IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA. Criminal Appeal No. 205 of 2002. Judgment reserved on 26.05.2011. Date of decision: 30.05.2011. _______________________________________________________ Surinder Singh. ….. Appellant. Versus State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Vinay Thakur, Advocate. For the Respondent : Mr. J.S.Rana, Assistant Advocate General. Kuldip Singh, Judge This appeal has been directed against the judgment dated 08.04.2002 passed by learned Sessions Judge, Kinnaur, Sessions Division at Rampur, in Sessions Trial No. 28 of 2001 convicting and sentencing the appellant under Section 307 IPC to undergo rigorous imprisonment for two years and pay a fine of `1,000/-, in default of payment of fine further simple imprisonment for six months. 2. The prosecution case, in brief, is that PW-1 Goverdhan Singh and appellant are permanent residents of Village Bhagetli. The appellant had not been carrying on well with PW-1 for quite sometime. In the beginning of July, 1999, the accused intercepted the injured and started quarrelling with him. On the timely intervention of Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… PW-4 Sagar Dass, PW-1 was saved from accused. On 16.07.1999, PW-1 had left his house to buy rice from nearby village shop. PW-1 after buying rice had been returning to his house and when he was approaching field locally known as ‘Dolva’ at about 4.30 P.M., accused intercepted him and started administering multiple blows with stick Ex.P-3 on the person of PW-1, who fell down, but appellant did not spare PW-1 even when he was lying on the ground. 3. PW-12 Jawind Lal noticed that appellant had been giving beatings to PW-1, PW-12 rushed to rescue PW-1. The appellant threatened to eliminate PW-12 also. On this, PW-12 rushed to the village and had sent for PW-2 Lolak Ram etc. PW-2 Lolak Ram rushed towards PW-1,but appellant had managed to escape to his nearby house. The appellant had taken away stick Ex. P-3 with him. PW-1 had turned unconscious. 4. PW-2 Lolak Ram, PW-12 Jawind Lal and other villagers had taken PW-1 for emergency medical aid to Referral Hospital, Rampur. PW-5 Dr. Hemant Kumar, Medical Officer attended the injured. PW-2 informed the police and FIR Ex. PW2/A was registered. PW-5 medically examined PW-1, he was referred to I.G.M.C., Shimla, where PW-1 remained admitted for about 10 days. PW-5 had opined that the injuries on the person of PW-1 were dangerous to life. 5. PW-9 arrested the appellant on 28.07.1999. The appellant made disclosure statement Ex. PW2/B, stick Ex.P-3 was recovered in pursuance of disclosure statement vide recovery memo Ex. PW2/C. On completion of investigation, final report was submitted on 07.02.2000. The case was committed to the Court of Sessions. …3… 6. The appellant was charged for offence punishable under Section 307 IPC. He pleaded not guilty and claimed trial. The prosecution has examined 12 witnesses and produced some documents. The statement of appellant was recorded under Section 313 Cr.P.C. The appellant took the defence of denial. He did not lead any evidence in defence. On conclusion of trial, learned Sessions Judge convicted and sentenced the appellant as noticed above. 7. I have heard Mr. Vinay Thakur, Advocate, learned counsel for the appellant and Mr. J.S.Rana, learned Assistant Advocate General on behalf of State and I have also gone through the record. The learned counsel for the appellant has submitted that the appellant had filed Cr.M.P. No. 90 of 2009 under Section 391 Cr.P.C for additional evidence and also Cr.M.P. No. 324 of 2010 for placing on record documents. He has submitted that appellant was suffering from Schizophrenia before the alleged occurrence dated 16.07.1999. The documents filed along with Cr.M.P. No. 324 of 2010 and additional evidence will assist this Court in determining the case effectively. He has submitted that no motive has been imputed by the prosecution to the appellant for the commission of the offence. On the contrary, PW-1 has stated that appellant had given him beatings without any rhyme or reason which indicates that appellant was not in a fit state of mind at the time of occurrence. This supports the case of the appellant that at the time of occurrence, he was suffering from Schizophrenia. A prayer has been made for allowing Cr.M.P No. 90 of 2009 and Cr.M.P. No. 324 of 2010. …4… 8. On merits, it has been submitted that prosecution has miserably failed to prove the case against the appellant. There are material contradictions. It is the case of the prosecution that PW-1 was carrying sack of rice over his shoulder, in that event, it was not possible for the appellant to inflict injuries with stick on the person of PW-1. The story of the prosecution is not believable. The learned Assistant Advocate General has submitted that an afterthought stand has been taken by the appellant by filing Cr.M.P. Nos. 90 of 2009 and 324 of 2010. He has submitted that the documents filed along with Cr.M.P. No. 324 of 2010 have been prepared later on. The appellant has not given any reason why these documents were not produced earlier. The motive is not required to be proved by the prosecution. On the contrary, the appellant by giving positive suggestions to the witnesses of the prosecution in the cross-examination himself has proved the motive. He has prayed for dismissal of both the applications as well as appeal. 