HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.R. No.: 184 of 2002 Reserved on: 29.12.2008 Decided on: 8.1.2009 Dhian Singh and others ………Petitioners. Versus State of Himachal Pradesh ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioners: Mr.Rahul Mahajan and Mr.Paras Dogar, Advocates. For the respondent: Ms.Shubh Mahajan, Deputy Advocate General. V.K. Ahuja, J (Oral): This is a criminal revision filed by the petitioners under Sections 397, 401 and 482 of the Code of Criminal Procedure against the judgment of the court of learned Sessions Judge, Hamirpur, dated 7.9.2002, vide which he dismissed the appeal filed by the petitioners against the judgment of the court of learned Additional Chief Judicial Magistrate, Barsar, dated 23.6.2000, vide which the petitioners were held guilty under Section 325/34 of the Indian Penal Code and sentenced as under: Rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/- each. In default of payment of fine, each of the petitioners were to undergo rigorous imprisonment for a further period of three months. On realization of the fine, an amount of Rs.25,000/- was payable as compensation to the LRs of the deceased. ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Briefly stated the facts of the case are that on 30.11.1986, at 6.00 p.m., a rapat was lodged with the police by one Rattan Singh that on 30.11.1986, at about 11.00 a.m., in the house of Dhiana, a bundle of bamboos was kept in the courtyard in front of the door by the labourers. His mother Smt.Purvo Devi asked his son Surjit Singh as to who has kept the bamboos in front of the door to which his son told her that these bamboos belonged to Dhian Singh. Thereafter, his mother addressed Dhian Singh, Joginder Singh, Promila and their mother Vidya Devi, who were standing in their courtyard, as to why they have not kept the bamboos in their own courtyard and why these have been kept in their courtyard since it is a bad omen. The exchange of words took place between both the parties and the other party started giving filthy abuses and the complainant came out and told Dhianu etc. as to why they were giving abuses since his mother had rightly said that it was a bad omen to keep bamboos in the courtyard, but they refused to remove them. His mother again asked them to remove the bamboos and not to give abuses and at this instance they all came towards his mother to give her beatings. It was further alleged that Promila took a plastic shoe from her right foot and gave several blows on the face, head etc. of his mother and threw her on the ground by pushing her. His brothers’ wives Premi Devi, Savitri and Hukmi Devi came forward to rescue his mother and all those persons ran away. It was further alleged that the occurrence was witnessed by Lachhi Ram and Nikku Ram, who were working as masons in their house. His brothers’ wives massaged his mother at the spot on the foot and hand and proclaimed that old lady had been killed and doctor should be brought. The complainant went to a private doctor Desh Raj who came and after examining his mother, he opined that she is already dead. - 3 - On this report, a case was registered and after investigation, the challan was filed before the learned Judicial Magistrate under Section 302/34 IPC. The case was committed to the learned Sessions Judge who framed the charge under Section 325 read with Section 34 of the IPC and sent the case to the court of the learned Chief Judicial Magistrate, Hamirpur, for trial. A charge was framed under Section 325 read with Section 34 of the IPC against all the petitioners. A revision was preferred before this Court against the said order and this Court vide its judgment dated 12.5.1988, upheld the order passed by the learned Sessions Judge. A Special Leave Petition was filed before the Supreme Court by the State of Himachal Pradesh against the said judgment, which was dismissed. Thereafter, the learned trial court proceeded with the trial of the case and on conclusion, the petitioners were held guilty and were convicted and sentenced, which findings were upheld by the learned Sessions Judge on appeal, as detailed above. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the petitioners were that on appraisal of the evidence led by the prosecution, it is clear that the eye witnesses had not attributed any specific role to any of the petitioners except Promila Devi and as per the evidence, they were standing at some distance and there was no actual participation by them in regard to the beatings given with Chappal by Promila Devi. It was also submitted that since there was no prior meeting of minds between the accused persons, who, allegedly, gave beatings, namely, Promila Devi and other petitioners, and no specific role was attributed to other petitioners in the FIR or in the subsequent statements made by the eye - 4 - witnesses and as such it was submitted that the guilt of the other petitioners has not been established beyond any reasonable doubt. It was also submitted that there is defence evidence on record to show that the deceased had fallen down and suffered injuries and as such these injuries cannot be attributed to Promila Devi. On the other hand, the learned Deputy Advocate General for the State had supported the impugned judgment for the reasons given therein supplementing it by the submission that there is no glaring defect in the findings recorded by the learned Appellate Court and since there was sufficient evidence on record to prove the guilt of the