IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 106 of 1999 Decided on: 4.10.2010 Prem Kumar. ..…Appellant Versus State of H.P. ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1Yes. For the appellant : Mr. D.S. Chauhan, Advocate with Miss Vidushi Sharma, Advocate. For the respondent-State : Mr. Rajinder Dogra, Addl. A.G. R.B. Misra, J. (Oral) The present criminal appeal, has been preferred under Section, 374 Cr.P.C. against the judgment dated 16.2.1999, passed by Learned Additional Sessions Judge-II, Kangra at Dharamshala, in Sessions Case No. 12- K/1998 (Sessions Trial No.12/98) convicting the appellant- convict after holding him guilty of the offence, under Section 302 and sentenced him for life, indicating his entitlement to set off period of his detention with effect from 25.3.1998 till 17.2.1999. 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 2. The prosecution case in brief is that on 25.3.1998, at about 9.00 P.M., Sushil Kumar, Pardhan, Gram Panchayat, Charri informed on telephone to SHO Dharam Chand, Police Station Shahpur, District Kangra, that one Prem Kumar, son of Amar Nath, Cloth Dealer at village Charri had injured one Vijay Kumar by inflicting with scissor blow and Vijay Kumar has been removed to Zonal Hospital, Dharamshala. Accordingly, SHO along with other police officials went to the hospital at Dharamshala, where one Avtar Singh made a statement disclosing that Vijay Kumar victim-deceased was injured at about 7.45 P.M. and has succumbed to the injuries, accordingly, FIR was lodged and appellant-convict was charged for the offence, under Section 302 IPC. 3. In order to prove its case, prosecution examined as many as seventeen witnesses, namely, PW-1 Dr. D.P. Swami, PW-2 Avtar Singh, PW-3 Lal Bahadur Shastri, PW- 4 Jai Pal, PW-5 Sushil Kumar, PW-6 Ravinder Kumar, PW- 7 Meg Raj, PW-8 Dinesh Kumar, PW-9 ASI Ranjit Singh, PW-10 HC Dalip Kumar, PW-11 LHC Roshan Lal, PW-12 Raghubir Singh, PW-13 Dr. Alok Singla, PW-14 Prem Kumar, PW-15 Ravinder Kumar, PW-16 Megh Nath and PW-17 Dharam Chand, whereas, the appellant-convict through his statement, under Section 313 Cr.P.C.s denied the prosecution case and adduced HC Mohinder Singh as DW-1. 3 4. PW-1 Dr. D.P. Swami conducted the post- mortem examination of Vijay Kumar (Victim/deceased) and had noted following injuries:- i) Stab wound (sharp edged) with beveling upper size present on left mid lower part of chin, directing above down words in the neck cutting to left side external juglar vein and artery extending to size 1” x ½ “ x1” tailing backwards 100 CC blood clotted red in the underling tissues. ii) Incised would 2” ½” long just behind the injury No. 1 (as shown in the diagram) directing backward reddish in colour and tailing backwards. iii) Lacerated would on the left lower outer aspect of left upper arm 1”x11/2” reddish irregular above downwards. In the opinion of PW-1, victim died of brain hypoxic shock due to anti mortem stab injury to neck (left side) vessels External carotid artery and vein left side. 5. PW-2 Avtar Singh, working as Senior Assistant in HPSEB, Rait (and Vijay Kumar was son of his real sister) however, has stated that when occurrence took place at about 8.30 P.M., he was at his home and he was informed by his brother Ashok Kumar that at about 7.45 P.M. shopkeeper Prem Kumar had caused injuries to Vijay 4 Kumar with scissor and was taken to the hospital and on reaching hospital, PW-2 met Sunil Kumar Pardhan, and noticed that Vijay Kumar had died. 6. PW-3 Lal Bahadur Shastri, the star and relevant prosecution witness, was also owning a ‘Tea-shop’ opposite to the appellant-convict. As per testimony of PW-3, on 25.3.1998, at about 7.30 P.M. when he was at his ‘Tea- Stall’, the shops of appellant-convict and Surinder Kumar were open, Vijay Kumar deceased went to the appellant- convict Prem Kuamr, where both of them scuffled, that was being watched by him (PW-3) from his ‘Tea-Stall’ as the road between his ‘Tea-Stall’ and the cloth shop of the appellant-convict is only ten feet wide from where he could easily see what is happening in the shop of appellant- convict due to the availability of light on the shop of the appellant-convict as well as out side also. According to PW- 3, he went to the shop of the appellant-convict and separated them, however, thereafter they again started fighting, however, out of frustration PW-3 came back to his ‘Tea-Stall’. PW-3 observed them scuffling again and while scuffling they came to the Varandah of the shop of appellant-convict and at that time, appellant-convict attempted to hit Vijay