IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 632 of 2000 alongwith Criminal Appeal No. 84 of 2001. Judgment reserved on : 18.3.2011. Date of Decision : April _8_ , 2011 1 Criminal Appeal No. 632 of 2000 Harbeer Katoch Appellant Versus State of Himachal Pradesh Respondent 2 Criminal Appeal No. 84 of 2001 State of Himachal Pradesh Appellant Versus Harbeer Katoch and another Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant (s) : Mr. N. S. Chandel, Advocate, for the appellant- accused in Cr. Appeal No. 632 of 2000. Mr. Vivek Singh Thakur, Addl. A.G. with Mr. Rajesh Mandhotra, Dy. A.G. for the appellant- State in Cr. Appeal No. 84 of 2001. For the respondent(s) : Mr. Vivek Singh Thakur, Addl. A.G. with Mr. Rajesh Mandhotra, Dy. A.G. for the respondent-state in Cr. Appeal No. 632 of 2000 Mr. N. S. Chandel, Advocate, for the respondents in Cr. Appeal No. 84 of 2001. Justice Sanjay Karol, J. In terms of impugned judgment dated 15.9.2000 passed by the learned Addl. Sessions Judge (2), Kangra at Dharmshala, H.P. in Sessions Whether reports of Local Papers may be allowed to see the judgment? 2 Case No. 12-P/99, titled as State of Himachal Pradesh versus Harbeer Katoch and another, accused Harbeer Katoch stands convicted for having committed an offence punishable under Sections 304-II I.P.C. for having caused death of Sh. Kanahiya Lal and also convicted for having committed an offence punishable under Section 324 I.P.C. for having caused injuries to Sh. Sushil Kumar (PW-8). Co-accused Hardeep Katoch stands acquitted of the charged offences. 2. Aggrieved of the same both the State and accused Harbeer have preferred these appeals. Criminal Appeal No. 632 of 2000 is filed by Harbeer Katoch and Cr. Appeal No. 84 of 2001 is that of the State against acquittal of accused Hardeep Katoch. 3. Prosecution case is that on 18th October, 1998, on the eve of Diwali Sh. Kanahiya Lal (deceased), Sh. Sunil Dogra, Sh. Bhawan Dogra, Sh. Sushil Kumar (PW-8), Sh. Sanni Kumar (PW-9) and Ram Kishan had arranged a dinner party in one of the rooms of the Yuvak Mandal Bhawan (for short Bhawan) constructed in village Nagehar, Tehsil Baijnath, District Kangra. Food was cooked and except for Sh. Sushil Kumar (PW-8) all consumed liquor there. Party started at 9.00 p.m. and finished some time at about 11.00 p.m. In one of the adjoining rooms another group comprising of Sh. Tarlochan Singh, Sh. Pritam, Sh. Ravinder Singh, Sh. Vijay Singh (PW-13), Sh. Vishwa Nath (PW-10) were playing cards. The rooms were divided by a corridor. After finishing their meals Sh. Sushil Kumar, Sh. Kanahiya Lal and Sh. Ram Kishan went into this room where they sat on the bench to watch the game of cards. PW-9 and another person went to wash the utensils nearby. On the asking of Sh. Vishwa Nath (PW-10), Sh. Kanahiya Lal (deceased) came out of the room to bring water for drinking when he met Sh. Sanni (PW-9) and in turn asked him 3 to bring the same. Sh. Kanahiya Lal then returned to the room. After some time, Sh. Sushil Kumar heard noises coming from outside. Accused Hardeep Katoch was accusing someone of having pelted stones on the roof of his house. Sh. Sushil Kumar (PW-8) came out of the room and saw accused Hardeep Katoch and Harbeer Katoch hurling abuses at some one. He inquired from them as to what had happened. However instead of responding to the query, accused Harbeer took out knife from the pocket of his pant and gave a blow with the same on the upper portion of the abdomen of Sh. Sushil Kumar (PW-8). When Sh. Kanahiya Lal came out of the room, accused Hardeep caught him from the back and accused Harbeer also inflicted a blow with a knife in his abdomen. Sh. Kanahiya Lal fell down on the floor of the verandah and Sh. Sushil Kumar holding his stomach, went into the room, where cards were being played. Where after informing about the incident he fainted. Sanni Kumar (PW-9) and Sh. Sanjay, brother of Sh. Kanahiya Lal arranged for a three wheeler and took both the injured to the nearby hospital. Apprehending his death PW- 8 asked the Doctor to immediately call the police for getting his statement recorded. Dr. Jyotinder Kaul (PW-7) telephonically informed the police at Police Station Baijnath where daily diary entry (Ext. PW 16/C) was recorded. Police party reached the hospital and on the application (Ext. PW 7/A) Doctor declared Sh. Sushil Kumar fit to make statement vide opinion (Ext. PW 7/B). His statement (Ext. PW 8/A) was recorded by SI- Bhagat Ram (PW-16), on the