IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.121 of 2003. Date of Decision: 6th July, 2010. ____________________________________________________ Soda Ram ….Appellant. Versus State of Himachal Pradesh ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. M.S. Guleria, Advocate. For the respondent : Mr. A.K. Bansal, Additional Advocate General. ____________________________________________________ SURINDER SINGH, J. (Oral) : The appellant stands convicted by the learned trial Court under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/- and In default of payment of fine to further undergo rigorous imprisonment for a period of six months, which has been challenged by him in this appeal. 2. In short, the prosecution story can be stated thus. PW13 Satya Devi injured was married to Whether reporters of the Local papers are allowed to see the judgment? - 2 - appellant about 28 years prior to the alleged incident. During this wedlock, she gave birth to two sons and a daughter. In the year 1997-98, the appellant was working in Jalandhar, whereas his wife Satya Devi was working as Beldar in PWD and living in his village. The children of the injured were also residing with the appellant at Jalandhar. 3. It is alleged that on 1st June, 1998 appellant alongwith his children came to his village, all of them started living together with Satya Devi in the house. During intervening night of 10th/11th June, 1998 when PW13 Satya Devi was sleeping on the floor, her husband (appellant) was sleeping on the cot in the same room. Their elder son was out of station, but PW12 Sakina and her son PW14 Sandeep Kumar were with their parents and sleeping on the floor at some distance from their mother. It is also alleged that her husband (appellant) got up and switched on the light, took out the Drat from beneath his pillow and gave a blow on the neck of Satya Devi. She raised hue and cry. Both the children got up and on seeing the blood coming from the injury on the throat got frightened. The clothes of Satya Devi were smeared with blood. It is the prosecution story that Drat Ext.P.1 - 3 - was snatched by PW12 Sakina from the hands of appellant. 4. PW13 Satya Devi went to the nearby house of PW10 Jagdish Chand. She knocked at his door and his wife PW1 Mathra Devi opened the door. Simultaneously her husband Jagdish Chand also came there and enquired about the purpose of her visit. She revealed that she was given a Drat blow on her neck by her. Immediately thereafter PW10 Jagdish Chand arranged a taxi and took her to Civil Hospital, Jogindernagar. At about 4.30 a.m., in the hospital she was attended upon by PW2 Dr. D.D. Rana. He noticed (i) incised wound in the neck above thyroid cartilage which was 5 cm in length horizontally and 3 cm in depth in the middle, cutting all the muscle of neck in middle, trachea was also incised. He also noticed that air was coming to the wound (inspired or expired air). Margins were clean and bleeding was there. However, there was no edema and no debris was also found there. (ii) There was an injury on the right hand-arm below axila approximately 1 inch. It was 2 cm in length and 5 mm in width. Margins were clean. Fresh bleeding was there. There was no debris and in his opinion nature of first injury was grievous and life threatening and second injury was simple in nature. - 4 - Probable duration of the aforesaid injuries was to be within 2/3 hours with the sharp edged weapon. To this effect MLC Ext.PB was issued and the injured was referred to Zonal Hospital, Mandi for further management. 5. The doctor had informed the local police telephonically. The information was jotted down in the daily diary at about 4.30 a.m. 6. ASI Parkash Chand reached hospital and moved an application Ext.PA to know whether the injured was fit to make the statement, but the doctor opined that she was not fit to make the statement. To this effect, his endorsement is Ext.PA/1. Thereafter the statement of PW10 Jagdish Chand under Section 154 of the Code of Criminal Procedure was recorded by ASI Parkash Chand at about 5.40 a.m. and Rukka was sent for the registration of the case on the basis of which FIR Ext.PE was recorded. 7. Police visited the spot and prepared the site plan Ext.PN. Wearing clothes of the appellant were taken into possession. Police also took into possession Drat Ext.P1 vide memo Ext.PK, which was allegedly produced by the appellant. Its sketch map Ext.PM was also prepared. It was sealed and sent for forensic examination. - 5 - 8. Police also recovered two pieces of blood stained clothe from outside the compound kept concealed under the stones which were taken into possession vide memo Ext.PH. Blood stained pillow cover Ext.P7, from behind the box in the room was also taken into possession vide memo Ext.PJ. 9. Drat Ext.P1, pillow cover Ext.P7, wearing apparels of the appellant with pink coloured lady-suit of the injured were sent for the forensic examination. As per report Ext.PQ, no blood was found on the Drat and pant of the appellant. However, human blood was found on the pillow cover and the ladies-suit, which could not be deciphered as having disintegrated. After recording the statements of the witnesses and completing the Challan, it was presented in the Court for the trial of the appellant for the aforesaid offence. 