IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 189 of 1996 Decided on : 9th December, 2009 State of H.P. …Appellant. Versus Onkar Chand and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1yes For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents: Mr. K.D. Batish, Advocate. Surjit Singh, Judge (Oral) State has appealed against the judgment, dated 12th January, 1995, of learned Sessions Court, Hamirpur, whereby respondents, Onkar Chand, Angat Ram, Shamsher Singh, represented by Shri K.D. Batish, Advocate, and another man, namely Amar Singh, also impleaded as respondent in the appeal and who has died during the pendency of this appeal, have been acquitted of the charge, under Section 302 read with Section 34 IPC. 2. Prosecution case, which led to the trial of the above named respondents, including deceased respondent Amar Singh, may be stated thus. PW-7 Bimla Devi is a real sister of respondents Onkar Chand and Angat Ram and a Whether reporters of the local papers may be allowed to see the judgment? …2… cousin of respondent Shamsher Singh and deceased respondent Amar Singh. Marriage of a daughter of PW-7 Bimla Devi was solemnized on 27.1.1991. All the respondents, including deceased respondent Amar Singh, being close relatives of PW-7 Bimla Devi, attended that marriage. Ceremony of marriage was over by 10 p.m. Thereafter those, who participated in the marriage, retired for sleep in various rooms in different houses. All the four respondents retired to a room in the house of one Amar Nath. Several other persons were also there in that room. Those persons included PW-8 Swar Chand and PW-9 Prem Singh. 3. Around 10.30 p.m. deceased Milap Chand, who was the son-in-law of a sister of the husband of PW-7 Bimla Devi, went to the aforesaid room in the house of Amar Nath, where the respondents and other persons were present. Two young boys from the side of the bridegroom, who had come as Baratis, were with him. He wanted those boys to be accommodated in that room for sleep for the night to which respondent Onkar Chand objected, saying that space was not sufficient to accommodate them. This led to exchange of hot words between deceased Milap Chand and respondent Onkar Chand. In the meanwhile, PW-8 Swar Chand took those two boys to some other house and accommodated them in that house. When he returned to the room in the house of Amar Nath, where the …3… respondents, the deceased and some other persons, including PW-9 Prem Singh, were present, he saw all the four respondents fisticuffing and kicking the deceased. When he tried to intervene, he too was kicked and given a few fist blows. Milap Chand (deceased) became unconscious. When efforts made to bring him back to consciousness did not yield any positive result, PW-1 Kuldip Chand, a qualified Ayurvedic Practitioner, was called. He gave an injunction and also administered some tincture to the deceased, but those medicines also did not work. PW-8 Swar Chand then went to inform the father of deceased Milap Chand, who lived in a different village. After informing the father of Milap Chand, he went to Police Station, Sujanpur and lodged FIR Ext. PE. 4. Police reached the spot on 28.1.1991 in the noon. Milap Chand had died by that time. Police conducted inquest and prepared report Ext. PB. Dead body was sent to District Hospital, Hamirpur for postmortem examination. PW-2 Dr. N.K. Sharma conducted postmortem examination. He did not notice any external injury, except swelling over the right orbital area extending upto tempro frontal region, and on dissection of that area, a blood clot underneath the skin was found. 5. Viscera were sent to Chemical examiner, who vide report dated 5.4.1991, which has been made part of the postmortem report by PW-2 Dr. N.K. Sharma, detected …4… aluminium phosphide in the stomach and its contents, large and small intestines and phosphine, a constituent of aluminium phosphide, in liver, spleen and kidney. Initially, PW-2 Dr. N.K. Sharma gave the opinion that cause of death was head injury, leading to cardiac arrest. On going through the aforesaid report of the Chemical Examiner, he opined that cardio respiratory arrest was caused both by head injury and aluminum phosphide. 6. Learned trial Court has acquitted the respondents, holding that PW-8 Swar Chand is contradicted by the FIR Ext. PE and his testimony is improbabilized by the fact that there were no external injuries on the dead body, except a head injury and also there was no injury on the persons of accused-respondents, suggesting that they were involved in any fight or scuffle. Learned trial Court has also observed that the respondents had not been identified. 7. We have heard the learned Assistant Advocate General as also the learned counsel for the respondents and gone through the record. 