IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal Nos. : 443 and 657 of 2001. Decided on : 18.07.2011. ___________________________________________________________ Criminal Appeal No. 443 of 2001 Inder Dev … Appellant. Versus State of Himachal Pradesh … Respondent. Criminal Appeal No. 657 of 2001 State of Himachal Pradesh … Appellant. Versus Inder Dev … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. S.S. Mittal, Sr. Advocate, with Mr. Surinder P. Sharma, Advocate, for the appellant in Cr. Appeal No. 443 of 2001 and for the respondent in Cr. Appeal No. 657 of 2001. For the respondent : Mr. R.K.Sharma, Sr. Addl. Advocate General, with Mr. Rajinder Dogra, Addl. Advocate General, for the respondent in Cr. Appeal No. 443 of 2001 and for the appellant in Cr. Appeal No. 657 of 2001. ____________________________________________________________ R.B. Misra, Judge (oral). Criminal Appeal No. 443 of 2001 has been preferred by the accused-respondent under Section 374 (2) of the Code of Criminal Procedure against the judgment/order dated 1 Whether reporters of the local papers may be allowed to see the judgment? 2 30.7.2001, passed by the learned Sessions, Kullu, acquitting the accused for the offence under Section 307 IPC and convicting him for the offence under Section 324 IPC, by imposing sentence to undergo rigorous imprisonment for one year and fine of ` 1000/- and in default of payment of fine the accused-respondent to undergo further simple imprisonment for three months. 2. Criminal Appeal No. 657 of 2001 has come up for consideration after leave to appeal has been granted under Section 378 (3) Cr. P.C, in reference to the impugned judgment dated 30.7.2001, passed by the learned Sessions Judge, Kullu, H.P, in Sessions Trial No. 44 of 2000, thereby acquitting the accused- respondent for the offence under Section 307 IPC. 3. Both the appeals are dealt with together. The prosecution case in brief is that on 17.12.1999, at 1.00 PM, Chet Ram (PW-2), the complainant (the injured) engaged two jawaras e.g. Jindu Ram and Hiru for construction of retaining wall of his house in village Shurudhar. When they were digging for laying plinth, at that time the accused-respondent Inder Dev came started arguing with Chet Ram about digging and laying danga. Accused also stopped the work and in the heat of moment took out a knife and attacked Chet Ram and caused stab injuries on scalp, neck, chest, stomach, back, hands and legs. On the intervention of Jindu Ram and Hiru, the accused was overpowered and he informed wife of Chet Ram, Daulti 3 Devi and other relatives. The victim Chet Ram (PW-2) was brought in injured condition to District Hospital, Kullu, where he was admitted and was examined by Dr. Mahesh Kapoor (PW-1). Initially, PW-2 Chet Ram was not in a position to make statement, therefore, statement Ex.PW-3/A of Jindu Ram (PW-3) under Section 154 Cr. P.C was recorded, in that reference, FIR/ExPW-7/A was registered. 19.12.1999, Chet Ram/(PW-2) was declared fit to give statement. SI Rajeev Attri proceeded to the spot and took blood stained stones Ex.P-7, maize stumps Ex.P-6 and also took into possession pant/Ex.P-2, shirt/Ex.P-3, banyan/Ex.P-4 and coat/Ex.P-5 worn by Chet Ram (PW-2) at the time of incident. The accused-respondent was arrested, who disclosed concealing of knife in a retaining wall behind his house. After completion of investigation the accused was charged for the offences under Sections 307, 324, 323, 341 and 506 IPC. 4. In order to prove its case the prosecution examined as many as seven prosecution witnesses, whereas, the accused- respondent through his statement under Section 313 Cr.P.C denied the prosecution case. 5. PW-1/Dr. Mahesh Kapoor, while posted as Medical Officer, Zonal Hospital, Kullu, examined on 17.12.1999, at about 5.30 PM, Chet Ram (PW-2) and noticed multiple injuries as follows:- 4 “(i). An L shaped incised wound with tapering ages and clear margins 1”x1” long both limbs, muscle deep in the sixth intercoastal space in the mid clavicular line on the left side of the chest. (ii). An incised wound elliptical in shape with tapering margins and clear cut margins lying horizontally in the second intercostal space in the