Kumar with a scissor, however, victim-deceased escaped. PW-3 observed again that Vijay Kumar in the meantime, caught hold of electric pole touching the Varandah, when the appellant-convict gave 5 another blow of scissor on the person of Vijay Kumar, which hit his neck and drops of blood oozed out of the injury with force and on account of injury, victim-deceased fell on the ground and appellant-convict went inside his shop and concealed the scissor somewhere in the shop and locked his shop and tried to run away but on hue and cries raised by PW-3, large numbers of people gathered there, over powered the appellant-convict, however, by that time the electric light had also gone off. As per testimony of PW-3, the people started beating appellant-convict, after this occurrence, due to fear PW-3 remained at his ‘Tea Stall’ and almost during mid night police came there and PW-3 showed the scissor and the spot to the police. Statement of PW-3 was recorded. As per PW-3, on 27th March, 1998 Prem Kumar appellant-convict along with a numbers of persons including Surinder, Partap Singh and police officials came to the shop of appellant-convict and appellant-convict opened his shop with a key and produced the scissor after lifting it out of a bundle of clothes and handed over the same to the police. 7. In cross-examination, PW-3 has stated that light had gone at about 8.30 P.M., however, since PW-3 was not in the possession of a watch, he was not aware about the exact time and as stated by PW-3, Victim-deceased and appellant-convict scuffled with each other for an hour and during scuffle, they did not roll on the ground but had 6 scuffled each other in standing posture and after they had scuffled already for 5 to 10 minutes when PW-3 came to the shop of Prem Kumar to intervene. As per testimony of PW-3 it is incorrect that the light had gone out at the time of the infliction of the injuries, however, the injured had fallen on the drain he was not hit by the appellant-convict. PW-3 has also stated that it is incorrect that Vijay Kumar entered in the shop of the appellant-convict along with seven eight boys and had threatened the appellant-convict that he was looting the public being from Punjab and that he had donated less money to the Bhandara. PW-3 has further stated in the cross-examination that it is incorrect that those 7-8 boys had given severe beatings to appellant- convict. PW-3 has further clarified that 7-8 boys had asked Vijay to search the cash chest of appellant-convict. PW-3 has further stated in cross-examination that shops of Prem Kumar, Radio Mechanic, Amar Chand, Subhash Chand and Prittam Chand Mehra adjoin the shop of PW-3 but these were closed at that time and Subhash Chand was running a ‘Tea-Stall’ there; Prittam Chand was running a Halwai Shop. As per PW-3, after coming back from the shop of the appellant-convict, he remained at his shop for about half an hour and during this period, he kept on working at his shop. PW-3 has further stated that it was 7.30 P.M. when he was working at his shop. PW-3 has further clarified that at the time of quarrel, Vijay Kumar 7 was holding a sporting wooden pillar and not an electric poll. PW-3 has further stated in cross-examination that the injured remained lying on the ground for half an hour or 45 minutes. 8. PW-4 Jai Pal has stated that on 26.3.1998, at about 2.00 P.M. police took into possession the blood stained clothes of appellant-convict Prem Kumar in the police Station, Shahpur. PW-5 (Sushil Kumar), Pradhan of Gram Panchayat, Chari in support of prosecution case has stated that when he reached at the spot, the injured-victim had already been taken to the hospital and in presence of PW-5 police collected the blood lying in the drain outside the shop of the appellant-convict and it was poured in a box and one shoe of Vijay Kumar victim-deceased was also taken into possession, which was sealed in piece of cloth and blood box was also sealed in a parcel vide memo Ext.PW5/C, over which PW-5 had put signature. PW-5 has also stated in cross-examination that it is correct that there is a wooden pillar in the verandah of the shop of the appellant-convict and that wooden pillar support the house of the land lord. 9. PW-6 Ravinder Kumar has witnessed the recovery of scissor from the shop of the appellant-convict. PW-7 Meg Raj, Photographer took photographs Ext.PW7/A to Ext.PW7/D. PW-8 Dinesh Kumar also took photographs Ext.PW8/a to Ext/PW8/d. PW-9 ASI Ranjit Singh 8 registered FIR Ext.PW9/A at 11.55 P.M. PW-10 HC Dalip Kumar, PW-11 LHC Roshan Lal and PW-12 HC Raghubir Singh have endeavoured to support the prosecution case to the extent the roles assigned to them. 10. PW-13 Dr. Alok Singla has examined appellant- convict and noticed the following injuries on the body of the appellant-convict:- 1. Diffuse redness over scalp. 