1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 322 of 1999. Date of decision: 17-6-2008. ____________________________________________________________ Devi Ram. Appellant -vs- State of H.P. Respondent. __________________________________________________________________ Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. M.S. Chandel, Advocate. For respondent : Mr. P.K. Sharma, Additional Advocate General. __________________________________________________________ SURJIT SINGH, J. (oral) Appellant has appealed against the judgment of the Sessions Judge by which he has been convicted of an offence punishable under Section 302, I.P.C. and sentenced to under-go imprisonment for life and to pay a fine of rupees 5000/-, in default of payment of fine, to under-go imprisonment for a further period of two years. Prayer has been made for setting-aside the judgment of conviction and sentence and acquitting the appellant. First, we may notice the prosecution case. Deceased Rama Ram, a Doomna by caste, was engaged by DW1 Premi Devi for making bamboo baskets, which the later required in connection with the marriage of her daughter. On 29-11-1994, in the evening, when said Rama Ram was weaving the baskets, appellant-accused Devi Ram went there and on Whether reporters of the Local papers are allowed to see the judgment? 2 seeing Rama Ram said grudgingly that the rate charged by the deceased for making the baskets was so high that the price of the baskets prepared by him was equivalent to that of gold. Rama Ram deceased reacted by saying that if it was felt that the rate charged by him was high then some other person could be engaged for the job. This enraged the appellant- accused and he started slapping, fisticuffing and kicking the deceased. The deceased felt giddy after being beaten-up by the appellant-accused. He went to PW2 Prem Sagar, an Ayurvedic Doctor-cum-Chemist and asked for some medicine as he was having pain in his chest and other parts of the body. Prem Sagar examined the deceased and found swelling of his face and chest. On touching the body of the deceased, PW2 Prem Sagar felt sound of rattling (jar-jar). He went to the adjoining shop of Rattan Singh (PW3) and told him that the condition of deceased Rama Ram was serious and he needed to be taken to the Hospital at Bharari. Appellant-accused was present at the shop of Rattan Singh (PW3) at that time. He proclaimed that he had given sound beatings to Rama Ram and that he would be paying for the medicines which PW2 Prem Sagar was to supply. Rama Ram then went to the house of his sister and called out by name his sister’s son Jagga Ram. Jagga Ram was not at home but his wife PW1 Sheela Devi was present. She called Rama Ram to her house. She was busy in the kitchen preparing meals at that time and asked Rama Ram to sit in the kitchen itself. She noticed that Rama Ram was writhing in pain and his face was also swollen. On enquiry, Rama Ram told her that he had been given slaps by the accused-appellant. Before narrating to PW1 Sheela Devi that he had been slapped by the appellant-accused, Rama Ram told Prem Sagar (PW2), Rattan Singh (PW3) and Sukhdev (PW5) that he had been beaten-up by the appellant-accused and had been dealt kicks and fist blows. Around 8.00 or 8.30, when the deceased was present in the kitchen of PW1 Sheela Devi, his condition deteriorated and he became 3 unconscious. Sheela Devi deputed her son to call a Doctor but before the Doctor could reach, Rama Ram expired. On seeing Rama Ram dead, Sheela Devi started crying. Attracted by her cries, several people gathered. PW13 Tulsi Ram was deputed on the next following day to inform the Police. He went to Police Station, Bharari and informed the Police that deceased was lying dead in the court-yard and his face was swollen. Police rushed to the spot the same very day and recorded the statement, under Section 154 of the Code of Criminal Procedure, of Sheela Devi. On the basis of the said statement, a case was formally registered under Section 302, I.P.C. against the appellant. Inquest was conducted. Dead-body was sent for post-mortem examination. Following injuries were noticed by Dr. S.P. Barmani (PW11), Medical Officer, District Hospital, Bilaspur on his dead-body :- 1. Reddish coloured abrasion on forehead left side just above the lateral end of eye-brow having size 2cms x .2cms about. 2. Semi curved reddish coloured abrasion on the left maxillary area having size about 2cm x .2cms surrounded by bluish coloured contusion. 3. Puffiness of face present with swollen eye lids with swollen neck and massive swollen scrotal sac due to surgical emphysema. Surgical emphysema is present on the body extending from the face to lower part of both the thighs. On dissection of scrotal sac air was found inside with no injury (gross) to the underlined parts. 