10. The appellant was accordingly charge- sheeted to which he adjured his guilt. 11. To prove its case, the prosecution examined PW13 Satya Devi, injured, PW12 Sakina and PW14 Sandeep Kumar, her children, besides examining complainant Jagdish Chand and his wife Mathra Devi and the doctor and other formal witnesses. - 6 - 12. The appellant was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon. According to him, it was a false case and from the trend of the cross-examination it can be gathered that the defence was that the injured on the day of the alleged incident was not in the house of the appellant and also that she might have been attacked by PW1 Mathra Devi wife of PW10 Jagdish Chand as she was suspecting illicit relation between them which was also objected to by her husband, which is also apparent from the documents produced in defence. 13. When called upon to enter into defence, he also examined two witnesses to prove that the injured was a lady of easy virtue and had been carrying on with PW10 Jagdish Chand which was not even liked by his wife Mathra Devi. 14. The learned trial Court disbelieved the defence version. However, relying upon the prosecution case and its witnesses convicted and sentenced the appellant as aforesaid. 15. Shri M.S. Guleria, learned Counsel for the appellant led me through the evidence on record and forcefully argued that the record speaks in - 7 - volumes of the fact that the injured was locked in litigation with PW10 Jagdish Chand, his wife Mathra Devi (PW1) and his other family members. She had also filed criminal cases against other villagers who objected to her activities, which were not conducive to the society at large. Further, that when the appellant alongwith his children came from Jalandhar they did not find her in the house. They only came to know when police informed that she was admitted in the hospital by PW10 Jagdish Chand and was injured. Further, he also made a reference to the statements of PW12 and PW14 her children, who did not support the case of the prosecution and ventilated that there are also material contradictions, improvements and embellishment in the prosecution case and its witnesses, which makes the entire story as propounded by her a suspect also in view of the fact that the manner in which injury No.2 was sustained, has not been explained. 16. Contra, Shri A.K. Bansal, learned Additional Advocate General, supported the impugned judgment of conviction and sentence. According to him, the statement of minor PW14 Sandeep Kumar cannot be believed for the reason because at the time of alleged occurrence he was - 8 - minor and he was examined in the Court after a gap of four years, in so far as PW12 Sakina is concerned, she wanted to save her father, thus sided with him. He further argued that the injured has supported the case as initially set up by her, which is duly corroborated by the medical evidence and also by the statements of PW1 Mathra Devi and PW10 Jagdish Chand. 17. I have given my thoughtful consideration to the rival contentions of the learned Counsel for the parties and meticulously gone through the record. 18. On the scrutiny of evidence, I find that PW1 Mathra Devi had been suspecting illicit relations between her husband (PW10) and Satya Devi (PW13). In the year 1991, Satya Devi had also leveled an allegation against PW1 Mathra Devi that on 21st October, 1991 while she was cutting ,Mathra Devi started abusing her and called her Badmash, Rand and also that she has kept her husband. She also alleged that all her children were born out of loins of her husband and had been consuming the entire earnings. Although, the allegations were not proved, as such Mathra Devi was acquitted. 19. Further, there is another judgment Ext.DB on record passed by the learned Sessions Judge, - 9 - Mandi, under Section 376 of the Indian Penal Code wherein Satya Devi alleged gang rape by Narinder Kumar, Pawan Kumar and Hoshiar Singh, brother of PW10 Jagdish Chand whereby they were acquitted. There is also a photograph Ext.D1 of Satya Devi with PW10 Jagdish Chand to which PW10 admitted to be correct. 