IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal Nos. 64 and 154 of 2009 Judgment reserved on 11.5.2010 Date of decision: 1. 6 . 2010 Cr.A No. 64/2009 Albel Singh and others …..Appellants Versus State of H.P. ……Respondent Cr.A No. 154/2009 Joginder Pal …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellants: Mr. Rakesh Jaswal, Advocate. For the respondents : Mr. J.S. Rana, Assistant Advocate General. Surinder Singh, J Both these appeals are arising out of the same judgment, therefore, taken up together for its decision. 1 Whether the reporters of Local Papers may be allowed to see the judgment ? yes 2 2. Appellants herein were tried and convicted for the offences punishable under Sections 147, 148, 307 read with Section 149 Indian Penal Code and sentenced to undergo sentence as follows:- Name of appellants Sections Punishment Albel Singh, Salochana and Joginder Pal [having played active role] 148 Indian Penal Code One year rigorous imprisonment and to pay a fine of Rs.1000/- each in default one month simple imprisonment. Section 307 read with Section 149 Indian Penal Code Four years rigorous imprisonment and Rs.2000/- each fine. In default, two months simple imprisonment. Santosh Kumari and Salima 148 Indian Penal Code Six months rigorous imprisonment and to pay a fine of Rs.1000/- in default one month simple imprisonment. Sections 307 read with Section 149 Indian Penal Code Two years rigorous imprisonment and Rs. 2000/- fine. In default, two months simple imprisonment. No separate sentence was passed under Section 147 Indian Penal Code. Out of the total fine of Rs.15000/-, if realized, a sum of Rs.10,000/- was ordered to be paid as compensation to injured Hem Raj. All the sentences were ordered to run concurrently. The period of 15 days spent in Police/Judicial custody by the appellant Albel Singh, Salochana Devi, Santosh Kumari and Salima 3 was ordered to be set-off from the sentences passed. 3. In short, the prosecution story can be stated thus. PW2 Hem Raj was employed as a teacher in Government Senior School Bhanwin and his brother Vikram Singh, Man Singh, Mahinder Singh and Parkash Chand has purchased around 136 kanals of land in the year 1987-88 from Prithi Chand and Gian Chand of village Kashri which was earlier in the possession of appellant Albel Singh, Dharam Singh, Roop Singh and others. In the year 1988, Albel Sigh and another filed a civil suit to take its possession, but it was dismissed; later the land was got partitioned amongst the vendors. Despite that and still appellants and his brothers had been asserting their rights over it and trying to take the forcible possession. They had also picked-up the quarrel on 26.10.2005 and the same land was the apple of contention between both the parties. 4. On 16.2.2006 at about 8.35 a.m. Hem Raj complainant was going to School on foot to attend his duties. On the way, while going through forest Duhak, he noticed appellants coming from the opposite side. Suddenly appellants, namely, Salochana Devi and Joginder Pal caught Hem Raj 4 and Albel Singh appellant gave knife blow on his chest. Thereafter Albel Singh and Salochana caught him and Joginder Pal gave another blow with the same knife on his head. He also sustained manyinjuries while warding off the attack; whereas Salima and Santosh Kumari appellants gave a push to him, consequently, he fell on the ground. He raised hue and cry, on which PW3 Prithi Chand and his son got attracted and reached the spot. They rescued the complainant from the appellants. Injuries started bleeding. Injured aforesaid crawled towards the house of Amar Nath (PW1). On hearing the cries, Amar Nath, who was running a shop nearby in village Duka, went to the spot. He noticed the injured lying on the path with bleeding injuries on his chest. He shouted for PW4 Dhayan Singh Up-Pradhan. He also came there and saw Hem Raj lying on the ground near the house of Amar Nath. Apprehending his end, Hem Raj told him to record his statement. Thereafter a child from the house of Amar Nath brought pen and paper. PW4 aforesaid recorded the statement Ext. PW1/A of Hem Raj which was later handed over by Dhyan Singh to the police and taken into possession vide memo Ext. PW4/A. 5 5. The injured was taken to the Hospital Bassi, District Hamirpur. On the way, he pointed out the place of occurrence to PW1 Amar Nath. Police was informed. His statement under Section 154 of the Code of Criminal Procedure was recorded by the police. 