HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 472 of 2003 Reserved on: 23.7.2010 Decided on: 6.9.2010 Hanif Mohd. ……… Appellant. Versus State of H.P. ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.N.K. Thakur, Advocate. For the respondent: Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J.: This is an appeal filed by the appellant under Section 374 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Chamba, dated 30/31.10.2003, vide which the appellant was held guilty under Sections 307 and 325 of the IPC and was sentenced as under: Under Section 307 IPC Rigorous imprisonment for a period of five years and to pay a fine of Rs.20,000/-. In default of payment of fine, to undergo simple imprisonment for a further period of one year Under Section 325 IPC Rigorous imprisonment for a period of one year and to pay a fine of Rs.2,000/-. In default of payment of fine, to undergo simple imprisonment for a further period of two months. ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - 2. Briefly stated the facts of the case are that on 27.11.2001, a statement under Section 154 of the Cr.P.C. was made by one Piar Deen before a police officer at Referral Hospital, Chowari, where the complainant/injured had been brought for treatment. In this statement, the complainant alleged that one Hanif had taken contract for laying telephone wires and the complainant was working as a Mate. It was further alleged that 3600 meters of telephone wire was got laid by the complainant by employing 30 persons and the complainant had himself worked also for which a sum of Rs.11,065/-, which was due to the complainant from the accused. He further alleged that when he demanded money from the accused, he stated that the money has been taken by Gulam Hussain from original contractor Kamal Deen and he will take the money from him and pay it to the complainant. He asked the accused to accompany him to the house of the Contractor Kamal Deen and they both came to Chamba by bus on 26.10.2001. Thereafter, on the next day, they came in a private bus to Lahru and the accused asked the complainant to accompany him on foot. They covered a distance of about 1.00 km and Kamal Deen came in a vehicle, enquired about his name and Kamal Deen pointed towards Hanif that he had misappropriated his money. Thereafter, the accused asked the complainant to accompany him to Chowari. The accused was walking towards the left of the complainant and was taking him to road side and the complainant could not understand the reason. Thereafter, when they reached near deep ‘dhank’, the accused pushed the complainant with both his hands from the said ‘dhank’ and the complainant fell down about 20-25 feet. He - 3 - got entangled there in the ‘dhank’ and the accused started throwing stones upon the complainant. One of the stone hit the complainant on his head, another hit him on his hips and with the blow given by the stone, the complainant rolled down 200 feet and he cried loudly on which two girls and one scooterist going on the road side rescued him. Thus, it was alleged that the accused had attempted to kill him. 3. On this report, an FIR was registered and the complainant was also got medically examined. After investigation, the challan was filed before the court of the learned Sub Divisional Judicial Magistrate, Dalhousie, who committed the case to the Court of the learned Sessions Judge, Chamba. The learned Sessions Judge tried the respondent for the Sections mentioned above, leading to the conviction of the accused. 4. I have heard the learned counsel for the parties and have gone through the record of the case. 5. The submissions made by the learned counsel for the appellant were that this fact was not established from the documentary evidence or any other evidence that the appellant owed some money to the complainant. It was also submitted that there are some contradictions in the statements of the witnesses and infirmities in the prosecution case, which have not been cleared and the investigation, in question, was also not fair and keeping in view the evidence, the guilt of the accused was not established beyond any reasonable doubt. The contradictions referred to and the infirmities pointed out shall be discussed in the following paras. It was also submitted that - 4 - it was not established on record that any witness had seen the accused pushing the complainant down the ‘dhank’. Thus, it was finally submitted that there is nothing on the record to establish that the accused had the intention to kill the complainant and the ingredients of offence under Section 307 of the IPC were not established. 6. On the other hand, the learned Assistant Advocate General for the respondent State had submitted that there are no material contradictions or infirmities in the prosecution case and the contradictions referred to, if any, are very minor and do not affect the credibility of the prosecution witnesses. It was also submitted that the ingredients of the offence under Section 307 IPC had been fully established from the evidence and there are no reasons to disbelieve the prosecution story and as such the guilt of the appellant was established, who has rightly been held guilty and convicted and sentenced by the learned trial Court. 