IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeals No. 54/2000 & 604/2000 Judgment reserved on 20.4.2011 Date of decision: 17 .6. 2011 Cr. A No. 54/2000. Ram Ditta and four others …..Appellants Versus State of H.P. ……Respondent Cr. A No. 604/2000. State of H.P. ….Appellants. Versus Ram Ditta and others …..Respondents Coram: The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. Anup Chitkara, Advocate, for the appellant in Cr. A No. 54/2000. Mr. R.K. Sharma, Sr. Additional Advocate General, with Mr. Rajinider Dogra, Addl. Advocate General for the appellants in Cr. A No. 604/2000. For the respondent: Mr. R.K. Sharma, Sr. Additional Advocate General, with Mr. Rajinider Dogra, Addl. Advocate General in Cr.A No. Cr. A No. 54/2000 Mr. Anup Chitkara, Advocate, for the respondents in Cr. A No. 604/2000. Mr. Ramakant Sharma, Advocate, for the complainant in Cr. A No. 54/2000. 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - Surinder Singh, J. Appellants hereinafter referred to as ‘the accused persons’ along with their acquitted co- accused Madan Singh faced trial for the offences punishable under Sections 147, 148, 149, 120-B, 201 and 302 Indian Penal Code. The accused persons were convicted under Sections 147, 148, 149, 304-I Indian Penal Code but acquitted for other offences and sentenced as under:- Sr. No. Offence punishable Substantive sentence Amount of fine imposed Sentence in default of payment of fine. 1. Under Section 147 Indian Penal Code Simple Imprisonment for two years Nil Nil 2. Under Section148 Indian Penal Code. Simple Imprisonment for two years Nil Nil. 3. Under Sections 304-I read with Section 149 Indian Penal Code Simple imprisonment for seven years 10,000/- each under Section 304-I Simple imprisonment for six months. All the sentences were ordered to run concurrently. Hence the challenge has been made to the impugned judgment in the present appeal. 2. The State also filed Criminal appeal No. 604/2000 seeking enhancement of sentence, therefore, both the appeals are taken together for its decision. - 3 - (i) The prosecution story as emerges from the evidence on record can be stated thus. Shri Mangat Ram deceased (32 years) was the husband of PW1 Biasa Devi. On 29.3.1999 at about 3.30 p.m. accused Ram Swarup, a co-villager of the deceased approached PW1 Smt. Biasa Devi to konw about the whereabouts of the deceased. She informed him that generally, her husband was late comer but would send him in the morning. But around 5.30 p.m. during the evening Mangat Ram reached his house, his wife served him evening meal. After relaxing for some time around 7 p.m. he was called by said Ram Swarup to his house on the pretext of some urgent work. Mangat Ram is alleged to have lent ` 9000/- to Ram Swarup for purchasing fertilizers. He told Biasa Devi that he would go to him and realize his money and left the place, but did not return the whole night. She remained under impression that he might have stayed in the house of Ram Swarup. (ii) Next morning, around 8 a.m. she left her house to cut grass. On the way, she came across PW2 Kamal Singh. He told her that during the night some quarrel had taken place near the house of accused Ram Ditta and what was the dispute inter - 4 - se her husband and Ram Swarup. He also informed that her husband was beaten up by the accused persons. She expressed her ignorance about any dispute. Thereafter, she went to the house of Ram Swarup. She was told by Ram Swarup that her husband was taken to PGI by accused Ram Ditta and his sons. Thereafter she went to the house of Ram Ditta where she met his wife. She informed that her husband had sustained head injuries due to beatings given by her son and had been taken to PGI. Biasa Devi went to PGI Chandigarh along with her father-in-law where she found accused Ram Ditta standing by the side of her husband, who was breathing his last and ultimately died. Thereafter she reported the matter to the police in terms of FIR Ext. PW1/A. 3. PW16 Ashok Verma Inspector SHO took up the investigation of this case. He visited the spot and prepared site plan Ext. PW16/A. There were blood stains on the earth. He took two samples thereof vide memo Ext. PW4/A in the presence of the witnesses. Thereafter he arrested the accused persons. 4. According to PW16 Ashok Verma, S.H.O., on 2. 4. 