IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 24 of 1999 Date of decision : 07.05.2010 ____________________________________________________ State of Himachal Pradesh …Appellant. Versus Sh. Uttam Chand and others …..Respondents Coram The Hon’ble Mr. Justice Dev Darshan Sud, Judge The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? 1 Yes. For the appellant : Mr. P.K. Sharma, Addl. Advocate General with Mr. R.P. Singh, Assistant Advocate General. For the Respondents : Mr. Virender Singh Rathore, Advocate. Per Dev Darshan Sud,J.(Oral). The State has preferred this appeal against judgment of acquittal passed by learned Additional Sessions Judge (1), Kangra at Dharamshala on 16.10.1998 in Sessions Case No.3-G/98, acquitting three accused Uttam Chand, Gulabo Devi and Chottu alias Nikku Ram for the offences under Sections 302, 452 read with Section 34 of the Indian Penal Code. 2. The prosecution story in brief is that all the three accused, at about 9 P.M. on 27.7.1997 at 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 village Sauli, Tehsil Khundian, District Kangra in furtherance of their common intention to commit murder of Sher Singh and his wife Bimla Devi, committed house trespass and gave beatings to both of them and causing injuries which resulted in their death on 1.8.1997. 3. On 28.7.1997 at 11 A.M. Piar Chand PW-5 visited Police Post, Khundian and stated that Sher Singh and Bimla Devi had been beaten-up by “some body”. This information was recorded in the daily diary as rapat No.4 by the police at Police Post, Khundian. After recording his statement, Piar Chand PW-5, was advised to take both the injured to the hospital at Jawalamukhi as there was no doctor in the hospital at Khundian. PW-12 Rumal Singh, Assistant Sub Inspector, had proceeded to Govt. Hospital, Jawalamukhi and found both Sher Singh and Bimla Devi in injured condition. He made two applications Ex.PW-7/A and Ex.PW-7/C for medical examination of both the injured. Statement under Section 154 of the Code of Criminal Procedure of Sher Singh was recorded, which is Ex.PW-6/A. PW-7 Dr. K.K. Rattan, BMO, CHC Jawalamukhi, had examined both the injured. He issued Medico Legal Reports Ex.PW-7/B and Ex.PW-7/D. He found the following injuries on the person of Smt. Bimla Devi:- “1. Swelling lateral half of the left eye brow with development of black eye. 3 2. A bruise red in colour 7 cm x 1 cm around the front of the neck just above the superasternal notch”. 4. He has also found the following injuries on the person of Sher Singh:- 1. An incised wound 3.5 cm x .5 cm and .07 cm deep on the left cheek just above and along the left nasolabial fold bleeding brashly. 2. Another incised wound 1.5 cm x .3 cm and .2 cm deep on the right cheek just below the right lower eye lid.” 5. PW-8 Dr. D.P. Swamy, Medical Officer, Zonal Hospital, Dharamshala had conducted the postmortem and found the following injuries on the person of deceased Bimla:- 1. “Black eye left side 3 x 3 cm area with haematoma below the left eye. 2. Bruise on the slightly left side of upper chest 7 x 1 cm tailing down words. CRANIUM AND SPINAL CORD 1 Burise 4 x 4 cm on the left side of temporal region. Reddish. 2 Sub dural haemorachage 4 x 4 cm area on the left side of temporal area with compression of brain left side temporal region. 6. He has also found the following injuries on the person of deceased Sher Singh:- 4 1. Grazed abrasion on the back, lower mid part adjoining to hip bone 1 x 1 cm dark reddish with scab formation. 2. Stitched wound on the left side of mid cheek/oblique in direction tailing above downwords 3.5 cm long in healing process of a scab formation. The wound is accompanied by haematoma 3 cm x 3 cm reddish in colour. 3. Healing wound 1.5 cm below right eye on upper part of maxillary bone area with the scab formation, dark reddish in colour, underlying heamatoma 4 x 4 cm area reddish in colour. CRANIUM AND SPINAL CORD 1. Haematoma 5 x 5 cm area on the right side of temporal region, above the ear redish in colour. 2. Haematoma on the right side of forehead 4 x 4 cm area dark reddish in colour. 3. Heamatoma on the left side of forehead 4 x 4 cm area reddish in colour. 4. Linear 3 cm fracture on the right side of temporal bone oblique in direction. 5. Extradural heamatoma 4 x 4 cm area on the right side of temporal region, dark reddish in colour, just below the injury there is slight deoression of brain and dura matter.” 5 7. According to the doctor, Bimla Devi had died due to neurogenic shock and asphyxia due to brain compression, as a result of ante-mortem head injury, which was sufficient in the ordinary course to cause death and time between injury and death was 4 to 5 days. He has expressed similar opinion for the cause of death of Sher Singh. The postmortem reports are Ex.PW-8/C and Ex.PW-8/F. Ex.PW-7/E, which is the opinion obtained from Dr.K.K. Rattan, does not in any manner corroborate or support the injuries found on the two deceased which ultimately led to her death. In- fact, what he notes is that these injuries were not present at that time when he examined both the deceased. 