mid clavicular line on the left side of the chest wound was muscle deep. (iii). An incised wound in the left lumber region 2” below the rib cage on the left side 2” behind the posterior axillary line. Wound was elliptical in shape with clear margins 1” long depth is 2 ½“ going upwards and medially. Advised X-ray of the abdomen in standing position. Ap. View and referred to surgeon for opinion about injuries. (iv) An incised wound in the right sixth inter-costal space in the posterior axillary line. 1” long with clear margins and the wound extended into the plural cavity. Surgical emphysema present on the right side of the chest with diminished air entry. Advised X-ray of the chest. P.A. view . (v) An incised wound 1” long in the posterior line in the right seventh inter-costal space, margin of wound clear and is muscle deep. (vi) An incised wound with clear margin over the fore head ¾” long, bone deep 1” above the left eyebrow. (vii) An incised wound over the planter aspect of distal phalyniex of left little finger 1” long skin deep. 5 (viii) An incised wound 1” long lying horizontally on the anterior medial aspect of left thigh in the middle ½ “ deep. (ix) An incised wound 1” long lying horizontally in the posterior lateral aspect of right side of neck in the middle. Wound was muscle deep.” 6. Observations for injuries and opinion were given as follows:- “The nature of injuries No. 1, 2, 5, 6, 7, 8 and 9 are simple in nature. Injury No.4 is dangerous to life. Injury No.3 simple in nature, as per opinion given by the Surgeon, on my reference probable duration of the injuries was caused within three hours to ten hours. All injuries were caused with a sharp edged weapon. I advised the police to have x- ray of the patient qua injuries No.3 and 4 qua which form was filled up by me. Without x-ray I was definite in my opinion about injury No.4. (At this stage sealed packet produced. Allowed to be opened). Injuries found in the person of injured can be caused with knife Ex.P1. MLC Ex.PW1/D was issued by me which is in my hand and bears my signatures. Witness Chet Ram ( who was called in side the courts) is the same person, who was examined by me. xxxxx Shri B.C. Thakur Advocate. X-ray pictures of the patient were not shown to me, nor I examined them. There is a Surgeon in the hospital. It is wrong to suggest that except injuries three and four all other injuries were not stab injuries. Rather such injuries were caused 6 thurst. Injury No.7 can be caused due to fall in a scuffle. Except injuries No. 3 to 5, injuries 1, 2, 6 to 9 may be sustained in a manner in which the injured was having a knife and was resisted by other persons to cause injury and in such scuffle if knife hits the injured with force. It is not possible to sustain injuries No.4 due to fall on a sloppy land. But in such manner injury No.5 can be caused. I cannot say about injury No.3. Injury No.4 cannot be caused by fall on knife because injury is so deep. If knife like Ex.P1 is strictly and firmly placed amongst stones, which blade projecting upwards, and a man falls on such upward blade of the knife with full force, injury No.4 may be suffered.” 7. PW-2 Chet Ram, victim/the injured in support of prosecution case has stated that he was constructing a house in village Shurudhar by associating two Jawaras, namely, Hiru Ram and Jindu Ram, as they were called to help PW-2 in raising wooden pole of the verandah. PW-2 started working in the verandah of the house, at that time accused Inder Dev came there and started arguing with him and asked to stop the work. In conversation, accused took out knife and hit PW-2 on right side below the chest and thereafter the accused inflicted injuries on chest, back, thigh, finger of left hand, neck and head, right side of the chest and also gave 2-3 blows on side of the back of PW-2. Due to stab injures, PW-2 fell down and the accused- respondent sat on PW-2 and caught him from the neck. Hiru Ram and Jindu Ram got stunned, the accused thought that PW- 7 2 had died, as such, he ran away from the spot. Jindu Ram sat by the side of PW-2 and Hiru Ram went to call wife of the victim/injured PW-2. Thereafter, PW-2 was brought on the cot upto village