1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeals No.410 of 1995, 154 of 1996 and 724 of 1996 Reserved on :9th March, 2010 Date of Decision: 23rd April, 2010 Cri. Appeal No.410 of 1995 Ramesh Kumar Appellant Versus State of Himachal Pradesh Respondent. Cri.Appeal No.154 of 1996 State of Himachal Pradesh Appellant Versus Ramesh Kumar Respondent Cri.Appeal No.724 of 1996 State of Himachal Pradesh Appellant Versus Shadi Lal and two others Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the State: Mr.Vivek Thakur, Addl. Advocate General. For the respondents: Mr.N.K.Thakur, Advocate. Sanjay Karol, J. These appeals arise out of judgment dated 22.11.1995 passed by the learned Sessions Judge in Sessions case No. 21/1991, titled as State of Himachal Pradesh vs. Ramesh Kumar and others. The Whether the reporters of Local Papers are allowed to see the Judgment? 2 Court below has convicted accused Ramesh Kumar of having committed an offence punishable under Section 304-II, IPC and acquitted the remaining accused persons, namely, Shadi Lal, Rakesh Kumar and Som Nath of the said charged offence. Accused Ramesh Kumar has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.25,000/- and in default thereof to further undergo rigorous imprisonment for a period of two years. Appeal No. 410 of 1995, titled as Ramesh Kumar vs. State of H.P., has been filed by accused Ramesh Kumar for setting aside his conviction and sentence, Appeal No.154 of 1996, titled as State of H.P. vs. Ramesh Kumar has been filed by the State seeking enhancement of the sentence of accused Ramesh Kumar and Appeal No. 724 of 1996, titled as State of H.P. vs. Shadi Lal and others has been filed by the State assailing the judgment of acquittal of the remaining accused persons. As per the case of the prosecution Shri Sidhu Ram (PW-3) and accused Shadi Lal are real brothers. The other accused are the sons of Shadi Lal. The relations between the two brothers are strained. Both reside in Village Ajoli. They have their houses next to each other. They have common open area and a common cattle shed (Bara). The 3 cattle shed is in front of the houses of both the parties. As per the statement recorded under Section 154, Cr.P.C., there is dispute about the use and ownership of the Bara. On 3.7.1991 at about 8 p.m. accused Ramesh Kumar came and parked a truck in the open area in front of the house. From the place where the truck was parked the house of PW-3 was about 25 to 30 feet. In the meanwhile Ravi Kant son of PW-3 came in a tractor. Since there was not enough space for the tractor to pass by, Ravi Kant asked accused Ramesh Kumar to move the truck to the side which he refused. This led to an altercation between the two. At about 9 p.m. Shiv Kumar, owner of the truck came and after getting the matter reconciled took away the truck and Ravi Kant and Ramesh Kumar both came to their respective houses. Thereafter, the ladies of both the families indulged into calling names to each other. At about 11 p.m. Ashok Kumar son of Sidhu Ram (PW-3) who maintains a dairy farm, went to the Bara to feed PERAS (dough) to his cattle. After some time PW-3, his sons Naresh Kumar (PW-4), Ravi Kant and daughter Nisha Devi heard cries of Ashok Kumar and came out from their house. They saw that all the accused persons had caught hold of Ashok Kumar and were giving him beatings with fist blows. When PW-3 tried to intervene accused Ramesh Kumar pushed him as 4 a result thereof he fell on the ground. Thereafter, after bringing knife from his house accused Rakesh Kumar gave a blow with it on the right side of the chest of Ashok Kumar. Other accused persons except Ramesh Kumar continued to give blows with fists. On receiving a knife blow, Ashok Kumar became unconscious and fell on the ground. When all the accused tried to run away people gathered at the spot pelted stones on them. Ramesh Kumar (PW-5), Ex- Pradhan of Village Ajoli also reached at the spot. He saw PW-3 and his sons Naresh Kumar and Vijay Kumar take Ashok Kumar to the hospital at Nangal in a tractor. On the way Ashok Kumar breathed his last and therefore his dead body was brought back and kept in the Bara. Thereafter PW-3 accompanied by PW-5 went to the Police Post, Mehatpur where report (Ext.PE) was lodged by PW-3 with SI Om Parkash (PW-11), who in turn sent a copy of the same to the Police Station Una. Based on the same, FIR (Ext.PE/1) dated 4.7.1991 under Section 302 read with Section 34, IPC was registered. PW-11 was on his way to the spot of occurrence of crime when he met the accused persons at Ajoli