8. There is no major contradiction in the testimony of PW-8 Swar Chand and the FIR Ext. PE, which he lodged with the police on the next following morning. Contradictions, which are there, are minor, e.g., in the FIR it is recorded that deceased Milap Chand was already there, when two boys came to the room for being accommodated, …5… but while in the witness box PW8 Swar Chand stated that those two boys were brought by deceased Milap Chand. Not only that this contradiction is not material and in no way renders the testimony of PW-9 Swar Chand unbelievable, but also the defence did not confront PW-8 Swar Chand with the contradictory portion of FIR Ext. PE. 9. View taken by the learned trial Court that the respondents have not been identified is also perverse. Respondents, at least two of them, namely Onkar Chand and Angat Ram, were identified in the FIR Ext. PE itself, as they are referred to in the FIR as Mamas (mother’s brothers) of the bride and two other respondents are described as the relatives of the bride. PW-8 Swar Chand, when in the witness box, very categorically stated that all the four respondents were there in the room and they were kicking and fisticuffing the deceased, when he returned to the room after accommodating the two boys elsewhere. No suggestion was put to him that the respondents were not there in that room or that he did not know them, by their appearance. 10. Moreover, PW-9 Prem Singh, testified that he was present in the room, when deceased Milap Chand brought the two boys for being allowed to sleep in that room. He very categorically stated that he knew all the four respondents from before as they used to visit the village …6… quite frequently, being the brothers and the cousins of PW-7 Bimla Devi, the mother of the bride. 11. PW-8 Swar Chand and PW-9 Prem Singh in no uncertain terms testified that the deceased was beaten up and given fist and kick blows by all the four respondents. PW-9 Prem Singh further stated that when PW-8 Swar Chand had taken the two boys to accommodate them at some other place, respondents threw the deceased towards a wall, as a result of which his head struck against the wall. The witnesses have no motive to falsely implicate the respondents nor had any motive, for their false implication, been suggested to these witnesses by the respondents by cross-examining them. 12. Respondents not only did not deny their presence in the room, in question, in their statement, under Section 313 Cr. P.C. (though they claimed that they were asleep), but they also stated that some quarrel had taken place among some drunkards. Of course, they did not specifically say that the deceased sustained injuries in that quarrel, but one of them, namely Amar Singh (deceased respondent), did say, in his statement under Section 313 Cr. P. C., in reply to question No.21, that Milap Chand might have sustained injuries as a result of that quarrel. 13. Defence plea regarding quarrel amongst drunkards appears to be an afterthought. Respondents were not strangers to the persons, who attended the …7… marriage, they being the brothers and first cousins of the mother of the bride and, therefore, they were supposed to be knowing the presence, who, under the influence of liquor, allegedly quarrelled and caused injuries to deceased Milap Chand. Their not indicating the names of those involved in the alleged quarrel, itself suggests that the plea is cooked up. 14. In view of what has been stated hereinabove, the reasoning given by the trial Court for the acquittal of the respondents cannot be upheld, being perverse and contrary to the evidence on record. 15. However, testimony of PW-8 Swar Chand and PW-9 Prem Singh does not prove the charge of murder. Their testimony, that the deceased was given fist and kick blows by the respondents and then pushed against a wall, only proves that they voluntarily caused hurts and a grievous hurt to the deceased. Though there was no external injury noticed on the dead body by PW-2 Dr. N.K. Sharma, except swelling on a portion of the head, but this swelling, when dissected, showed that there was a clot of blood below the skin. No doubt there was no fracture of the skull at the site of the aforesaid swelling, but as per opinion of the doctor, this injury was one of the two causes of the death and, therefore, it can legitimately be presumed that the injury was dangerous to life and, hence, “grievous”, within the meaning of clause ‘eighthly’ of Section 320 IPC. …8… PW-2 Dr. N.K. Sharma very categorically stated that the injury on the head could have been sustained as a result of striking of the head against a wall or any other hard surface. 16. For the foregoing reasons, we allow the present appeal, set aside the judgment dated 12.1.1995 of learned Sessions Judge, Hamirpur and convict respondents Onkar Chand, Angat Ram and Shamsher Singh of offences, under Sections 323 and 325 read with Section 34 IPC. 17. Respondent Amar Singh having died, appeal as against him abates. 18. Respondents Onkar Chand, Angat Ram and Shamsher Singh be produced in the Court on 7.1.2010 for being heard on quantum of sentence. Learned counsel for the respondents says that the aforesaid respondents have not been in touch with him, since long. Therefore, bailable warrants of arrest, in the sum of Rs.10,000/- each, be issued against the above named three respondents and the same made returnable for the aforesaid date. (Surjit Singh), J. December 9, 2009 (Surinder Singh), J.