20. The upshot of the above discussion is that Satya Devi was suspected to be of easy virtue and carrying on her illicit relations with PW10 Jagdish Chand husband of PW1 Mathra Devi, which was not liked by the appellant and her children. PW12 Sakina her daughter and PW14 Sandeep Kumar, both have resiled from their earlier version. PW14 Sandeep Kumar though was minor, but is a competent witness. The objection raised by the learned Additional Advocate General that his testimony on account of his minority cannot be accepted, is devoid of any merit. Further, the testimony of Sakina (PW12) also cannot be rejected outright that to save her father she had made a wrong statement. It is a settled law that the testimony of a hostile witness cannot be thrown overboard, but the prosecution as well as the defence can make its use to the extent it helps them. - 10 - 21. Thus against the above background and on close and cautions scrutiny of the statement of the injured coupled with the testimonies of PW1 Mathra Devi and her husband PW10 Jagdish Chand, I find the case of prosecution highly doubtful to sustain conviction of the appellant for following reasons: i) It is apparent from the statement of PW13 Satya Devi that there is a population of about 100/150 people in her village and she was seen by some of them while going to the house of PW10 Jagdish Chand after the incident but she could not name even a single person to corroborate her version. ii) PW13 aforesaid had filed various complaints against Mathra Devi and her husband and also a criminal case against the brother of Jagdish Chand (PW10) which is also admitted by him, then it is not understood why she chose to go to his house if attacked by her husband and not to the other elderly people in the village. iii) Doctor stated that had Drat Ext.P.1 been used with full force, it would have caused more severe injury, whereas Satya Devi stated that her face was covered with ‘Pattu’ and Drat struck against it, which also got cut mark, but it was neither shown to police nor to the Court in evidence to corroborate her version. - 11 - iv) There were no blood stains in the room of the appellant where the alleged incident is alleged to have taken place. According to Investigating Officer, it was cleaned by applying the cow-dung paste but no other witness has stated so nor was any scientific evidence collected to prove this fact. v) When prosecutrix was examined by the doctor, she was conscious and was aware of the time and space, but she did not disclose anything about the incident. Only PW10 Jagdish Chand was with her at that time, whose statement was later recorded by police under Section 154 Cr.P.C. since injured was opined not fit to make statement, is not convincing. vi) PW12 Sakina and her brother PW14 Sandeep Kumar stated that when they came from Jalandhar alongwith the appellant, their mother was not in the house, in their village. They only came to know from the police after about 10 days of the arrival that she was admitted in the hospital on 11th June, 1998. They also stated that she was of easy virtue and earlier she used to visit home late night that too totally drunk. She further stated that Mathra Devi had also given beatings to her because of their illicit relations, even now her mother had been living with Jagdish Chand. - 12 - (vii) Also, I find on the scrutiny of the medical evidence that there was one more injury in the right hand below axila, as indicated above, but there is absolutely no explanation by whom this injury was caused to her. No explanation has been offered by the prosecution, more specifically by the injured as to how this injury was caused to her. The non- explanation of the second injury also raises a doubt in the authenticity of the prosecution case coupled with the fact that the place of alleged incident could also not be fixed by leading a cogent and convincing evidence. (viii) The blood stains on pillow-cover Ext.P-7 and that of the injured could not be connected. (ix) The two pieces of blood stained clothes found outside also not linked either with the appellant or the injured. (x) No blood stains were found on Drat Ext.P- 1. Thus, weapon of offence stands not connected. (xi) Although, the defence put to injured PW13 Satya Devi in her cross-examination to the effect that PW1 Mathra Devi might have caused said injury to her, is denied, but this possibility in view of the above factual background, cannot be ruled out. - 13 - 22. Therefore, in the totality of the circumstances the testimony of the injured cannot be blindly accepted to convict the appellant for the alleged offence. Therefore, in my considered opinion, the prosecution is not able to prove the case against the appellant beyond a reasonable doubt. Accordingly, the judgment of conviction and sentence passed against the appellant by the learned trial Court is set aside and the appellant is acquitted of the charge. Consequently, the appeal is allowed. The fine, if any, deposited shall be refunded to the appellant forthwith. 23. The appellant is also discharged of his bail bonds entered upon by him at any stage during the proceedings of this case. 24. Send down the record forthwith. July 6, 2010. (Surinder Singh), J. (rc)