petitioners, there is no merit in the revision petition filed by the petitioners, which deserves to be dismissed accordingly. A perusal of the record of the case shows that to substantiate their case, the prosecution had examined 15 witnesses. I shall firstly make a reference to the statements of the complainant and other eye witnesses and shall refer to the infirmities or contradictions, if any, in their testimony, as was argued during the course of arguments. I have already mentioned above that the rapat was lodged with the police by PW-1 Rattan Chand, who, as per the allegations made in the FIR Ext.PW-1/A, was present at the spot at the time of occurrence. In his report lodged with the police Ext.PW-1/A, as mentioned above, he had referred to the act of his mother in asking firstly his son and then the petitioners as to why the bamboos have been kept in their courtyard and the filthy abuses given by the petitioners. In regard to the specific part played by each of the petitioners, he has stated that all the four persons came towards his mother to give her beatings and Promila Devi took a plastic shoe from her right foot and gave blows on the face and head of his mother and pushed her and when the wives of his - 5 - two brothers came forward, they ran away from the spot. It has to be seen as to whether the accused can get any benefit of any improvements made by this witness in his statement, when he appeared in the court and only in case he had been confronted with the improvements made by him in his statement as PW-1, the defence can take any benefit and not otherwise. The said Rattan Singh has been examined in the court as PW-1 who has stated that the accused persons had kept the bamboos in front of their door and when his mother asked them, they started giving beatings to her. He stated that Promila gave blows with boot, Vidya had caught hold of his mother from head, Dhian Singh had caught hold of her from arms and the blow with boot was given on the nose of his mother. The masons were working at the spot and when they came there, apart from Premi Devi, Savitri Devi, Hukmi Devi and Surjit Singh, the accused persons ran away. He stated that in the report lodged by him, he had mentioned that Vidya Devi had caught hold of his mother from her hair and was pulling the hair. He was confronted with FIR Ext.PW-1/A, wherein it was not so recorded. He admitted that he had not mentioned in his report that Dhian Singh had caught hold of his mother form her arm. He also admitted that it was not mentioned that the blows with boot were given to his mother on her nose. He also admitted that he had not mentioned in the report that he lodged a report with Namberdar and Chowkidar, who came to the spot. He was further confronted with his report Ext.PW-1/A and stated that he mentioned in the report that all the accused persons gave beatings to his mother. He was confronted with Ext.PW-1/A wherein the name of accused Promila had been mentioned only. - 6 - PW-2 is Surjit Singh, the complainant’s son and an eye witness, whose name was mentioned in Ext.PW-1/A. He stated that he was standing in the verandah of his house and his grand mother was being given beatings by Dhian Singh etc. He stated that Promila Devi removed her plastic boot and gave the blows on the head of his grand mother. He stated that Dhian Singh had caught hold of his grand mother from her head and Vidya Devi also caught hold of her from her head, while Joginder Singh had caught hold of her from face. He stated that his grand mother suffered injuries on her head and he saw the injuries on her head only. He further stated that his Tai (uncle’s wife) Premi Devi and Hukmi Deviu came and masons Nikku and Lachhu also came to rescue and the accused persons ran away. He has given his age as 15 years and he has stated that the deceased was his grand mother, which clearly shows that he was an interested witness. Since the occurrence had taken place on 30.11.1986 and his statement was recorded after more than 2-1/2 years and as such he was of the age of about 12-1/2 years at the time of occurrence. In cross examination, he admitted that his grand mother was of the age of 70-80 years, was an old lady and had week eye sight. He stated that she had not fallen on the ground but had fallen when she was pushed. He was confronted with his statement Ext.DA where it was not so recorded that the accused had pushed his grand mother. PW-3 Smt.Savitri Devi, who is the brother’s wife of the complainant and whose name finds mention in the FIR, also admitted to have rescued the deceased. She also stated that the bamboos had been kept and his mother-in- law asked Dhian Singh and his family members as to why they had kept the bamboos and asked them to remove it, but they started giving abuses to her. - 7 - She stated about the presence of the petitioners at the time of occurrence. She further stated that Promila Devi took her plastic shoe and gave blows on the head and nose of the deceased and gave 5-7 blows. She further stated that her mother-in-law was pushed who fell down and they rushed to rescue her. She admitted in her cross examination about the disputes in between their family and that of the petitioners. She clearly stated that at that time, Joginder, Vidya and Dhian Singh, the three accused persons, did not give any beatings and that it was given by Promila only. She stated that the accused persons gave abuses. She stated that Nikku and Lachhi Ram were working there at that time. Apart from the above, the