Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.138 of 2003. Dated of Decision: April 1, 2010. --------------------------------------------------------------------------------------------------- Ashwani Kumar @ Sonu. …… Appellant. Versus State of H.P. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? For the Appellant : Mr. Virender Singh Rathore, Advocate. For the Respondent : Mr. J.S. Rana, Asstt. Advocate General. Surinder Singh, J (oral) : The appellant felt aggrieved by his conviction under Section 307 of the Indian Penal Code by the learned Sessions Judge and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/-, in default of payment of fine, further to undergo imprisonment for a period of six months. Out of the fine, if realized, Rs.3,000/-was ordered to be paid to the injured Pushpa Devi. The appellant was also given the benefit of Section 428 Cr.P.C., hence this appeal. In short, the prosecution story can be stated thus. Appellant is the son of the sister of Suresh Kumar husband of PW10 Pushpa Devi. For the last about 12 years, he was residing in the house of said Pushpa Devi, where he was provided with a separate room as he was not pulling well with his mother. It is alleged that on - 2 - 21st July, 2000, during noon, Pushpa Devi aforesaid was plucking lady fingers from the field, adjoining to the house of PW11 Satya Devi. In the meantime, appellant came there and hurled abuses. He imputed allegation that the complainant had called a ‘Chela’/ ‘tantrik’ to practice some witchcraft upon him. Pushpa Devi did not pay any heed to whatever the appellant said, but left the place and went to the courtyard of PW11 Satya Devi. Appellant chased her with a Chhura (knife) Ex.P2 and inflicted various blows on her head and other parts of the body. She sat on the ground there and to defend her covered her head by raising hands. Occurrence was witnessed by PW11 Satya Devi and immediately thereafter, PW12 Laxmi Devi reached the spot. They raised cries. The appellant ran away. Laxmi Devi covered the injuries of Pushpa Devi with a Dupatta and took her to the hospital where she was attended upon by PW7 Dr. Mohan Singh. He informed the police. The report Ex.PC was entered in daily diary. PW4 HC Kaur Chand visited hospital and moved an application Ex.PD for recording the statement of Pushpa Devi. Doctor opined that she was fit to make the statement. Thereafter, said Head Constable recorded her statement Ex.PA under Section 154 of the Code of Criminal Procedure, which culminated into FIR Ex. PB. PW7 Dr. Mohan Singh on the medical examination of Pushpa Devi on 21.7.2000 at 12.05 p.m., noted history. She revealed that the injuries were caused to her in fight by Sonu (appellant). On the examination of Pushpa Devi, the following injuries were noticed:- - 3 - 1. Incised wound on the left side of the scalp of the temporal region 8 x 1.2 cms of size, bone chip also separated from the scalp bone, severe bleedings from the wound was present, 2. Incised wound 1 cm above injury No.1 10 x 1.8 cm of size of the left side of the scalp, severe bleedings was present from the wound. 3. Incised wound 12 x.5 cms of size in the centre of scalp, severe bleedings from the wound was present. 4. Incised wound on the left side lateral aspect of the left eye 3.8 x.3 cm of size, sever bleedings was present. 5. Abrasion 18 x.2 cm on the lateral side of the left leg, oblique in direction, bleeding was present from the wound. 6. Abrasion 10x.4 cm on the lateral aspect of left thigh, oblique in direction, bleeding present from the wound. 7. Incised wound 3 x 1cm of size at the tip of left index finger, oblique in direction, bleeding was present from the wound. 8. Incised wound at the left thumb sulcus 1.3 x.3 cm of size, bleeding from the wound was present. 9. Lacerated wound on the posterior aspect of left fore-arm 3 x .3 cm of size, bleeding from the wound was present. She was referred for the X-ray examination of the skull. It was conducted by PW6 Dr. R.K. Mahajan. The sky grams are Ex.PF/1 and Ex. PF/2. He gave opinion Ex.PF. There was fracture of right - 4 - fronto-parietal bone of the skull. PW7 Dr. Mohan Singh opined that injuries No.1 to 3 and 4 were grievous and dangerous to life, caused with sharp edged weapon, whereas other injuries were simple in nature. He specifically stated that injuries No.7 and 8 were caused with sharp edged weapon whereas injury No.5, 6 and 9 with hard and blunt weapon. The probable duration of the injuries was less than one hour. To this effect, he issued MLC Ex.PE. Police prepared the site plan, recorded the statements of the witnesses and arrested the appellant. Pursuant to his statement (Ex.PJ), under Section 27 of the Indian Evidence Act, he got recovered the knife Ex.P2. The sketch map Ex.PK of the knife was prepared. It was sealed and sent for forensic examination. After completion the challan, it was presented in the court for the trial of the appellant. Finding a prima-facie case against the appellant, he was charge-sheeted under Section 307 of the Indian Penal Code. He abjured the guilt and claimed trial. To prove its case, prosecution examined Pushpa Devi as PW10 an injured witness and also the alleged eye witnesses PW11 Satya Devi and PW12 Laxmi Devi besides examining the doctors and the investigating officers. The appellant was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances found attendant upon him. He also alleged false implication. The appellant was also called upon to enter into his defence, but no evidence in defence was led. At the end of trial, the - 5 - appellant was convicted and sentenced as aforesaid, which is under