Mour. Smt. Chinti Devi mother of PW-3 and accused Shadi Lal were also with them. He was told by them that in connection with some other incident they had received injuries and therefore had desired to get themselves medically examined. Accordingly he 5 sent two constables to the place of crime in question and took the said persons and Smt. Chinti Devi to the Dispensary at Basdehra for medical treatment. Since the injuries on them were found to be simple he sent them to the Police Post and himself went to the spot in question. There he found the dead body of Ashok Kumar lying in the Verandah of the house. He prepared the inquest report (Ext.PA) which was signed by PW-3 and PW-5. He recorded the statements of the witnesses and took in possession the blood stained earth vide memo Ext.PF signed by PW-5 and one Kashmiri Lal. The place of occurrence was photographed. Postmortem was got conducted through Dr.V.K.Raizada (PW-1), who gave his report Ext.PB. PW-3 was got medically examined from Dr.Shruti Kant (PW-2) vide Medico Legal Certificate (Ext.PD). On further interrogation accused Ramesh Kumar made a disclosure statement (Ext.PG) in the presence of PW-5 and got recovered the knife hidden in the bushes vide memo Ext.PK witnessed by PW-5 and one Pritam Singh. The knife was blood stained and was sealed in a parcel after preparing the sketch Ext.PJ). The report (Ext.PP) of Chemical Examiner was also obtained. With the completion of the investigation, challan was presented in the Court for trial. Accused Ramesh Kumar was charged for having committed 6 an offence of culpable homicide not amounting to murder by causing the death of Ashok Kumar punishable under Section 304 Part-II, IPC, the other accused Shadi Lal, Rakesh Kumar and Som Nath were charged for having abetted the commission of the offence of culpable homicide not amounting to murder under Section 304(II), and Section 109, IPC. All the accused persons did not plead guilty and accordingly were put to trial. In all prosecution examined 11 witnesses. Dr.V.K.Raizada, (PW-1) conducted the postmortem on the dead body of Ashok Kumar, Dr,.Shruti Kant (PW-2) medically examined PW-3 accused Ramesh Kumar, Smt. Chinti Devi; Sidhu Ram (PW-3) is the complainant; Shri Naresh Kumar (PW-4) is the son of PW-3; Shri Ramesh Chand (PW-5), Ex-Pradhan of Gram Panchayat Ajoli, Head Constable Sh. Ravinder Kumar (PW-6); Constable Harinder Singh (PW-7); Shri Narinder Rana (PW-8), photographer; Shri Shiv Kumar (PW-9) photographer; Head Constable Ishar Singh (PW-10) and the Investigating Officer ASI Shri Om Parkash (PW- 11). Statement of the accused under Section 313, Cr.P.C. were also recorded. The accused Ramesh Kumar took the following defence:- “On 3.7.1991 before going to sleep I went to the spot where truck was parked for locking its cabon (sic). On the way Ashok Kumar deceased who 7 was armed with a big danda or iron bar which I did not properly see due to darkness, met me on the way and abused me for the incident of 8 P.M. I checked him not to abuse but he gave two blows with the weapon held by him which hit me on my shoulders. In the meantime Chinti Devi my grand- mother came there to intervene. She was also given blows with the said weapon by Ashok Kumar. During this period I picked up a knife from the cabon (sic) of the truck and tried to go home, but in the compound of the house Ashok Kumar again assaulted me with the same weapon and the weapon hit me on my head and the blood started oozing out. After that he raised the said weapon to give the fourth blow on my head, but before he could do so I gave him a knife blow in my self defence and he fell down. Soon thereafter, I also fell unconscious and regained my consciousness while in Police Post, Mehatpur. I and my grand-mother Chinti Devi continued bleeding from our head injuries. After our arrival i.e. myself, Shadi Lal, Rakesh and Chinti Devi, Sidhu Ram alongwith Ramesh Chand, Pradhan had narrated the above mentioned version to the police, but they did not take notice of our version, but get ourselves medically examined from Civil Dispensary, Basdehra on the same night. I felt sever pain in my head and remained under treatment at D.H. Una and shimla and in the Sub Jail itself for about 1 and 1 ½ months. My grand-mother Chinti Devi had since expired. At the time of occurrence except me none of the other accused was present at the spot. Sons of Sidhu complainant have been abusing teasing and beating us on one pretext or the other for the last 2-3 years so that we leave the village. I 8 am innocent. No other persons