9. In order to appreciate the contentions of the parties, it is relevant to consider the evidence which has come on record. PW-1 Goverdhan Singh has stated that on 3rd/4th July, 1999, the appellant had intercepted him in the village. The appellant started quarrelling with him, but appellant spared him on that day. On 16.07.1999, he had been returning to his house in village Bhageti after purchasing rice from the shop. At about 4.30 P.M., he had been passing through the village path near a field locally known ‘Dolva’, the appellant armed with stick attacked him. He inflicted multiple injuries with stick on his arms and legs. He had fallen down unconscious. He was taken to …5… hospital. He regained consciousness after 6 days and found himself admitted in I.G.M.C., Shimla. The appellant was armed with stick Ex.P-3 with which he gave him beatings on 16.07.1999. The appellant had caused numerous injuries to him with a view to eliminate him. 10. In cross-examination, he has stated that he had not reported the occurrence dated 04.07.1999 to the police, but had complained to the mother of the appellant. On 16.07.1999, he had been holding the sack of rice on his shoulder and he had sustained injury as a result of blow of stick, he had fallen down and became unconscious. It was suggested to him that he had accidentally fallen down as a result of drunkenness and sustained injuries which he denied. It was also suggested to him which he denied that Lolak Ram initially slapped the appellant. It was also suggested to him which he denied that he had thrown the sack of rice and had attacked the appellant with stick. He has also denied the suggestion that appellant snatched stick Ex. P-3 from him. 11. PW-2 Lolak Ram has stated that on 16.07.1999 at about 4.30 P.M., he was present in his house in village Bhageti.Surat Ram and Bhupinder Singh were also present with him at his house. At that time, Jawind Lal had rushed to his house and informed that appellant had been mercilessly beating one person in the village path. On this, we rushed to the site of crime. We had seen appellant inflicting multiple blows with stick on the person of PW-1, who lay on the ground. PW-1 had become unconscious. On seeing Bhupinder Singh, Surat Ram and witness, the appellant had run away towards his …6… house. The appellant had taken away stick with him. They rushed towards PW-1 and found him unconscious. They had taken PW-1 to Government Hospital at Rampur. He had instituted FIR Ex. PW2/A at Police Station, Rampur. 12. The appellant had made disclosure statement Ex. PW2/B in his presence and in presence of Bhupinder Singh. In pursuance of disclosure statement Ex. PW2/B, stick Ex. P-3 was recovered vide recovery memo Ex. PW2/C. The appellant had caused injuries to PW-1 with stick Ex. P-3. 13. In cross-examination, he admitted the suggestion that police had obtained his signatures on Ex. PW2/B and Ex. PW2/C. He denied the suggestion that on 16.07.1999, Surat Ram, PW-1 and the witness had been on the way from Krangla to their village. He has also denied the suggestion that PW-1 Goverdhan Singh armed with stick Ex.P-3 had attacked the appellant with this stick. He has also denied the suggestion that PW-1 had attempted at the life of the appellant and the appellant had snatched the stick Ex. P-3 from PW-1 with a view to save himself. He denied that PW-1 had fallen down while running away and sustained injuries while falling. It was also suggested to him which he denied that Surat Ram and the witness also caused injuries on the person of the appellant. He denied the suggestion that he had slapped the appellant in the first instance. He has admitted that PW-1 is his cousin. 14. PW-3 Radha Devi, wife of PW-1 is not an eye witness and, therefore, her statement is not very material regarding the actual occurrence. PW-4 Sagar Dass is also not an eye to the occurrence. …7… PW-5 Dr. Hemant Kumar has stated that he conducted medical examination of PW-1 Goverdhan Singh on 16.07.1999 and found following injuries on his person:- 1. 4 Cm. long lacerated wound over scalp in left temporal area. Fresh blood was coming out of it and there was a bleeder which was immediately tied. Depth was 0.5 Cm. and underlying bone was clinically normal. 2. There were multiple lacerated wounds (7 in number) all 1.5 Cm. long 0.5 Cm. wide and deep into the bone ( tibial bone visible through the wound). Fresh blood was coming out through wound. Surrounding contusions were bright red. Movements at joint were normal (right leg). 