicted within 24 hours and could have been inflicted with axe, Ex. P-1. As per further opinion of PW-1, if the victim/injured had fallen on a sharp/stony surface from some height, such an injury could be sustained by him, as mentioned in Ex. PB, but by fall invariably to suffer some other associated injuries in that eventuality. PW-2 has also stated that there is only a singular injury and as such it can be said definitely that the victim/injured did not fall in the manner as above suggested. 14. If there is contradiction in the testimonies of two medical experts then the ocular evidence can be resorted to. Here we notice that there are apparent contradictions in the testimony of PW-4, Smt. Bimla Devi, who stated that when she was going to the field with her husband on 12.02.1999, PW-4 departed from her husband while on the way, whereas, her husband went to cut the bamboo trees and accused-respondent Narzoo Ram inflicted axe blow on the head of her husband and the blood started oozing and ...9... the shirt got smeared with the blood. PW-4 (Bimla Devi) reported the matter to the police vide her statement under Section 154 Cr.P.C., Ex. PC. PW-4 has further stated that nothing happened in her presence as she did not see accused-respondent striking axe blow on the head of her husband (PW-3). Beli Ram, brother of the victim/injured was away from the field where PW-3 was working on that day. PW-4 has not even reiterated the version recorded by her in the complaint dated 12.02.1999 and instead of making improvements she has synchronized her statement which is not in support of the prosecution case even. 15. PW-5 (Dinesh Kumar) in his endeavour to support the prosecution case stated that Deep Ram/victim/injured was passing through a path which was near to the house of accused-respondent Narzoo Ram and the said accused-respondent started hurling abuses at PW-3 and also started following him. PW-5 observed that accused-respondent Narzoo Ram carrying an axe with him he had inflicted a blow with an axe on the head of his brother from behind and consequently PW-2 fell down. In the meantime, accused- respondent Lal Chand @ Shiv Nand, Hardei and Sham Lal (another son of accused Narzoo Ram) caught hold of PW-5. The victim/injured, Deep Ram, raised alarm to get PW-5 escaped from the said accused-respondents. PW-5 saw backwards from the place where he was gripped by the said accused-respondents and also saw accused-respondent Narzoo Ram, who had picked up a stone to strike against the victim/injured/Deep Ram. PW-5 pushed the said ...10... accused-respondent who had gripped him and got released from their clutches and came to rescue his brother, (victim/injured) by giving push to the accused-respondent Narzoo Ram. 16. As per the testimony of PW-3, Smt. Bimla Devi, accompanied the wife of Mast Ram, while bringing jug of water and the victim/injured was taken to home. PW-5 has further stated that the place where he was cutting bushes is near to his house and his brother (victim/injured) was going all alone and nobody else was with him at that time. PW-5 also stated that PW-3 had said that he had suffered sprain in his foot. It has also been stated by PW-5 that he was on visiting terms with accused-respondent/Narzoo Ram before the occurrence and he and Deep Ram/(victim/injured) went to the house of the accused-respondent on that day and administered beatings to him. 17. The testimony of PW-6 is also self-contradictory. In view of the statement of PW-5, Deep Ram (victim/injured) was going alone then a doubt is created how all these persons came together and how PW-5 was gripped by accused Lal Chand @ Shiv Nand. From the testimony of PW-5 it appears that he was also indulged in quarreling and he has also pushed accused-respondent Narzoo Ram. 18. As per the testimony of PW-3 he was assaulted by accused-respondent/Narzoo Ram from behind and after going 10-15 feet he was again assaulted. However, only one injury was found on the head of PW-3. From that point of view also, the ocular evidence ...11... is not inspiring confidence. PW-6 (Beli Ram) is the nephew of accused-respondent/Narzoo Ram and he was told by Dinesh Kumar (PW-5), younger brother of the victim/injured, that the accused- respondent Narzoo Ram inflicted the blow on his head. PW-6 has, however, helped Dinesh Kumar (PW-5) in taking the victim/injured to the hospital, whereas, the victim/injured was first brought to home and thereafter he was taken to the hospital. PW-5 has stated in cross-examination that he has not seen occurrence and nothing had happened in his presence. However, he had heard hurling of abuses. PW-6 (Beli Ram) has denied that the victim/injured (Deep Ram) and Dinesh Kumar (PW-5) have attacked the accused- respondents in their house and he has also denied that the victim/injured, Deep Ram, sustained the injury on his head while running and falling on the courtyard of the accused-respondents. 