8. PW-13 Satwant Singh, Inspector has prepared the inquest reports Ex.PW-8/B and Ex.PW-8/E. He has stated that on 1.8.1997 he visited village Chadal and prepared inquest report Ex.PW-8/E of deceased Sher Singh and sent the dead body for postmortem to Zonal Hospital, Dharamshala vide application Ex.PW-8/A. When he reached the Police Station, he received a telephonic message that Bimal Devi had also died. He again visited the spot and prepared the inquest report Ex.PW-8/B and sent the dead body of Bimla Devi for postmortem to Zonal Hospital, Dharamshala. When the first inquest report was prepared, Sher Singh was dead. This officer has made no attempt to record the statement of Bimla Devi which would have been vital for 6 the decision of the case. We cannot but express our anguish and displeasure in the manner in which investigation has been conducted. Bimla Devi was alive when the inquest of Sher Singh was prepared. We fail to comprehend as to why her statement was not recorded which would have been clinching evidence with respect to appreciation of the facts of the cause of death of both Sher Singh and Bimla Devi. We also note that in both the inquest reports Ex.PW-8/B and Ex.PW-8/E Balwant Singh and Ishwar Dass have identified the body of both the deceased. They have not been produced as witnesses. The reasons for non-production of these witnesses have not been brought on record. The causes of death of both the deceased also remain unexplained. 9. The learned Assistant Advocate General has stated that the learned Court below was not correct in appreciating the evidence in its entirety and completely ignored the vital evidence that there was close proximity in time between the accused inflicting the injuries with (pachhar) weapon Ex.P-1 to both the deceased and their death. We can not accept this explanation as the period from 28.7.1997 to 1.8.1997 has been blanked out by the prosecution. Moreover, the evidence of PW-7 Dr. K.K. Rattan does not notice any injury to the accused which may arouse suspicion that the deceased were suffering from some kind of head injuries which ultimately resulted in the death of both Sher singh and Bimla Devi. 7 10. Learned Assistant Advocate General invokes Section 32 of the Evidence Act in support of his contention to urge that the Ex.PW-6/A be treated as a dying declaration. We can accept this contention for the reason that there is nothing in Ex.PW-6/A which the prosecution has brought on record to establish the cause of death and the injuries inflicted. According to the report, the basic motive of assaulting both the deceased was that a Will had been executed by deceased Sher Singh in favour of Uttam Chand who had refused to maintain him which resulted in the fracas. It is also in the report that a second Will had been executed by the deceased in favour of one Ranjit son of Sant Ram. Both these facts have not been proved on record. 11. The learned trial Court has rightly relied upon the decision of the Supreme Court in Moti Singh and another vs. The State of Uttar Pradesh, AIR 1964 SC 900, to hold that Ex.PW-6/A cannot be used for the purposes of establishing the cause of death of both Bimla Devi and Sher Singh. In Moti Singh’s case the appellant had been convicted by the High Court on the basis of a statement Ex.Kha 75 of one Gaya Charan who had died subsequent to receiving gunshot bounds. The Supreme Court held:- “9. The evidence relied on for the conviction of Moti Singh consists of the dying declaration Ex. Kha 75 of Gaya Charan and, presumably, 8 also of the statements of the prosecution witnesses, as the High Court has not specifically stated so … … … …. 12. It is clear from the above that the High Court mainly relied on the alleged dying declaration of Gaya Charan for determining that Moti Singh and Jagdamba Prasad, appellants, fired from the room and the platform and that if their names had not been mentioned in this statement of Gaya Charan, they too would have got the benefit of doubt just as Sheo Darshan Singh and Avadh Behari got. … … … … … … … … … … . 13. The incident took place on February 9, 1960. Gaya Charan's injuries were examined by Dr. Bhatnagar the same day. He found two gunshot wounds of entry 1/4" x 1/4" up to the depth of abdomen and considered those injuries to be caused by gunshot and to be dangerous to life. Gaya Charan left the hospital. He was either discharged on the injuries healing up or he left the hospital before they healed up. There is nothing on the record to show in what circumstance he left the hospital. He died on March 1, 1960. 9 14. … … … … … … … … … … The mere fact that the two gun shot injuries were dangerous to life is not sufficient for holding that Gaya Charan's death which took place about three weeks after the incident must have been on account of those injuries. 16. … … … … … … Clause (1) of S. 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by as person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. When Gaya Charan is not proved to have died as a result of the injuries received in the incident his statement cannot be said to be the statement as to the cause of his death or as any of the circumstances of the transaction which resulted in his death. This is obvious and is not disputed for the respondent State.” (Pages 902 and 903) 12. This judgment was followed by the Supreme Court in G.S.Walia vs. State of Punjab and Others, AIR 1998 SC 2857. The Court held:- 10 “11. … … … … … But the trial Court was not right in convicting the accused under S. 302 read with S. 149, IPC. The medical evidence does not show that the injuries caused to Balwant Singh were sufficient to cause his death in the ordinary course of nature. … … … … … … …” (Page-2861) 13. In Bhagirath vs. State of Haryana, AIR 1997 SC 234, the Court held:- “18. The High Court has also held that the learned Sessions Judge erred in holding the dying declaration as inadmissible on the finding that as the death was due to toximia resulting from peritonitis, the death had not happened directly due to injuries suffered by the deceased. The High Court has pointed out that the facts in the said decision in Balak Ram's case (AIR 1974 SC 2165) (supra) since relied on by the trial Court are quite different. In that case, the injured had received two gun shot wounds on the abdomen but he left hospital either because the wounds had healed up by that time or was healing up and two weeks thereafter, the injured died. In such circumstances, it was held that the proximate cause of death was not the gun shot injury. 