IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.114 of 2007 Reserved on:24.03.2008. Decided on: April 09, 2008. Amrit Lal …Appellant. VERSUS State of H.P. ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant: Mr M.S.Guleria, Advocate. For the respondent: Mr A.K.Bansal, Addl. A.G. Kuldip Singh, Judge This appeal has been directed against the judgment of conviction and sentence dated 30.3.2007 passed by learned Sessions Judge, Mandi in Sessions Trial No.3 of 2006 convicting and sentencing the appellant as follows:- i) Under Section 304 IPC (second part) R.I. for 5 years and fine of Rs.50,000/-. In default to undergo imprisonment for one year. ii) Under Section 353 IPC R.I. for 1 years and fine of Rs.1000/-. In default to undergo imprisonment for 1 month. iii) Under Section 451 IPC R.I. for 1 years and fine of Rs.1000/-. In default to undergo imprisonment for 1 month. Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… All the sentences shall run concurrently and out of the amount of fine, a sum of Rs.50,000 be paid to Smt.Sanjo Devi, wife of Ajit Singh, as compensation. 2. The prosecution case, in brief, is that deceased Ajit Singh at the relevant time was working as Chowkidar in Government Senior Secondary School, Dharampur. PW-1 Rakesh Kumar on 21.8.2005 during the day laid lintel on his new house adjacent to his tea shop. Narain Singh was the contractor engaged by Rakesh Kumar for the job. PW-1 made the payment to contractor Narain Singh and three bottles of liquor to the labour. The appellant was also engaged as a labourer for laying the lintel. PW-1 prepared the meals for the labourers who enjoyed till 9 p.m. Thereafter, labourers went to their respective homes including contractor Narain Singh. 3. Ajit Singh (now deceased) at about 1 or 1.30 a.m. knocked the door of the house of complainant PW-1 Rakesh Kumar who found that Ajit Singh was in an injured condition and blood was oozing out. On being enquired, Ajit Singh told that appellant / accused Guddu had given him beatings with danda. Ajit Singh in an injured condition was taken to hospital at Dharampur. PW-4 Dr.Ajay Verma attended Ajit Singh and gave him first aid. The doctor told PW-1 that Ajit Singh had also come earlier in the hospital and had stated that accused Guddu gave him beatings. The doctor informed the police telephonically at about 7 a.m. and PW-13 Head Constable Joginder Singh posted at Police Post, Dharampur proceeded to CHC Dharampur on motorcycle along with Shyam Lal after making entry in …3… the daily diary, copy Ext.PW. Joginder Singh moved an application Ext.PH for obtaining the opinion of the doctor so as to record the statement of injured. However, the doctor opined that injured was not fit to make a statement. On this, PW-13 Joginder Singh recorded the statement of complainant PW-1 Rakesh Kumar vide Ext.PA and thereupon F.I.R. Ext.PY was recorded at Police Station, Sarkaghat by Inspector Hari Singh PW-14. PW-4 Dr.Ajay Verma examined the injured at about 7 a.m. on 22.8.2005 and noticed three injuries on his body, he advised X-Ray of the skull and the patient was referred to Zonal Hospital, Mandi. According to Dr.Ajay Verma, the injured was unconscious and his pupils were not reacting to light, blood was coming through left ear and the patient was smelling alcohol. After examination and on receipt of report Ext.PD of Radiologist, the doctor opined injury No.1 to be grievous in nature and he issued MLC Ext.PG. 4. PW-15 Uttam Singh, Sub Inspector, came to know that Ajit Singh had died on way to Mandi. He proceeded to referral hospital, filled up inquest papers Ext.PP. The dead body was got photographed from PW-8 Prithvi Raj. The Investigating Officer moved application Ext.PS for conducting the post mortem on the body of Ajit Singh. PW-9 Dr.Harvinder Singh conducted the post mortem on the dead body of Ajit Singh on 23.8.2005 at about 10 a.m. In his opinion the deceased died of head injury i.e. fracture left temporal bone and left extradural haematoma leading to cardio pulmonary arrest. The doctor issued post mortem report Ext.PE. …4… 5. PW-15 Uttam Singh took into possession soil soaked with blood vide recovery memo Ext.PC. He recorded the statements of witnesses, the accused was arrested. The Investigating Officer took into possession documents Ext.PD, Ext.PE and Ext.PF with regard to treatment of deceased. The police also took into possession abstract of attendance register Ext.PM regarding duty of deceased which shows that Ajit Singh deceased was working as Part Time Water Carrier in Government Senior Secondary School, Dharampur. The Investigating Officer prepared spot map