IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 336 of 2006 Reserved on : 14.5.2008. Date of decision : 17.6.2008 Sanjeev Kumar Appellant Versus State of H.P. Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Appellant: Ms. Ranjana Parmar, Advocate. For the Respondent: Mr. Vivek Thakur, Addl. Advocate General. Deepak Gupta, J. This appeal is directed against the judgement of the learned Sessions Judge, Mandi, dated 30.9.1996 in sessions trial No. 37 of 2005, whereby he has convicted the appellant under Section 304 part 1 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and to pay fine of Rs.2,000/-. In case of default of payment of fine the accused has 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. been directed to undergo further imprisonment for six months. The prosecution case in brief is that on 16.4.2005 the deceased Rajesh Kumar alongwith his father Girdhari Lal had plastered the stairs leading to their house. Appellant Sanjeev Kumar, father Ranjit Singh and Kanta Devi are admittedly the neighbours of Girdhari Lal and his family members. According to the prosecution, when the stairs were being plastered the accused Sanjeev Kumar objected to the same. The deceased and his family members told accused Sanjeev Kumar that this matter would be discussed with his parents. On the evening of 16.4.2005 Girdhari Lal left for Shimla. Next day on 17.4.2005 at about 4-5 p.m Rakesh Kumar alongwith his brother Rajesh Kumar and his wife were watching a match on television. They heard some noise and abuses from the courtyard side. They came out and found that the accused persons, i.e. Sanjeev Kumar and his parents were abusing them for plastering the stairs with cement. Rakesh Kumar (PW- 15) tried to pacify them but the accused started giving kick and fist blows to them. In the mean time, accused Sanjeev Kumar went towards his house and brought Khunta Ext.P-5 and started damaging the stairs. Rakesh Kumar and other family members tried to prevent Sanjeev Kumar from breaking the stairs. Accused Sanjeev Kumar gave a push to PW-15 Rakesh Kumar who fell down. Thereafter, accused Kanta allegedly proclaimed that the matter should be settled once for all. Deceased Rajesh Kumar, the elder brother of PW-15, tried to persuade the accused Sanjeev Kumar not to damage the stairs but the accused Sanjeev Kumar given a blow with Khunta on the head of Rajesh. Resultantly, Rajesh fell down and blood started oozing from the injury. Sanjeev then escaped from the spot. The complainant party raised a hue and cry and many villagers came to the spot. Meena Kumari, wife of Rajesh Kumar and Shakuntala aunt of Rajesh Kumar lifted him in an injured condition from the ground. A vehicle was arranged to take Rajesh Kumar to the Referral Hospital, Sarkaghat, where he was examined by Dr. Ashok Chauhan (PW-13) at about 5 p.m. He found that the injured was unconscious in deep coma, not responding to painful stimuli. Wound was noticed on the scalp which was 5 c.m long and 1.5 c.m deep. There was blood on the clothes of Rajesh Kumar. Other medical investigation was carried out and Rajesh Kumar was referred for further treatment to Zonal Hospital, Mandi. However, Rajesh Kumar died on the way to the Zonal Hospital. When Rajesh Kumar was in the hospital, PW- 12, Vinod Kumar, received a telephone call from the Medical Officer about the admission of an injured person. He made Rapat Rojnamcha Ext.PF in this regard and thereafter HC Kashmir Singh went to the Referral Hospital Sarkaghat and recorded the statement of PW-15 Rakesh Kumar under Section 154 Cr.P.C Ext.PO, on the basis of which F.I.R. Ext.PS was registered by Inspector Hari Ram PW-20. PW-14 Dr. Naveen carried out post mortem on the dead body of Rajesh Kumar and found that skull bone was fractured on the left side of the temporal parietal junction and depressed fracture was seen with brain matter disrupted upto 3 c.m depth inside cranium. These injuries, according to doctor were sufficient to cause death in normal course. Further, investigation was carried out by the police and clothes of the deceased were taken into possession. Accused Sanjeev Kumar was taken into custody and according to the police he produced Khunta Ext.P5 vide recovery memo Ext.PB from his store. Thereafter the challan was filed and the case was committed to the Court of Sessions. Charges were framed against the accused under Section 302, 504 and 34 IPC to which the accused pleaded not guilty and claimed trial. The prosecution examined as many as 21 witnesses in support of its case. Statement of the accused was recorded under Section 313 Cr.P.C. The accused did not examine any witness in defence. After considering the entire material on record, the learned Sessions Judge convicted the accused Sanjeev Kumar under Section 304 part 1 and sentenced him as aforesaid. The co-accused were acquitted. Aggrieved by the said judgement, the present appeal has been filed. I have heard Ms. Ranjana Parmar, learned counsel for the accused and Shri Vivek Thakur, learned Additional Advocate General for the State. The main contentions made on behalf of the appellant are that various improvements have been made in the statements, especially those