Shiha, from where he was taken to Kullu Hospital. In the meantime, the accused damaged the house of PW-2, for which PW-2 had filed a case against the respondent-accused. As stated by PW-2, he regained complete senses after fourth day of the incident and on third day gained only partial consciousness. When the accused attacked PW-2 with knife he could see only blade of the knife. It was very categorically stated by PW-2 that the accused attacked him with intention to kill him and due to knife blows blood oozed out of the injuries, staining the clothes, which PW-2 was wearing. PW-2 stated in the cross examination that his house is at the elevation of about 15’ from that of the accused and land in between is sloppy and the damaged portion of the house lies above the slope behind existing house of the accused. PW-2 further stated categorically in his cross examination that he had filed a civil suit against the accused-respondent in the year 1998 and there was no dispute with the accused qua boundary and the suit was compounded on 6.3.2001. PW-2 further stated that the quarrel took place in the verandah of his house and both the jawaras were also there. After 5-7 minutes of arguments, the accused started stabbing PW-2. As soon as PW-2 suffered first blow 8 he fell down and other injuries were inflicted while PW-2 was lying in the verandah. Initially, Hiru and Jindu did not intervene, however, when PW-2 fell down and accused caught him from the neck and started beating with knife blows, they tried to save PW-2. As stated by PW-2 in cross examination that he was in severe pain when he was brought to the hospital. PW-2 also denied that in order to save himself the accused caught him from the hands and in the scuffle he suffered injuries with the knife. PW-2 also denied that during scuffle he fell on stones over the debris and slope. PW-2 further reiterated the version stated by him in examination in chief. 8. PW-3 Jindu Ram in support of the prosecution case has stated that he was called by PW-2 Chet Ram as Jawaru to erect a damaged danga. Hiru Ram was also present there. When they started digging land for raising danga, Inder Dev accused came and started arguing with PW-2 Chet Ram and stopped the work. Thereafter the accused stabbed Chet Ram on side of the stomach and PW-2 fell down. PW-3 further stated that he cannot say as to how many blows were given but blows were given with knife. As stated by PW-3 they tried to save Chet Ram. Hiru Ram went to call Daulti Devi wife of Chet Ram. 25- 30 persons came with Daulti, when Chet Ram PW-2 was brought to Shiaha on a cot, from where he was taken to hospital at Kullu. PW-3 was accompanying Chet Ram to hospital, where police 9 recorded his statement Ex.PW-3/A, as at that time PW-2 Chet Ram was not in a position to give statement. PW-3 further stated in cross examination that the place where he was working was behind the house of the accused and below the house of Chet Ram PW-2, where retaining wall of the house of PW-2 had fallen. The quarrel between them took place near the fallen retaining wall where digging was being done. PW-3 further stated in cross examination that he was not aware as to how many knife blows were given while Chet Ram was standing, as he did not see Chet Ram falling but observed him when he had already fallen. PW-3 also denied that Chet Ram/PW-2 with knife went to the house of accused and quarreled with him. It was also denied by PW-3 that accused caught Chet Ram from wrist to prevent him from inflicting knife blow and in the scuffle PW-2 himself suffered knife injuries from the knife in his hand. 9. PW-4 Dabe Ram stated t hat on 18.12.99, when he came to Shurudhar, he observed police there and Tek Singh, Ram Singh and Hira Singh were also present there. In his presence, blood stained stones and stumps of maize were taken into possession. PW-5 HC Gulab Singh stated that he moved application Ex.PW-1/B to ascertain whether injured Chet Ram was in a position to make statement or not and thereafter PW-5 recorded statement Ex.PW-3/A of Jindu Ram PW-3, who was 10 present at the place of occurrence. PW-6 Ram Singh was associated by the police during investigation, in whose presence accused disclosed hiding of knife in a retaining wall near his house and got it recovered. PW-6 prepared recovery memo Ex.PW-6/B, which was signed by the accused and attested by PW-6 and Hira Lal. 10. PW-7 Inspector Roshan Lal had prepared site plans Ex.PW-7/C and Ex.PW-7/D and stated that these are in the hands of Rajeev Attri and its marginal notes are also in his hand. On receipt of Chemical Examiner’s report Ex.PW-7/F, PW-7 prepared challan and presented in the court. 