Ext.PX. The accused during investigation produced danda which was taken into possession vide memo Ext.PB. On receipt of chemical examiner report Ext.PB and completion of investigation challan was presented in the Court. The accused was committed to Sessions Court. On consideration charge under Sections 302, 353, 451 I.P.C. was framed on 15.6.2006 against the accused, who pleaded not guilty and claimed trial. The prosecution examined 15 witnesses. The statement of accused was recorded under Section 313 Cr.P.C. who pleaded his innocence. The case was not found to be of no evidence, therefore, accused was called upon to enter upon his defence but accused did not lead any evidence in defence. The learned Sessions Judge on 30.3.2007 convicted and sentenced the appellant / accused, as noticed above. Hence, this appeal. 6. I have heard Mr M.S.Guleria, learned counsel appearing on behalf of the appellant, Mr A.K.Bansal, learned Additional Advocate General for the respondent and gone through the record. …5… On behalf of the appellant, it has been submitted that learned Sessions Judge has erred in convicting and sentencing the accused. There is no evidence on record so as to connect the appellant with the commission of offence. The prosecution has not examined any eye witness in the case. The learned Sessions Judge has wrongly relied alleged oral dying declaration of the deceased for convicting and sentencing the accused. In fact, deceased had made no oral dying declaration. The prosecution has not produced admission, treatment record of the deceased from CHC Dharampur. The medical record, which has been produced in the Court, shows that Ajit Singh was examined in the hospital at about 7 a.m. on 23.8.2005 whereas it has been established on record that deceased was in the hospital almost at about midnight. At the time of alleged oral dying declaration made by deceased he was not in his senses and, therefore, statement, if any, made by him cannot be termed as dying declaration. The learned counsel has also submitted that there are other persons in the area also named by the name Guddu and, therefore, it cannot be said that even if somebody or deceased has given the name Guddu that does not mean Guddu is none else but the appellant / accused. He has also submitted that prosecution story is highly improbable. There are material contradictions in the prosecution case. The prosecution witnesses have made improvements. The learned Sessions Judge has not appreciated the material on record properly and has erred in convicting and sentencing the appellant / accused. He has submitted that on the …6… basis of material on record, the appellant is entitled to acquittal. The learned Additional Advocate General has submitted that the prosecution has proved the case against the appellant. The deceased had named the accused by way of dying declaration for causing injuries to the deceased. The learned Sessions Judge has committed no error in convicting and sentencing the accused. The prosecution has proved the case against the accused. The learned Additional Advocate General has submitted that learned Sessions Judge has rightly come to the conclusion that accused is responsible for causing the death of Ajit Singh and for that purpose learned Sessions Judge has rightly relied dying declaration of Ajit Singh coupled with other material on record. 7. In order to appreciate the contentions of either side, it is necessary to refer to evidence which has come on record. PW-1 Rakesh Kumar has stated that Ajit Singh was known to him and he was working as Chowkidar in Government Senior Secondary School, Dharampur. He knew Amrit Lal alias Guddu. He had given contract to contractor Narain Singh for laying slab on his house. The contractor had engaged labour for the job including accused Guddu. He had prepared meals for the labour and the contractor and the same was consumed till 9 p.m. Thereafter, labourers went to their homes including the contractor and the accused. At about 1 or 1.30 a.m. Ajit Singh came to him in an injured condition and fell down on the ground. He enquired from him, but Ajit Singh was unconscious. He brought Dr.Ajay Verma from Government Hospital, Dharampur …7… who gave him first aid and told that Ajit Singh had earlier come to him in the hospital and stated that Guddu had given beatings to Ajit Singh. Again said he had taken Ajit Singh to the hospital by lifting him on shoulder. He then went to the house of Chand Lal, brother-in-law (Jija) of Ajit Singh. He also awakened Basant Singh from his tea shop adjoining to the hospital. The doctor referred Ajit Singh to Zonal Hospital, Mandi and