7. On appraisal of the evidence led by the prosecution, it is very much clear that there is statement of complainant Piar Deen, who has been examined as PW-2. He has clearly stated that he had been working as labourer with the accused and had also supplied labour to him for the execution of the work taken on contract by him. He had engaged and deputed 30 labourers at the work of the accused and the accused had not paid any amount to him to disburse the same to the labourers. The amount required to be paid to the labourers was Rs.65,640/- and the complainant was to get commission also out of this amount, apart from Rs.11,000/- - 5 - for the work done by him. He further stated that he demanded these amounts from the accused, who assured him to pay the same. The accused was to take this amount from Kamal Deen with whom he was working as a Munshi (sub contractor). PW-2 the complainant further stated that about 1-1/2 years back, he demanded the money from the accused, who took him in the bus from Bhanjraroo to Chamba and then on the next day to Lahru. The accused stated that they would go on foot since the distance was not far. The complainant was not familiar with the area since he had never been to this area. Kamal Deen, Contractor, met them on way, who asked the accused as to why he had not made the payment for labour supplied to him, to the complainant, on which the accused assured that he would make the payment. The complainant refused to accompany the accused since he was a stranger to the area but the accused again insisted to go to Chowari on foot by covering a distance of about 200 meters. He further stated that the accused took him upto some distance from the rain shelter from Chowari and thereafter pushed him down from the ‘dhank’ and resultantly he fell down upto 20-25 feet in the nallah and got stuck up on some rocky surface. Thereafter, the accused came down and pelted stones and he sustained injuries on the right side of his face and also on his back and rolled down further in the nallah and finally fell in the nallah. PW-2 complainant further stated that two ladies and one scooterist came there on the road above him and he narrated them about the occurrence. He was brought to the road and then to Chowari Hospital. His clothes got smeared with blood. He also stated that he was having one envelope - 6 - containing a register, three copies of accounts, torch and inch-tape of 15 meters and papers of accounts. He further stated that he lodged the report Ext.PA, which bears his signatures. He has stated that he had written the entire amount pertaining to labour supplied by him in Ext.P-3 and Ext.P-4. He also proved the receipt given by the accused with his signatures Ext.P-4/1. He had also prepared the muster roll of the labourers Ext.P-4/2 and details of the wires laid down vide Ext.P-4/3. These were taken in possession by the police vide recovery memo Ext.PP in the presence of witnesses. He was also medically examined. He had produced blood stained clothes to the police in the presence of the witnesses. He admitted that he cannot read or write but he can put his signatures. He admitted that he had not filed any suit for recovery of the said amount. He further stated that when they were walking, he had seen both the ladies standing on the curve on the road. When he had been thrown from the road, he had made a noise and those ladies had also raised their voice. He denied the suggestion that he had fallen of his own since he was drunk. No such suggestions were put to the complainant that he had falsely implicated the accused or was not accompanying the accused at the relevant time. The only suggestion made was that the case had been made out because of enmity, which was denied by the complainant. 8. PW-4 Kumari Sonika, aged 14 years, has stated that she was a student of sixth standard. There is a rain shelter at Jartoon on Lahru-Chowari road. She alongwith her aunt were going on 27.11.2001 from Chowari to their house. On - 7 - a curve, they saw that the accused had thrown PW-2 Piar Deen down the road by giving him a push and thereafter he also pelted stones at the complainant due to which he rolled down further. Piar Deen cried for help, then a scooterist PW-3 Parveen Kumar came there. In cross examination, she stated that when she saw the accused pushing Piar Deen down, she was at a distance of about 7-8 feet from them. The stones had hit Piar Deen. She further stated in her cross examination that after about five minutes, person with the vehicle came there, who brought the injured up on the road. Piar Deen had climbed up the hill to reach the road. She denied the suggestion that she was deposing falsely at the instance of the complainant or her father had any civil litigation with accused. The statement of this witness was not shattered in cross examination to show that she was not present at the spot, had not seen the accused going with the complainant or pushing him and there is nothing material in her cross examination to show that her statement cannot be believed. She is a young girl of the age of 14 years and has no reason to depose falsely and no such reason was brought on record also. The other witness, namely, Rachna Devi, aunt of PW-4, was given up by the prosecution. 