3. Left leg was swollen from knee to whole foot. Crepitus were positive at lower one third of tibia. Bright red contusions were positive over the lower one third of tibia. Movements were markedly restricted due to swelling. 4. Left forearm was markedly swollen. Multiple red contusions were positive all over the arm. Crepitus was positive over the lower one third. 1.5 Cm. lacerated would, 10 Cm. proximal to the wrist on dorsal aspect of forearm. Fresh blood was coming out of it. 5. Right forearm was markedly swollen with contusions. Bright red contusions were positive and crepitus was positive on lower one third of forearm. 6. Left ear was lacerated and divided into two flaps at middle of pinna. Fresh blood was coming out of it and contusions were bright red. Cartilage was exposed. …8… PW-5 issued MLC Ex. PW5/B which is signed by him. He certified that Goverdhan Singh was unfit for making statement as per his endorsement Ex. PW5/D on application Ex. PW5/C. The injuries were dangerous to life. The stick Ex. P-3 could cause injuries noticed on the person of Goverdhan Singh. In cross-examination, he admitted the suggestion that in case Goverdhan Singh was carrying a sack containing grains on his shoulder, injury to backside of his head could not have been caused by the assailant from the backside. He denied that injuries noticed on the person of Goverdhan Singh were not dangerous to his life. He also denied that injuries could not be caused with stick Ex. P-3. 15. PW-6 Ramesh Chand is not an eye witness of the occurrence. PW-7 HC Dula Ram stated that Devi Singh HC had deposited four packets duly sealed with him. He is a formal witness. PW-8 HC Devi Singh has proved the site plan Ex. PW8/A, recovery memo Ex. PW3/A, endorsement Ex. PW8/B, application Ex. PW8/C, recovery memo Ex. PW6/A. The defence has given suggestion to this witness that appellant had caused injuries to PW-1 Goverdhan Singh in exercise of right of his private defence, which the witness has denied. PW-9 SI Hari Ram has stated that he has investigated the case FIR Ex. PW2/A. The appellant had given disclosure statement Ex. PW2/B which was reduced into writing by him. He got recovered Ex. P-3 vide recovery memo Ex. PW2/C. PW-10 SI Parvez Iqbal has stated that after receipt of report Ex. PX, he prepared final report and submitted to the Court. PW-11 Partap Singh is a witness of depositing sealed packets in Chemical Examiner Laboratory, Junga. …9… 16. PW-12 Jawind Lal has stated that he had been at a distance of about 100 feet from field locally known as ‘Dolva’. He had seen one person causing hurt to another person with a stick. He rushed to the spot. He had seen appellant inflicting multiple blows on the person of Goverdhan Singh, who had fallen flat on the ground. The appellant violently pushed him (PW-12) and asked him to leave the place or he (PW-12) would also be dealt with by the appellant. He informed Lolak Ram, Surat Ram etc. The appellant managed to escape along with stick with which he had inflicted blows over the person of Goverdhan Singh who had been profusely bleeding from head, ears, nose and mouth. The appellant would have murdered Goverdhan Singh had he and others would not have saved him. In cross-examination, he has stated that Goverdhan Singh became unconscious. 17. The appellant in his statement under Section 313 Cr.P.C has denied the prosecution case. No positive defence emerges from the statement of appellant under Section 313 Cr.P.C. The learned counsel for the appellant has relied Zahira Habibullah Sheikh (5) and another versus State of Gujarat and others (2006) 3 SCC 374, State V. Shanthi 2006 Criminal Law Journal 3082, Chitrapandi v. Janakaraj & Ors. 2008 Criminal Law Journal 1087 in support of his submission that appellant may be permitted to adduce additional evidence under Section 391 Cr.P.C. There is no dispute to the legal proposition that Appellate Court has power to permit additional evidence. The appellant along with Cr.M.P. No. 90 of 2009 has filed a certificate dated 26.02.2009 issued by Assistant Professor, …10… Department of Psychiatry, Indira Gandhi Medical College, Shimla indicating that Surinder Thakur is suffering from chronic Schizophrenia and is under treatment since 27.7.2002. The appellant along with Cr.M.P. No. 324 of 2010 has filed copy of letter dated 23.04.2010 of Dinesh Dutt Sharma, Assistant Professor, Department of Psychiatry , I.G.M.C., Shimla addressed to Senior Medical Superintendent, Indira Gandhi Hospital, Shimla indicating that Surinder had been taking treatment from Psychiatry OPD since April, 2000. He is suffering from major mental disorder type Schizophrenia. The appellant has also placed original OPD slip dated 07.04.2000 and photocopies of some other OPD slips etc. 18. The appellant has not placed any document on record to show that he had been under treatment for mental disorder like Schizophrenia prior to 16.07.1999, the date of occurrence. In Cr.M.P. No. 90 of 2009 the appellant has stated that he had been working has JBT Teacher and he got medical reimbursement of the OPD tickets No. 1252/03 and 1477/04. It has also been stated in the application that appellant had rendered 18 years of service. This means prior to 16.07.1999 the appellant was very much in service. In case the appellant had been suffering from mental disorder and got treatment prior to 16.07.1999, then he must have received medical reimbursement also. But, no such medical reimbursement record has been placed on record. 