IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 549 of 2008 Reserved on 25.3.2009 Date of decision: 27. 3. 2009 Jeewan Bahadur. …..Appellant Versus The State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. N.K. Thakur, Advocate. For respondent : Mr. J.S. Guleria, Assistant Advocate General. Surinder Singh, J. The appellant was convicted and sentenced by the learned trial court for the offences punishable under Sections 452 and 326 of the Indian Penal Code to undergo the rigorous imprisonment of one year and to pay fine of Rs. 5000/- under Section 452 and rigorous imprisonment for a period of four years and to pay a fine of Rs. 10,000/- under Section 326 of the Indian Penal Code. The period of detention undergone by the appellant was ordered to be set-off under Section 428 of the Code of Criminal Procedure. The appellant felt aggrieved and dissatisfied by the impugned judgment of conviction and sentence, as such filed the instant 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - appeal, on the grounds that the learned trial court passed the judgment of conviction on conjectures and surmises and the evidence of the prosecution was not properly appreciated and further that the identity of the appellant could not be established by prosecution witnesses and the learned trial court has ignored this fact. The recovery of weapon of offence i.e. “Khukhari” under Section 27 of the Indian Evidence Act was also assailed being farce. I have heard learned counsel for the parties and have carefully reappraised the evidence on record. A- PROSECUTION CASE. In brief, the prosecution case can be stated thus. PW-1 Smt. Asha Sharma, a divorcee was separately living in the rented premises of Daya Ram in village ‘Mohal’ along with her minor son. She had engaged the services of one Raju and the appellant Jiwan Bahadur, both Nepalies, for the plastering-work of her premises. She knew the appellant, who used to visit the house of Ram Singh in the neighbourhood. He deposed that both of them started doing the work in her house from 15.1.2007 but, without completing the work they left her house. The appellant told her that he was to go to Manali and Raju told her that he was to go Sainj. She paid Rs. 600/- to Raju. It is - 3 - alleged that on 17.1.2007 when PW-10 Smt. Tara Rana, her sister-in-law was with her and both were taking dinner around 9.45 p.m. inside the kitchen, somebody knocked at the door. Smt. Tara Rana opened the door and found that one person was standing in the verandah. She informed PW-1 Smt. Asha Rana that somebody was standing outside. Thereafter she inquired as to who was there, whether he was painter Jiwan? Suddenly, that person forcibly entered into the kitchen. He had covered his face with handkerchief and gave blow of “khukhari” on the head of Smt. Asha. When he gave another blow, the appellant was pulled back from his jacket by the complainant PW-10 Smt. Tara. But he continued giving blows with “Khukhari” to Smt. Asha who had tried to save her head with her hands, but her fingers got chopped off by the “khukhari” attacks. The injuries started bleeding. While saving Smt. Asha Sharma, Tara had also sustained injuries on her right leg. The entire incident took couple of minutes. Both of them raised alarm, thereafter appellant fled away from the spot. PW-3 Moti Ram a close neighbour was attracted by the shouts and came to the spot. He saw that Asha was badly injured even Smt. Tara Rana had also sustained injuries. Asha was taken by him to the house of her relative Bir Chand on her request where PW-4 Surinder was also present. - 4 - They took both the injured persons to the Regional Hospital, Kullu in a vehicle. The Doctor informed the police telephonically about the injured. The information was received and recorded in the Rojnamcha Daily Diary at Sr. No. 39 in the Police Station. Sub Inspector Mohinder Kumar reached the Hospital and recorded the statement (Ext. P-L) of PW-10 Tara under Section 154 of the Code of Criminal Procedure and formal FIR was registered on its basis under Section 452 and 307 of the Indian Penal Code. The police visited the spot prepared the site plan and also photographed the scene and took into possession some cut hair, two imputed finger tips, blood stained glass and steel plate from the spot. On 21.1.2007, the appellant was arrested. His jacket and pant were taken into possession. The wearing apparel of the injured persons, which were blood stained were also taken into possession. The appellant was interrogated he made the disclosure statement under Section 27 of the Indian Evidence Act, pursuant to which “khukhari” Ext. P-1 was recovered from the bushes near the house of injured Asha Sharma. - 5 - PW-5 Dr. Shishu Pal on examination of PW-1 Asha Sharma found following injures on her person:- 1. Scalp-split laceration measuring 7 cm. approximately over vertex, skin deep. 2. Split laceration over right parietal bone approximately 8 cm was bone deep, 3. Split laceration over occipital region approximately was 4cm. in length. 4. Right hand middle finger was amputated at middle phalynx. 5. Ring finger right hand I.P. Joint was clinically broken. 6. Left hand ring and middle finger were amputated at distal phlynx 7. Left hand palmar aspect was skin deep and there were irregular tear extending to index finger. 