of the complainant. In the statement of complainant, Ext.PO, made to the police, it is recorded that Shri Bhag Singh, Shakuntla, Phulan Devi, Vazir Singh and other villagers were standing there, but in Court PW-15 has stated that these persons came later. It is also contended that independent witnesses have not been examined and the parrot like version of the prosecution witnesses has been believed. It is next contended that the recovery of Khunta is not legal and is not in accordance with Section 27 of the Evidence Act. It is lastly contended that no blood stains were found on the Khunta and therefore, the recovery of Khunta and the same being used for committing the offence cannot be believed. I have gone through the statement Ext.PO as well as the statement of PW-15 recorded in the Court. Both the statements are virtually identical. The complainant had repeated what he has stated in his first version. True it is, that in the statement Ext.PO he has stated that Bhag Singh, Shakuntla, Phulan Devi, Vazir Singh and other villagers were standing there. This statement does not show that the incidence was witnessed by these persons. It only means that they were standing. At what time they came is not stated. Statement under Section 154 Cr.P.C. or the F.I.R is not an encyclopedia of the occurrence. The crux of the statement both in the FIR and in the Court is the same. The crux is that when accused Sanjeev Kumar was being persuaded to stop dismantling the stairs he gave a Khunta blow to Rajesh Kumar on his head as a result of which he fell down. In Court the witness has clearly stated that when his brother Rajesh fell down in the meantime Phulan Devi and Vazir Chand, etc. arrived at the spot. One must take into consideration the fact that when the statement under Section 154 Cr.P.C. was recorded the witness must have been in a confused state of mind because his brother was fighting between life and death. Minor variations in the statement cannot be used to discard the evidence of the witnesses. Much stress has been laid by the appellant on the fact that whereas in the Court this witness has stated that they were given kick and fist blows, this fact is not recorded in Ext.PO. Similarly, in Court, this witness has stated that when he was pushed by accused Sanjeev Kumar he fell down into the bushes whereas in Ext.PO this is not mentioned. These are only minor variations. On the other hand on behalf of the accused a suggestion was put to this witness that accused Sanjeev Kumar came with the intention to dismantle the stairs with a Khunta. Therefore, the presence of Sanjeev Kumar and the fact that he was using a Khunta is not denied. Another suggestion put to this witness is that the deceased tried to snatch the Khunta and thereby fell on the heap of bricks resulting in injury. PW-1 Girdhari Lal, has just spoken about the stairs being cemented and then he left for Shimla. Therefore, he is not an eye witness to the incident. Meena Kumari (PW-2) is the widow of the deceased. She has supported the prosecution version. According to her when accused Ranjit asked as to why the stairs have been plastered with cement they replied that the shape of the stairs has not been changed. Thereafter there was exchange of hot words. In the meantime, mother-in-law of this witness, i.e. mother of the deceased also arrived. Then accused Sanjeev Kumar left for his house and returned with a Khunta and tried to dismantle the stairs with the same. PW-15 objected to the same and then accused Kanta stated that “Phaisla ho ke rahega” . Accused Ranjit gave a push to PW-15 who fell down on the ground. Sanju gave blow with Khunta on the head of her husband as a result of which he fell down and accused Sanju ran away. Thereafter, they raised a hue and cry and Vajir, Phulan and other co-villagers came there. The suggestion put to this witness in cross- examination is that all the persons grappled with accused Sanju and during the scuffle her husband fell down on the ground on his head and as such sustained the injury. According to her she saw Vajira and Phulan and other co- villagers who arrived at the spot when her husband was already lying on the ground in an injured condition. A suggestion has also been put to this witness that the complainant party pelted bricks from the heap of bricks on the accused person and one of such bricks hit her husband resulting in the injury. Shitla Devi, PW-3 is the mother of the deceased. Her version is virtually identical. She, however, in cross-examination has stated that her son Rajesh tried to snatch the Khunta from accused Sanjeev Kumar. However, she has denied the suggestion that her son could not snatch the same but fell done on the bricks with his head down resulting in the injuries. PW-6 Phulan Devi has stated that she reached the spot immediately after the incident had occurred. PW-10 Kashmir Singh has stated that Khunta was produced by Sanjeev Kumar from his store. He has not been cross- examined with regard to the recovery of Khunta. He has admitted the suggestion that the Khunta was smeared with cement. PW-11 has partly investigated the case and in his presence the Khunta was recovered. He has stated that he did