basis of which F.I.R. No. 111/98 (Ext. PW 14/A) dated 19.10.1998, under Sections 302 and 307 read with Section 34 I.P.C. was registered at Police Station Baijnath, District Kangra, H.P. In the hospital Sh. Kanahiya Lal was declared dead and inquest report (Ext. PW 6/B) prepared by the police. In the meanwhile Sh. Vishwa Nath (PW- 4 10) also telephonically informed the police about the incident and entry in the daily diary (Ext. PW 17/A) was also recorded by the police at Police Station Baijnath. Independent party headed by SI-Sanjay Kumar (PW-17) also reached the spot of crime for investigation. Post mortem of dead body of Sh. Kanahiya Lal was conducted by Dr. S. K. Kaul (PW-6) who vide his report (Ext. PW 6/D) opined that deceased had died due to hemorrhage leading to shock. From the spot, police seized blood stained earth. Sh. Ajay Kumar (PW-1) also took photographs of the spot and site plan was also got prepared. Harbeer Katoch who was apprehended and confined in one of the rooms of the Bhawan by the people present at the spot, including Sh. Vijay Kumar (PW-13) was handed over to PW-17. Harbeer Katoch made a disclosure statement (Ext. PW 10/C) to the police and got the weapon of offence i.e. knife (Ext. P-21) recovered vide memo (Ext. PW 10/D). 4. With the completion of investigation challan was presented in the Court for trial. Both the accused were charged for having committed offences punishable under Sections 302 and 307 both read with Section 34 of the Indian Penal Code to which they pleaded not guilty and claimed trial. 5. In order to prove its case prosecution examined seventeen witnesses. Statements of the accused under Section 313 Cr. P.C. were also recorded and in defence accused examined one witness. 6. Based on the material on record trial Court acquitted accused Hardeep Katoch for the reason that prosecution could not prove, beyond reasonable doubt, his complicity and guilt to the crime. With regard to accused Harbeer Singh, trial Court found that there was sufficient, 5 convincing, cogent and reliable material to prove his guilt. His plea of self defence was found to be improbable. 7. We have heard Sh. N.S. Chandel, learned counsel for the accused and Sh. Vivek Thakur, learned Addl. Advocate General for the State. 8. Mr. Nareshwar Singh Chandel, learned counsel for both the accused has made the following submissions:- (i) Sh. Sushil Kumar (PW-8) has made several improvements rendering his testimony to be false. In the statement (Ext. PW 8/A) there is neither any reference of Sanni (PW-9), who is alleged to have witnessed the incident and brought the deceased and the injured to the hospital, nor is there any reference of any overt act on the part of Hardeep Katoch even remotely suggesting his complicity in the alleged crime. (ii) The injury is an outcome of a struggle which took place between accused Harbeer and Sh. Kanahiya Lal who in fact was the aggressor. When Sh. Kanahiya Lal attacked the accused with the knife he acted in self defence and in the struggle both deceased Sh. Kanahiya Lal and Sh. Sushil Kumar received injuries. (iii) In the absence of any cogent, convincing and clear material against either of the accused the judgment passed by the Court below needs to be set aside and both the accused acquitted of the charged offences. 9. There are certain undisputed facts which have emerged on record. It stands admitted by accused Harbeer Katoch that his shop is just at a distance of 25 meters from the Bhawan. It also stands admitted by him that in the evening of 18.10.1998 a party i.e. dinner had been organized in one of the rooms of the Bhawan. However, according to him “only some of the persons” mentioned by the prosecution were present. Who 6 all, he does not state. It also stands admitted by him that in another room of the Bhawan, some of the persons mentioned by the prosecution were also playing cards at the relevant time. In his statement recorded under Section 313 Cr. P.C. he has taken the following defence:- “I am innocent. On the alleged date of occurrence the occupants of Yuwak Mandal after getting drunk were creating lot of noise and causing nuisance to the adjoining place. It was our demand that this building should not be used as a den for playing cards and taking liquor. On the day I (Harbir) alone went up to the Varandha of the Bhawan which adjoins the road as to know, who has pelted stones on their building. I alone went there. Hardeep was not with me as it is being alleged. On my arrival