also informed the police. Chand Lal arranged the vehicle and Ajit Singh was brought to Mandi. The witness was declared hostile and was permitted to be cross examined. In cross examination, conducted by Public Prosecutor, he has stated that when Ajit Singh entered his room he said “Mein Mar Gya, Mujhe Maar Diya”. He immediately fell down and became unconscious. In the cross examination conducted on behalf of the accused, he has denied that he had not stated to the police in statement Ext.PA and Mark-A that Dr.Ajay Verma stated that Ajit had come earlier and told him that accused Guddu had given beatings to him. He was confronted with Ext.PA and Mark-A where this fact is not so recorded. He has also stated that the Government hospital is adjacent to the school gate. The doctor prepared the prescription slip and gave him first aid. The doctor informed the police at 2 a.m. Chand Lal and Bansant Singh alias Guddu reached hospital at about 2.30 a.m. and doctor had referred Ajit Singh after giving him first aid to Zonal Hospital, Mandi. 8. PW-2 Basant Singh has stated that at about 1.30 a.m. he heard noise that Ajit Singh asked Amrit Lal accused to go outside the …8… gate as he has to close the gate. Ajit Singh was not permitting the accused to enter the gate. Thereafter, accused Amrit Lal came outside the gate. Amrit Lal again went inside the school gate after about 15-20 minutes and was carrying a small danda in his hand. Thereafter, he went to sleep. He saw PW-1 Rakesh at 3-4 a.m. taking Ajit Singh with the help of his hand. He came out from his room and reached hospital and found Ajit Singh in the verandah of the hospital. On being enquired he told that he was given beatings by accused Guddu. Thereafter he became unconscious. Chand Lal arranged a vehicle and then Amrit Lal was brought to Zonal Hospital, Mandi at about 8 a.m. The danda Ext.P-1 was produced by Guddu. In cross examination, he has stated that doctor was already there when he reached the hospital and when he enquired from him the cause of incident, doctor was also present there. 9. PW-4 Dr.Ajay Verma, M.O., Primary Health Centre, Dharampur has stated that he was posted as M.O. at Dharampur since June 2004. He knew Ajit Singh. Ajit Singh came to hospital at Dharampur on 22.8.2005 at about 5 a.m. He told him that he was beaten by one Guddu. He medically examined him and noted the following injuries:- “i) Abrasion on scalp left temporal region about 5 to 6 c.m. above left ear with contusion around the abrasion. Contusion is 8 to 10 c.m. x 6 to 8 c.m. Bleeding through abrasion was present; …9… ii) Contusion on waist region left side which was 7 to c.m. long x 3 to 4 c.m. wide; and iii) Contusion on left thigh which was 6 to 7 c.m. x 3 to 4 c.m.” He advised X-Ray of skull and referred the patient to Zonal Hospital, Mandi. Initially he had given first aid to him. He medically examined Ajit Singh at 7 a.m. on 22.8.2005 when he was unconscious and pupils were not reacting to light, respiration was normal, bleeding through left ear was present and alcohol smell was coming. The duration of injuries was within 24 hours. After going through the opinion of the Radiologist he opined that injury No.1 was grievous in nature while injuries No.2 and 3 were simple. After examination, he issued M.L.C. Ext.PG which bears his signatures. Thereafter he informed the police telephonically. The police moved an application Ext.PH regarding the fitness of Ajit Singh to make statement and he opined that patient was not fit to make statement. The injuries mentioned in Ext.PG are possible with danda Ext.P-1. In his cross examination, he has stated that date and hour of arrival in M.L.C. Ext.PG has been wrongly mentioned. He has stated that in M.L.C. Ext.PG he had given alleged history of being beaten by some one on 22.8.2005, though it was already disclosed to him that injured Ajit Singh was beaten by Guddu. He had prepared OPD slip at the time of examination of Ajit Singh. The entry in the present case was made in the OPD register. He has admitted that OPD register and prescription slip are not shown to him at the time of examination. Ajit …10… Singh was brought to the hospital in the morning by Rakesh Kumar. He was alone when name Guddu was disclosed by Ajit Singh. Ajit Singh was not fully conscious at that time, it may be due to consumption of alcohol or due to injuries. He has further stated that since Ajit Singh was not fully conscious as such his statement was not recorded by him as it was not making any sense. The opinion given by him is based upon the opinion of Radiologist. He has stated that such like injuries are possible by fall on flat, hard surface. 