6. Police also took into possession shirt Ext. P8 Pant Ext. P9 and waist Ext. P10, which were worn by the complainant at the time of occurrence. These clothes were blood stained. Shirt was having cut marks. Complainant remained hospitalized in I.G.M.C. Shimla w.e.f. 17.2.2006 to 22.2.2006. 7. Police visited the spot. PW1 Amar Nath pointed out the place of occurrence which was shown to him by the injured while taking to the hospital. Police also recovered blood staind earth and stones Ext. P1 to P5 from the spot along with one pen Ext. P6 lying nearby. These items were wrapped separately and also taken into possession vide memo Ext. PW1/B and Ext. PW1/C. 8. During the investigation, police took into possession the judgment and decree passed by the Civil Court and also in appeal by the learned District Judge on 17.1.2006. 6 9. Pursuant to the statement, recorded under Section 27 of the Indian Evidence Act, Albel Singh got recovered knife which was sealed and sent for forensic examination. Police also took into possession the Medico Legal Certificate of Hem Raj. Hem Raj had received as many as nine injuries on his person. The Medico Legal Certificate Ext. PW8/B was issued by Dr. S.K. Singh. Injury No. 9 on the chest was found to be grievous and dangerous to life. The injuries noticed by the doctor are mentioned hereinafter. 10. Police recorded the statements of the witnesses and after completing the investigation, challan was presented in the court for trial of the appellants. The appellants were charge sheeted. 11. The prosecution led its evidence and the appellants were also examined under Section 313 of the Code of Criminal Procedure. They pleaded innocence. When called upon to enter into defence, appellants examined as many as 13 witnesses in defence and the plea of alibi in respect of appellant Albel Singh was also taken that he was P.T.I. posted in Government Senior Secondary School Badhani and was present w.e.f. 9.30 a.m. till 4 p.m. in the School on the day of alleged incident. 7 12. The learned trial Court disbelieved the defence raised but while believing the evidence of prosecution, convicted and sentenced the appellants as aforesaid, which has been challenged by the appellants in the present appeal. 13. Shri Rakesh Jaswal, learned counsel for the appellants forcefully argued that the evidence of the prosecution is self contradictory and does not inspire confidence. He further argued that the injuries stated to have been caused by the witnesses did not co-incide with the injuries found on examination by the doctor. He also disputed the authenticity of the statement of Ext. PW1/A alleged to have been scribed by Up-Pradhan (PW4) and also pleaded that this statement was not referred to in the statement by the injured. He further contended that testimony of PW3 Prithi Chand is also highly unnatural and not worthy of credence. He also pointed out that the recovery of the knife is farce. It did not contain any blood stains and also that the injury in question did not constitute the offence of attempted murder. He took me through the statement of the witnesses, particularly of the defence witnesses to prove the plea of alibi that the 8 appellant Albel Singh, was posted as P.E.T. in Senior Secondary School Badhani and he was present in the School at the time of alleged occurrence and he did not participate in the crime aforesaid and also that Albel Singh had nothing to do with the incident in question. 14. Contra Shri J.S. Rana, Learned Assistant Advocate General supported the impugned judgment of conviction and sentence. 15. It stands proved on record that the appellants-accused had filed civil suit No. 35/1988 against the complainant and others with respect to the land purchased by the complainant and his brother over which the appellants had claimed their adverse possession. It was dismissed and the appeal filed by the appellants was also dismissed by the District Judge on 17.1.2006. It has also come in evidence that the land was also partitioned and the complainant along with his brothers separated their shares in the joint khata. 