in the Varandha of the Bhawan, Kanhiya appeared in the Varandha. He was under the influence of liquor which looked that he was imbibed in good quality and he was armed with a big knife. On his arrival in the Varandha he held out a threat that today he will set this Foji right. In the meanwhile Sushil Kumar was also under the influence of liquor entered the Varandha from the building. Kanhiya Lal who was armed with a knife and under the influence of liquor launched the attach. I prevented the attack launched by Kanhiya Lal by catching hold of Kanhiay Lal from the wrist of the hand which was holding the knife. Sushil also attempted to catch hold of me at that time when attempt to disarm Khaniya Lal was made, an interse struggle ensued between me on one side and Khaniya Lal and Sushil who were under the influence of liquor on the other. It is in that struggle that parties suffered injuries. I am innocent and I had no intention to harm any body. Injury any suffered by Khaniya or Sushil only happened when I found that my life was in danger at their hands.” (Emphasis supplied) 7 10. The time, place of occurrence and presence of accused Harbeer Singh, Sh. Kanahiya Lal and Sh. Sushil Kumar is thus not in dispute. That Sh. Sushil Kumar and deceased received injuries from the knife also cannot be disputed. In any event there is also not much challenge to the fact that injuries received by the deceased and PW-8 could have been caused with the knife (Ext. P-21) recovered by the police. There is also not much challenge to the disclosure statement (Ext. PW 10/C) made by the accused leading to the recovery of the knife. In any event, in view of the defence taken by the accused this fact looses significance. 11. It also stands proved through the statement of Dr. S. K. Kaul (PW- 6) that Sh. Kanahiya Lal died due to hemorrhage leading to shock which was a result of the injury received by him. Post mortem report (Ext. PW 6/D) is also on record to this effect. According to the Doctor injury was sufficient to cause death in an ordinary course. It was also sufficient to cause shock to the victim so as to make him unconscious. It is a single wound elliptical in shape, 2.5 c.m. in length and 0.8 c.m. in breadth, on the left half of abdomen between umplicurs and left interior superior iniac spine. The Doctor did not see any other ante mortem injury on the body. It stands established that the deceased had consumed alcohol. Report (Ext. PW 6/C) revealed that 139.6 mg percent of blood contained alcohol. It also stands proved on record through the testimonies of Dr. Jyotinder Kaul (PW-7) and also injured Sushil Kumar (PW-8) that he received a single incised wound in the epigastrium right side of the midline, 3 c.m. length and 4 c.m. depth, which was bleeding profusely. The injured had to be operated upon at the Zonal Hospital, Dharamshala where he remained admitted for 13 days. The medical report (Ext. PW 7/C) is on record to this effect. On this point also there is not much challenge by the accused. 8 The testimonies of the relevant witnesses clearly establish this fact. In this backdrop what needs to be examined is as to whether the defence taken by accused Harbeer is probable or not and that the prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, consistent, cogent and convincing material to prove the guilt of the accused. 12. In all prosecution has examined 17 witnesses and accused has examined one witness. Through the testimony of Dr. Nirdosh Gupta (DW- 1) accused Harbeer has tried to prove that he sustained injuries in the scuffle which took place at the time of the incident. As per medical record accused Harbeer received the following two injuries:- “Injury No. 1: Small reddish contusion over inner side of lower lip on right side. No injury to teeth. No bleeding. Injury No. 2: 3.2 CM reddish haemotoma on right temporal area. No fracture clinically. No signs of head injury.” These injuries, even as per the testimony of the Doctor (DW-1) are possible for variety of reasons and lip injury was not visible to an ordinary person. 13. PW-11 categorically states that he over powered accused Harbeer Singh at the spot and locked him in a room. His custody was handed over to the police on their arrival. Injuries on the body of the accused are minor and could have been caused at that time. Definitely they do not appear to have arisen as a result of the alleged struggle. 