10. PW-5 Smt.Sanjo Devi is the widow of deceased Ajit Singh. She has stated that Guddu had given threats to kill her husband 15-20 days prior to his death. Accused wanted to give Dham inside the school and her husband had objected to that. PW-6 Krishan Dev, Retired Superintendent, Government Senior Secondary School, Dharampur has proved certificate Ext.PL certifying that Ajit Singh was appointed in Government Senior Secondary School, Dharampur as part time Water Carrier and he joined his duty on 10.2.1999. PW-7 Suresh Kumar is Patwari. The statement of this witness is not relevant. PW-8 Prithvi Raj, Photographer who took photographs of the spot and dead body of Ajit Singh. 11. PW-9 Dr.Harvinder Singh conducted post mortem of the dead body of Ajit Singh and issued post mortem report Ext.PU and his observations are as follows:- INJURIES: “i) Abrasion on scalp 5-6 c.m. above left ear. ii) Contusion on waist over left sternal side 7-8 c.m. iii) Contusion on left thigh 6-7 c.m. …11… iv) Abrasion over lower back 2-3 c.m. CLOTHES: White shirt, grey coloured pant and black underwear. No ligature mark was present over neck. SCALP: Abrasion on scalp 5-7 c.m. Left temporal parital region C.T. scan was done at Z.H. Mandi vide scan No.1255 on 22.8.2005. According to CT scan, there was fracture left temporal bone. Injury on left extradural hematoma 8.9. to 7.5 c.m. temporal parital region, with midline shift towards right side with compression of ventricular system small intracerebral hemorrhage was also seen. Other organs were found to be normal.” According to the opinion of PW-9 the deceased died of head injury which caused fracture of left temporal bone and left extradural haematoma which led to cardio pulmonary arrest. The probable duration between injury and death was 12 to 24 hours and between death and post mortem 12 to 24 hours. The post mortem was conducted on 23.8.2005 at 10 a.m. 12. PW-10 Head Constable Kashmir Singh is a witness with whom seals, danda etc. were deposited. PW-11 Vinod Kumar Constable has proved Ext.PW daily diary No.22 dated 22.8.2005 of Police Post, Dharampur Sarkaghat. PW-12 Thakur Singh HHC is a witness to the effect that Kashmir Singh MHC had handed over sealed parcels Ext.P-2 and P-16 along with specimen seal and …12… docket vide RC No.131/2005 which he deposited at SFL Junga on 2005. 13. PW-13 Joginder Singh HC has stated that on 22.8.2005 at about 7.15 am he received telephonic information from M.O. CHC Dharampur that injured Ajit Singh has been brought to CHC Dharampur. He proceeded to CHC Dharampur on motorcycle along with Shyam Lal after making entry in daily diary, a copy of which is Ext.PW. He submitted an application Ext.PH for obtaining the opinion of the doctor, who opined that injured was not fit to make statement. On this, he recorded statement Ext.PA of Rakesh Kumar, portions A to A and C to C of Ext.PA were recorded at the instance of Rakesh Kumar. He also prepared site plan Ext.PX. He obtained MLC Ext.PG. The discharge slip Ext.PD was also obtained by him. Thereafter he handed over the case file to SHO Uttam Singh. In cross examination, he has stated that he enquired from the doctor as to whether injured Ajit Singh was treated by him at 2 A.M. when he was initially admitted and the doctor told that he had given the treatment. He had not taken into possession bed head ticket, prescription slip, abstract of OPD register regarding the treatment of Ajit Singh. He has stated that it has come in his investigation that incident took place at about 1 a.m. He has also stated that it has come in his investigation that deceased Ajit Singh had taken drinks with 2/3 persons after laying slab. He did not try to ascertain their names. He was told by Rakesh Kumar that accused Guddu and Ajit Singh had slept on the day of incident at point C in site plan Ext.PX. …13… He has stated that in site plan Ext.PX/1 he had not shown the house of PW Basant Singh alias Guddu which is adjoining to the school gate. He had not interrogated Basant Singh alias Guddu nor he has tried to ascertain how many persons with the name Guddu were in the said locality. 