16. Against the aforesaid back ground, it appears that the appellants nourished grudge against the complainant. The complainant was posted as D.P.E. in Senior Secondary School. He has fully corroborated the prosecution case and 9 proved the FIR and also his statement Ext. PW1/A. He testified that on 16.2.2006 at about 8.30 a.m. when he was going to attend the school through the forest in village duka, the appellants were hiding themselves nearby and suddenly caught hold of him. Appellants Salochana Devi and Joginder Pal caught hold of him by the arms and Albel Singh gave knife blow on his chest. Thereafter, he was caught hold by Salochana Devi and Albel Singh and Joginder Lal gave another knife blow on his head with the same knife. Appellant Santosh Kumari and Salima pushed him, as a result of which, he fell on the ground. The incident was also noticed by PW3 Prithi Chand, who was coming behind. He reached the spot and saved him and thereafter he slowly went ahead for about 200 yards and during this time, he also fell on the ground many times. On hearing the cries, daughter-in-law of Amar Nath came to the spot followed by PW1 Amar Nath. On seeing his condition, he gave a call to the villagers. He was semi-conscious but realized that many persons had gathered there. He also stated that prior to this, Amar Nath took telephone number of his house and also called Dhayan Singh Up- Pradhan, who recorded his statement. He named 10 accused-appellants, as assailed and proved his statement Ext. PW1/A scribed by PW4 Dhyan Singh and identified his signatures thereon. He was taken to Hospital on a cot. Police also recorded his statement Ext. PW2/A over which he also identified his signatures. He further proved the shirt Ext. P8 having cut marks, pant Ext. P9 and waist Ext. P10 which was soaked in blood and taken into possession by the police. 17. In cross-examination he admitted that the appellants were recorded owners in the land in the joint khata but further clarified that their names were struck-off after the judgment and decree of the Civil Court. He denied that this piece of land was in the continuous possession of the appellants, but stated that possession of the land was handed over to him by Tehsildar Bhoranj. Its mutation was not attested. He admitted that FIR was also lodged against him and his family members while taking possession from the appellants on 26.10.2005. He also stated that they were attacked by the appellants while working in the fields and the case was manipulated against them and on their complaint, police only prepared a complaint under Section 107 and 151 of the Code of Criminal 11 Procedure, against the appellants. He also admitted that the case filed against them is pending before the Judicial Magistrate for trial wherein Salochana Devi and Salima appellants, who are from the same family, are the witnesses. He further stated that he got ploughed his fields from Prithi Chand by his tractor only once as he used to plough the fields of other villagers also. He expressed his ignorance whether appellant Albel Singh marked his presence in the School at Badhani at 9.30 a.m. and was also present at the time of prayer in the morning. He further stated that he did not inform police that the accused persons were hiding themselves since he was highly perplexed and perturbed. He was in an unconscious state at that time and stated that police jotted down his version after doctor had recorded his statement. He denied that he along with other persons set the green house of the appellants on fire but admitted that a case was lodged against them. He also stated that during the investigation no evidence was found to link him. He did not know whether appellant Salima Devi was cutting grass on that day in her fields, but stated that he saw her at the place of occurrence. He further stated that he informed the doctor that he was inflicted injuries 12 with the knife but did not tell the name of the persons who stabbed him because it was not asked by the doctor. He denied that he entered the house of Kanshi in order to out rage the modesty of a woman consequently he was beaten up and to hide his mis-conduct, he falsely implicated the appellants in this case. He also stated that Prithi Chand who was about 10 meters behind him, did not accompany him to the house of Amar Nath. He categorically stated that Joginder Pal stabbed him from behind as appellant Albel Singh had handed over the knife to him. 18. PW3 Prithi Chand corroborated his version. He testified that after attacking the complainant, appellants fled-away. He identified all of them during the trial. He further stated that Hem Raj thereafter crawled towards the house of Amar Nath. His injuries were bleeding and he came back from the spot since he had some important work at home. 19. In cross- examination, he stated that in the year 2004 he had ploughed the fields of the complainant by his tractor. He further stated that he did not appear witness in any case of Hem Raj. He stated that he had seen the place of occurrence and 13 also that stabbing was done with the knife and not with the kitchen knife. He further stated that when he was stabbed by the appellants, he was trying to relieve himself and in this process some times he laid on the path and some times got up. 20. PW1 Amar Nath stated that on hearing the cries of complainant Hem Raj, he immediately rushed to the spot. He saw bleeding injuries on his chest. Thereafter he called the Pradhan and informed the family members of the complainant. He got recorded the statement Ext. PW1/A which was scribed by him wherein names of the appellants finds clear mention and this is also signed by Amar Nath as a witness. 