IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 94 of 2000. Judgement reserved on: January 4, 2008. Date of decision: February 25, 2008. Ishwar Singh ….. Appellant. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Jagdish Vats, Advocate. For the Respondent : Mr. M.L. Chauhan, Addl. Advocate General. Kuldip Singh, Judge. This appeal has been directed against the judgement dated 22.2.2000 of learned Sessions Judge, Hamirpur in Sessions Trial No.19 of 1997 convicting the appellant under Section 304 Part-1 I.P.C. and sentencing him to undergo rigorous imprisonment for 7 years and fine of Rs.5000, in default of payment of fine he has further been directed to undergo rigorous imprisonment for six months. 2. The prosecution case, in brief, is that on 13.12.1996 at about 5 p.m. PW-2 Chuni Lal complainant along with his wife Leela Devi deceased was present in his Gharat (water mill) located on Khad Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Sukrala. There was rush of work at his Gharat, therefore, PW-2 asked his wife to take some grains to another Gharat of Paras Ram for grinding. Leela Devi took a load of grains on her head and proceeded towards the Gharat of Paras Ram and when she reached near the Bandh of the Gharat of accused, accused came running towards her armed with danda in his hand. The accused gave a push to Leela Devi as a result of which load of grains carried by her on her head fell down. The accused gave a danda blow on the head of Leela Devi and she fell down. The blow was witnessed by Seema Devi niece of PW-2 Chuni Lal and Ashok Kumar son of Chuni Lal. The accused pelted stones on the complainant when he went to the spot. At the spot Chuni Lal found blood was oozing out from the nostrils and ears of Leela Devi. Seema Devi went to home to inform her parents. In the meantime, PW-4 Babu Ram, Dhannu and Ranjeet came to the spot and Leela Devi was taken to hospital in a van but in hospital there was no staff. She was taken to Police Station, Hamirpur where the matter was reported. Leela Devi was referred to PGI Chandigarh for treatment but she expired on 14.12.1996. On the basis of report lodged at Police Station, Hamirpur the police investigated the case, inquest report was prepared and post-mortem of the body was got conducted. The site was inspected, spot map was prepared, statements of witnesses were recorded and weapon of offence Danda was recovered, viscera was sent to chemical examiner. 3. After completion of investigation and receipt of report of chemical examiner, challan was presented in the Court. The case …3… was committed to the Sessions Court by learned Judicial Magistrate 1st Class (2) vide order dated 4.10.1997. The accused was charged under Section 302 I.P.C. to which he pleaded not guilty and claimed trial. The prosecution examined 21 witnesses. The statement of accused was recorded under Section 313 Cr.P.C. and the accused examined 4 witnesses in defence. The learned Sessions Judge after conclusion of the trial, convicted and sentenced the accused, as noticed above. Hence, this appeal. 4. I have heard Mr.Jagdish Vats, learned counsel for the appellant and Mr.M.L.Chauhan, learned Additional Advocate General, for the State and gone through the record. On behalf of the appellant, it has been submitted that the prosecution has miserably failed to prove the case. The learned Sessions Judge has misconstrued and mis-interpreted the material on record. The witnesses examined by the prosecution are interested. There are material contradictions in the prosecution case. The Bandh, alleged place of occurrence, is not visible from the Gharat, Palli (thatched shed) of PW-2 Chuni Lal nor the said place is visible from the Gharat of the accused. The prosecution story is highly improbable. The prosecution is to stand on its own feet irrespective of the defence taken by the accused. The accused has been falsely implicated in the case because of earlier dispute regarding Gharats. The conviction of the accused is not sustainable and he is entitled to acquittal. In any case, no case under Section 304 Part-1 I.P.C. is made out, sentence imposed is excessive. The learned Additional Advocate General has supported the impugned judgment. He has submitted that prosecution has …4… proved the case against the accused. The learned Sessions Judge has taken a lenient view in imposing lesser punishment to the accused who has killed a lady without any rhyme and reason. The accused is not entitled to any further leniency. He prayed for dismissal of the appeal. 