11. On scrutiny of the prosecution evidence and materials on record and medical evidence, it appears that the accused and injured/victim [Chet Ram (PW-2)] were having some land dispute and civil litigation was filed by the victim against the accused-respondent, however, on the fateful day the accused-respondent was digging plinth for construction of a danga along with jawaras namely Jindu Ram and Hiru Ram and at that time the victim was not having any weapon and the accused-respondent came with knife and started arguing with Chet Ram (PW-2) to stop the work and attacked him with knife. The accused had not given a single blow but inflicted as many as nine blows and thereby victim Chet Ram sustained nine injuries as indicated by PW-1 Dr. Mahesh Kapoor. As observed 11 by PW-1, nature of injuries No. 1, 2, 5, 6, 7, 8 and 9 were simple in nature, however, injury No.4 was dangerous to life. All injures were stated to have been caused with sharp edged weapon. Except injuries No. 3 to 5, injury No.7 could be caused due to fall in a scuffle and except injuries No. 3 to 5, injuries 1, 2, 6 to 9 could be sustained in a manner in which the injured was having a knife. However, PW-1 has very categorically stated that injury No.4 could not be caused by fall on a sloppy land, but injury No.4 could have been caused by knife because injury was so deep. In the opinion of PW-1, injury No.4 was dangerous to life. 12. It was accused-respondent who was aggressive and had attacked Chet Ram (PW-2) with knife, which was got recovered by the accused. The injured witness/PW-2/Chet Ram has clearly stated that the accused attacked him with the intention to kill him, as such his testimony being reliable cannot be ignored, which has also been corroborated by PW-3. However, there is nothing on record to show that PW-3 was related to Chet Ram PW-2. The ocular witness PW-3 had also corroborated the statement of PW-2 and PW-1. 13. Keeping in view the facts and circumstances of the case and injuries sustained by the victim-injured the testimony of Chet Ram/(PW-2), since has been corroborated by PW-3 Jindu Ram, therefore, in our considered 12 view Chet Ram PW-2 being an injured witness in the hands of accused-respondent with knife, moreso as per the opinion of PW-1 inter alia other injuries the injury No.4 was dangerous to his life, as such, acquittal of the accused under Section 307 IPC is not justified. In the facts and circumstances, learned Sessions Judge has not made proper appraisal of the evidences. The trial court has erroneously concluded that PW-1 has nowhere stated that injury No.4 was sufficient to cause death of PW- 2/Chet Ram. Learned Sessions Judge has not given due weightage to the medical evidence. In the facts and circumstances victim PW-2 had sustained nine multiple injuries, out of which injury No.4 was dangerous to life, such injury cannot be said to be without intention or knowledge to kill the victim/Chet Ram. In our considered view, the judgment of the learned Sessions Judge is not legally sustainable and therefore the same is set aside for the reasons recorded above and we hold that the accused-respondent is guilty of the offence under Section 307 IPC and the Criminal Appeal preferred by the State Government being liable to be allowed, is accordingly allowed. However, before imposing sentence, the accused-respondent is to be heard on the quantum of sentence and for that purpose the accused shall make himself available before this court on 2.8.2011. 13 14. For the reasons stated above Criminal Appeal No. 443/2001 preferred by the accused-respondent being devoid of any merit is dismissed, whereas the Criminal Appeal No. 657/2001 is allowed. (R.B.Misra) Judge. (V.K. Sharma) Judge. July 18, 2011 (Lsp)