8. Left hand was having 1 cm liner tear sharp edged skin deep over index finger and middle phalynix. She was advised X-ray for first injury which was done by PW-14 Dr. M.K. Kapoor but no fracture was found. The injury Nos. 1 to 3, 7 and 8 were opined to be simple and injury Nos. 4, 5 and 6 were found grievous in nature. On examination of Smt. Tara Rana, PW-10, Doctor noticed the following injuries on her person:- 1. Wound over vertex approximately 8cm skin deep with clean margins. 2. Injury over ring finger right hand skin deep. C. shaped wound approximately 1.5 cm-2 cm in length with margins approximately. There was no fracture, therefore, these injuries were opined to be simple in nature. - 6 - In the opinion of the doctor aforesaid in both the cases, the duration of the injuries was within three hours with sharp edged weapon, when they were examined by him. After recording the statements of the witnesses, the challan was presented in the court for the trial of the accused, under Sections 452 and 307 of the Indian Penal Code. Finding a prima facie case under the aforesaid Sections, the appellant was charge- sheeted. He pleaded not guilty and claimed trial. At the end of the trial, he was acquitted of the offence under Section 307 of the Indian Penal Code but the learned trial Court convicted and sentenced the appellant under Sections 452 and 326 of the Indian Penal Code, as stated above and rightly so as the evidence on re-appraisal proves the case against the appellant beyond a reasonable doubt. B- FINDINGS AND REASONS THEREFOR BY THIS COURT: Smt. Asha Sharma (PW-1) is an injured and is a material witness. It is not disputed that she was not living alone with her minor child in the rented premises in the house of Daya Ram in the vicinity of PW Moti Ram and Ram Singh. She deposed that she had engaged the services of accused-appellant and Raju for the plastering work of her house. She knew the appellant for the last one year. He used to visit the house of Ram - 7 - Singh. She engaged his services @ 100/- per day and he was also to provide two times meal to him and Raju Gorkha aforesaid. They started their work in her house from 15.1.2007 but left it half way. The appellant Jiwan left the house on the pretext that he was to go to Manali and Raju told her that he was to go to Sainj. She paid Rs. 600/- to Raju. On the day of incident i.e. on 17.1.2007 her sister-in-law PW-10 Tara Rana had come to her house. At about 8.30 p.m. PW-7 Bhim Prakash her previous husband, from whom she had sought divorce visited her house to pay the amount of maintenance to her child. She also demanded money from him to purchase shoes for him. He paid Rs. 150/- to her but without taking dinner he left the house. Thereafter, she along with PW-10 Tara were taking dinner in the kitchen, her son was sleeping, somebody knocked at the door. She thought that her husband, who had just left had returned. PW-10 Tara opened the door and asked who was there. On this, appellant appeared in front of the door and she (PW-1) asked “Jiwan tu” as to why he had come there. The Appellant had partly covered his face with handkerchief. She told that they were taking dinner and closed the door. Thinking that he had gone to the house of Ram Singh but hardly she could take one spoon of meal, the appellant pushed the door which hit Tara Rana and inflicted three - 8 - blows of :”khukhari” Ext. P-1 on her (PW-1) head. She raised hands to save herself which caused injuries on her right hand and her fingers also got chopped off. The “Khukhari” blows also hit her ring finger on the left ring which also got chopped off. She also sustained the injuries on the wrist of her right hand. In the process of saving her by PW-10, Smt. Tara Ran also sustained injuries on her head and hand. Thereafter appellant fled away from the spot. She was taken to the house of Moti Ram by Smt. Tara. The incident was narrated to him. Then she was taken by Moti Ram to the house of Bir Chand and requested both of them to save the life of her child. Thereafter her son was brought to the house of Bir Chand and she became unconscious. She was taken to the Hospital. During the trial she also identified “Khukhari” Ext. P-1 which was used by the appellant. In cross-examination, nothing material could be extracted from her. However, she stated that she had been knowing Raju for the last about two years and the appellant Jiwan for the last about one year, prior to the incident. She admitted that in the month of April, 2006 i.e. eight months ago, Raju had left his luggage in her house while going to Lahaul. She denied that Raju used to oftenly visit her and she wanted to marry him and that she had also assured him to marry - 9 - after him about two years. She further denied that she had picked up quarrel with him on 15.1.2007 and it was he who inflicted injuries on her person and at that time she was not able to recognize him. She categorically denied that she and Tara had caught hold of Raju when he pushed them back and in that process, they fell on the stair-case in the Varandah. Both of them sustained injuries. She has categorically denied that the appellant had not inflicted injuries on her person, as alleged and that “khukhari” Ext. P- 1 was not used to inflict injuries on her person. PW-10 Smt. Tara Rana has corroborated her version. She testified on oath that she was sitting in the house of PW-1 Asha during the night. She further deposed that PW-7 Prakash had come to pay money to Smt. Asha Sharma as his son was