1999 accused Baldev (a juvenile), accused Narender and acquitted accused Madan Singh - 5 - are stated to have made the disclosure statements pursuant to which Baldev Singh got recovered danda Ext. P5, vide recovery memo Ext. PW4/B, accused Narender got recovered dandas Ext. P6 and P7 vide memo Ext. PW4/C and Madan Singh got recovered two stones Ext. P8 and P9 vide memo Ext. PW4/D. The said Police Officer also recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure. 5. The autopsy of the dead body was conducted on 31.3.1999 at 2.45 p.m. by PW14 Dr. Dalbir Singh. On examination he noticed the following injuries:- “1. Oblique stiched wound with irregular margin of the size 9-5 x 1 cm muscle deep present over left occipito-parital region of the scalp, starting from the occipital protuberance in midline, going anteriorly and laterally towards the left. Surrounding it there was a red contusion of the size 12.5 x 8 cms. 2. Red contusion of the size 2x 1.5 cms. over the frontal and right lateral aspect of nose, starting from the nasion. 3. Abrasion with red scabs of the size 3x 1.5 cms. was present over the alter upper and inner aspect of right half of lower lip starting from the midline going laterally. 4. Multiple red contusions of different shapes and sizes varying from 1x 05 cms. to 3x2.5 cms. Present over the left posterior aspect of thorax in an area 17.5 x 14 cms. starting from the midline and - 6 - going laterally extending from 2nd thoracis vertebra to 7th thoracic vertebra. 5. Red contusion of the size 4x3 cms. Was present over the ulnar aspect of left wrist joint. There was sub sponeurotic haematoma of the size 14x12x05 cms over the left occipital left parital, and left temporal region of the scalp. There was multiple fractures of the left side of occipital bone and left parital bone in the area corresponding to injury No. 1. 6. There was extradural haematoma of the size 9.5 x 7.5 x 0.10 cms over the superior lateral surfaces of left occipital, left parital, and left temporal lobes. 7. Subdural haematoma of the size 22x 14.5 x 0.5 cms. over the superior lateral surfaces of right parital, right temporal and right frontal lobes and major surface of right temporal lobes. There was laceration of the size 1x0.75x 0.2 cms. Of right temporal pole, brain was oedematous, tensils were grooved.” 6. Viscera was sent for chemical examination. The Reports are Ext. PW16/F and Ext. PW16/G. No traces of alcohol were found in the viscera. However, on the wearing apparels of the deceased, human blood was found. It was disintegrated and no further examination for grouping was possible. 7. In the opinion of the doctor, the cause of death was odema of brain due to laceration of brain, subdural harmoatoma and the probable time that elapsed between injury and death was 24 hours - 7 - and between death and post mortem was 21 hours and 45 minutes as calculated. The post mortem report is Ext. PQ14/B containing five leaves. 8. The conclusion of the investigation was that the accused persons and the acquitted accused Madan Singh were found involved in the crime in question as such they were challaned under the aforesaid Sections, whereas the challan of Baldev minor is stated to have been presented before the Juvenile Justice Board. The accused persons were accordingly chargesheeted for the offences aforesaid. They pleaded not guilty and claimed trial. 9. To prove its case, prosecution examined as many as 16 witnesses out of which PW2 Kamal Singh, PW3 Shyam Lal PW4, Ramesh Kumar and PW5 Madan Singh are the alleged eye witnesses and PW1 Biasa Devi, her father-in-law PW9 Asa Ram, PW13 Dr. Bimla Bhardwaj to whom the injured was taken for treatment, PW14 Dr. Dalvir Singh, who conducted the post-mortem besides examining the investigating officer and other formal witnesses. 10. The accused persons were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances which - 8 - were found attendant upon each of them. They alleged false implication in the case. According to them, witnesses have deposed against them on account of old enmity and litigation. 11. Accused persons were called upon to enter into their defence they examined DW1 Shri Janki Dass, President of Agricultural Cooperative Society to prove that deceased was to pay an amount of Rs 9000/- to the Society. He lived in penury therefore, there was no question of advancing any loan to the said accused. 12. The learned trial Court disbelieved the defence raised but relied upon the prosecution evidence, convicted and sentenced the accused persons, as aforesaid whereas acquitted the Madan Singh accused. 