5. The case was registered at Police Station, Hamirpur vide F.I.R. Ext.PW-15/A. Later on it was found that offence was committed within the jurisdiction of Police Station, Barsar, therefore, vide order dated 28.2.1997 Ext.PW-17/A Superintendent of Police, Hamirpur ordered the transfer of investigation of case to Police Station, Barsar, thereupon F.I.R. Ext.PW-18/A of the case came to be registered at Police Station, Barsar. 6. The leaned Sessions Judge has relied the testimonies of PW-2 Chuni Lal and PW-3 Seema Devi. He has also observed that danda has been recovered at the instance of accused after disclosure statement Ext.PW-7/A. The learned Sessions Judge has also taken into consideration the case suggested to the prosecution witnesses by the defence and ultimately convicted and sentenced the accused under Section 304 Part-1 I.P.C. In order to appreciate the prosecution case, a close scrutiny of statements of prosecution witnesses is necessary. 7. PW-1 Dr.Rajinder Kumar, Medical Officer, District Hospital, Hamirpur has stated that on 13.12.1996 at about 5.40 p.m. Smt.Leela Devi was brought by the police of Police Station, Hamirpur for her medical examination and observed as under:- “… … Patient was unconscious, gasping, pulse 60 per minute, B.P. not recordable, …5… Pupils bialaterally dialated, sluggishly re-acting to light. Bleeding from the mouth, nose and left ear, blackening of the eye lids. Swelling on left parietal bone 9 cm above mastoid process. An abrasion 6 cm long, reddish in colour situated transversely 3 cm above left iliac-crest. Reddish abrasion of 2 cm diameter medial to left scapula, no other external injury seen .. …” He has proved Medico Legal Certificate Ext.PW-1/A which is signed by him. He has stated that it is possible that injury on the skull, as detailed in Medico Legal Certificate Ext.PW-1/A, can be caused with danda Ext.P-1. In cross examination, he has stated that the two abrasions are also possible if the victim is pushed and falls down or otherwise falls down on a hard surface. Except swelling there was no external manifestation of the skull injury. He has also stated that it is correct to suggest that the skull injury, as described in Medico Legal Certificate Ext.PW-1/A, is possible if the victim falls on a stone provided she falls with a high speed. She was admitted in the surgical ward, she was referred to PGI Chandigarh. 8. PW-2 Chuni Lal has stated that his Gharat is located on Sukrala Khad in village Patyahu (Kapahra). Ishwar Singh accused also owns a Gharat below his Gharat and there is another Gharat of Paras Ram below the Gharat of accused. The relations between him and accused were strained and litigation was going on between them. He has constructed a Palli near his Gharat. On 13.12.1996 at about 5 p.m. he was present at his Gharat, his wife Smt.Leela Devi was also …6… present there. There was rush of work at his Gharat. Therefore, he asked his wife to take some grains for grinding at the Gharat of Paras Ram. Accordingly, she lifted a load of grains on her head and proceeded to the Gharat of Paras Ram. When she reached near the Bandh of the Gharat of accused, the accused came running from his Gharat. He was armed with a danda. He gave a push to his wife and as a result the load of grains fell down from her head. The accused then gave a danda blow on the head of his wife, she fell down on the ground. Seema Devi his niece and Ashok Kumar his son were also present there and the occurrence was witnessed by them. He went to the spot. The accused started pelting stones on him. On reaching the spot he found blood was oozing out from the nostrils and ears of his wife and she has lost consciousness. Ashok Kumar who is afflicted with Polio and is handicapped also came to the spot. Seema Devi went to home to inform her parents about the occurrence. Babu Ram his younger brother along with his wife Smt.Kailasho Devi, Dhannu and Ranjeet carpenters engaged by his brother, Amar Nath ward Panch came there afterwards. When these persons had come to the spot the accused was standing on the Bheth (hillock) located just above the place of occurrence at a distance of 20/30 yards and was holding danda in his hands. They brought Leela Devi on a cot in the Palli near his Gharat from there she was taken to hospital and since no one was present there, she was taken to Police Station, Hamirpur where the matter was reported vide DDR Ext.PW-2/A. Smt.Leela Devi then was taken to District Hospital, Hamirpur where she was medically examined. She was admitted in the hospital and …7… thereafter referred to PGI Chandigarh on the same day. She died on 14.12.1996 at PGI Chandigarh. In cross examination, he has admitted that from his