11 26. … … … … … … It is quite apparent from the post-mortem report and also from the deposition of the doctor that the injuries suffered by the deceased were serious and were likely to cause death in the ordinary course. Simply because attempt to give him life had been taken by performing operation on the injured but such attempt ultimately failed because no developed toximia resulting from peritonitis on account of the injuries suffered by him, it cannot be held that the death is not due to the injuries sustained by the deceased. The dying declaration is, therefore, admissible in evidence and the rejection of the same on the score of being not admissible is illegal. … … … … … … . 27. … … … … … … … … … In our view, the trial Court has also gone wrong in proceeding on an erroneous view that the dying declaration was not admissible in evidence because the death was not due to the injuries sustained by the injured in the hands of the accused Bhagirath. Although ultimately toximia had developed because of peritonitis, all such complications are directly attributable to the injuries suffered by the deceased Nihal 12 Singh by the gun shot in the hands of the accused Bhagirath.” (Pages 239 and 242). 14. The law laid down by the Supreme Court is clear that the injuries inflicted must have direct nexus to the ultimate death. 15. Adverting to the facts of the present case, we may note that PW-7 Dr.K.K. Rattan, who first examined both the injured on 27.7.1997 has noticed in detail the injuries sustained by both the deceased. Subsequently on Ex.PW-7/E there is a specific endorsement by him that there is no head injury, no external mark or injury on the patient, no complaint pertaining to head injury etc. 16. According to him, the injuries, which he found on the deceased at the time when he examined them, were simple injuries caused possibly by some sharp edged object. Consequently application Ex.PW-7/E was filed by the police on 22.10.1997 seeking his opinion which was given by him on 24.10.1997 by endorsement on Ex.PW-7/E, which is as follows:- “Since there was no history of being injured on the head and there was no external mark of injury also on the scalp or head and the patient was conscious responding to all stimuli and gave no complaint pertaining to 13 Head Injury so on physical examination no sign of Head Injury was noticed.” 17. The cause of death according to PW-8 Dr.D.P. Swamy is because of neurogenic shock and asphyxia due to brain compression. Therefore, in these circumstances, it cannot be said that the injuries sustained by deceased were directly or indirectly responsible for causing their death. The period between 28.7.1997, when both the deceased were taken to hospital for medical examination and discharged immediately and 1.8.1997 when both of them died within a short period has been blanked out by the prosecution. It was in evidence that immediately after the deceased were examined by the doctor they went to live with the brother-in-law of Sher Singh. He has not been examined. This was vital to the entire case, more especially, to explain injuries on both of the deceased, which were noticed in the postmortem by PW-8 Dr.D.P. Swamy and which were not present at the time when they were examined by PW-7 Dr.K.K. Rattan. Another factor which needs to be noticed is that at the time when the inquest report of deceased Sher singh was prepared, Bimla Devi was alive, but no attempt was made to ascertain anything from her with respect to the period which we have noticed hereinbefore which is an other circumstance indicating as to how and in what circumstances, head injuries had been sustained by them. Bimla Devi thereafter died within a short 14 period. We also note that Balwant Singh and Ishwar Dass witnesses to the inquest of the deceased have not been examined as witnesses. We also find that the daily diary report has also not been proved on the record at all. 18. To sum up, there is nothing on the record to show that the death of both Bimla Devi and Sher Singh was a direct result of the injuries as noticed by PW-7 Dr.K.K. Rattan. The period between 29.7.1997 and 1.8.1997 when both of them died and were residing with the brother-in-law of Sher Singh remained a dark mystery. The statement of Bimla Devi was not recorded to throw light on any of the circumstances. Moreover, we also find from the record that two wills were purportedly executed by the deceased Sher Singh, but they have not seen the light of the day. 19. This appeal, therefore, fails and is dismissed. Before parting with the case, we must express our anguish in the manner in which the investigation has been conducted. If we say that the prosecution has approached the case in a cavalier manner that would be stating the obvious as would be evident from a mere perusal of the record. What we fail to understand is that why the case was not taken seriously by the prosecution considering that two individuals lost their lives. We leave it to the State to determine the reasons as to why vital links in the 15 chain of circumstances were not proved on the record of the case. (Dev Darshan Sud) Judge May 7, 2010 (Kuldip Singh), (aks) Judge.