prosecution had examined Prithi Ram as PW- 6, who stated that he had worked in the house of Dhian Singh for preparation of the bamboo baskets. He was declared as hostile and he did not state that any occurrence took place in his presence. PW-7 Lachhaman Dass has stated that he was working in the house of Rattan Singh as mason alongwith Nikku Ram. He stated that the bamboos had been kept in the courtyard and both the parties were giving abuses to each other and Rattan Singh proclaimed that his mother has been killed, who was lying on the ground and the ladies were massaging her. He stated that Dhian Singh’s family was standing near the door and Promila was also standing there alongwith a plastic shoe in her hand and her brother Dhian Singh had caught hold of her from her waist. He stated that he had not seen any beatings being given at that time. He was also declared as hostile. The other mason Nikku Ram, who was working with PW-7 Lachhaman Dass, has been examined as PW-8, who has stated about the presence of PW-7 Lachhman Dass at that time. He stated that the bamboos had been kept on the - 8 - side (vih) of the house of Dhian Singh and not in the courtyard and Rattan Singh’s mother asked him not to keep bamboos there for which arguments took place. He stated that it is considered a bad omen to keep the bamboos in front of the door and some quarrel took place in between Dhian Singh’s family and Rattan Sigh’s mother and the quarrel stopped and they continued working. He stated that after 1/2 hour, Rattan Singh proclaimed that his mother has been killed and he saw the spot where Rattan Singh’s mother was lying unconscious and her daughter-in-laws were massaging her. He further stated that Promila was having a boot in her hand and was standing at the door of her house. He was also declared as hostile since he has not supported the prosecution story fully. Apart from the above, the prosecution had also examined Dr.S.P.S. Thakur, who had conducted the postmortem on the body of the deceased Purvo Devi. He stated that she died due to the injuries suffered by her which were observed as under: “………………………this person has died due to rupture of temporal vessel left side and basilary artery with rupture of cerebral hemisphere leading to cardio respiratory arrest due to injuries mentioned already. The time between injury and death Immediate…………….” This witness further stated that these injuries mentioned in Ext.PW-13/A, which is a postmortem report, can be caused with Ext.P-1, plastic boot, if the blow is caused with great force. He stated that the injuries mentioned in Ext.PW-13/A were grievous in nature. The prosecution had also examined some formal witnesses to the recovery of Chappal and the statement of Investigating Officer etc., which have been discussed by the courts below also. - 9 - From the above discussion of the evidence, it is clear that in the FIR lodged with the police, the complainant had mentioned his own presence as well as that of his son Surjit Singh, from whom his mother had asked about the keeping of bamboos and he has also stated about the presence of his brothers’ wives, namely, Premi Dvi, Savitri Devi and Hukmi Devi, who were present there and had tried to rescue his mother at that time. Thus, this occurrence was witnessed by the complainant, his son Surjit Signh and three of his brothers’ wives, who were present there. Apart from these, he has also stated about the presence of Lachhi Ram and Nikku Ram, who were working there and had seen the occurrence. Out of these 7 persons, the details of the occurrence have been stated by the complainant as PW-1. In so far as the part played by Promila Devi is concerned in giving beatings on the person of Purvo Devi with plastic boot, there is over-whelming evidence as has been discussed above and there is no doubt in regard to the part played by Promila Devi, who gave blows with plastic shoe on the person of Purvo Devi, which proved fatal leading to her death and these injuries on her person have been corroborated by the Medical Officer, who clearly gave the opinion that these can result with the beatings given by plastic shoe Ext.P-1, which proved fatal. In so far as the part played by Promila Devi is concerned, that fact stands established that she caused fatal injuries on the person of the deceased. In regard to the part played by the other petitioners, except Promila Devi, the complainant had not specifically alleged or attributed any specific part to the other petitioners that they had caught hold of the deceased from arms, head or hair at that time. The complainant appeared in the witness box as PW-1 and attributed specific parts played by the petitioners, as detailed above, that - 10 - they had caught hold of his mother from arms, hair or from head and he was confronted with the report Ext.PW-1/A, lodged by him with the police, in which there was no specific mention of the part played by other petitioners at the time when the beatings were given by Promila Devi. Once the witness had been confronted with the report lodged by him and he had made improvements when he appeared in the court, the defence can take the benefit of improvements since the witness had been given an opportunity to explain in regard to the facts not alleged in the First Information Report. PW-2 Surjit Singh, the son of the complainant, has also attributed specific roles to other petitioners, as have been mentioned above, while he appeared in the witness box, and he was also confronted with his police statement