Gharat, the Gharat of the accused is not visible. After the occurrence Seema Devi had reached the spot first and he had followed her. The accused had pelted 2/3 stones on him. He has stated that at the time of making report to the police he had stated that the accused had pelted stones on him but does not so recorded in DDR Ext.PW-2/A. A load of grains which was carried by the deceased on her head had fallen on the dry ground when the accused had pushed her and that place was shown to the police during investigation of the case. This witness was recalled for further cross examination and has stated that he did not state in the initial complaint that when his wife was going near the Gharat of the accused, she was assaulted by the accused with a danda. There is a curvature between his Gharat and the Gharat of the accused. The place of occurrence is not visible from the Gharat of the accused. 9. PW-3 Kumari Seema Devi aged 11 years has stated that on 13.12.1996 she had returned from school at about 5 p.m. and had gone to the Gharat of her uncle PW-2 Chuni Lal. She helped her aunt Smt.Leela Devi to carry the load of grains on her head. Thereafter, she proceeded to the Gharat of Paras Ram and when she reached the Bandh of the Gharat of the accused, the accused came there running and asked her as to why she was not letting the water to flow down to his Gharat. Thereafter, he gave a push to her as a result of which the load on her head fell down. The accused then gave a danda blow on her head and resultantly she fell down on the …8… ground. Thereafter the accused ran away towards his house located nearby. When the accused had hit Leela Devi she was on her way home from the Gharat of her uncle. She called out her uncle PW-2 Chuni Lal and her cousin Ashok Kumar when the accused had hit her aunt Smt.Leela Devi. Thereafter, both of them came to the spot. In cross examination, she has stated that path to their house is towards the opposite direction to that of the path to the Gharat of Paras Ram. She has further stated that a person going from the Gharat of her uncle towards their house has his back towards the path leading from the Gharat of her uncle to that of Paras Ram. She was recalled for further cross examination but she has stated nothing material in the further cross examination. 10. PW-4 Babu Ram is not an eye-witness. He is the brother of PW-2 Chuni Lal and he reached the spot after the incident. In cross examination, he has stated that Gharat of accused is not visible from the Gharat of PW-2 Chuni Lal. 11. PW-5 Prem Chand has stated that on 15.12.1996 he joined the investigation of the case. The police collected some blood stained stones from the place of occurrence vide recovery memo Ext.PW-5/A which bears his signatures. He has proved sealed packet Ext.P-2. He was again joined in the investigation on 20.12.1996. The police along with the accused had come to their village in a vehicle. The police asked the accused to bring the danda and he brought the same from near the Bandh. The danda was lying concealed there. He put his signatures along with the Pradhan on memo Ext.PW-5/B and proved danda Ext.P-1. In cross examination, …9… he has stated that he is real uncle of PW-2 Chuni Lal. He has stated that the Bandh of accused is not visible to a person sitting / standing outside the Gharat and Palli of PW-2 Chuni Lal. 12. PW-6 Sita Ram has stated that danda Ext.P-1 was taken into possession by police vide memo Ext.PW-5/B which bears his signatures. PW-7 Gurdev has stated that on 20.12.1996 the accused made a disclosure statement Ext.PW-7/A regarding the recovery of danda which bears his signatures as well as signatures of Jaswant Rai and accused. PW-8 Dhyan Singh Field Kanungo is a formal witness and he has stated nothing material. PW-9 Swaran Singh Kanungo Halqua has stated that on 27.3.1997 he joined investigation in the case along with Sunil Kumar Patwari. He conducted demarcation of the spot and prepared demarcation report etc. His statement is also not material. PW-10 Sunil Kumar Patwai has stated that on 27.3.1997 he accompanied Swaran Singh Field Kanungo PW- 9 and joined the investigation. His statement is also not material. PW-11 Dina Nath, Patwari Halqua Nalti has stated that on 10.1.1997 he joined the investigation along with PW-8 Dhyan Singh, Field Kanungo, his statement is also not material. PW-12 Ramesh Chand, H.C. has stated that he remained posted as Moharer Head Constable at Police Station, Hamirpur from the year 1995 to 1997. On 13.12.1996 PW-2 Chuni Lal along with his wife Leela Devi came to the Police Station at 7 p.m. and lodged report DDR