14. Out of seventeen prosecution witnesses relevant testimony is that of Sh. Sushil Kumar (PW-8), Sh. Sanni Kumar (PW-9), Sh. Vishwa Nath (PW-10), Sh. Tilak Raj (PW-11), Sh. Sunil Kumar (PW-12) and Sh. Vijay Kumar (PW-13) who were present at the spot. Importantly testimonies of 9 the relevant witnesses, to the extent of the complicity of accused Harbeer Singh are convincing, consistent and inspire confidence. Two out of these witnesses have held significant positions in the local bodies. They were office bearers of the Panchayat. There is nothing on record to prove that these persons had any motive to falsely implicate accused Harbeer Singh. They are co-villagers and in fact neighbours. There is no iota of evidence on record to show that the Bhawan was used as a den for playing cards or drinking parties. There is no plausible or explainable cause for the deceased to have attacked the accused with a knife. In fact it is the consistent testimony of PW-8, PW-9 and PW-12 that they had not carried any knife for cutting the vegetables or meat for preparing the food. Evidence on record does not suggest that the deceased would loose control over his senses after consuming liquor. Admittedly it was the accused who had left his house to inquire as to who had pelted stones on his house. He went to the spot of the crime. Why so? has not been explained. It has not come on record who actually pelted stones. It is also not the case of the accused that the deceased or PW-8 had pelted the same. Therefore, he had no business or reason to have visited the Bhawan. To our mind the defence taken by the accused is totally improbable. According to the accused Sh. Sushil Kumar was also under the influence of liquor. Medical record belies this fact. It is the defence of the accused that when Sh. Kanahiya Lal attacked him with the knife he caught his hand. Sh. Sushil Kumar tried to catch the accused and in an attempt to disarm Sh. Kanahiya Lal “intense struggle” ensued in which parties suffered injuries. Now this defence appears to be totally sham and concocted. No injury marks suggesting any signs of intense struggle were found on the body of any of the parties. Both the injured and the 10 deceased received single blows of knife in their abdomen. The blows were quite deep and fatal. This only shows that the blows were given at the intended place one after the other. 15. In this case there is nothing on record to even prima facie show that Sh. Kanahiya Lal was an aggressor thus accused Harbeer had no right of private defence available with him. Ocular testimony of PW-8, PW-9, PW-10 and PW-12 also belie this fact. Also there is nothing on record to show that the said accused was prevented from leaving the spot of crime. He was a “fauji” (soldier) and could have conveniently left the place to avoid aggression, if any. It is not the case of the accused Harbeer Katoch that there was a reasonable cause of apprehension of death or grievous hurt to his body. It is not the case of the accused that any one of the persons present at the Bhawan were party to the aggression on part of Sh. Kanahiya Lal. It is also not his case that any one of them had either pelted stones on his house or had abused him thus provoking him to act in his self defence. Right of private defence can be exercised only to repel unlawful aggression. The injuries caused on the vital parts of the body definitely cannot be said as a result of possible scuffle. On the contrary injuries on the body of the accused are simple and superficial in nature. Thus the defence taken by the accused cannot be said to be probable. In fact it is highly improbable. 16. It is true that in statement (Ext. PW 8/A) and F.I.R. (Ext. PW 14/A) name of Sh. Sanni Kumar (PW-9) and accused Hardeep does not figure. In Court, PW-8 has deposed that accused Hardeep caught Sh. Kanahiya Lal from the back and accused Harbeer inflicted blow with a knife on the abdomen of the deceased. To this extent, we have no hesitation in our mind, there is improvement. In statement (Ext. PW 8/A) and F.I.R. (Ext. 11 PW 14/A) there is no reference about the complicity of accused Hardeep Katoch. PW-8 was conscious at that time when accused Harbeer gave a blow with a knife to the deceased. Even according to him he went into the room and narrated the incident to the people playing cards. Only thereafter he fell on the ground and became unconscious. He regained consciousness only on way to the hospital being taken by PW-9 and Sanjay in an auto rickshaw vehicle. He told the Doctor that he wanted to make statement to the police about