13. Shri Anup Chitkara learned counsel for the accused forcefully argued that the story of lending money by the deceased to accused Ram Swarup is not convincing as the deceased was already running under the financial liability of the Society and that he always remained in penury as he had been demanding money from his father (PW5). He was a low paid employee. Whereas Ram Swarup was never in need of money nor raised any loan, he - 9 - owns huge landed property. The learned counsel also argued that statements of alleged eye witnesses are not reliable as there are material contradictions in their statements. Further that the recoveries are fabricated hence the impugned judgment deserves to be set aside. 14. On the other hand, Shri R.K. Sharma, learned Sr. Additional Advocate General duly assisted by Shri Rajinder Dogra, Addl. Advocate General supported the impugned judgment of conviction and prayed for enhancement of the sentence and acceptance of State appeal. 15. We have given our thoughtful consideration to the rival contentions of the parties and have meticulously and cautiously examined the evidence on record. 16. From the above discussion of the facts, it is clear that PW1 Biasa Devi is not an eye witness. She is a witness to the extent that her husband was called by accused Ram Swarup to his house on the pretext of some urgent work, thereafter he did not return. Even there is no evidence that he had reached there. The scrutiny of the prosecution evidence shows that the house of accused persons is at a distance of about 1 ½ k.m. from the house of - 10 - deceased and the path goes through a jungle. Biasa Devi stated that in the morning, PW2 Kamal Singh inquired from her about the reasons of quarrel which had taken place near the house of Ram Ditta aforesaid to which she expressed ignorance. PW2 Kamal Singh did not support the case of the prosecution on this score. He also disowned his statement Ext. PW2/A. According to him, he never made such a statement to the police. He admitted that the accused persons are related to him in the village biradari but was not in visiting terms in their house. He also admitted that the houses of Ram Swarup and Ram Ditta do not intervene on the way while going to his residential house from Nalagarh. Rather he stated that their houses are at a distance of about 1 ½ kilometers from his house and in between, there is jungle known as “Pathar”. Even he did not know about the number of houses situated in the village of the accused. 17. PW4 Ramesh Kumar is a private Medical Practitioner. According to him, around 8.30 p.m. he was at his residential house along with PW6 Master Shayam Lal. He stated that Shyam Lal was reading news paper and he was taking meals at that time. He heard the noise near the house of Ram Ditta. - 11 - Attracted by the said noise, he along with Shyam Lal came out and went to the spot, i.e., the field of accused Ram Ditta. On reaching there, he saw accused Baldev Singh @ Bhola, Narinder and Surinder beating him with danda. At that time, accused Ram Ditta, Ram Swarup and Rajinder were also present there. They were instigating the other accused to kill Mangat Ram. Madan Lal (acquitted accused) did not say anything. He was simply standing at the spot. He further stated that Shyam Lal was having torch light and told accused persons to provide medical aid to Mangat Ram as he was in a critical condition. The blood was oozing out from the injuries. Thereafter Mangat Ram was taken to the court-yard of the house of Ram Swarup, thereafter he returned to his residence. He also stated that accused Ram Ditta came to his residential house and requested him to provide the medical-aid to Mangat Ram who was injured. At his request, he went there but without providing any medical-aid to him, he advised to take him to PGI immediately. Thereafter accused Ram Ditta, Rajinder and Surinder arranged for the vehicle and took him to PGI for medical treatment. He was also accompanying them. He further stated that on the way to - 12 - Chandigarh, the vehicle was stopped at Bhardwaj Clinic at Baddi. PW13 Vimla Bhardwaj did not provide any medical aid rather told them to take the injured to PGI Chandigarh. He also stated that they were also stopped at the barrier which fell at the Border of Punjab State. The Police inquired about the matter. Accused Ram Ditta came out from the Jeep and informed police that the injured was his relative who fell from the house and sustained injuries and was being taken to PGI for treatment. On