IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 282 of 2008 Date of Decision 10th October, 2011 ________________________________________________________ Dev Raj son of Shri Gubhan, resident of village Attupur, Pargna Manjeer, Tehsil Churah, District Chamba H.P. ….Appellant Versus State of Himachal Pradesh, through Secretary Home, Government of Himachal Pradesh, Shimla Himachal Pradesh. ….Respondent. Criminal Appeal under Section 374 (II) of the Code of Criminal Procedure. ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ For the Appellant: Mr. Anup Chitkara, Advocate. For the Respondent: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. __________________________________________________________________ Dev Darshan Sud, J.(oral) This appeal has been preferred by the appellant who has been sentenced to undergo life imprisonment under Section 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 302 of the Indian Penal Code (hereinafter referred to as the IPC) and fine of ` 20,000/-. In case of default of payment of fine, further rigorous imprisonment for two years. 2. The facts as narrated when considered in totality do reveal a tragic state of affairs. The prosecution case is that on 20.9.2006 at around 6 PM when Punnu Ram deceased alongwith his minor son PW1 Prem Singh who was aged 14 years, was returning from Jasourgarh to their village Chandodo, the accused Dev Raj met them on the way. The accused who was travelling on his scooter, assaulted the deceased by kicking him and then picking up the stone and striking it on his head. His son PW1 Prem Singh rushed to his house and informed his mother Meena Devi, who alongwith Shanta Devi PW2, Hardev PW5, Lal Chand and others rushed to the spot, at which the accused fled from there. It is alleged that immediately thereafter the appellant again came to the spot and slapped Santo PW2. The deceased had become unconscious and he was taken to the Civil Hospital, Tissa where the Medical Officer informed the police and Rapat No. 16 dated 20.9.2006 Ext.PW13/A was recorded in the Roznamcha. 3. PW14 ASI Uttam Chand recorded the statement of PW1 Prem Singh and FIR No. 68 of 2006 Ext.PW13/B was registered against the accused. The deceased Punnu Ram was given first aid at Civil Hospital, Tissa and then referred to the Zonal Hospital, Chamba for treatment where he died on 22.9.2006. The post mortem report revealed that the cause of death of the deceased was due to head injury leading to cardio vascular collapse. During investigation, the police visited the 3 spot and prepared the site plan etc. One stone, which was purportedly used for the assault, was taken into possession on the identification of PW1 Prem Singh. At this stage, the case was converted into one under Section 302 IPC. 4. The prosecution produced fifteen witnesses in all. The prosecution relied heavily upon the testimony of PW1 Prem Singh, who was the eye witness to the entire incident and other witness namely PW2 Shanta who had reached the spot after the incident. Adverting to the evidence of Prem Singh PW1, he was examined by the learned Court to ascertain as to whether he had adequate comprehension to state the truth on oath and whether he understood the meaning of oath as he was aged about 15 years. It was after this that his testimony was recorded. He stated that in November, 2006, at about 6.30 PM he had gone to Jasourgarh to collect some articles as asked by his mother. He met his father at Jasourgarh. When they were returning home, the accused Dev Raj came on his scooter and asked his father to stop. He then caught hold his father from the shirt and started punching and kicking him. He then picked up a stone and hit his father on the head upon which his father became unconscious. He immediately rushed home and informed his mother, sister Shanta Devi PW2 and Hardev PW5, cousin brother of the deceased about the incident and one Lal Chand who rushed to the spot. He stated that at that point of time, when they reached there the deceased was still beating the deceased and on seeing them he fled from there on his scooter. When PW2 Shanta asked the accused why he was beating the deceased, he turned to her and slapped her. He then fled from the scene of occurrence. 4 Thereafter, they took the deceased to the hospital where the police recorded his statement Ext.PW1/A. He states that as medical facilities were not available at Civil Hospital, Tissa, he was shifted to the Zonal Hospital, Chamba. In his cross examination, he says that his father was six feet tall and was of good health. He stated that he alongwith deceased had gone to the shop of one Munna for making some purchase and when he confronted with his statement Ext.PW1/A,. it was not found so recorded. He also admits that he did not state in Ext.PW1/A that when they reached the spot, his father was still being thrashed. The Court also notices some contradictions in his statement before the police and statement which he gives in Court. He admits that his father and his mother did not have any quarrel with the deceased. He then states that the accused was not armed, but denies the suggestion that the accused was accompanied by his sister Damini DW1. PW2 Shanta Devi, daughter of the deceased, corroborates PW1 Prem Singh on the point that she was informed in the house that her father was being kicked and punched by the accused. She admits in her cross examination that her father was healthy and six feet tall. She says that in her presence the accused had assaulted the deceased with stones. But when she was confronted with her statement Ext.DA, recorded under Section 161 Cr.P.C. this fact has been found to be missing. She expresses ignorance about the fact as to whether DW1 Damini is sister of the accused. She then states that Lal Chand and Hardev PW5 had asked the accused as to why he was assaulting the deceased on which instead of anwering them, he started abusing them in the foulest 5 language, but this fact was not recorded in her statement Ext.DA. 5. We now advert to the evidence of PW5 Hardev who is a cousin of