the incident. Yet he does not narrate the factum of involvement of accused Hardeep Katoch. Incident was witnessed by him alone. Other witnesses present at the spot actually did not witness the incident. Harbeer alone was caught at the spot. Even according to the police none deposed that Hardeep had fled away from the spot. No doubt PW-9 and PW-10 have deposed about the presence of accused Hardeep at the spot but however their testimony to this extent also does not inspire confidence. Even the inquest report (Ext. PW 6/B), daily diary entry (Ext. PW 16/C and 17/A) does not name accused Hardeep Katoch. Sh. Sushil Kumar was well conversant with both the accused hence omission of his name in the F.I.R. raises serious doubt about the complicity of accused Hardeep Katoch in the alleged crime. Accordingly we find that the appeal filed by the State merits dismissal. 17. It is true that in the report and F.I.R. there is no reference of PW-9. However, this fact by itself would not render whole of the testimony of the injured to be false, unbelievable or fatal to the prosecution case. It is a settled position of law that F.I.R. is not an encyclopedia. In the instant case material and relevant facts stood disclosed at the first instance. Mere non-mentioning of name of one of the witnesses in the F.I.R. cannot be said to be fatal to the prosecution case. In fact statement of PW-8 to the 12 effect that he was brought to the hospital in a three wheeler by PW-9 and Sh. Sanjay stands unrebutted and uncontroverted by the accused. He admits that some of the persons mentioned in the report were present at the spot. He specifically does not deny presence of Sh. Sanni Kumar, who in fact has categorically deposed that after the party was over Sh. Kanahiya Lal, Sh. Sushil Kumar and Sh. Ram Kishan went to the room where cards were being played and he along with Sh. Bhawan Dogra went to wash the utensils at the tap near the shop of Sh. Babloo. On way he heard the accused abusing the persons who had pelted stones on their shop. He saw Harbeer giving a blow with a knife to Sh. Sushil Kumar. He also saw Harbeer giving a blow to Sh. Kanahiya Lal and at that time accused Hardeep had caught Sh. Kanahiya Lal from behind. On the complicity of accused Hardeep Katoch we find the statement of this witness to be an improvement but however the remaining part of his testimony cannot be said to be false, unconvincing or improvement from his earlier statement made before the police. Even if the testimony of this witness is to be ignored, we still find statement of PW-8 to be convincing and sufficient enough to prove the guilt of the accused to the alleged crime. 18. PW-8 in no uncertain and convincing terms has deposed that Sh. Vishwa Nath had asked the deceased to bring water for drinking. Deceased came out of the room and met PW-9 and in turn asked him to bring the same and returned to the room. Hearing some noise he came out of the room and inquired from the accused as to what had happened but instead of replying, accused Harbeer took out a knife from the pocket of his pant and gave a blow on the upper part of his abdomen. When deceased came out of the room Harbeer also gave him a blow in the 13 abdomen. The incident took place in the verandah of the Bhawan where the deceased fell down on the floor and he went inside the room and narrated the incident. Testimony of this witness on this count is clear, convincing and consistent with the testimony of other witnesses. Suggestions of the accused that deceased was the aggressor and injuries were result of a struggle stands specifically denied by this witness. Testimony of this witness stands corroborated by Sh. Vishwa Nath (PW- 10), Sh. Tilak Raj (PW-11), Sh. Sunil Kumar (PW-12) and Sh. Vijay Kumar (PW-13). Thus we find that the Court below has rightly appreciated the material on record while holding the accused Harbeer Katoch guilt of the crime. 19. Prosecution has examined sufficient number of witnesses. Mere improvements and discrepancies which do not go to the root of the case or are of vital nature cannot be said to be fatal to the prosecution case. 20. For the aforesaid reasons we find that the Court below has correctly appreciated the material on record while arriving at its conclusion. No ground for interference is called for. Consequently the appeals filed by the parties are dismissed. Bail bonds, if any, furnished by the accused Hardeep are discharged and that of accused Harbeer Katoch are cancelled. Accused