No.20 dated 13.12.1996 and Ext.PW-2/A is the correct attested copy of DD entry. On 15.12.1996 a wireless message Ext.PW-12/A was received in the Police Station that Leela Devi had expired in PGI. He recorded the …10… message at Sr.No.3 dated 15.12.1996 and Ext.PW-12/B is the correct attested copy of the DD No.3 dated 15.12.1996. The SHO Police Station, Hamirpur has deposited with him one sealed parcel sealed with seal ‘K’ containing the blood stained sand and stones. On 4.5.1997 he sent the said sealed parcel to Forensic Science Laboratory vide RC No.57/97 dated 4.5.1997 through Constable Naresh Kumar for chemical test. This witness was recalled and explained the discrepancy in the original DD No.20 dated 13.12.1998 and its copy Ext.PW-2/A. 13. PW-13 Naresh Kumar Constable has stated that on 4.5.1997 PW-12 Ramesh Chand gave him one sealed parcel sealed with seal ‘K’ containing blood stained sand and stones vide RC No.57/97 dated 4.5.1997 for delivering the same in Forensic Science Laboratory Junga. On 6.5.1997 he deposited the said sealed packet in the Forensic Science Laboratory, Junga. 14. PW-14 Mehar Chand S.I. has stated that in 1996-97 he was posted as ASI, Police Station, Hamirpur, wireless message Ext.PW-12/A was received regarding the death of Leela Devi and he was directed by SHO Police Station, Hamirpur to proceed to Chandigarh to take up investigation of the case. He reached Chandigarh on 15.12.1996 and prepared inquest papers Ext.PW-14/A and Ext.PW-14/B. He took the photographs Ext.P-3 to Ext.P-5 of the dead body and their negatives are Ext.P-6 to Ext.P-8. The dead body of the deceased was subjected to post-mortem vide application Ext.PW-14/C. …11… 15. PW-15 Gulab Singh, Dy.S.P., has stated that in 1996-97 he was posted as Inspector SHO Police Station, Hamirpur. This case was partly investigated by him. On the basis of DDR Ext.PW-12/B and previously recorded DDR Ext.PW-2/A formal F.I.R. Ext.PW-15/A was registered which bears his signatures. He proceeded to the spot and prepared site plan Ext.PW-15/B. He took into possession blood stained stones and sand lying there vide memo Ext.PW-5/A. He recorded the statements of witnesses under Section 161 Cr.P.C. The accused was arrested on 15.12.1996. In police custody he made disclosure statement Ext.PW-7/A on 20.12.1996 and thereupon danda Ext.P-1 was recovered at the instance of the accused vide memo Ext.PW-5/B. Thereafter, the case was entrusted by him to S.I. Bihari Lal for further investigation. The site plan of recovery of danda Ext.P-1 is Ext.PW-15/E. In cross examination, he has stated that danda Ext.P-1 was recovered from point ‘A’ as shown in site plan Ext.PW-15/E. Danda Ext.P-1 was visible from near Point ‘A’. The Bandh shown in site plan Ext.PW-15/B (Points ‘A’ and ‘B’) is not visible to a person sitting / standing just outside the Gharat and Palli of Chuni Lal. This witness was recalled and has stated that he has not recorded the statement of Ranjeet Singh and Dhannu. The accused was not sent for medical examination as he was not found to have sustained any injury on the base of his left thumb. He had not asked the accused whether he had sustained any injury during the occurrence. 16. PW-16 Bihari Lal, S.I., has stated that he has partly investigated the case and got the spot demarcated through PW-8 …12… Dhyan Singh, Field Kanungo and PW-11 Dina Nath, Patwari. PW-17 Tilak Raj, Reader to S.P. Hamirpur has proved the order Ext.PW-17/A of Superintendent of Police Hamirpur vide which the case was transferred from Police Station, Hamirpur to Police Station, Barsar for further investigation. PW-18 Nain Singh ASI has stated that in the year 1997 he was posted as ASI Investigating Officer at Police Station, Barsar. The investigation file of the case was received in the Police Station, Barsar along with the order Ext.PW-17/A of the Superintendent of Police, Hamirpur. Thereupon, F.I.R. was registered at Police Station, Barsar and a copy of F.I.R. is Ext.PW- 18/A. PW-19 Narain Dutt, S.I. has stated that he remained posted as SHO Police Station, Barsar in the year 1997. He has partly investigated the case. He got the spot scene demarcated on 27.3.1997 through PW-9 Swaran Singh Field Kanungo and PW-10 Sunil Kumar Patwari and obtained their reports. 