except Chinti Devi had witnessed the occurrence.” The defence taken by the other accused persons is on similar lines. They have however added that after they heard Ashok Kumar and accused Ramesh Kumar quarrel, Smt. Chinti Devi decided to intervene and go to the spot to get the matter settled. She asked the accused persons to remain inside the house so that the matter would not flare up. She went to the spot but after some time came back in an injured condition. They saw both Ashok Kumar and Ramesh Kumar lying in the compound in an injured condition. Smt. Chinti Devi was crying with pain and informed that she did try to rescue the accused Ramesh Kumar from Ashok Kumar. She received the blows given by Ashok Kumar. The Court below acquitted the accused Shadi Lal, Rakesh Kumar and Som Nath, but however, convicted Ramesh Kumar for an offence punishable under Section 304 (II), IPC. Hence the present appeal. The learned Sessions Judge has convicted the accused Ramesh Kumar by assigning the following reasons:- a) Ocular evidence i.e. testimonies of PW-3, PW-4 and PW-5 proved that accused Ramesh Kumar had given a blow with a knife to the deceased. 9 b) PW-1, conducted the postmortem and proved the report (Ext.PB). As per him, the injury was possible with the weapon of offence i.e. a knife (Ext.P-3). c) PW-5 Shri Ramesh Chand proved the recovery of knife (Ext.P-3). The recovery memo (Ext.PH) was signed by him. d) Dr.Shruti Kant (PW-2) upon medically examination found the injuries of (i) PW-3 to be of simple nature, (ii) Ramesh Kumar to be simple in nature which could have been caused with a blunt weapon. The MLC (Ext.DA) proved the same, (iii) Smt. Chinti Devi had abrasions, which could also be caused by fall. e) It could not be said that the Investigating Officer had deliberately avoided to get the x-ray of the accused Ramesh Kumar conducted. Failure to get the same done by itself would not lead to presumption that the injuries were grievous in nature. f) Right to defence was not available to the accused. There was no immediate threat to his life. The accused had brought the knife from a distance. It was not a spontaneous reaction. g) The deposition of the prosecution witnesses was totally reliable and believable. The 10 contradictions in this statements being minor had no material impact on the case. h) There was nothing on record to prove that the complaint of the accused party was not recorded by the Investigating Officer rendering the investigation to be unfair and the prosecution version to be false. We have heard the learned counsel for the parties and gone through the record. The power of the Court under Section 386 of the Code of Criminal Procedure is wide. The Court can re-appreciate the entire evidence on record as also review the trial Court’s conclusion with respect to both facts and law. If the trial Court’s conclusion is likely to result in grave miscarriage of justice or that the entire approach of the trial Court in dealing with the evidence is patently illegally rendering the judgment to be manifestly unjust and unreasonable due to misreading of material evidence, the Appellate Court can correct the errors within the frame work of law. Mohammed Ankoos & Ors. Vs. Public Prosecutor, High Court of Andhra Pradesh (2010) 1 SCC 94. In our considered view the injuries suffered by the accused remain unexplained by the prosecution. The injury on the person of the accused Ramesh Kumar was more than single in nature and the police 11 malafidely and/or with oblique motive did not get the x-ray conducted from the hospital. The Court below has dealt with this issue by coming to the conclusion that the injury on the body of Chinti Devi, as per the deposition of PW-2 Dr. Shruti Kant, could not have been received by the blow of the danda allegedly given by the complainant party. Record proved that people gathered at site had thrown bricks at the accused, which explained the injury on the body of both Smt. Chinti Devi and accused Ramesh Kumar. In any event there was no order of the Chief Judicial Magistrate directing the police to conduct the x-ray of the said accused Ramesh Kumar. Dr. Shiv Pal (PW-3), had examined the said accused and according to him complication due to the injury on the skull could have arisen within 24 hours. In the case of the accused since no complication had arisen, therefore, the injury could not be said to be grievous in nature. In our considered view, the Court below has seriously erred in correctly appreciating the entire material on record while arriving at such findings. We are not in agreement with the findings returned by the Court below for the following reasons. PW-2 Dr. Shruti Kant, had examined accused Ramesh Kumar on 4.7.1991. He had himself suggested for getting the x-ray of the skull done to rule out 12 any head injury. Accused Ramesh Kumar undisputedly received the following injuries: “1. Lacerated wound over the left side of scalp about 2” in length. Width 2-3”.. Scalp bone exposed, margins were irregular. Bleeding positive hairs were stained with blood. 