2. Redness and tenderness over right ear Pinna. 3. An oval shaped contusion with margins slightly diffuse in colour of the size of 2 cm x 1.5 cm. (b) A small contusion irregular in shape. (c) Small multiple bruise marks over an area of 5 cm x 4 cm. 4. Mark tenderness over right wrist. 5. Right elbow is tender. 6. on left leg there were abrasions 3 in number. Swelling over the dorsum of left foot. 7. abrasion on the right leg near right knee joint. In cross-examination PW-13 was not in a position to say that these injuries were given by beatings by 7-8 persons and was not in a position to indicate that these injuries were caused by one person. 11. PW-14 LHC Prem Lal is a formal witness. The statement of PW-15 Ravinder Kumar is also not very material. PW-16 ASI Megh Nath and PW-17 SI Dharm 9 Chand have endeavoured to support the prosecution case to the extent the roles assigned to them in their official capacity. 12. In defence HC Mohinder Singh produced three FIRs Ext. D-1 to Ext.D-3 which are 124/91 dated 23.8.1991, under Sections 147/148/149/307/324 IPC read with Sections 25/54/59 of Arms Act, FIR No. 58/98 dated 18.4.1998, under Section 436/34 IPC and Ext. D-3 FIR No. 94/90 dated 6.9.1990, under Sections 147/148/149/323/324/326/307 IPC registered at Police Station Shahpur and these have been produced by the defence to prove “Gundaism” by a group of persons at village Charri and according to him the present occurrence was also the result of the “Gundaism” by the said group of these persons, who had entered the shop of the appellant- convict on 25.3.1998. As per the defence 7-8 persons including Vijay Kumar, deceased, Subhash, Ashok etc. had entered in the shop of the appellant-convict at the relevant time and had threatened the appellant-convict on the pretext that he had captured entire cloth business of the Bazar but has donated lesser amount of money for the ‘Yaggya’ and he was manhandles, at that moment, appellant-convict lifted the scissor Ext.P-1 lying nearby his seat and he was dragged out of the shop and was given beatings including a blow on his head, due to which, he fell unconscious. According to defence version, the scissor 10 might have hit Vijay Kumar while Vijay Kumar was snatching the scissor, however, such defence version neither appears to be plausible nor is reasonable, as during those process Vijay Kumar himself had fallen on the scissor and might have sustained number of serious injuries, whereas, PW-3 Lal Bhadur Shastri, observed scuffle and everything from his shop and had separated the appellant-convict and Vijay Kumar from scuffling but again they started scuffling and while doing so, they came out side the shop of the verandah where appellant-convict inflicted the scissor blow on the neck of the deceased. PW-3 has very categorically stated that appellant-convict inflicted the scissor blow on the neck of the deceased and appellant-convict has failed in his earlier attempt to hit with scissor. 13. In the facts and circumstances, there is no reason to disbelieve the testimony of PW-3 as neither he has enmity with the appellant-convict nor interested in the deceased. PW-3 is also not related to the deceased, the presence of PW-3 at his Tea Stall, at the relevant time, was quite natural and his conduct in separating appellant- convict from victim-deceased, during their scuffle also is a natural conduct of a prudent person, as such, the testimony of PW-3 is not easily dis-believable. No doubt, there is no other eye witness other than PW-3 has been produced by the prosecution, but as per the facts of the 11 case, no other eye witness was present at the relevant time, whereas the testimony of one reliable witness is sufficient to prove the prosecution case. 14. It has been held by the Supreme Court that in a criminal trial quality of evidence and not the quantity matters. As per Sec. 134 of the Evidence Act, no particular number of witnesses is required to prove any fact. Plurality of witnesses in a criminal trial is not the legislative intent. If the testimony of a sole witness is found reliable on the touchstone of credibility, accused can be convicted on the basis of such sole testimony, in view of the decision of Hon’ble Supreme Court in Ramesh Krishna Madhusudan Nayar vs. State of Maharashtra, AIR 2008 SC 927, Syed Ibrahim vs. State of A.P., AIR 2006 SC 2908, Chacko vs. State of Kerala, 2004 (1) Scale, Chowdhary Ramjibhai Narasanghbhai vs. State of Gujarat, (2004) 1 SCC 184, Chittarlal vs. State of Rajasthan, (2003) 6 SCC 397, Sadhu Ram vs. State of Rajasthan, 2003 (3) Scale and State of Haryana vs. Inder Singh, (2002) 9 SCC 537. In the case of Lallu Manjhi vs. State of Jharkhand, AIR 2003 SC 854, the Supreme Court has clarified the mode of assessing the testimony of a sole witness keeping in view the factors noted as under--- “The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. 