challenge in this appeal. Shri Virender Singh Rathore, learned counsel for the appellant vehemently argued that the learned trial court did not appreciate the evidence of the prosecution in the right perspective and thus came to the erroneous conclusion. He mainly focused on the statement of the injured witness and ventilated that she did not identify the appellant, which caused the substantial doubt in the prosecution case. Shri J.S. Rana, learned Assistant Advocate General supported the impugned judgment of conviction and sentence and also submitted that if the statement of the injured witness is properly appreciated in the light of the statement of PW11 Satya Devi, the case against the appellant stands proved beyond reasonable doubt. I have also gone through the rival contentions of the parties and have carefully reappraised the evidence on record. The incident in question stands proved. PW10 Pushpa Devi injured has categorically stated that she had a tiff with the appellant outside in the field. Thereafter she went to the courtyard of PW11 Satya Devi, in the meantime, she was hit on the head by someone from the back side. Immediately, she sat down, covered her head with the hands, thereafter 3-4 more blows were given with a knife to her, which also caused injuries to her finger and other parts of the body including the neck. After hitting her, the assailant fled away from the spot. She categorically stated that her Jethani PW11 Satya Devi was present and her another Jethani PW12 Laxmi - 6 - Devi came there after hearing her cries. She further stated that the assailant might be the appellant as he was abusing her outside. She was declared hostile by the prosecution and then she was cross- examined by the learned Public Prosecutor, then she categorically stated that she had correctly named the appellant in her statement as assailant. She admitted that the mother of the appellant had approached her on the day before her statement was recorded in the court and requested not to depose against her son. Even the appellant had also touched her feet outside the court, making the same request. PW11 Satya Devi, in whose courtyard PW10 Pushpa Devi was attacked, testified that the appellant picked up a quarrel with Pushpa Devi when she was in the field adjoining to her house. Thereafter, she came to the courtyard of her house. She categorically deposed that the appellant came there with a big knife and inflicted injuries on the head and leg of Pushpa Devi. She had requested him not to fight, but the appellant asked her to go back otherwise, her number would also come. Thereafter, she left the place and did not know whether the appellant had run after causing injuries to Pushpa Devi. She specifically stated that none else except her was present at the time of incident. Also in her cross- examination, she stated that she had also seen the appellant inflicting injuries on the leg of Pushpa Devi. Although, she stated that she was told to narrate whatever read over outside the court recorded in her statement, but significantly she never stated that her statement recorded by the police was false. - 7 - PW12 Laxmi Devi had arrived at the spot, but by that time, the appellant had run away. Pertinently she deposed that the injured informed her that the appellant, who was her nephew, had caused the injuries to her. On the critical examination of the aforesaid evidence, which is confidence inspiring impel me to conclude that it was the appellant and appellant alone, who inflicted the aforesaid injuries to Smt. Pushpa Devi. PW7 Dr. Mohan Singh opined injuries No.1 to 3 and 4 grievous and dangerous to life. PW6 Dr. R.K. Mahajan also substantiated his report Ex.PF whereby he observed that there was fracture of fronto parietal bone of the skull. The injuries were also on the different parts of the skull. The appellant used knife to cause the injuries on head which is a very vital part of the body i.e. skull and one of the injury is fracture of bone. The injured PW10 Pushpa Devi stated that when she sustained the first injury on head, she sat and covered it with her hands and even thereafter, the appellant went on causing injuries to her by a knife, show his intention to cause death of the injured. The doctor opined the injuries on the head were grievous and dangerous to life and she could only be saved by giving her timely medical treatment. So, the facts prove the ingredients of offence under Section 307 of the Indian Penal Code. Thus, for the foregoing reasons, the prosecution has been able to prove the charge against the appellant, which requires no interference. - 8 - Insofar as the sentence is concerned, learned counsel for the appellant has submitted that keeping in view the age of the appellant, a lenient view may be taken. Keeping in view the nature of injuries caused to PW10 Pushpa Devi and also the fact that repeated blows were given with a Chhura (knife) Ex.P2 not only on the skull but also on various parts of the body, exhibit the conduct of the appellant, thus no further leniency is required to be shown to him, as the learned trial Court has already taken a lenient view imposing the sentence of three years only. In view of this, I find no merit in the appeal, thus accordingly dismissed. The appellant is on bail and is hereby directed to surrender before the learned trial Court on 3.5.2010, to serve out the remaining sentence, failing which the learned trial court shall take coercive steps for his arrest and commit him to prison for undergoing the sentence imposed by it. The matter stands disposed of. Send down the records. April 1, 2010. (Surinder Singh) (Pds) Judge. - 9 -