2. Abraisons over the left shoulder anteriorally. 3. Bruises over the left shoulder posteriorly longitudinal about 2-3” in length. ½” in width.” DW-3, Medical Officer, District Hospital, Una, himself had medically examined accused Ramesh Kumar on 4.7.1991 and on that day itself had advised that the x-ray of head of the accused be got done. This is evident from the prescription slip (Ext.DJ), (Page 198). In fact even the x-ray form (Ext.DK) had been filled up by him. This document reveals that even though accused was taken to the Hospital on 4.7.1991, 5.7.1991 and 8.7.1991 but, however, x-ray could not be done for the reason that either the technical staff was not available or the machine was not in order. It is also an admitted fact that the accused was taken to the Hospital on 10.7.1991 when also the x-ray could not be done. On 9.7.1991 the SHO. Police Station, Una was directed by the Judicial Magistrate, Ist Class, Una (Court No.2) under Section 54, Cr.P.C. to get the accused medically examined from 13 Civil Hospital, Una. [(Ext.DE,DE/1), page 189]. On 14.7.1991 the report was submitted by the Investigating Officer (PW-11) stating that necessary medical record/report had been sent to the Superintendent of Jail for getting the needful done. Importantly, on 11.7.1991, PW-11 (investigating officer) himself had moved an application (Exts.PM, PN, page 202) in the Court of JMIC, Court No.II, Una clearly admitting that accused was taken to Haroli and “on the head wound of the accused stitches have been applied”. Request was made to allow the accused to be taken in judicial lock up for getting the x-ray done. On this application the following order was passed by the Court on 11.1.1995. “Presented by A.S.I. Om Prakash of P.P. Mehatpur. The x-ray of the accused be got done in accordance with rules while he is in judicial lock-up (illegible) be also got unstitched (sic) in view of such prayer in the application.” On 12.7.1991, as is evident from (Ext.DK), the case was referred to IGMC Shimla for examination. Letter dated 12.7.1991 (Ext.PF, page 194) issued by the office of the Superintendent, Sub Jail, Una, addressed to the Chief Medical officer evidences the fact that till that date the x-ray of the accused Ramesh Kumar had not been done. Record further 14 reveals that the matter was kept pending and it was only vide letter dated 16.7.1991 (Ext.PG, page 196) that ultimately the matter was formally referred to the Medical Superintendent, IGMC, with a request to conduct the x-ray of the accused Ramesh Kumar. There is a prescription slip, (Mark C, page 204) on record which reveals that the accused had been taken to IGMC, Shimla, but, however, there is no document on record to even show, much less prove the medical treatment given to the accused there. Whether the x-ray was got done and what was the opinion of the doctor has not been shown at all. The Investigating Officer (PW-11) in his cross-examination admits that the Doctor at the District Hospital, Una, had advised that x-ray of Shri Ramesh Kumar be got done from PHC, Haroli. In fact he admits not to have taken the accused back to him for treatment. According to him, the SMO, Una, had advised that considering the injury of accused Ramesh Kumar being simple in nature there was no need to get the x-ray done and, therefore, the accused was sent to Judicial custody on 10.7.1991. He admits not to have contacted the SMO personally or received any such advice in writing. Such advice was got through the constable. SMO has not been examined in the Court. What was his opinion has also not been legally proved on record nor has the said constable been examined in 15 the Court. In fact PW-11 admits not to have done anything after 11.7.1991. His testimony stands falsified by the documentary record itself. On 11.7.1991 this witness himself had signed an application (Ext.PM and PN) informing the Court that the x-ray could not be carried out and the wounds on the head of the accused had been stitched. How could he go by the oral opinion of the SMO, which in any event is not proved