not record disclosure statement of the accused under Section 27 of the Indian Evidence Act. His version is that accused simply stated that he could get the Khunta recovered. PW-13 Dr. Ashok Chauhan has proved the injury on the person of the deceased and has also stated that the said injury could be caused by Khunta Ext.P5. He has denied the suggestion that the injuries were possible if a person fell from a height on an object like Khunta. PW-14, Navneet Chauhan, has proved the post mortem report. Statement of PW-15, Rakesh Kumar, has already been dealt with in detail. PW-16, Shakuntla Devi, is the aunt of the deceased. According to her, the incident took place in her presence and she has totally supported the prosecution case. A suggestion has been put to her that deceased Rajesh tried to snatch Khunta from accused Sanjeev and in this process he fell on the heap of bricks resulting in injury on his head. Perusal of this entire evidence clearly shows that there are four eye witnesses to the incident. They have all been examined. They clearly state that accused Sanjeev Kumar hit a blow of Khunta on the head of the deceased. The medical evidence supports this version. The accused have set up contradictory versions to the witnesses in cross-examination. Learned counsel for the appellant has cited a number of authorities to show that if there are major discrepancies between the FIR and the statement in Court then no reliance can be placed on the statement of witnesses. There can be no dispute with this proposition of law. However, in this case as pointed out above, there is no major discrepancy in the statements made to the police and in the statements in the Court. Much stress has been laid by Ms. Ranjana Parmar, learned counsel for the accused on the fact that all the witnesses are family members. This by itself is no ground to reject the case of the prosecution. It is natural for the family members to appear in the witness box. The Judgement reported in Appabhai and another vs. State of Gujarat AIR 1988 Supreme Court 696 has no application to the facts of this case. Mere non production of independent witness is not sufficient to throw out the prosecution case especially when as in the present case. It is clear that the so called independent witnesses had reached the spot after the occurrence and were not present when the occurrence took place. Ms. Ranjana Parmar has also laid great stress on the fact that the recovery of the Khunta has not been proved and that there was no blood strain on the same. She has relied upon Kallikatt Kunhu vs. State of Kerala, (2000) 3 Supreme Court Cases 50. In my view, both these contentions are baseless. The recovery has been made as per Investigating Officer and the witnesses at the instance of the accused. Section 27 of the Evidence Act does not provide that the information given by the accused in police custody must be in writing. Section 27 reads as follows:- “27. How much of information received from accused may be proved – Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police- officer, so much of such information, whether it amounts to a confession or not, are related distinctly to the fact thereby discovered, may be proved. All that is laid down in Section is that when a person in custody deposes about certain facts then so much of the material which does not amount to confession can be proved in accordance with law. What cannot be proved is the confession. Section 27 makes admissible so much of the statement of the accused which leads to the discovery of the some items connected with the offence. Similarly, the lack of blood strains on the Khunta is not sufficient to hold that offence was not committed with a Khunta. The suggestion put by the accused clearly shows that the accused admits that he had a Khunta which he was using to dismantle the stairs. The case set up by the defence is that when this scuffle took place the deceased fell on the Khunta and sustained the injuries. This possibility is ruled out by the medical evidence since the doctor has clearly stated that the injury is not possible by a fall on the Khunta. It is undisputed that the deceased died of a Khunta blow. Assuming for the sake of arguments that the recovery is not in accordance with law then also there is direct evidence on record to show that the accused hit the deceased with a Khunta, which resulted in his death. The other evidence would only be of corroborative nature and the offence is even otherwise corroborated by the other evidence, such as, the medical evidence on record. The trial Court rightly held that offence of murder was not made out since there was no intention to cause death and only offence punishable under Section 304 part 1 had been committed. It is lastly contended that the sentence awarded is very much on the higher side. I cannot accept this contention. If the accused is a young boy, the deceased was also young person, who left behind a widow and old parents. The sentence of five years awarded is absolutely just and reasonable calling for no interference. In view of the above discussion, I find no merit in the appeal, which is accordingly rejected. 17th June, 2008 ( Deepak Gupta ), J. ™