the deceased. He also corroborates PW1 Prem Singh from the point when PW1 informed them about the assault. He also admits that the accused was not armed. Adverting to the medical evidence on record, PW8 Dr. Amit Bhalla states that he was posted in PHC Jasourgarh,. He states that the police had moved an application Ext.PW8/A seeking his opinion whether Punnu Ram deceased was fit to give a statement or not. He opined that he was unfit to do so. The deceased was admitted in the hospital on 20.9.2006 at 11.35 PM with a history of quarrel etc. having taken place. He observed five injuries on the body of deceased, which he certified in the medical certificate Ext.PW8/B. Out of these, injuries No. 1, 2 and 4 were opined to be simple in nature. In his cross examination, he admits that no opinion was taken from him for the other injuries found by him on the body of the deceased. He admits that the injuries noticed on the deceased could be caused by a person falling down after consumption of alcohol, but he denies the suggestion that the deceased was smelling of alcohol. He did not preserve any urine sample for the reason that the deceased was immediately rushed to the Zonal Hospital, at Chamba. PW9 Dr. Vishal Mahajan who was posted as Senior Medical Officer, at Regional Hospital, Chamba states that an application Ext.PW9/A was received by him for conducting the post mortem Ext.PW9/C. In his opinion, death had occurred due to the head injury leading to cardio 6 vascular collapse. The other witnesses of the prosecution are formal in nature. 6. We now advert to the statement of the accused under Section 313 Cr.P.C. In reply to question put to him, he says that he is innocent and has been falsely implicated in the case. He never assaulted the deceased. According to him, when he was taking his sister DW1 Damini on the scooter, the deceased started passing indecent remarks and on his protest the deceased caught hold him. Since the deceased was a habitual drunkard, he could not maintain his balance and fell on the stones lying on the road and sustained injuries on his person. 7. We also advert to the statement of DW1 Damini, who is sister of the accused. She states that she was married in village Bagga. Accused is her brother. She says that she knows deceased Punnu Ram, who was resident of village Chandroli. On 18.9.2006, she had gone to visit the house of her uncle, Guman Singh, who is father of the accused and when they were returning on 20.9.2006, the accused was taking her on his scooter to drop her at village Bagga. At about 4/4.30 PM Punnu Ram deceased met them on the road, he was heavily drunk and yelled that Dev Raj should leave her with him for the night. The accused did not pay any attention but the deceased persisted with indecent behaviour till they disappeared from the scene. The accused left her at village Bagga. In cross examination, she denies the suggestion that she had not gone to the house of her uncle and that Punnu Ram deceased was not drunk or that he did not pass any indecent remarks etc. The learned trial Court, on the evidence on record, concludes an intention on the part of the 7 accused to cause death of the deceased. The learned Court holds that the evidence of PW1 Prem Singh has been corroborated by PW2 Shanta and PW5 Hardev on all material particulars. 8. Before proceeding with the case further, we notice that the learned trial Court has only extracted the evidence of prosecution and ignored the submissions made by the learned defence counsel. Some portions of case law are paraphrased in paragraph 25 of the judgment without in any manner attempting to ascertain the applicability of the ratio decidendi. He concludes that submission made by the defence that Punnu Ram was a healthy person and in all probability resisted any assault was not established from the evidence; the absence of motive was no ground for acquittal, the case put up by the defence that the deceased was drunkard has been disproved from the medical report Ext.PW8/B; the fact that witnesses were related to the deceased was no ground for disbelieving their evidence and improvements made in their evidence were not of a nature which could discredit the veracity of the testimony of the prosecution witnesses. 9. What we find from the judgment of the learned Court below is that statement of DW1 Damini has been given a complete go bye. There is no reason ascertainable from the judgment as to why her evidence has been disbelieved. We also find from the evidence that the contradictions are not material in nature but there were certain points which were apparent from the record, which the learned Court did not notice. The Forensic Report Ext.PW9/B did not find any blood on the stone Ext.P2. Some of the witnesses state that stone was blood stained though 8 it was recovered ten days after the incident. The distance between the place of assault and resident of the deceased is proved to have been about 500-600 metres according to PW3 Raghu Ram. There are also contradictions in the statements of witnesses about the fact as to whether the accused stood on the ground or fled from the spot when they reached there. We notice that PW5 Hardev has stated that when he alongwith Meena Devi, Shanta and Prem Singh and Lal Singh reached at a distance of about 100 metres of place where the incident took place, the accused fled away. PW2 Shanta Devi states that the accused was assaulting the deceased with stones in her presence when he hit her on the chest. But before adverting to the fact as to whether they constituted important and material contradictions, we find that the learned Court has totally misapplied the law applicable. The act had to fall within the parameters of Section 300 which provides that culpable homicide is murder, if the act is done by which the death is caused with the intention of causing death or with the intention of causing bodily injury which the offender knows to be likely to cause death of the person to whom the harm is caused or with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 9 10. We now advert to the evidence on record. The fact that the eye witnesses are related to the deceased is perse not sufficient for discarding their evidence, without anything more being established on record, that their evidence is not cogent or credible. (See Bur Singh and another vs. State of Punjab, AIR 2009 SC 157). The other point urged that there are discrepancies in evidence of the prosecution witnesses which have been established on record by Ext.DA and Ext.DB statements of the witnesses recorded under Section 161 Cr.P.C. as also in Ext.PW1/A, is also not sufficient to dislodge the entire evidence. Some minor discrepancies are bound to occur. (See Jakki alias Selvaraj & another vs. State, 2007 Cri. L. J. 1671 as also Bur Singh and another vs. State of Punjab (supra)). 