12 However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable, nor wholly unreliable. In the first two categories three may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness.” 15. The submission of learned counsel for appellant-convict that non-mentioning of a particular prosecution witness in the FIR makes the prosecution case fatal is devoid of legal force on the point in view of the decision of Supreme Court in Raj Kishore Jha vs. State of Bihar, AIR 2003 SC 4664, Chittarlal vs. State of Rajasthan, (2003) 6 SCC 397, Bhagwan Singh vs. State of M.P., (2002) 4 SCC 85), Sri Bhagwan vs. State of Rajasthan, (2001) 6 SCC 296 and Satnam Singh vs. State of Rajasthan, (2000) 1 SCC 662. 16. Hon’ble Supreme Court has observed in Santosh vs. State of Maharashtra, (2007) 13 SCC 457, para-10 that where prosecution case is proved by direct evidence, motive takes a back ceat. 13 17. Hon’ble Supreme Court has also observed in Jarnail vs. State of Punjab, (2009) 3 SCC 391, opera- 26, that it is not doubt true that conviction can be based on sole testimony of a solitary eye witness but in order to be the basis of conviction, his presence at the place of occurrence has to be natural and his testimony should be strong and reliable and free from any blemish. Similar view has also been taken by the Supreme Court in Jodh Raj Singh vs. State of Rajasthan, (2007) 15 SCC 294, Tika Ram vs. State of M.P., (2007) 15 SCC 760. In present case, the presence of PW-3 is natural as his ‘Tea- Stall’ is just in front of appellant-convict, as such, on the fateful day his present was quite natural and as per his testimony, PW-3 has observed the scuffle between the appellant-convict and victim-deceased Vijay Kumar, therefore, in the facts and circumstances, sole testimony of PW-3 inspires confidence. 18. Learned Additional Advocate General has referred and relied upon several decisions e.g. Dimple Gupta (Minor) versus Rajiv Gupta, AIR 2008 SC 239, Kulwinder Singh versus State of Punjab, AIR 2007 SC 2868, Kalegura Padma Rao Anr. Vs. State of A.P., AIR 2007 SC 1299, State of Punjab versus Hakam Singh, (2005) 7 SCC 408, Krishna Mochi & Ors. Vs. State of Bihar, (2002) 6 SCC 81, Leela Ram versus State of Haryana & Anr. (1999) 9 SCC 525 and has 14 submitted that since in the facts and circumstances, there is no material discrepancies or contradictions in the testimonies of witnesses, however, prosecution witnesses cannot be disbelieved merely on the basis of some normal, natural or minor contradictions, inconsistencies, exaggerations, embellishments etc. 19. The learned Additional Advocate General has also relied upon the decision of Dashrath Singh versus State of U.P., (2004) 7 SCC 408, whereby it was observed that mere failure to mention in FIR about injuries received by accused is ground to discard the explanation of injuries given at the trial. 20. In the facts and circumstances, defence has not been able to disbelieve the presence of PW-3 Lal Bhadur Shastri on the spot. The FIRs Ext.D-1 to Ext.D-3 pertaining to other occurrences are not relevant as those FIRs could not be co-related by the defence to disbelieve the prosecution story. In the facts and circumstances, FIR was registered within a reasonable time and besides this, the testimony of PW-3 Lal Bahadur Shastri there are other circumstantial evidence, which are most material for proving the guilt of the appellant-convict. The medical evidence also supports the manner of assault and the injuries sustained by the deceased with scissor i.e. injuries sustained by sharp edged weapon which was used in assault by the appellant-convict the medical report is also 15 inconsonance to the ocular evidence, more so, the conduct of appellant-convict is also supporting the prosecution case. 21. The argument of learned counsel appearing for the appellant-convict that non-mentioning of the name of PW-3 Lal Bhadur Shastri in the FIR creates doubt about the presence of PW-3 at the spot. On this aspect, no adverse inference could be inferred. Non-mentioning the name of any of the prosecution witness in the FIR does not make the prosecution case fatal. It was further observed by Hon’ble Supreme Court that mentioning of names of all witnesses in FIR or in the statement under Section 161 Cr.P.C. is not required by law. Such witnesses can also be examined by the prosecution with the permission of the Court. Non-mentioning of name of any particular witness in FIR would not justify rejection of evidence of the eye witness. 