9. The above statements of the prosecution witnesses have been further corroborated by the statement of PW-3 Parveen Kumar, who has stated that he was going on his scooter from Pathankot to Chamba and two ladies met him at a distance of about 3 kms. from Lahru and told him that a person was thrown down the road and was lying below the road. Two boys also met him and they asked him to bring police and - 8 - he went to the Bus Stand Chowari and brought the police. He stated that both these ladies are present outside the court today but those boys are not present. He further stated that when he brought the police on the spot, those boys were slapping the accused present in the court. This was a natural reaction of the boys and this witness has specifically stated that the boys were slapping the accused present in the Court. He denied the suggestion that he had not seen the accused throwing stones on Piar Deen or that Piar Deen had further rolled down to a distance of 200 feet. He was declared as hostile and was allowed to be cross examined since he had partly resiled from his statement. A suggestion was put to him as to why he had slapped the accused, but the witness kept mum. Nothing was elicited from his cross examination to show that he was not present at the spot, had not seen the accused on that day or slapped him or there is any reason for him to depose falsely as against the accused. 10. Apart from the above, the prosecution has also examined PW-1 Dr.Ritu Wangnu, Medical Officer, who had examined the complainant Piar Deen on 27.11.2001 and observed as under: “Wound on the right zygomatic arch of maxilla and there was right black eye. Intra-oral examination Lacerated linear alba buccalis. The number of teeth present were on the upper left side 1 2 3 4 5 (6 7) GD and 8 and on upper right 1 2 3 (4 5) GD and 6 and lower left side 1 2 3 4 5 7 and on the lower right side 1 2 3 4 5 6 7 and the number of teeth absent upper right 8 and lower right and left 8 and upper right 1 and 2 great I mobility. I advised X-ray in relation to upper 1 and 2 teeth and AP of skull and right lateral view of skull. Thereafter the patient was referred to Dr.R.P. Medical College and Hospital, - 9 - Dharamshala for further treatment. As per the skia-gram Ext.P.1 and report thereof Ext.PW.1/A, I declared the injury grievous in nature (objected to on the ground that the patient was not x-rayed in my presence). I advised the patient for x-ray for dental injury and after perusal of x-ray I declared the injury to be simple in nature. My opinion is Ext.PW-1/B on MLC Mark-X, which is in my hand and bears my signatures. This injury could be possible by fall as well as by stone blow.” 11. The prosecution had also examined PW-9 Dr.R.J. Mahajan, who examined the injured on 27.11.2001 and observed as under: “On 27.11.2001 in the evening the injured Pyar Deen was brought to referral Hospital Chowari. Pyar Deen injured is the same person present in the Court today. I medically examined said Piar Deen s/o Noor Deen age 35 years on 27.11.2001 and observed that it was an alleged history of assault and throwing by a person known as Hanif s/o Shuker Deen in resident of Laduhad, P.O. Tikri Garh Teh. Churah, Distt. Chamba while walking with him at Lahru Chowari road. There was also history of rolling down the khad. The assailant threw stones which hit him on the head and left hip. There was no history of lost of consciousness/vomiting or G.T.C.S.” In regard to the injuries, it was observed by this witness as under: “Injury No.1 There was 2 CM x 0.5 CM long lacerated wound with active bleeding present at right zygomatic area oblique in shape. Injury No.2 There was red coloured bruise irregular in shape 20 CM x 9 CM at right knee and adjoining areas of lower limb towards upper directions. There were multiple satellite bruises red in coloure around it. Injury No.3 Multiple small bruises 22 to 23 in numbers red in colour at left knee. - 10 - Injury No.4 There was a 4 CM x 2 CM read coloured bruises over left gluteal region with tenderness on palpation over this area. Injury No.5 There was 3 CM x 1.5 CM abrasion red in colour without active bleeding at right shoulder on posterior aspect. Injury No.6 Mouth opening was restricted. There was tenderness over right angle of mandible and above it towards T.M. joint.” This witness further stated that according to dental opinion, the nature of injury No.1 was grievous and the remaining injuries were simple in nature. 