21. In cross-examination he stated that place of occurrence was pointed out to him by the complainant while taking him to the Hospital which later he told to the Police from where blood stones Ext. P1 to P5 were recovered along with pen Ext. P6 and taken into possession. He further stated that when he gave call to the villagers, many persons had gathered there but he could not give their names because he was highly perplexed. He further stated that the injured was lifted on a cot by some one and was taken to the Hospital. 14 22. PW4 Dhyan Singh Up-Pradhan stated that his house is situated on the lower level near the house of Amar Nath. He testified that he was called at about 8.30 a.m. by Amar Nath that some serious incident had taken place. On hearing it, he went to the spot and saw Hem Raj lying on the ground. The blood was oozing out from his body. In the meantime, Hem Raj told him to record his statement. Thereafter one child from the house of Amar Nath brought pen and paper. He recorded the statement as per his version Ext. PW1/A which was signed by Amar Nath and Hem Raj injured and during investigation, he handed over it to the police. 23. In cross-examination, he stated that he did not mention the date on Ext. PW1/A, and the incident was of some serious nature. He also stated that about 20 persons had gathered on the spot. He also stated that prior to the recording of his statement, complainant was mentioning the names of some other persons but when statement Ext. PW1/A was written, he mentioned the name of all five accused-appellants. He specifically denied in his cross-examination that the complainant was 15 naming Kanshi Ram responsible for the alleged incident but he clarified that he did not hear the name of Kanshi at all. 24. PW5 Man Singh is real brother of complainant Hem Raj. The police had taken into possession the blood stains clothes of the injured on 19.2.2006 vide memo Ext. PW5/A. In cross examination, he stated that there were many cut marks on the shirt of the complainant. 25. PW7 Hem Raj son of Sarwan Singh was joined as a witness during the investigation of this case. Albel Singh appellant is alleged to have been given statement Ext. PW6/A under Section 27 of the Indian Evidence Act, pursuant to which knife was got recovered from the bushes and taken into possession vide memo Ext. PW7/B. He stated that the knife which was shown to him in the Court was not the same which was got recovered by the appellant. However, he admitted that sketch map Ext. PW7/D tallied with the knife shown to him in the Court. He was declared hostile and in cross- examination by the accused-appellants, stated that statement of the appellant Albel Singh was already recorded by the Investigating Officer, which was read over to Albel Singh who admitted it to be 16 correct. He also stated that the knife which was recovered from the bush was new kitchen knife. 26. PW8 Dr. S.K. Singh Medical Officer stated that the injured Hem Raj so brought on the history of the alleged attack by some one was sustaining injuries on the scalp, chest and both hands. On his examination, the patient was conscious, oriented to time, place and person. His vital sings were within normal limit. He was given an injection of analgisc and I.V. fluid as a part of resustation and first aid. He noticed the following injuries:- (i) Mid-line cut over the scalp of about 3 inches in length, deep to the muscles layer. There was some active bleeding. On examination margin of the cut was non-serrated (sharp). (ii) There was swelling over the right occipital region at the junction cervical region. There was tenderness and swelling. (iii) There were multiple longitudinal cut on the right occipital region of the size of 2.5 to 3.5 inches. Position longitudinally deep to the muscle layer. Margins of the wound was non- serrated (sharp). There was some active bleeding. (iv) Amputation of the left ring finger just distal to distal interphalangeal joint. (v) Cut over the postero medial aspect of the proximal part of the little finger left side, deep to the muscle layer about 1 cm in length margin non-serrated (sharp). (vi) Transverse