11. Learned counsel appearing for the appellant then refers to the judgments of the Supreme Court in Dukhmochan Pandey and others vs. State of Bihar 1997 (8) SCC 405 and Zafar vs. State of UP 2003 (3) SCC 51 to urge that in this case the mere evidence of PW1 Prem Singh, who is a child of 14 years, which is full of inconsistencies cannot be used as a basis for convicting the petitioner. He then submits that the evidence of witnesses is not consistent on the occurrence when some of them say that the deceased was being assaulted when they reached the spot and the others say that he fled away from the scene. They are also not clear about the manner in which the deceased was being assaulted. In these circumstances, he submits that contradictions being material in nature go to the very root of the case and the accused deserves to be acquitted. He relies upon 10 the decision of the Supreme Court in Muthu vs. State of Karnataka (2002) 9 SCC 158. 12. We have given our careful and anxious consideration to the submissions made by the learned counsel Shri Anup Chitakra appearing for the appellant as also Mr. R.K. Sharma, learned Senior Additional Advocate General. What we find from the facts is that the learned trial Court has gone awry in rendering its findings and totally ignores the evidence of DW1 Damini. Her testimony is clear and cogent that when she was proceeding towards her house alongwith her brother (accused), the deceased, who was in a drunken state, started making lewd remarks at her. He asked the accused to leave her with him for a night. This part of her testimony has remained unchallenged. This in fact is also the defence taken by the accused that the deceased was drunk and was passing provocative and lewd comments and making obscene gestures at DW1 Damini and the accused. She says that since he was drunk he fell down and sustained injuries. The learned Court should have at least considered this very important aspect of the case that DW1 Damini was harassed and tormented by the deceased who was passing intolerable lewd comments at her, making obscene gestures and suggestions which no normal person could tolerate. The very fact that she was asked to spend a night with him was itself sufficient to have raised hackles of any civilized person. The candid manner in which DW1 has deposed in Court, leaves no doubt in our mind that she is a truthful witness. In the social milieu in India it is not usual for a married lady to stand up in Court and state about the sexual harassment to which she has 11 been subjected knowing fully well that she would be subjected to searching and belligerent cross examination. Of course, we note that this is not a justification for a murdered assault. We must remember the sensitive nature of the relationship and the affection which the accused has to DW1 who is his sister and it is, in these circumstances, the criminality of the entire incident is to be judged. 13. The assault which has occurred and which we garner out from the evidence by separating the chaff from the grain is that the accused and his sister DW1 Damini were traveling on the scooter when they were accosted by the deceased, who insisted with his provocative behaviour by making obscene gestures and lewd remarks despite the protests of the accused and DW1 Damini. At that point of time, he proceeded to drop her home, then returned and entered into some kind of fracas with the deceased in which he punched and kicked him. We also find from the record that stone Ext.P2 has not been established to be the one which the accused had used for the assault and the version of prosecution that this stone had been used for hitting the deceased on his chest, but no injury was found present. In other words, the stone was not used to strike the deceased on his head. At best, what is proved on record is an assault with fists and kicks not at all to any vital part of the body and even otherwise incapable of causing death. 14. We find that acts attributed to the accused do not constitute an offence punishable under Section 302 of the Indian Penal Code. For arriving at this conclusion, we note that stone Ext.P-2 which is supposed to have been used in the assault has 12 not been proved to be a weapon of assault. The deceased was neither punched nor kicked on any vital part of his body as established by the medical evidence. PW8 Dr. Amit Bhalla did not opine about the injuries which were later on urged by the prosecution to be grievous in nature. He also did not take urine sample of the deceased to find out as to whether he was drunk or not. In any event we find that intention to kill the deceased was totally absent. What emerges from the evidence is that there was a fight at the spot which was instigated by none other than the deceased who was passing obscene and lewd comments at DW1 Damini. He invited retaliation from the accused. We hold that the accused can be convicted for offence under Section 325 IPC. We therefore allow this appeal and alter the conviction of the appellant herein from Section 302 to Section 325 IPC and accordingly reduce the sentence to the one already undergone by the accused and direct that he be released from jail forthwith if not required in any other case. (R.B. Misra) Judge October 10th, 2011 (Dev Darshan Sud), ms Judge