4. Bluish green coloured contusion on the outer surface of left upper arm in the central portion having size about 6 cm x 4cms. 5. Evidence of fracture of distel end of left ulna with the presence of contusion over the wrist and dorsum of the left hand. 4 6. Evidence of fracture of 7th and 8th ribs of left side present and left side thoracic cavity contained about 200 mls. of blood. Contusion on the inner surface of the thoracic cavity at the level of 7th and 8th ribs present having size about 15cm x 8cms. Left lung is ruptured adjoining the fracture site of ribs. The Doctor gave the opinion that the injuries were possible by first and kick blows and injury No.6 was sufficient to cause death. In cross- examination, he stated that the injuries could have been sustained as a result of falls from a height. Appellant-accused took different stands while cross-examining the witnesses of the prosecution. To some witnesses, it was suggested that the deceased sustained injuries while at the house of PW1 Sheela Devi. To some other witnesses it was suggested that the deceased had been seen in a objectionable position with a mentally sick lady about fifteen days prior to the occurrence and was given a thrashing by the residents of the village. To PW2, it was suggested that the cause of death was the reaction of the injection given by him to the deceased. To the Doctor, it was suggested that the injuries could have been sustained as a result of falls and then a defense witness, namely Premi Devi (DW1) who had engaged the deceased to make baskets for her was examined who testified that she was told by the deceased that he had had a fall from the road edge and sustained the injuries. Prosecution led direct as also circumstantial evidence to connect the appellant-accused with the crime. According to the prosecution, PW5 Shalig Ram had witnessed the occurrence. However, this witness while in the witness box, turned hostile. He stated that the deceased had a fall from a four feet high Danga and sustained the injuries. He was cross-examined by the prosecution with the leave of the Court. He did not say anything 5 favourable to the prosecution in the course of cross-examination by learned Public Prosecutor. Thus, there is no direct evidence of the alleged beating of the deceased by the appellant-accused. However, there are four witnesses who have testified that the deceased made dying declaration to them at different points of time. Incident took place around 5.00 P.M. Rama Ram died the same day around 8.00 or 8.30 P.M. Within this span of three to three and half hours, he visited the shops of PW2 Doctor Prem Sagar, PW3 Rattan Singh & PW4 Sukhdev and the house of PW1 Sheela Devi, where he ultimately collapsed. First he went to the shop of PW2 Prem Sagar who besides being an Ayurvedic Doctor, is a Chemist. PW2 Prem Sagar examined him and found that there was crackling (jar-jar) sound on touching the body and his (Ram Ram’s) condition was serious. To this witness, as per his testimony, Rama Ram told that he had been beaten-up by accused Devi Ram. The witness stated that he gave a pain killer injection to the deceased and took him to the adjoining shop of PW3 Shri Rattan Singh where Devi Ram accused –appellant was also present at that time. The witness further stated that Devi Ram proclaimed that he had given beatings to the deceased and was prepared to defray the expenses of treatment. PW3 Rattan Singh at whose shop Devi Ram was present, per testimony of PW2, also stated that around 6.15 P.M. on 29th November, 1994, a boy brought deceased Rama Ram to the shop of PW2 by holding him and on inquiry, Rama Ram told that he had been beaten-up by Devi Ram. He further stated that PW2 Dr. Prem Sagar after check-up of the deceased, came to his shop and told that the condition of the deceased was serious, upon which Devi Ram who was sitting at his shop, told Prem Sagar to give medicines to Rama Ram and that his charges will be paid by him (accused-appellant). 6 PW4 Sukhdev stated that at 6.30 P.M, on the fateful day, deceased visited his shop and told him that Devi Ram had given him fist and kick blows and that he had been given an injection and some medicines and so he needed milk. He stated that he gave 250 grams of milk to the deceased who then left in the company of a boy named Raju. Sheela Devi (PW1) stated that on the fateful day around 7.00 or 8.00 P.M, Rama Ram came to their house and sat in the kitchen where she was preparing meals and that as he was not feeling well, she enquired as to what had happened to him, upon which he told that when he was working at the house of Sukh Ram, Devi Ram appellant-accused came there and gave him some slaps. She stated that Rama Ram told her that he was having pain in his chest and she noticed swelling of his face. She stated that after some time, Rama Ram fell unconscious and seeing him in that state, she started crying and the villagers gathered at her place. She further stated that around 8.30 or 9.00 P.M. Rama Ram expired. PW8 Harish Chand Namberdar of the village stated that on 30-11- 1994 at 6.45 P.M, Devi Ram came to his house and told him that on the previous evening, he had given two/three slaps to Rama