on the record. Importantly, there was a direction of the Court to the effect that the x-ray of the accused be got done. The order, in fact, was violated with impunity. There is nothing on record to show that this order of the Court was even complied with. The matter becomes important considering the defence of the accused that the police had deliberately avoided getting the x-ray of Ramesh Kumar done so as to disentitle him from taking a valid and legitimate defence in law. The Superintendent of Sub Jail (DW-1) Shri Kehar Singh admits that after 11.7.1991 he had not got the accused Shri Ramesh Kumar medically examined since there was no order or request. He admits that even on 12.7.1991, 16.7.1991, 22.7.1991, 24.7.1991 the accused was sent for x-ray, but there is no mention of the treatment given to the accused. It appears that the police was not interested in carrying out the 16 investigation in a fair manner and that is why proper medical treatment was not given to the accused and/or placed before the Court. Dr.Shiv Pal (DW-3), undoubtedly opined that in a case of latent and patent injury on the head, the patient is kept for observation for 24 hours as complications are likely to arise during this period. In the case of the accused complete medical record has not been produced. The accused was in police custody since the date of the incident. In fact order dated 9.7.1991 was passed by the Court on his asking. It is argued that since prescription slip (Ext.DL) dated 29.7.1991, pertaining to accused Rakesh Kumar showed treatment of ring worm infection of upper part of the thigh and inguinal region, hence, it be presumed that no complication had arisen. The arguments need to be rejected. The accused undisputedly had suffered injury on the head. His wounds had been stitched. It is quite possible that the prescription slip (Ext.DL) pertained to a specific disease which may have occurred at the given point of time. Permanent disfiguration of head or face would have amounted to grievous hurt. No doubt in Ext.DA, it is mentioned that the injury is simple in nature, but, however, the doctors themselves doubted the nature of the injury and therefore, time and again had advised for getting the x-ray of the accused done. 17 The police had taken him from one Hospital to another. Hence, the prosecution in our considered view has concealed the relevant information from the Court rendering the prosecution version to be doubt. Further, to our mind, PW-11 has undoubtedly deposed falsely in the Court. According to him after Sidhu Ram (PW-3) got the report (Ext.PE) recorded at the Police Post Mehatpur, he proceeded to the spot in a truck. On the basis of rupat FIR (Ext.PE/1) dated 4.7.1991, under Sections 302, 34 IPC was registered with Police Station, Una. He does not mention the number, owner or driver of the truck. At Ajoli Mour he saw accused Shadi Lal, Ramesh Kumar and Rakesh Kumar alongwith Smt. Chinti Devi at 12.45 - 12.55 a.m. (night intervening 3rd and 4th July, 1991). Seeing them he alighted from the truck and was told that they had a dispute with “some other party” and, therefore, wanted to get themselves medically examined. Therefore, he himself took them to the Dispensary at Basdehra and sent the constable to the place of occurrence of the crime in question. The injuries were found to be simple, therefore, he “sent” them to the Police Post alongwith the two constables and himself proceeded to the spot in question. Now this conduct of the Investigating Officer is highly condemnable. The version seems to be highly improbable. He had left the Police Post to 18 carry out investigation in a murder case. Why would the Investigating Officer leave the investigation and himself take the accused persons to a dispensary for medical examination has not been explained by him. What prompted him to do so? It is not his version that he knew the said accused persons from before. He has not given reason for “alighting” from the truck at Ajoli Mour. Undisputedly Ajoli Mour is away from the spot in question. Who were the two constables with whom he had sent the accused persons to the Police Post? They have not been examined by the prosecution. The reason is not far to seek. According to this witness, when he reached the spot he found the body of the deceased lying in the verandah of the house and prepared the inquest report and also recorded the statements of the witnesses. This version of his stands materially contradicted by PW-3 and PW-4, according to whom the body of the deceased had been kept in the Bara. That he