22. The theory of right of private defence, advanced by the learned counsel for the appellant-convict is also not meaningful as Vijay Kumar was not carrying any weapon what to say of deadly weapon and injuries on the person of appellant-convict were also not serious, more so, when indisputedly, the appellant-convict has not made any complaint or has not filed a cross case in support of his version, therefore, the protection of right of private defence is not permissible to the appellant-convict. 16 23. It is in evidence that the deceased had gone to the shop of the appellant-convict, where a quarrel had ensued between them. PW-3 Lal Bahadur Shastri, who is an eye witness to the occurrence, has stated that he was not aware as to what was the reason behind the quarrel between the deceased and the appellant-convict. Be that as it may, the fact remains that both the deceased and the appellant-convict had quarrelled with each other. PW-3 Lal Bahadur Shastri, who was running a shop opposite the shop of the appellant-convict across the road had gone to the spot/scene and had separated both of them. However, they had again started fighting. Accordingly, out of frustration PW-3 had come back to his tea stall. Thereafter, he had seen both deceased and the appellant- convict again scuffling with each other. It was at this juncture that the convict firstly tried to hit the deceased with the scissor he was holding in his hand but the blow did not find any place on the body of the deceased. Then again both of them scuffled when the appellant-convict gave another blow of the scissor on the neck of the deceased. 24. The genesis of the occurrence would go to show that it had taken place in a sudden fight without any pre- meditation and may be in the heat of passion. Though, we are aware of the fact that from the materials on record, it can be safely inferred that, whereas, deceased was 17 unarmed, at the same time the appellant-convict was also not possessing a weapon in the strict sense of the word and instead was holding a scissor lying at his cloth shop which was meant for cutting cloth to be sold to the customers, which he used as a weapon of offence in this case. 25. In the above backdrop, while taking into consideration the facts and circumstances of the case and on an overall view of the matter it shall not be safe to conclude that the appellant-convict intended to cause death of the deceased and thereby bringing the offence committed by him within the purview of Section 302 IPC. However, to our mind, the offence made out against the appellant-convict falls within the ambit of Section 304, Part-II as the knowledge that the blow given by him to the deceased was likely to cause death can very well be attributed to him. 26. For the reasons stated hereinabove, we are of the definite view that the offence committed by the convict does not fall within the domain of Section 302 and instead the offence constituted against him is under Section 304 Part-II. 27. In view of the above analysis, the appellant- convict is sentenced to undergo simple imprisonment for seven years and pay a fine of Rs. 10,000/- and in default of payment of fine, to suffer further simple imprisonment for six months. The period of incarceration under gone by the 18 appellant-convict during investigation, trial and thereafter, as per orders of this Court dated 22.9.2010, pursuant to which, he is in custody up till date, shall be liable to be set off against the imprisonment awarded against him today under this judgment. 28. The impugned judgment dated 16th February 1999 passed in Sessions Trial No. 12/98, shall stand modified accordingly. The amount of fine, if realized, is ordered to be awarded, as compensation, to the legal representatives of the deceased, late Shri Vijay Kumar, in equal shares. 29. The convict, who is already in custody, be committed to Model Central Jail, Nahan, for serving out the above sentence, handed out against him, under this judgment. Let warrant of committal be prepared accordingly. 30. Copy of this judgment be supplied to the appellant-convict Prem Kumar, free of cost. (R.B. Misra), Judge.