12. He has also proved the MLC Ext.PC. A perusal of the MLC Ext.PC shows that the examination was conducted at 3.05 p.m. on the same date i.e. on 27.11.2001. It was written by the Medical Officer that there was an alleged history of assault and throwing by a known person, namely, Hanif, son of Shuker Din. It was further mentioned that there was a history of rolling down the Khad and then the assailant threw stones, which hit the injured on head and right hip. This is the first version given by the complainant at the earliest, which gives support to the testimony of the complainant and other witnesses examined by the prosecution. There was no opportunity for the complainant to manipulate the things or falsely implicate the accused or introduce witnesses. The FIR had also been registered at the earliest on the same day at 3.40 p.m. and as such there was no opportunity for the complainant to falsely make out a case. - 11 - 13. The statements of other witnesses are formal in nature, which have been discussed by the learned trial Court also. 14. Coming to the infirmities pointed out, the complainant as PW-2 has stated that he was taken to the hospital and his statement Ext.PA was recorded therein. PW- 8 HC Jagdish Chand has also stated that the complainant was got medically examined vide MLC Ext.PC. He had filed an application Ext.PK before the Medical Officer, R.H. Chowari before recording the statement of Piar Deen whether he was fit to make statement and thereafter, after taking the opinion, he recorded the statement Ext.PA. There is no contradiction in the statement of the Investigating Officer to suggest that he recorded the statement at the spot, as argued by the learned counsel for the appellant. The witness is clear that he recorded the statement of the complainant at R.H., Chowari on the same day when he was brought to the hospital. However, the evidence shows that the Investigating Officer took into possession the other articles, namely, tape, note books, register, stones etc. in the presence of the witnesses. 15. It is in the evidence of PW-9 Dr.R.J. Mahajan that he went to the spot on the next day on the request of police and inspected the site of crime and gave his opinion that fall from such a height is dangerous and is sufficient, in natural course, to cause injuries leading to death of a person. The mere fact that it had mentioned the date in Ext.PW-9/A wrongly as 20.12.2001, instead of 28.11.2001, is not sufficient to disbelieve him since the date was corrected - 12 - by him. However, a perusal of the report of visit of the site of crime Ext.PW-9/A clearly shows that the FIR number and date of visit was clearly mentioned as 28.11.2001, though in the last sentence, the date when the packet was handed over to the police, was mentioned as 20.12.2001, which has been satisfactorily explained by the witness. The stones were also sent to the expert as per the evidence and the blood was found on the stones, which was human blood, but the grouping was not possible. This also gives credence to the testimony of the complainant that he had suffered the injuries at the place of occurrence which has been further corroborated by this report also. 16. No other particular infirmity was pointed out during the course of arguments and there is nothing to show that the investigation in this case was not fair. 17. On appraisal of the evidence led by the prosecution and the reasoning given by the learned trial Court, it is clear that the accused had given a push to the complainant and thereafter also pelted stones upon him and as a result of the push, the death was likely to be caused in the ordinary course of business. One of injury in question was proved to be grievous in nature and others were simple in nature and the ocular version given by the witnesses duly stands corroborated by the medical evidence. 18. The intention has to be gathered from the facts and circumstances of the case and the manner in which the attempt was made. To substantiate his submissions on this point, the learned Assistant Advocate General has relied upon the following decisions. The decision in R.Parkash versus - 13 - State of Karnataka, AIR 2004 Supreme Court 1812, was relied upon. The observations made in para 9 are relevant and are being reproduced below: “It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Sections makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, it is not correct to acquit an accused of the charge under Section 307, IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt.” 19. Reliance was also placed upon the decision in Kartik Malhar versus State of Bihar, (1996) 1 Supreme Court Cases 614, in which the following observations were made in para 7, which are relevant and are being reproduced below: “Conviction can be recorded on the basis of the statement of a single eyewitness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. The court will not then insist on corroboration by any other eyewitness particularly as the incident might have occurred at the time or place when there was no possibility of any other eyewitness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence.” 20. In regard to the discrepancies or infirmities, if any, reliance was placed upon the decision in State of H.P. versus Lekh Raj and another, (2000) 1 Supreme Court - 14 - Cases 247. The observations made in para 7 are relevant and are reproduced below: “Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution’s case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the dispositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement.” 21. In view of the above discussion, it is very much clear that the intention was writ large when the accused insisted the complainant to go on foot and gave him a push from the road and keeping in view the attempt made by the accused and the nature of injuries suffered and the fall, which could have led to the death