19. The appellant during trial was on bail and had been appearing during trial, the learned Sessions Judge has not observed anything regarding the conduct of appellant giving an indication that …11… appellant had been suffering from mental disorder. The statement of appellant was recorded under Section 313 Cr.P.C and at the time of recording the said statement, the learned Sessions Judge did not notice any abnormal behaviour of the appellant. The witnesses of the prosecution were cross-examined at length, but no suggestion has been given to any witness that at the relevant time the appellant was under Schizophrenic attack. The learned Assistant Advocate General has submitted that the documents now sought to be proved by the appellant by way of additional evidence have been procured later on. The documents placed by appellant on record to be proved by way of additional evidence will not help this Court that on 16.07.1999 the appellant was suffering from Schizophrenia. The appellant has failed to make out any case for leading any additional evidence. Hence, Cr.M.P. Nos. 90 of 2009 and 324 of 2010 are dismissed. 20. It emerges from the entire reading of the evidence that appellant has not denied that PW-1 had suffered some injuries on 16.07.1999. PW-1 injured has supported the prosecution case. He has identified stick Ex. P-3 with which blows were given on his person by the appellant. PW-2 has also supported the prosecution case. PW-2 lodged the FIR Ex. PW2/A. PW-2 has also proved disclosure statement Ex. PW2/B made by appellant and in pursuance thereof stick Ex. P-3 was recovered vide recovery memo Ex. PW2/C. PW-2 has also stated that appellant had caused injuries to PW-1 with Ex. P-3 stick. PW-12 has supported the prosecution case. PW-5 Dr. Hemant Kumar attended PW-1 and has proved MLC Ex. PW5/B. he has stated that injuries recorded in MLC Ex. PW5/B were dangerous …12… to life and could be caused with stick Ex. P-3. It has been submitted on behalf of the appellant that in case PW-1 was carrying rice sack on his shoulder, then the injuries on the backside of PW-1 were not possible. This contention has no force. It is nobody’s case that when appellant administered stick blows on the person of PW-1, then, during the entire process, the rice sack remained on the shoulder of PW-1. On the contrary, it has come in evidence that when appellant attacked PW-1, he fell down. 21. The appellant has taken shifting stand while cross- examining the prosecution witnesses. The appellant while cross- examining PW-1 put suggestion to him that PW-1 had accidentally fallen down as a result of drunkenness and sustained injuries. The appellant put suggestion to PW-2 that PW-1 had fallen down while running away and sustained injuries by falling. The appellant gave suggestion to PW-8 that appellant had caused injuries to PW-1 Goverdhan Singh in exercise of private defence. There is no consistency in the stand of appellant. It has come on record that appellant has given merciless beatings with stick Ex. P-3 on the person of PW-1. PW-1 was saved due to the intervention of PW-2, PW-12 etc., otherwise appellant would have eliminated PW-1. 22. PW-1 has received extensive serious injuries on his person. He was taken to Referral Hospital, Rampur, from there to Indira Gandhi Medical College, Shimla. He regained consciousness after about 6 days and remained admitted in the hospital for about 10 days. The injury No.1 inflicted on the vital portion of the body of PW-1 by the appellant. The other injuries were also grievous in nature. …13… PW-5 Dr. Hemant Kumar has stated that injuries were dangerous to life. He has stated that injured was not in a position to make statement when he examined him. 23. It also emerges from the evidence that appellant has not denied his presence at the time of occurrence. There is enough ocular and medical evidence on record to show that appellant had given merciless beatings to PW-1. The learned Sessions Judge has rightly appreciated oral and documentary evidence on record in convicting the appellant. The sentence imposed is also not excessive keeping in view the injuries inflicted by appellant on the person of PW-1. The defence has failed to create any dent in the prosecution case, which has proved the case against appellant by leading cogent and positive evidence. There is no merit in the appeal which is liable to be dismissed. 24. In view of above discussion, the appeal is dismissed. The bail bonds of the appellant are cancelled and he is directed to surrender to the Trial Court to serve out the sentence imposed in accordance with law. May 30, 2011. (Kuldip Singh), ( Krt) Judge.