19. PW-7 (Sant Ram) has observed blood falling on the way near the house of the accused-respondent Narzoo Ram. In view of the testimony of PW-7, the blood stained pebbles, were collected by the police vide recovery memo, Ex. PE. The accused-respondent Narzoo Ram on 24.02.1999 in presence of PW-7 and another witness/Ratti Ram, produced one axe, Ex. P-1, which was taken into possession vide panchnama, Ex. PF. 20. PW-8 Ranjeet Singh, MHC, registered FIR No. 14 of 1999 and has sealed parcels containing pebbles and other articles. PW-9, Brahma Nand, PW-10, Hem Singh, S.I., and PW-11, Joginder Singh, ASI, Arki, in due discharge of their official duties have ...12... endeavoured to support the prosecution case, however, nothing substantial could be derived from their testimonies. 21. In view of the statement of PW-11, on 13.02.1999, when he went on the spot and recorded the statement of Smt. Bimla Devi (PW-4) under Section 154 Cr.P.C., Ex. PC, and the same was sent to the Police Station for registration of a case. On the same day, the shirt of he victim/injured (PW-3), Ex. P-2, was produced by Bimla Devi (PW-4) which was also taken into possession in presence of PWs Sant Ram son of Ram Dass and another PW Sant Ram son of Shru Budhir Ram. 22. On analysis of the prosecution witnesses and the materials on record, the medical opinions of PW-1 and PW-2 are self-contradictory. In view of the testimony of PW-1, the single injury could have been caused by blunt weapon and could also be caused by fall of the victim/injured from the distance of 10-15 feet, whereas, in view of the medical opinion of PW-2, the single injury was caused by sharp edged weapon and the possibility of sustaining such injury cannot be by fall because other injuries would also be visible on the person of the victim/injured when one falls down. It is very surprising that when the accused-respondent/Narzoo Ram was allegedly carrying axe and his intention was bad, why he used blunt side of the axe instead of using used the sharp side of the axe. PW-3 (victim/injured) has not stated that when he came across accused-respondent Narzoo Ram and he (PW-3) asked him not to hurl abuses, surprisingly, he did not notice that accused-respondent ...13... Narzoo Ram was carrying an axe, whereas, PW-5 (Dinesh Kumkar) stated that accused-respondent Narzoo Ram was carrying an axe and PW-5 has not seen the occurrence. 23. PW-4 (Bimla Devi) could be said to be the witness of occurrence. Apparent contradictions is being noticed from the testimony of PW-4, Smt. Bimla Devi, and self-contradictions are emanating from the testimony of PW-3. The statement of PW-3 (victim/injured) himself is not inspiring confidence, whereas, on the other hand the statement of DW-1 (Gulaba Ram) who was coming on 12.02.1999 to his house from village Sarayan has observed that Deep Ram (PW-3) and Dinesh Kumar (PW-5) was administering blows to the accused-respondent and Dinesh Kumar (PW-5) was having darat, whereas, PW-3 (victim/injured) was having an axe and after seeing DW-1 (Gulaba Ram) both the persons jumped into a pit down having distance of about 25 feet. The place upon which Deep Ram (PW-3) fell was having stones and sloppy stony surface. DW-1 (Gulaba Ram) also observed Deep Ram (PW-3) having blood oozing and running towards his house. He was limping while running and the blood was oozing from his head. DW-1 has further stated that PW-3 is his nephew and Dinesh Kumar (PW-5) is his real brother. As per the testimony of DW-1 (Gulaba Ram) it is wrong to say that accused-respondent, was also having an axe with him and he inflicted axe blow on Deep Ram/PW-3. DW-1 has very categorically stated that PW-3 (Deep Ram) has suffered injury due to jumping from the courtyard of the accused-respondent Narzoo Ram. DW-1 ...14... has further stated that all the three accused-respondents were taken by him inside the premises when they were unconscious and they all suffered injuries on their persons. The injuries suffered by them (accused-respondent) were of sickle and axe. Accused- respondent Lal Chand suffered injuries on whole of the body, especially on his back. Accused-respondent Hardei suffered darat injury on her scalp. Accused-respondent Narzoo had one cut injury on his neck. DW-2, H.C. Ranjeet Singh, recorded the FIR No. 22 dated 09.03.1999. 24. The testimony of DW-1 that PW-3 (victim/injured) was limping while running is also corroborated by the testimony of PW-5 made in cross-examination that the victim/injured, Deep Ram, told him that he had suffered sprain in his foot. In view of the aforesaid analysis and on the basis of the materials on record, the sole testimony of the victim/injured (PW-3) is not inspiring confidence and there are apparent contradictions, inconsistencies and improbabilities emanating from the prosecution witnesses. In view of the contradictory opinions of two medical experts, i.e., PW-1 and PW-2, the ocular evidence cannot be relied upon for existence of inconsistencies and contradictions. Learned Sessions Judge has rightly arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubt and in our considered view also the prosecution has failed to bring home the guilt to the accused-respondents. In these circumstances, criminal appeal being devoid of merit is dismissed. ...15... 25. The personal and surety bonds of the accused- respondents shall stand discharged. (R.B. Misra) Judge (V.K. Sharma) Judge 24th May, 2011 (virender)