Ram and that he (Rama Ram) had died and his dead-body was lying in the house of Sheela Devi. He stated that Devi Ram asked him to do something to get him bailed out, but he refused to oblige him. Testimony of PW1 Sheela Devi, PW2 Prem Sagar, PW3 Rattan Singh and PW4 Sukhdev & PW8 Harish Chand does not suffer from any major infirmity, inconsistency or contradiction. Learned counsel representing the appellant-accused has stated that while Sheela Devi testified that the deceased told her that he had been given some slaps by appellant-accused, the other witnesses stated that the deceased told that he was beaten-up by the appellant and one of them, 7 namely, PW4 Sukhdev stated that he had told that he had been given kicks and fist blows and that this contradiction makes the story of dying declarations highly doubtful. We do not agree with the submission of the learned counsel. No doubt, Sheela Devi (PW1) stated that the deceased told that he had been given a few slaps but at the same time, she stated that the deceased was not in a position to speak clearly and therefore, she could not follow all what he was saying. May be that it is because of the in- ability of the witness to follow everything what was said by the deceased that she testified about slaps only and not the beating with kicks and fist blows. Evidence of dying declaration given by the above named four witnesses is corroborated by the testimony of PW11 Dr. S.P. Barmani, Medical Officer, who testified that all the six injuries noticed by him on the dead-body could have been caused by kicks and fist blows. Besides the evidence of dying declaration, as referred to herein above, there is evidence of extra-judicial confession made by the appellant- accused. PW8 Harish Chand Namberdar has stated that the appellant- accused visited his place on 30th November, 1994 in the morning at 6.45 a.m. and confessed that he had given a few slaps to the deceased and that he was lying dead in the house of Sheela Devi and requested him to help him wriggle out of the matter. We see no reason to dis-believe the testimony of this witness, who is a respectable resident of the village, being the Namberdar. Learned counsel argued that the injuries had been sustained by the deceased as a result of fall and not on account of any beatings given by the appellant-accused. To bring his point home, he drew our attention to the testimony of Shalig Ram (PW5) and Premi Devi (DW1). Shalig Ram, a hostile witness, testified that the deceased had a fall from a four feet high Danga and sustained the injuries. DW1 Premi Devi stated that she was told 8 by the deceased that he sustained injuries as a result of fall. Our attention was also drawn to the testimony of PW11 Dr. S.P. Barmani who, in the cross-examination, stated that the injuries were possible as a result of falls . There were six injuries on the person of the deceased. His two ribs were fractured. There was also fracture of left ulna. His face was swollen. All these injuries could not have been sustained as a result of a single fall. Therefore, the testimony of PW5, who is otherwise also a hostile witness, cannot be believed to up-hold the argument advanced on behalf of the appellant-accused. To the Doctor, it was suggested that the injuries could have been sustained due to falls, from some height meaning thereby that more than one fall were required to be there from some height for sustaining of six injuries. Shalig Ram says that there was only one fall. Therefore, the aforesaid submission made by the learned counsel for the appellant is rejected. However, from the facts and circumstances of the case, as noticed herein above, it is clear that the accused-appellant did not intend to cause the death of the deceased or any injury which was sufficient in the ordinary course of nature to cause death or an injury which he knew was so imminently dangerous as to cause death of the deceased and therefore, the conviction of the appellant-accused for the offence of murder cannot be up-held. He gave kick and fist blows and some slaps to the deceased. Injuries to the ribs and scrotal sac indicate that he was kicked with considerable force in the chest and on the testicles. Therefore, the appellant-accused can reasonably be held to have had the knowledge that his acts were likely to cause death of Rama Ram and therefore, he is guilty of the offence of culpable homicide not amounting to murder within the meaning of Section 304 (second part), I.P.C. 9 As an up-shot of the above discussion, we partly allow the appeal. The conviction and sentence of the appellant under Section 302 as passed by the trial Court are set-aside. Instead, the appellant is convicted of the offence under Section 304, (second part) I.P.C., and sentenced to under-go rigorous imprisonment for four years and to pay a fine of rupees 5000/-. In default of payment of fine, he shall under-go rigorous imprisonment for a further period of one year. (Surjit Singh), Judge. (Surinder Singh) Judge. June 17, 2008. (bm) 10