Whether reporters of the local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.104 of 2007. Date of decision: December 4,2009. Jhaptu Ram. ….Appellant. Versus State of Himachal Pradesh. … Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? For the appellant : Mr. M.S. Guleria Advocate with Mr. Sunil Chaudhary, Advocate. For the respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surinder Singh, Judge, (oral): In this appeal, the appellant has challenged the judgment of his conviction and sentence passed by the learned trial Court, under Section 302 of the Indian Penal Code whereby he was sentenced to undergo the Imprisonment for life and to pay a fine of Rs.10,000/-, in default of payment of fine, to further undergo imprisonment for a period of one year. In nut-shell, the prosecution case emerging from the evidence on record can be stated thus. Quite sometime past, the appellant and his son PW3 Dina Nath were not pulling on well, which oftenly gave a cause to pick up the quarrel between them. On 14th June, 2004, the daughter of the appellant named Shukari Devi called Devinder Kumar (deceased) son of PW1 Bhagti Devi, - 2 - in the house of her parents in village Sangdhar. At about 9 p.m., deceased alongwith his mother Bhagti Devi (PW1) went there. The moment they reached there, appellant fired a gun shot at Devinder Kumar, in the presence of his son PW3 Dina Nath, resulting into his death on the spot. On hearing the commotion, PW2 Lal Singh and PW4 Rirku Ram co-villagers, came to the place of occurrence. PW1 Bhagti Devi narrated about the said incident to them. She also telephonically informed PW5 Hem Raj, Patwari. In turn, Hem Raj informed PW6 Bal Krishan Chaudhary, Naib-Tehsildar, Padhar, who further informed the SHO, Police Station, Joginder Nagar telephonically. An entry Ex.PW8/A to this effect was recorded in the daily diary by PW8 MHC Khem Singh. Thereafter, PW14 Inspector, Narinder Kumar visited the spot and recorded the statement Ex.PW1/A of Bhagti Devi (PW1), under Section 154 of the Code of Criminal Procedure and sent a ruka for the registration of the case, on the basis of which, FIR Ex.PW10/A was registered, under Section 302 of the Indian Penal Code. Police prepared site plan, Ex.PW14/A, of the place of incident. PW3 Dina Nath, son of the appellant handed over the gun which was in broken condition to the police. It was taken into possession, vide memo Ex.PW4/A, in the presence of PW4 Rirku Ram. The police took the photographs of the dead body and the inquest papers Exts.PW14/C and PW14/D were prepared, thereafter the dead body was sent for autopsy. - 3 - PW11 Dr. Chain Singh, Medical Officer at CHC, Joginder Nagar conducted the postmortem on 16.6.2004. The doctor noticed a hole in the jacket and the shirt of the deceased correspondingly about 3 cm x 3 cm circular in the left side of nipple area. Left side of clothes was soiled with dried blood including left upper part of pant. Face was swollen and blue in colour, tongue was protruded out and swollen, maggots were found present and blood vessels were visible. On examining the dead body, the doctor noticed a circular wound of 2.5 cm in diameter in the pericardium; margins were irregular, part of lung was protruding out. Depth of canal could not be measured due to swollen body and chest. There was punctured wound in the left ventricle of heart and left lung. Heart was surrounded with blood. There were multiple wounds in left lung and stomach and other abdominal structures in the upper abdomen. Hard structures like pallets could not be felt due to blood and food particles in the abdominal cavity. Dead body was subjected to X-ray examination for presence/ absence of pallets. X-ray film Ex.PW7/A had shown multiple radio-opaque shadows in abdominal cavity and above diaphragm. On opening the dead body, the doctor noticed the swollen, discoloured and blisters present on the walls of thorax. Pleurae had punctured wounds with blood. Larynx and trachea was found full of blood and mucous. The left lung and the heart had the punctured wounds, as stated above. The organ of generation was found swollen. - 4 - In the opinion of the doctor, cause of death was the shock due to haemorrhage, caused by gun shot and injury, which was sufficient to cause death. The time which elapsed between the injury and death was instantaneous and between the death and postmortem was between 1 to 3 days. Doctor issued the postmortem report Ex.PW11/A. The SBML gun Ex.P1 was sent to the Ballistic Expert, for its examination. As per the report, it was fired through and the Jacket of the deceased was found to have the evidence of firing. On completing the investigation, challan was presented in the court for the trial of the appellant. Finding a prima-facie case against the appellant under Section 302 of the Indian Penal Code, he was accordingly charge-sheeted, to which he pleaded not guilty and claimed trial. To prove its case, prosecution mainly relied upon and examined PW1 Bhagti Devi, the mother of the deceased, PW3 Dina Nath, son of the appellant, PW2 Lal Singh and PW4 Rirku Ram, the neighbours of the appellant and also PW11 Dr. Chain Singh, besides other evidence of a corroborative nature. The appellant was also examined under Section 313 of the Code of Criminal Procedure. The circumstances, which were found attendant upon him, were put to him. His case was of denial simplicitor. Appellant was called upon to enter into his defence, but he did not lead any evidence in defence. At the end of trial, appellant was convicted and sentenced as aforesaid. - 5 - Shri M.S. Guleria, learned counsel, duly assisted by Shri Sunil Chaudhary, learned counsel for the appellant took