reaching PGI, Mangat Ram was taken to ‘Emergency Ward’ of the PGI by accused Ram Ditta and Rajinder but he was stopped out side the gate as security people allowed only aforesaid persons inside. Later on he came to know that Mangat Ram had died. He denied about the disclosure statements made by the accused persons, thus he was declared hostile. Then in the cross-examination by the learned Prosecutor, he lent support to it. Pertinently, he admitted that there was litigation with respect to 60 bighas of land valuing about 60 lacs which went up to the High Court between him and Babu Ram father of accused Ram Swarup and Lachhmi Chand father of Ram Ditta. He stated that this litigation continued for about two decades, - 13 - ultimately he lost the case. He denied that due to litigation there was a long standing enmity between him and the accused persons. He further stated that though he was accompanying the deceased in the vehicle along with accused persons but did not disclose this fact to the police in his statement under Section 161 of the Code of Criminal Procedure that they were stopped at Barrier by the police near Baddi and Ram Ditta had told that deceased Mangat Ram had fallen from the roof of his house despite the fact that it was in his knowledge that heinous offence was committed by them. He also stated that the story of the aforesaid occurrence was not narrated in the PGI to the Medical Officer. He denied that he was deposing falsely against the accused persons on account of long standing enmity. 18. PW3 Shyam Lal is another witness of the alleged occurrence. He stated contrary to what PW4 aforesaid above had stated. According to him on 29.3.1999 at about 7.15 p.m. he was watching television at his residential house. It was PW4 Dr. Ramesh Kumar who came to his residence to inquire from him as to why he did not take the news paper from his house. Thereafter he went to the house of - 14 - Ramesh Kumar and started reading news paper there. Dr. Ramesh Kumar told him that some persons had gone towards cow-shed of accused Ram Ditta Around 8.15 p.m. he heard the noise in the field located at the back side of the house of Ram Ditta. He went to the said place along with Madan Lal accused. Madan Lal told accused Rajinder, Bhola, Narinder, Surinder and Ram Ditta not to beat the deceased. He remained standing at a distance. He further stated that he did not know that out of the accused persons who were having dandas in their hands. He also stated that he saw the deceased with the torch light on the spot and, he was having some bleeding injuries. He asked Dr. Ramesh to provide first aid to Mangat Ram. He stated that at that time Ram Swarup accused was not there. The deceased was lifted by accused Bhola, Narinder, Ram Ditta and Surinder and taken to the house of Ram Swarup. Thereafter he went to his own residence to attend telephone. On return, he did not see anybody on the spot. It is important to note that he did not state about the presence of PW4 Ramesh Kumar. In cross examination he stated that at the spot the wheat crop had grown up to five feet and accused persons and deceased were not - 15 - visible from such a distance and also that he could only recognize when he reached nearer to the spot. He further stated that none of the accused persons were visible to him from the distance when he had heard the noise of ‘danda’ blows. He further stated that deceased and Ram Swarup were having cordial relations. However, he admitted that accused persons had taken the deceased to PGI for his treatment. 19. PW5 Padam Singh is another alleged eye witness. He stated that around 8.30 p.m. he heard the noise from the residential house of Ram Ditta saying “maro maro” and also Bachao- Bachao Mar Diya” whereas none of the above witnesses stated about it. He further stated that on hearing this noise, he came out and went to the place from where the noise was coming. On reaching the spot he saw that quarrel was going on in the court-yard of the residential house of Ram Ditta. Accused Devinder, Narinder, Ram Swarup, Bhola, Madan, Surinder and Ram Ditta went out side along with the persons who were shouting “mar diya- mar diya” Accused Narinder, Bhola and Surindner were having dandas in their hands and were beating the person who was crying for help. Other accused were empty hands - 16 - instigating the aforesaid persons to kill him. He further stated that he went to the upper portion of his house and saw that the person who was