IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.396 of 1995 Decided on : September 3, 2009 State of H.P. …Appellant. Versus Karmoo …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : Mr. Vinay Thakur, Advocate. Surjit Singh, J (Oral) State has appealed against the judgment, dated 14th March, 1995, of learned Sessions Judge, Shimla, whereby respondent Karmoo, who was charged with and tried for offence, under Section 302 of the Indian Penal Code, has been acquitted. 2. Case of the prosecution, as per record, is like this. On 23rd May, 1994, at 11.30 p.m., Daulat Ram(PW-1), a brother of deceased Chet Ram, went to Police Station, Jubbal and lodged FIR Ex. PW-1/A. As per said FIR, PW-1 Daulat Ram received a telephonic message in his village Deem, at the place of one Krishan Chand. The caller was Daulat Ram (PW-4), Junior Engineer. PW-1 Daulat Ram Whether reporters of the local papers may be allowed to see the judgment? …2… was informed by PW-4 Daulat Ram, as per FIR, that the present respondent Karmu and one Devinder son of Premu had beaten up his brother deceased Chet Ram at a place known as Khara Pathar and that after thrashing him they had run away and his brother was lying unconscious on the spot. He further reported that when he reached the spot, he came to know that the deceased had been carried by Lohtu Ram (PW-2) to the outhouse (Dogri) of Jeet Singh (PW-8). Further he reported that when he was going towards the Dogri of Jeet Singh, Lohtu Ram met him on the way and he told that his brother deceased Chet Ram was lying unconscious in Jeet Singh’s Dogri and from there he, accompanied by said Lohtu Ram, went to Dogri of Jeet Singh, where his brother lay unconscious and there were injury marks on his face and his nose was bleeding. He also reported that he took his brother to the Hospital at Jubbal for treatment. Next day, at 5 a.m., Chet Ram died, at Jubbal Hospital. Police conducted inquest and filled in the requisite form Ex. PW-14/B. 3. Postmortem was conducted at the Government Hospital, Jubbal, by a doctor named Laxmi Nand (not examined). Postmortem report Ex. PW-11/B was proved, during trial, by PW-11 Dr. (Ms) Suniti A Ganju. As per postmortem report, there were six external injuries, mentioned below: 1. Bluish discolouration of upper eyelid (Rt.). …3… 2. Lacerated wound 1 cm long on temporal aspect of sclera of right eye. 3. Clotted blood present inside the nostrils. 4. Swelling present over the temporo parietal region 6 x 5 cm, two fingers above right ear. 5. Abrasion over the left knee 2 x 2 cm. 6. Abrasion over the left (a) mid arm laterally 1 x 1 cm. (b) forearm 1 x1 cm lateral aspect. On opening the body, swelling, measuring 6 x 6 cm over temporo parietal ® region 2 finger above the right ear and 4 cm posterior to right supraceiliary margin was noticed. Haemotoma after reflection of scalp 10 x 6 cm over the temporo parietal bone 2 cm above the ear (right) 4 cm posterior to supra orbital margin was noticed. Depressed communited fracture on right temporo parietal bones extending 3 cm from right supraorbital margin obliquely upward through temporal bone upto 7 cm on the parietal bone and transversely from parietal point upto 5 cm on parietal bone was also found. Time lag between the injuries and the death was opined to be 12 to 18 hours. Postmortem examination was conducted at 10.30 a.m. on 24th May, 1994. 4. When the deceased was still alive, his medical examination was conducted by PW-11 Dr. (Ms) Suniti A Ganju and she made the following observations: …4… Patient unconscious, comatosed, cold. No response to external and painful stimuli. Pulse 50 per minute irregular. Blood pressure was 60 mm hg. Heart rate irregular. Breathing slow, irregular. Chest: Added sounds present. No smell of alcohol in breath. Reflexes not elicited. Eyes: Right- bluish discolouration of the upper eye lid. Lacerated wound 1 cm. long on the upper lateral aspect of sclera. Pupils fixed and dilated. No reaction to light. Left eye: pupils fixed and dilated. No reaction to light. Nose: Clotted material present over the nostrils. No fresh bleeding. Head: swelling present over the temporo parietal region 6 x 5 cm two fingers above the right ear. No external injury or bleeding at the site of the swelling. No bleeding through ears. Chest: No external injury noted. Abrasions over the left upper limb. Over the lateral aspect of mid arm 1 x 1 cm. Over the lateral aspect of the mid forearm 1 x 1 cm. Abrasion over the left knee 2 x 2 cm. No other external injury noted. She issued medico legal report Ex. PW-11/A. She gave the opinion that the injuries were dangerous and had been caused with some blunt weapon. When in the witness-box …5… she opined that the injuries could have been caused by means of Danda Ex. P-1. Viscera was sent to the Chemical Examiner, who found liquor in the blood as also the urine of the deceased, to the extent of 66.34 and 80.5 mg, respectively. 5. Respondent Karmoo and Devinder, the other named accused in the FIR, were arrested. No evidence could be gathered against Devinder. So he was discharged, during investigation. Respondent Karmoo, while in police custody, made a disclosure statement leading to the discovery of Danda Ex. P-1. 