17. PW-20 Harbhajan Singh, A.S.I. has stated that in December 1996 he was posted at Police Post, PGI Chandigarh as Incharge Police Post. On 14.12.1996 at about 6.50 a.m. he had received information from Doctor Incharge, Emergency Ward, PGI Chandigarh that Leela Devi had been admitted in the said ward. He proceeded to the said Ward and moved an application Ext.PW-20/A to the doctor on duty and obtained his opinion whether the deceased was in a fit condition to make statement or not. The doctor had opined that the deceased was not in a position to make a statement at that time. At 1 p.m. on the same day he received information that …13… Leela Devi had died. This information he passed on to the Police Station, Hamirpur through wireless message. 18. PW-21 Dr.Aditya Kumar Sharma has stated that he was posted as Senior Resident in the department of Forensic Medicines, P.G.I. Chandigarh since July, 1996. On 16.12.1996 he had conducted post –mortem examination of the dead body of deceased Smt.Leela Devi. The request for autopsy was received from ASI Mehar Chand Police Station, Hamirpur through an application, an attested photocopy of which is Ext.PW-21/A (original Ext.PW-14/C). He found the following injuries on the dead body of Leela Devi:- “i) Red contusion of size 7x4 cm directing upward and backward with diffuse margins present over the left parietal region of the scalp 7 cm above the tip of mastoid process. ii) Red contusion of size 5 x 4 cm with diffuse margins present over the medial end of upper border of scapula on the posterior aspect of left side of the thorax at the level of second Thorasic (T2) vertebrae 6 cm from the midline. iii) Red abrasion of size 3 x 1 cm directing downward and laterally present over the left lateral aspect of the abdomen in anterior axillary line 8 cm above the iliac tubercle.” He gave opinion that the cause of death in the case was Oedema of brain due to facture of skull, extradural haemotoma, subdural haemotoma and laceration of brain as a result of head injury. The injuries were antemortem in nature. The probable time that elapsed between injury and death was within 24 hours. In cross examination, …14… he has stated that deceased had died at PGI Chandigarh on 14.12.1996 at 1 p.m. In re-examination by the prosecution, he has stated that injury No.1 mentioned in the post mortem examination of the deceased on the skull is possible with the blow of danda Ext.P-1. In further examination conducted by the defence, he has stated that injuries No.2 and 3 mentioned in Ext.PW-21/B are not possible simultaneously when injury No.1 is caused with a single blow. The appellant / accused in his statement under Section 313 Cr.P.C. has denied the prosecution case. He has stated that complainant has filed two cases against him regarding the water and the Local Commissioner went to the spot. The appellant has examined four DWs including a doctor. 19. The learned Additional Advocate General has submitted that in view of the defence put to the prosecution witnesses the accused has admitted his presence at the scene of occurrence. The accused has taken a false defence, the learned Sessions Judge has rightly convicted the appellant. Mr.Vats, learned counsel appearing for the appellant, has submitted that no doubt during cross examination of some of the witnesses of the prosecution some questions were put on behalf of the appellant suggesting the occurrence in a particular manner. He has submitted that if the manner in which appellant has suggested the taking of the occurrence is not believed, in that case also the prosecution will have to prove the case beyond reasonable doubt against the appellant as per its own case. It has been submitted that the crux of the defence of the appellant is denial of the case. He has also …15… submitted that even if the case set up by the appellant during cross examination of some of the witnesses of the prosecution is found to be false that in itself is not sufficient to prove the case against the appellant but prosecution is still required to prove the story in the manner projected by the prosecution. In Tika and others versus State of U.P., AIR 1974 SC 155, in Para-6 the Hon’ble Supreme Court has held as follows:- “The case of the prosecution has however to be tested independently of the defence version and in a case of the present nature which depends for its proof on direct testimony, falsity of the defence will not help the prosecution to establish its own case. It is, therefore, necessary to consider whether the evidence led by the prosecution is sufficient to justify the order of conviction and sentence recorded by the High Court.” The Hon’ble Supreme Court in Shankarlal Gyarasilal Dixit versus State Maharashtra, AIR 1981 SC 765, has held that falsity of defence cannot take the proof the facts which the prosecution is to establish in order to succeed. A false plea can at the best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused. The Hon’ble Supreme Court in