shouting for help, had fallen down and accused Narinder, Bhola and Surinder were inflicting danda blows to him whereas accused Ram Ditta and Ram Swarup were throwing stones on him and he was crying for help. Thereafter PW5 Ramesh and Shayam Lal told accused persons not to beat him. He further stated that two more persons came from the opposite side telling the accused persons not to beat him but their names were not disclosed by him. He also stated that the injured was lifted by the accused persons and taken towards the Mango tree near the house of Ram Swarup. On seeing this incident, he came to his house. Next morning around 8.30 a.m. the wife of deceased inquired from the wife of Ram Ditta about her husband. He also came to know that the person who was given beatings was Mangat Ram. He further stated that the wife of Ram Ditta told him that deceased was taken to PGI, Chandigarh as he was slightly injured. But he nowhere stated that he told her that he had witnessed the incident nor informed the police. - 17 - 20. In cross examination, he stated that he disclosed to the police the whole facts about the incident only on 31.3.1999. He further stated that he made the statement to the police that firstly the quarrel had taken place in the court-yard of the residential house of Ram Ditta and then in the field but when confronted with his statement Ext. PW5/A, it was not found recorded. He was also confronted with the fact of inquiring from the wife of Ram Ditta in his presence about her husband which fact also did not find mentioned in the said statement. He tried to clarify that the police did not record the statement as given by him. Rather his statement was twisted by the police. He expressed his ignorance about the litigation of his father Pratap Singh with Lachhmi Chand and Babu Ram. He denied the suggestion that he did not see anything and was deposing falsely as he was not having cordial relations with the accused persons for the last more than 40-50 years. He also stated that he did not know that his father had appeared as a witness in the case pending between Ramesh and Ram Ditta on behalf of Ramesh which otherwise stand proved by the documents produced on record. - 18 - 21. PW7 H.C. Tikka Singh was posted in Police Post PGI. He proved the entries Ext. PW7/A made in the Register with respect to deceased. 22. PW8 Head Constable Ranjeet Singh on 29.3.1999 was posted on traffic checking duty at Toll-Tax Barrier Baddi. He stated that around 10 p.m. a Jeep No. HP-12-7770 came from Baddi side. It was stopped. About 4-5 persons were sitting therein. One person was injured. On inquiry, someone person from the Jeep told him that the injured was being taken to PGI Chandigarh. He reported the matter to Dy. S.P. He also stated that many other persons were sitting with him but nobody confronted with the above statement of Ram Ditta aforesaid. 23. PW10 Ashok Kumar is the owner of Jeep in which the deceased was taken to PGI, Chandigarh. He also accompanied them. He further stated that the injured was taken to Bhardwaj Clinic on the way to Chandigarh and also gave another version that the Jeep was stopped at the Barrier by the Dy. S.P. to whom they told that the quarrel had taken place. His name and address was noted by the Dy. S.P. and accused Ram Ditta went to PGI along with the injured. In cross examination he admitted that while the deceased was being taken in his vehicle, he - 19 - used to speak occasionally and also that the injured was requesting Ram Ditta to save him as he was injured by way of stoning by some unknown persons. On this statement, learned Public Prosecutor requested to re-examine the witness which was allowed. He stated that he did not disclose this fact to the police that the injured was asking accused Ram Ditta to save him and also admitted that the accused persons were known to him. In further cross examination on behalf of the accused he admitted that the police did not ask him whether the injured was in senses and also that whether the injured stated anything in the Jeep while being taken in the Jeep. 24. PW9 is Asa Ram father of the deceased. According to him deceased was driver in Gas Agency. In the evening his daughter-in-law told him that the quarrel had taken place and his son Mangat Ram was taken to PGI, Chandigarh. He along with her went to PGI, Chandigarh. Mangat Ram was lying unconscious. Thereafter he died. They brought the dead body after the postmortem was conducted. He further stated