under Section 161 of the Cr.P.C., wherein it was not so recorded. However, he had been specific that other three petitioners, named by him, had not given any beatings to his grand mother, though they had caught hold of his grand mother at that time. PW-3 Savitri Devi and daughter-in-law of the deceased had specifically stated that all the three petitioners had not given any beatings to Smt.Purvo Devi and she did not state that when the blows were given with plastic boot by Promila Devi, the other petitioners had caught hold of her mother-in-law at that time. PW-5 Desh Raj, PW-6 Prithi Ram, PW-7 Lachhaman Dass and PW-8 Nikku Ram, as mentioned above, have not supported the prosecution story. The accused had also examined two witnesses in their defence. DW-1 Lekh Ram has stated that he was present in his house, which was at a distance of 25 metres from the house of Rattan Singh. He further stated that Purvo Devi was giving abuses as to why the bamboos have been kept in front of her door - 11 - and when she tried to pick up the bamboos, she fell down and no beatings were given by the accused persons. He admitted that there are 5-6 houses in between his house and that of the accused persons, which clearly leads to the inference that the possibility that he had witnessed the occurrence appears to be remote. DW-2 Rakesh Singh was also present in his house and has stated similarly. He stated that he cannot produce any revenue record in regard to his old house, which he was cleaning on that day. He admitted that his new house was at a distance of 100/150 yards and in between there was a nallah. There is nothing in the cross examination of the main eye witnesses or it was suggested to them that these two defence witnesses had also seen the occurrence at that time or that Smt.Purvo Devi fell down when she tried to pick up the bamboos. No specific suggestions are there to the main eye witnesses, except in regard to the fall, but the statements of these defence witnesses cannot be said to be such that they can be relied upon so as to hold that the versions of these two defence witnesses are correct. Their statements do not show that they made any efforts to approach the police that they had also witnessed the occurrence and their statements should be recorded or that the accused persons have been falsely implicated. To my mind, this defence version was put up just to give some support to the plea of the petitioners, but it is not sufficient to raise a doubt in the mind of the court that it may be correct. The defence plea was, therefore, rightly disbelieved by the courts below. The net result of the discussion is that the complainant did not attribute any role to other petitioners, except Promila Devi, but attributed the same for the first time in the court, when he appeared in the witness box. PW-2 Surjit - 12 - Singh, son of the complainant, attributed specific role to other petitioners also when he appeared in the witness box and not in his statement made under Section 161 of the Cr.P.C., while one of the main witness Savitri Devi, who is related to the complainant party, neither attributed any role in her police statement nor in her statement in the Court to other petitioners. The question arises as to whether it can be held that other petitioners’ role has also been clearly proved or that they are also liable for the injuries inflicted by Promila Devi on the person of the deceased. In case the complainant had omitted to attribute the role of other petitioners in the FIR, but had stated so in his supplementary statement, it could have been accepted as correct since it is not necessary that all the complete particulars of the occurrence should be narrated in the FIR and once it had been put on record during investigation as to the role of other persons, the omission made would not have proved fatal. Moreover, even in the case of other witnesses examined by the prosecution, they had not attributed any specific role to other petitioners and they attributed the role to other petitioners when they appeared in the court after number of years and as such there was major improvement in their testimonies and they were confronted with their previous statements and these omissions rather can be said to be fatal and their statements cannot be relied upon in regard to the role played by other petitioners. The two of the main eye witnesses, namely, Premi Devi and Hukmi Devi, who had also witnessed the occurrence and had massaged the deceased at that time, were not examined by the prosecution for the reasons best known to them. The above conclusion leads to the question as to whether the statements of the prosecution witnesses can be relied upon that the other - 13 - petitioners are also liable for the injuries caused by Promila Devi on the person of the deceased and as to whether there was prior meeting of minds or the common intention can be gathered from the facts and circumstances of the case. A reference can be made to a decision relied upon by the learned counsel for the petitioners in this regard in Suresh and another versus State of U.P., AIR 2001 Supreme Court 1344, in which the Apex Court had made following observations while referring to the provisions of Section 34 of the IPC, which are relevant and are being reproduced below: “To attract S.34, IPC two postulates are indispensable (1) The criminal act (consisting of a series of acts) should have been done, nor by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons. Looking at the first postulate