1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 455 of 2005. Date of Decision: 29-5-2008. ____________________________________________________________ Rajesh Kumar. ……..Appellant. Versus State of H.P. ……..Respondent Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Rakesh Jaswal, Advocate. For respondent : P.K. Sharma, Additional Advocate General. ___________________________________________________________ Surjit Singh, J. (oral) Appellant has assailed the judgment of the Sessions Court, whereby he has been convicted of offences under Sections 302 and 201, I.P.C. and sentenced to under-go imprisonment for life and to pay a fine of rupees 10, 000/- in respect of offence under Section 302 and to under-go rigorous imprisonment for three years and to pay a fine of rupees 2000/- in respect of offence under Section 201, I.P.C. Case of the prosecution may be summed up thus. Deceased Dorje Sherpa was employed as a Labourer along with several other persons by PW12 Angnima Sherpa. The entire labour force employed by PW12 Angnima Sherpa had been lodged in different accommodations, which he had taken on rent, from local people of Kinnaur Area. Deceased along with four persons used to reside in one room in village Sapni. On 10-12-2003, after doing his work as labour for Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 the day, deceased went to attend a marriage function in the village. There he consumed liquor in the company of appellant Rajesh Kumar and two other persons, who could not be examined by the prosecution at the trial, because they being Nepali migrants, had left the place and probably gone to their native place in Nepal. After consuming liquor, appellant gave beatings to the deceased on way b to his out-house (Doghri). Appellant then carried the deceased to his Doghri near village Sapni, where again he gave beatings to him with a Lathi. Next morning, the appellant went to find out as to with which contractor the deceased was employed. On coming to know from one Top Bahadur (who also being a Nepali Gurkha was not available for being examined in the Court, when the trial commenced) that the deceased was employed with Angnima Sherpa (PW12), the appellant accompanied by said Top Bahadur, went to the ‘dera’ (temporary residence) of PW13 Sarhad Chaudhary an employee of PW12 Angnima Sherpa. The appellant told Sarhad Chaudhary that he had beaten up the deceased on his way back from the site of the marriage function and also in his Doghri and that the beating given by him to the deceased was severe. He further told him that after giving beatings to the deceased, he took pity on him and allowed him to stay for the night in his Dogri, but when around 4.00 a.m, he woke up, he found the deceased missing. He asked Sarhad Chaudhary to inform his employer and also to search for the deceased. Sarhad Chaudhary (PW12) then gave a ring to Angnima Sherpa (PW12) who had gone to Bhawanagar on the previous evening to attend another marriage. Angnima Sherpa (PW12) accompanied by his partner Babu Lama and the labourers employed by him, searched for the deceased and when they could 3 not trace him, he went to the Police Station at Sangla accompanied by Babu Lama on the next following day, where report, copy Exhibit PW10/A, was lodged, that the deceased had been missing. It was also got recorded in the said report that the appellant had visited Sarhad Chaudhary on 11-12-2003 in the morning and informed him that he had given severe beatings to the deceased initially on the way while returning to Doghri and then at his Doghri. On 12-12-2003, a brother of the appellant also lodged report with Police Station Sangla, copy Exhibit PW10/B, that the appellant had been missing. On 17-12-2003, the dead-body was found in a dry Nallah about 110 meter down the path. It was covered with bushes and wood. Inquest was conducted. Statement of Angnima Sherpa under Section 154 Cr.P.C, which is Exhibit PW10/C, was recorded. It was sent to the Police Station for formal registration of the case. Case was registered vide FIR Exhibit PW10/D. Post mortem of the dead-body was conducted by Dr. R.K. Negi (PW11) who found the following external injuries on the dead-body: 1. Multiple bruises on forehead and both cheeks with slightly raised surface, well defined margins with reddish to brown colouration. 2. Loss of soft tissue starting from inner canthus of right eye involving middle 1/3rd of bridge of the nose and extending to the left Ala of the nose, 3cm x 1 cm in size. Underlying bones and cartilage were intact, no fluid or clotted blood over the wound. 3. Loss of soft tissue including skin, fat and muscles starting from front of left ear extending towards right side of face, cheek involving below lower lip and up to the 4 above of throid cartilage in the neck. Under bones intact. No fracrture seen. Vessels were intact. Size of the wound was 8 inch x 3 inch. Margins irregular. No clotted of liquid blood present on the wound. 4. On right arm multiple burises over the right upper arm and lower right arm in anteriolateral aspect with slightly raised surface and clear margins, Reddish to brown in colour. Skin was pilled off over right wrist extending right thumb in dorsal aspect measuring 4 inch x 2 inch. No red line demarcating from the adjacent skin. 5. On left arm and left forearm there were multiple bruises on the dorso lateral aspect. Skin was pilled off from left elbow to left wrist in dorsemedial aspect. 6. Multiple bruises were present on chest, both sides on the front and both lateral sides of the chest with raised surface and margins. The colour was reddish to brown. 7. There was multiple abrasions on the entire abdomen which were slightly raised reddish brown in colour. Skin was pilled off starting from the epigastric region extending down to the left side of supra pubic region measuring 8cm x 5 cm x 9cm in size. 8. There were multiple abrasions and bruises over the entire back with raised surface and reddish brown in colour. One bruise over the back at lower lateral aspect measuring 10 cm x 4 cm in size. 9. There were multiple bruises present on both lower limbs on the front, lateral and back with pilled off skin on left lower limb from left inguinal region to the left ankle joint 5 involving entire circumference of the limb. There was pilled of skin on right lower limb on anteriomedial side of the thigh and entire skin was pilled off from right knee up to right foot toes on dorsal side. The colour of the bruises under pilled off skin was reddish brown in colour. Scalp hairs were singed on occipital region and right parieto-occipital region. Cranium was normal. Throax Walls, ribs, cartilage, pleurae, larynx and traches right lung, left lung were normal. Pericardium was normal. Heart all chamber empty. ABDOMEN Walls were normal. Peritoneum-Peritoneal cavity was full of blood. Mouth, pharynx and oesophagus- All teeth were present. No laceration of buccal mucosa. Stomach was full of undigested food material. Small intestines contained gases and semi-digested food. Large intestines were normal and contained gases and faecal matter. Liver was normal. Spleen lacerations were present over the convex surface of spleen near lower border. Kidneys were normal. 