to purchase shoes. He paid money and left the house. While both of them were taking food in the kitchen, somebody knocked the door. She opened the door of the kitchen and found one person standing outside the house having muffled his face up to the nose-level but Asha recognized him and exclaimed Jiwan tum. She also stated that “ Yeh Kaya Hulia Banaa rakha hai”. During the trial she also identified the appellant in the court to be the same person. She further stated that appellant came inside the kitchen and inflicted injuries on the person of Asha with “khukhari” and - 10 - while saving Asha, she also sustained injuries on her head and hand. She further deposed that middle finger of the right hand and little finger of the left hand of Smt. Asha Sharma were dismembered. She further stated that both of them raised alarm. The appellant fled away. Then she went to one house in the neighbourhood and narrated the incident to the person present there. She did not know the name of neighbour but further stated that thereafter they went to the relative of Asha and her son was also brought there. Both of them were taken to the Hospital where her statement Ext. P-L under Section 154 of the Code of Criminal Procedure was recorded by the police. She has proved the signatures on it. She also stated about the medical examination of both of them by the doctor in the Hospital and further testified on oath that blood-stained glass and blood were taken into possession from the kitchen vide memo Ext. P- B along with cut hair from the spot. The accused had also handed over his jacket and pant to the police in her presence and their clothes were also taken into possession. She also states about the recovery of “Khukhari” at the instance of the appellant from behind the bushes vide Memo Ext. P- H. In cross-examination, she stated that door was knocked after about 15 minutes when Bhim Prakash PW-7 had left the place. At that time, - 11 - the electric bulb located in the corner of the verandah of the house was also on. She further stated that she disclosed the person with muffled face resembled with Nepali National. The appellant took few minutes to inflict injuries on them. She was called in the Police Station to identify the appellant. Even Raju was also present there and she identified the appellant, on the basis of his height but no identification proceedings were conducted. On seeing the accused, PW-1 Asha also lost her control over her senses thereafter appellant was taken out from the Police post. She denied the defense raised that it was Raju who had inflicted the injuries on them. The above two witnesses are the witnesses of the occurrence who were badly injured. Had they been attacked by Raju Gorkha and not by the appellant, then why they shielded the real culprit and implicated the appellant, without any animosity or any cogent reason. Thus on the critical examination of the above evidence, I do not find that there was an error in identifying the appellant by Asha (PW-1) for the reason that the appellant was known to her for the last about one year and even two days prior to the said incident, he along with Raju had worked for repairing her house. Even she had been providing meals to the appellant and his partner Raju who was also working with the appellant. She - 12 - categorically named the appellant in her statement made before the police and also during the trial and this finds corroboration from the testimony of PW-10 Tara Rana whose presence on the spot cannot be doubted for the reason that she is also an injured witness and the injuries on her person matches with the time of alleged incident. There are no material contradictions in the statements of the aforesaid witnesses of the occurrence who themselves are injured in same incident. Further the recovery evidence is also corroborative in nature. The appellant could not shatter the recovery of “Khukhari” Ext. P-1. His disclosure statement coupled with the fact recovered i.e. “Khukhari” stands corroborated by the testimonies of PW-7, Prakash and PW-8 Sham Chand. Of course, both these witnesses were declared hostile but more pertinently both of them have stood well in the cross-examination conducted by the prosecutor even their statements could not be shaken in cross-examination by the accused. It is also well settled that the testimony of the hostile witness cannot be thrown over-board It can be used by the prosecution and also the defense to the extent it helps either of them. In the instant case, it does not help the defense in any way but corroborates the case of the prosecution because PW-15 Dr. Shishu Pal has testified on oath that the injuries in question on - 13 - the person of both the injured could be caused by the said “Khukhari” and this fact has not been assailed in his cross-examination of PW-1 and PW- 10 that they had sustained the injuries by fall on the stair-case as suggested in their cross- examination. Thus, the testimonies of the injured witnesses referred to above is worth inspiring confidence and was rightly relied upon by the learned trial court to convict and sentence him under Sections 452, 326 of the Indian Penal Code. For the foregoing reasons, in my opinion there is no force in appeal, the case stands fully established against the appellant beyond a reasonable doubt. Accordingly it is dismissed. Send down records forthwith. March 27, 2009 (Surinder Singh),J. (cm)