us through the evidence on record and forcefully argued that none of the witnesses, who are alleged to have witnessed the alleged occurrence were present on the spot and witnessed the occurrence. At the most, from the evidence on record, it could only be inferred that Devinder Kumar died because of gun-shot injury but the appellant was also having serious injury on his head. The learned counsel submitted that these circumstances do not prove the offence charged against the appellant and the injury on the person of appellant was not explained by the prosecution. Therefore, the judgment of conviction and sentence passed by the learned trial Court deserves to be set-aside. On the other hand, the learned Assistant Advocate General has supported the impugned judgment of conviction and argued that it stands proved on record that the deceased Devinder Kumar had died of the gun shot injuries in the house of the appellant. The SBML gun Ex.P1 is a licenced gun of the appellant, which was taken into possession by the police on the spot, sealed and thereafter sent for forensic examination. As per report Ex.PW10/C, it was found in working order and the Expert opined that there was evidence regarding firing from its barrel and further the jacket, which was found on the body of the deceased with a corresponding hole, also had the evidence of firing. PW11 Dr. Chain Singh corroborated the prosecution version that the deceased had died because of gun-shot injury. It was also argued - 6 - that the prosecution had examined the eye witnesses and the neighbour who arrived at the spot immediately after the incident to prove its case. The appellant did not put his defence to them nor took any specific plea how and in what manner the deceased got gun shot injury. Therefore, in absence of specific plea, the prosecution was obliged to explain the head injury on the appellant, but even then the Investigating Officer testified that the appellant sustained injury due to fall when he tried to flee after firing at the deceased. We have given our thoughtful consideration to the rival contentions and reappraised the evidence on record. PW3 Dina Nath son of the appellant categorically stated that his father was under intoxication and he fired a shot on Devinder Kumar, who died on the spot. PW1 Bhagti Devi also stated that she was accompanying her son Devinder Kumar (deceased) to the house of the appellant, the appellant fired a gun shot at her son and he died on the spot. Thereafter, Lal Singh alongwith 5/6 persons reached there and informed the police and she got recorded her statement Ex.PW1/A to the police. PW2 Lal Singh has corroborated her version. He further stated that when he reached the spot, he saw the gun in the hands of the appellant. Even PW4 Rirku Ram has also made a similar statement. However, in her cross-examination, PW1 Bhagti Devi stated that she followed her son and reached the house of appellant and saw her son dead. The appellant was having the - 7 - gun in his hand. PW3 Dina Nath also stated that she had arrived at the spot after her son had died. All the above witnesses are consistent in their statement and they unequivocally stated that the dead body of the deceased was lying inside the room of the house of the appellant and they saw the gun in the hands of appellant. PW2, PW3 Dina Nath and PW4 Rirku Ram stated that the appellant was having injury on his head and face. The appellant was also hospitalised. PW14 Inspector Narinder Kumar, on reaching the spot found that the appellant was lying unconscious. He was having a bleeding injury on his head. He also stated that appellant was beaten up by the deceased and his son PW3 Dina Nath. Significantly, this suggestion was not put to PW3 Dina Nath or any other alleged eye witnesses. However, he specifically denied that the appellant had suffered injuries due to the beatings given to him, but he stated that during the investigation, it came to light that the appellant after firing the gun shot ran away from the spot and while running, he fell on the stones and sustained the injuries and this fact was not disputed in his further examination. On analyzing the statements of the above witnesses and the statement of the appellant recorded under section 313 of the Code of Criminal Procedure, it stands proved that with his licensed gun he had fired at the deceased. In fact, the extent of burden to prove the fundamental facts beyond reasonable doubt is on the prosecution, which in the - 8 - instant case has been proved by the prosecution beyond reasonable doubt. Significantly the appellant neither pleaded any exception nor even said a single word as to how and under what circumstances he fired at the deceased or that how the deceased sustained the gun shot injury, which ended his life. The appellant has no specific defence. In absence of any specific plea the Court cannot read in between the lines when the prosecution has proved the foundational facts. In the given circumstances the reverse burden lies on the accused. Of course, the onus on the accused is not as high as is on the prosecution. Since no circumstance was brought on record to take the other view than the guilt of the appellant ion the strength of the above evidence, in these circumstances, non-explanation to the injuries is not fatal to the prosecution. Therefore, in the aforesaid circumstances and the above stated position, we are constrained to hold that the appellant committed the murder of Devinder Kumar in his house by firing a gun shot with his SBML Gun Ex.P1. Therefore, there is no merit in this appeal, hence dismissed. Send down the records. (Surjit Singh) Judge (Surinder Singh) December 4, 2009. Judge (Pds)