6. Respondent was challaned. Learned Judicial Magistrate to whom the challan was presented committed the case to the Sessions Court, after complying with the requirement of Section 207 of the Code of Criminal Procedure. Learned Sessions Court charged the appellant with offence, under Section 302 of the Indian Penal Code. 7. Prosecution examined Lohtu Ram @ Joginder (PW-2), Jeet Singh (PW-8), Jeet Singh’s wife Devku (PW-3), Daulat Ram (PW-1), brother of the deceased, Daulat Ram (PW-4), Junior Engineer, Krishan Chand (PW-5), Ashok Kumar @ Guddu (PW-7), Sohan Lal (PW-12) and Investigating Officer Prakash Chand (PW-14) to prove the charge. 8. Respondent took the plea that the deceased was heavily drunk and he started quarrelling with him and …6… Devinder, the discharged accused, on way to village Deem from Khara Pathar and that he hit him on his head with a Danda, upon which he pushed him and as a result he fell down and thereafter the deceased again stood up and started grappling with Devinder, the discharged accused, but in the meanwhile he went away. He stated that he did not know what happened after he had left the scene. He denied having made disclosure statement leading to the discovery of Danda Ex. P-1. He stated that Devinder had been discharged, because of his being related to PW-2 Joginder @ Lohtu, PW-8 Jeet Singh and his wife PW-3 Devku. 9. Trial Court believed respondent’s version, relying upon the testimony of PW-11 Dr. Suniti A Ganju, who proved medico legal report Ex. PW-11/C, per which the respondent was medically examined on 27th May, 1994 and was having a wound on his head, which was more than three days old and swelling and tenderness were still present. 10. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent and perused the record. 11. PW-2 Joginder @ Lohtu testified that on 23rd May, 1994, he went to Khara Pathar, where respondent Karmoo met him and after some time deceased Chet Ram also joined them and they all alongwith one more man by …7… the name of Chet Ram son of Gulab Singh consumed liquor, arranged by the deceased and after that Chet Ram son of Gulab Singh went away. He stated that after some time another bottle of liquor was purchased, for which money was provided by the deceased and after consuming the second bottle of liquor he, deceased Chet Ram and respondent Karmoo went to the bus stop at Khara Pathar, where they took tea at the shop of one Shupu and from there they proceeded towards village Deem. He further testified that on the way deceased and the respondent had an altercation over an amount of Rs.50/-, which the deceased owed to respondent Karmoo, but he intervened and they again started proceeding towards village Deem. He further stated that on the way Sohan Lal, Patwari, met them and the deceased demanded some copies of revenue papers from that Patwari, but the latter told him that he being drunk should visit him next morning to get the copies. According to him, they then again proceeded towards village Deem and on the way Devinder, the discharged accused, met them and he also started walking in their company and when they reached near the sawmill of one Nand Lal, respondent again demanded the amount of Rs.50/- from the deceased and then picked up a stone and tried to hit the deceased, but he intervened. He further stated that after they crossed a nullah, respondent again picked up a stone and hurled the same at the deceased, but …8… it did not hit him. He stated that when they reached near Kali Temple, one Guddu met them and asked him to provide a Bidi and when they were lighting the Bidi, respondent picked up a Danda from a nearby fence and dealt a blow on the head of Chet Ram. He further stated that when he started going towards his house and went at a little distance, one Ravidner, who was present in his orchard, called him and enquired about the quarrel going on by the side of the road and he informed him that respondent Karmoo and deceased Chet Ram were quarrelling with each other. According to him, Ravidner told him that he had seen respondent Karmoo running away and that they should trace him. He further stated that he and Ravinder searched for Karmoo but did not succeed and when he returned to the site, where the quarrel was going on he found a girl sitting beside Chet Ram. He then carried Chet Ram on his back to the house of Jeet Singh. He stated that Chet Ram was injured at that time. He stated that when he reached Jeet Singh’s place, Jeet Singh and his wife Devku were there and that on enquiry he told Jeet Singh that Karmoo had caused injuries to deceased Chet Ram. He further stated that thereafter he left Jeet Singh’s place for his own house and on the way Daulat Ram, brother of the deceased, met him and he narrated the entire incident to him and returned to Jeet Singh’s place with said Daulat Ram. …9… 12. Prosecution did not examine Ravinder, the Orchardist, who allegedly heard the deceased and the respondent quarrelling by the side of the road and saw the respondent running away after the quarrel. It also did not examine Devinder, the discharged accused, who was allegedly present on the spot. The girl, who was seen sitting beside the deceased, when PW-2 Joginder returned to the spot, was also not examined. 