linear cut over right little finger, deep to muscle layer at the junction of carpo- 17 phalangeal crease. There was some active bleeding. Margin of the wound was non- serrated (sharp). (vii) Deep obliquically placed with margin non- serrated cut over the ventral aspect of the proximal part of right middle finger, deep to the muscle layer, dimension about 1 cm. There was some active bleeding. (viii) Superficial cut over ventral aspect of right ring finger, deep to the subcutaneous layer, dimension 1 cm in length, margin non- serrated. (ix) There is deep longitudinally oriented out in the parasternal region about 2-2.5 cm lateral from the midsternal line, on examination, it was deep to the layers of muscle, margins non-serrated, about the possibility of plural and lung injury with its following consequences, surgical opinion was sought. Length 3.5 to 4 cm. with margin gapping. 27. Thereafter the case was referred to higher Centre for X-ray opinion, orthopaedic and surgical opinion. The patient was given first-aid and resuscitative measures possible at C.H.C. and was referred to Zonal Hospital for possible surgical intervention and further necessary action. All the injuries, were simple except injury No. (iv) being amputation and injury No. (ix) both were grievous. As per history of I.G.M.C. Shimla. In his opinion, injury No. (ix) was also dangerous to life if not treated within time. He proved medico legal 18 certificate Ext. PW8/A. He further stated that all sharp injures were possible with knife. 28. PW15 Dr. R.S. Kanwar, Associate Professor, Deptt. Of C.T.V.S. I.G.M.C, Shimla stated that injured aforesaid was diagnosed as a case of open haemophenumothorax right side with fracture 5th rib right side. Chest tube thoracostomy was done and the chest wound was closed. Patient was discharged on 22.2.2006. The case summery of the patient is Ext. PW15/A and the discharge slip is Ext. PW15/B. He stated that if the patient was not given timely medical treatment, the injuries would have been proved to be dangerous to life and could have caused the death. PW17 S.I. Amar Singh also stated that he had obtained the opinion Ext. PW17/F from I.G.M.C. Shimla. 29. On the close scrutiny of the aforesaid evidence, especially when appellants and the complainant were locked in civil and criminal litigation prior to the alleged incident, I find the statement of the complainant worth inspiring confidence with respect to the assault by the appellants on the complainant when he was on his way to the School. The defence which was put forth that injured Hem Raj was attacked by Kanshi Ram 19 when he tried to outrage the modesty of a women was not probablised and is only a mere suggestion raised in defence. Unfortunately none of the appellants in their statements under Section 313 of the code of Criminal Procedure made even a fleeting reference thereof rather in defence, they took another plea, i.e., of alibi with respect to one of the accused Albel Singh. To prove that on 9.30 a.m. he was present in the School at the time of prayer of the students and his presence was also duly marked in the attendance register by him, DW1 Amrit Lal, DW2 Khoob Ram, DW3 Suraj Parkash, DW4 Lekh Raj were examined. But it is pertinent to note that it is admitted by DW1 Amrit Lal that School working hours were 10 to 4 p.m. He did not say what was the distance between the place of incident and School Badhani. DW2 Khoob Ram stated that it takes 45 minutes on foot to reach School from the place of incident. As already stated above the incident had taken place at 8.30 a.m. which lasted for less than ten minutes and if 45 minutes are added to it even normal walking person could also reach the School at 9.30 a.m. So it was not difficult for Albel Singh to reach in the School before the School hours from the place of incident. 20 Further DW3 Suraj Parkash Patwari appears to be a procured witness. He did not remember that on that day whose demarcation he was going to conduct nor any record to substantiate this fact has been produced by him. Further the testimony of DW4 Lekh Raj is also of no use. 30. DW 5 Parwati Devi stated that the buffalos of Salochana had broken the rope and run away from the cow-shed and Smt. Salochana Devi went after the buffaloes and she along with Salima Devi continued to cut the grass till 9.15 a.m. She also admitted that there are land dispute between the complainant and her family but this defence is also of no use, in the light of the narration of eye witnesses and other overwhelming evidence on record, discussed supra. 31. Further, DW6 Shyam Lal has also been