6 Bladder was normal and empty. Organs of generation external and internal – there was pilled off skin on the shaft of penis and glans. On opening the abdomen, he found lacerations over convex surface of spleen near lower border and opined that the cause of death was massive intra-abdominal hemorrhage due to spleen rupture which led to hemorrhagic shock. He opined that external injures on the abdomen noticed by him appeared to have caused rupture of spleen and not only that injury but also other external injuries were ante mortem. Prosecution examined Sarhad Chaudhary (PW13) and Angnima Sherpa (PW12) to seek the conviction of the appellant. Trial Court has believed the version of these two witnesses and convicted and sentenced the appellant as aforesaid. We have been taken through the evidence and the entire record by learned counsel representing the appellant. He has submitted that the testimony of Sarhad Chaudhary (PW13) about the alleged extra-judicial confession of the appellant does not inspire confidence and that even if it be believed on its face value, it does not prove the charge of murder as also destruction of evidence, the two offences of which the appellant has been convicted and sentenced and that at the most, it is a case of culpable homicide not amounting to murder, punishable under Section 304 (second part), I.P.C. We do not find any merit in the first part of the aforesaid submission of the learned counsel for the appellant. Sarhad Chaudhary (PW13) is not shown to have any axe to grind by falsely implicating the appellant. Moreover, the fact testified by this witness 7 about the extra-judicial confession by the appellant finds mention in the earliest report which was lodged with the Police on 12-12-2003, even before the recovery of the dead-body, which fact lends assurance that his version is not a cooked up one. Earliest report was lodged with the Police by Babu Lama at Police Station, Sangla vide entry No. 6 of 12th December, 2003 at 10.30 A.M. Angnima Sherpa was accompanying Babu Lama when the aforesaid report was lodged. It is very categorically stated in this report that on 11-12-2003, Sarhad Chaudhary called Babu Lama on telephone around 8.00 a.m., when he was at Bhabanagar to inform him that the deceased had been missing and that the appellant, who visited him in the company of Top Bahadur at his quarter, told him that on the previous night, he had initially beaten up the deceased on way to his Dogri and then he took him to his Dogri where again, he gave him severe beatings by a lathi and then took pity on him and allowed him to stay at his Dogri for the night but when around 3 or 4.00 A.M, he woke up, he found him missing. Sarhad Chaudhary (PW13) appeared and testified the aforesaid facts in no uncertain terms. Nothing has surfaced in his cross-examination by the defense from which it may be gathered that his version is false or it has been cooked up nor is there anything in his cross-examination suggesting that he has any motive to falsely implicate the accused-appellant. His testimony is corroborated by the aforesaid report No.6, copy Exhibit PW10/A, which was lodged by PW12 as also the statement of PW12 Angnima Sherpa who too is not shown to have had any motive to falsely implicate the appellant and Angnima Sherpa’s own testimony is corroborated by the report Exhibit PW10/A which he and Babu Lama lodged at Police Station, Sangla on 12-12-2003. 8 Learned counsel argues that Top Bahadur in whose presence appellant allegedly made the confessional statement to PW13 Sarhad Chaudhary, having not been examined by the prosecution, it would not be safe to hold the appellant guilty solely on the basis of testimony of PW13 Sarhad Chaudhary. The record of the trial Court shows that Top Bahadur was sought to be examined as a witness of the prosecution and process was also issued for his production in the Court, but he could not be served as he was reported to have left for his native place in Nepal. Therefore, no inference can be drawn against the prosecution for not examining said Top Bahadur. However, we find a good deal of force in the second limb of the submission of the learned counsel. It has come in the evidence that the deceased, the appellant and two other Gurkhas had consumed liquor at a marriage party on the night of 10.12.2003. Thereafter, appellant and deceased started back. On the way, appellant per his version made to PW13 Sarhad Chaudhary gave severe beatings to the deceased. Then he took him to his Dogri and there also, he gave him beatings and hit him even with a Lathi. Injuries that were found on the dead-body by Dr. R.K. Negi (PW11) were in the nature of just abrasions, though it is a different matter that one of the blows caused rupture of spleen. In these circumstances, it cannot be said that the appellant intended to cause the death of deceased or to cause such an injury which was sufficient to cause his death, in the ordinary course of nature. However, in the facts and circumstances of the case, it can legitimately be held that he knew that the injuries which he had been inflicting to the deceased, were sufficient to cause his death and therefore, he is guilty of the offence of culpable homicide not amounting to murder punishable under the 9 second part of Section 304, I.P.C.. We do not find any evidence on record in support of the charge under Section 201, I.P.C. As an up-shot of the above discussion, the appeal is partly accepted. Conviction and sentence of the appellant for offences under Section 302 and 201, I.P.C. are set aside. Instead, the appellant is convicted of the offence under Section 304 (second part), I.P.C. and sentenced to under-go rigorous imprisonment for five years and to pay a fine of rupees 3000/-, in default of payment of fine, to under- go rigorous imprisonment for a further period of six months. Appeal stands disposed of accordingly. (Surjit Singh) Judge. (Surinder Singh) Judge. May 29, 2008. (bm)