13. Guddu @ Ashok Kumar was examined as PW-7. He did not corroborate Joginder’s testimony about the respondent having dealt a Danda blow to deceased Chet Ram, though he did say that he saw a Danda in the hand of the respondent. Devku Devi and Jeet Singh were examined. PW-3 Devku Devi stated that PW-2 Joginder @ Lohtu brought the deceased to her place and when she asked him (Joginder witness) as to what had happened, he told her that respondent Karmoo had given a blow to deceased Chet Ram. She stated that she was then asked by her husband PW-8 Jeet Singh to inform PW-4 Daulat Ram, Junior Engineer, who is a relative of the deceased and lives in village Deem. PW-8 Jeet Singh stated that on 23rd May, 1994, when he was working in his field at Khara Pathar, Joginder shouted to him that he had left deceased Chet Ram at his house, as he was not in a position to walk and something had happened to him and upon that he went to his house and saw Jeet Ram lying injured, with blood …10… coming out of his nose and on his asking deceased Chet Ram told that he had been beaten up by respondent Karmoo. 14. Testimony of PW-2 Joginder, to the extent that when he carried deceased Chet Ram to the house of Jeet Singh, he (Jeet Singh) and his wife Devku were there, is falsified by PW-8 Jeet Singh, because the latter has stated that he was in his field and it was there that he was informed by Joginder that he had left the deceased at his place. The witness does not say that PW-2 Joginder told him that deceased Chet Ram had been beaten up or had been dealt blow of Danda on the head by respondent Karmoo. 15. Prosecution also examined one Rajinder Singh (PW-6), who stated that on the relevant date when he alongwith one Prakash was returning to village Deem from Khara Pathar, deceased Chet Ram met them, who was lying on the road and was highly intoxicated and that when he asked deceased Chet Ram if he could carry him to his houe, he refused to accompany him and told that he wanted to stay at Jeet Singh’s house and that at that time Joginder was also there. Joginder does not say that PW-6 Rajinder Singh came on the spot, when deceased Chet Ram was lying there. 16. Some material parts of the statement of PW-2 Joginder do not inspire confidence, not only because of …11… other witnesses having contradicted his statement with respect to those parts, as noticed above, but also on account of some more contradictions and inconsistencies. According to PW-2 Joginder, Danda, with which the deceased was hit by the respondent was picked up by the latter from near the site where the blow was given, but according to PW-14 Prakash Chand, Investigating Officer, Danda had been picked up by the respondent from a point 200 metres short of the point where the blow was given. 17. Another very strong reason for not relying upon the uncorroborated testimony of PW-2 Joginder is that he himself was suspect in this case. He admits in his cross- examination that he had been detained by the police and was beaten up. He also admits that Devinder, the discharged accused, had also been detained alongwith him and given beating by the police. It appears that this witness was released only when he agreed to become a witness in the case and also agreed to get his statement recorded, under Section 164 of the Code of Criminal Procedure, before the Magistrate. It has come in the evidence that statement of this witness was recorded, under Section 164 of the Code of Criminal Procedure, during the course of investigation. The fact is admitted by the witness himself. The Investigating Officer of the case, namely PW-14 Prakash Chand, has admitted that the application for making statement, under Section 164 of the …12… Code of Criminal Procedure, had been written at the Police Station. 18. Statement of PW-2 Joginder that he carried the deceased to the house of PW-8 Jeet Singh, before Daulat Ram (PW-4) made a call to deceased’s brother Daulat Ram (PW-1), also appears to be incorrect. PW-1 Daulat Ram stated that he first went to the spot, where his brother was hit, as he was informed that he was lying injured there, but on reaching the spot he came to know that Joginder had carried his brother to Jeet Singh’s place. That means it was not PW-2 Joginder, but someone else who informed Devku (PW-3) and Jeet Singh (PW-8) about the condition of the deceased and at that time the deceased was not at their place. Introduction of this false story also makes the statement of PW-2 Joginder unreliable. 19. If the statement of PW-2 Joginder is excluded, there does not remain much evidence on record to hold the respondent guilty. Respondent’s plea that the deceased first hit him with a Danda on his head is probabilized by prosecution’s own evidence. Respondent was having an injury on his head, when medically examined on 27th May, 1994. He was in police custody at that time. Injury was opined to be more than three days old. PW-11 Dr. Suniti A Ganju admitted that the injury was as old as the injuries noticed on the person of the deceased, whom she medically examined, when brought in an injured state to the Hospital. …13… The injury, according to PW-11 Dr. Suniti A Ganju, found on the person of the respondent, was dangerous to life. Tenderness and swelling was still present at the site of the injury of the respondent, when his medical examination was conducted four days later. Prosecution has not offered any explanation for the injury that was found on his head. In the absence of any explanation from the side of the prosecution and the testimony of PW-2 Joginder being not believable, there can be no escape from accepting the defence plea. In view of the above discussion, we are of the considered view that the judgment of acquittal passed by the trial Court calls for no interference. Hence, the appeal is dismissed. ( Surjit Singh ), J September 3, 2009(sd) ( Surinder Singh ), J