14. PW-14 Hari Singh Inspector has proved F.I.R. Ext.PY and he has stated that after conclusion of investigation he prepared the challan. The learned counsel appearing on behalf of the accused admitted contents of documents Ext.PD, Ext.PE and Ext.PF. PW-15 Uttam Singh, Sub Inspector, SHO Police Station, Sarkaghat, has stated that on 23.8.2005 the investigation of the case was handed over to him by the SHO. During the course of investigation he learnt that Ajit Singh had died and, therefore, he went to RH Sarkaghat and filled up inquest report Ext.PP. He filed an application Ext.PS for conducting the post mortem on the body of Ajit Singh. He took into possession soil stained with blood and put the same in small bottle. On 26.8.2005 accused produced Ext.P-1 danda from nearby his house. In cross examination, he has stated that it has come in investigation that Rakesh Kumar had taken the deceased to CHC Dharampur at 2 a.m. He has not taken into possession the prescription slip or any other record pertaining to the treatment of deceased from 2 a.m. to 7 a.m. The accused in his statement under Section 313 Cr.P.C. has denied the prosecution case. The prosecution has not examined any eye witness in the case who has seen accused giving beatings to the deceased. On the basis of …14… submissions made by either side, two points emerge for consideration. Firstly, time of incident and treatment given to injured Ajit Singh and secondly, dying declaration of Ajit Singh and identification of the assailant. 15. On the point of time of occurrence and treatment given to deceased, PW-1 Rakesh Kumar (complainant) has stated that accused was engaged by him as labourer for laying lintel on his house. The contractor and labour after finishing their meals, left for their houses at about 9 p.m. on 21.8.2005. Ajit Singh came to his house at about 1 or 1.30 a.m. in injured condition and he fell down on the ground and became unconscious. PW-4 Dr.Ajay Verma in his MLC Ext.PG has recorded the arrival of Ajit Singh in the hospital at 7 a.m. on 22.8.2005 but in his cross examination, he has stated that arrival of injured in MLC Ext.PG has been wrongly mentioned by him. PW-13 HC Joginder Singh has stated that on 22.8.2005 at about 7.15 a.m. he received telephonic information from CHC Dharampur that injured Ajit Singh has been brought to CHC Dharampur. After making entry in the daily diary, copy Ext.PW, he and Shyam Lal Constable proceeded to CHC Dharampur and he submitted an application Ext.PH for obtaining the opinion of the doctor who opined that injured was not fit to make statement, therefore, he recorded the statement Ext.PA of PW-1 Rakesh Kumar. In Ext.PW, DD Rapat No.22 dated 22.8.2005, time has been recorded as 7.15 a.m. when telephonic message was received from Medical Officer, CHC Dharampur. In application Ext.PH, PW-13 had also made a request to Medical …15… Officer CHC Dharampur to conduct medical examination of the injured and issue MLC. The doctor issued MLC Ext.PG of Ajit Singh and in that MLC date and hour of arrival of the injured has been surprisingly mentioned 22.8.2005 at 7 a.m. Therefore, time of arrival of Ajit Singh recorded in MLC Ext.PG is apparently wrong. PW-4 Dr.Ajay Verma has stated that injured came to him in hospital at 5 a.m. PW-1 Rakesh Kumar has stated that Ajit Singh came to him in injured condition at 1 or 1.30 a.m. PW-15 Uttam Singh, Sub Inspector, has stated that it has come in his investigation that Rakesh Kumar took the deceased to CHC Dharampur at 2 a.m. PW-13 has stated that it has come in his investigation that incident took place at about 1 a.m. Therefore, it can be safely inferred from the above evidence that incident took place at about 1 a.m. and PW-1 Rakesh Kumar took Ajit Singh in injured condition to hospital at about 1.30 a.m. or 2 a.m. on 22.8.2005. 16. There is nothing on record that in addition to Dr.Ajay Verma, any other doctor was also available at CHC Dharampur for treating injured Ajit Singh when he was first time taken to hospital for treatment. PW-13 Joginder Singh has stated that he enquired from the doctor as to whether injured Ajit Singh was treated by him at 2 a.m. when he was initially admitted, who told that he had given the treatment. This confirms that Ajit Singh was given treatment by the doctor at CHC Dharampur at 2 a.m. The prosecution has not recovered initial medical treatment record of injured Ajit Singh and has not produced the same in the Court. PW-13 Joginder Singh has …16… specifically stated that he had not taken into possession bed head ticket, prescription slip or abstract of OPD register regarding the treatment of Ajit Singh. PW-4 Dr.Ajay Verma has stated that he had prepared OPD slip at the time of examination of Ajit Singh. The entry in the present case was made in the OPD register. He has also stated that OPD register and prescription slip were not shown to him at the time of recording of his statement. He has also stated that Ajit Singh was brought in the hospital in the morning by Rakesh Kumar PW-1. Therefore, from the material on record, it is established that Ajit Singh sustained injuries on