Whether reporters of the local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.295 of 1995. Judgment reserved on: 13.7.2009. Date of decision: July 27th, 2009. State of H.P. ….Appellant. Versus Santosh and others. … Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?Yes. For the appellant : Mr. Vikas Rathore, Deputy Advocate General. For the respondents: Mr.G.C. Gupta, Senior Advocate with Mr. Ashish Jamalta, Advocate. Surinder Singh, Judge: The respondents were tried and acquitted by the learned trial court in Sessions trial No.02-NL/7 of 1993, decided on 13.6.1994, under Sections 302, 325, 323 read with Section 34 of the Indian Penal Code. Both the parties i.e. the complainant and the respondents are residents of the same village and were residing in the close vicinity. Precisely, the respondents were put on trial, on the allegations that on 11.10.1992, at about 6.30 p.m., PW1 Bhagwan Dass after returning from his work, took his meals at about 8.20 p.m. The accused respondent Ram Lal along with his wife Premi Devi asked him as to why he had removed the grass from their land and started hurling abuses. On hearing their - 2 - cries, Basant Ram (deceased) came out from his house and asked about the cause of their quarrelling. When Basant Ram was climbing the stairs of the house of Bhagwan Dass, respondent Santosh s/o Ram Lal allegedly dealt a danda blow on his head, consequently, he fell down. Simultaneously, respondent Ram Partap gave a blow of danda on him. Thereafter all the respondents dragged Basant Ram towards their house. PW1 Bhagwan Dass tried to rescue and relieve Basant Ram from their clutches, but he was also given beatings with danda by both the respondents which hit his head, arm and back. Bhagwan Dass cried for help. Asha Ram, father and Mohinder Singh son of the deceased got attracted and came to the spot and lifted Basant Ram to take him to their place, but the respondents also gave beatings to them and fled away from the spot. Asha Ram and Mohinder Singh took Basant Ram to their house, where he died at about 1.00 a.m.during the same night. Shri Tidu Ram, Pradhan and Ram Swarup, Member of the Panchayat were called. Ram Swarup informed the police telephonically about the quarrel having taken place and death of Basant Ram. The information was entered into Roxnamcha rapat No.29 and SI/SHO Jagan Nath left the Police Station to the spot and got recorded the statement of Bhagwan Dass under Section 154 of the Code of Criminal Procedure, on the basis of which FIR No.58/92 was registered in Police Station Barotiwala. - 3 - The autopsy of the dead body was conducted in the hospital and noticed the following ante-mortem injuries:- A lacerated wound roughly triangular in shape 1½” x 2”x 3½” above right supra orbital margin, Clotted blood, Depressed fragment in underlying frontal scalp bone. Right eye was swollen and bluish in colour. Swelling extending to right zygometic area and temporal region was found present. Bleeding from nose and mouth was also present. On opening the scalp, fracture of frontal bone 3”x3” with fragment of bone was lying depressed ½” was noticed. Layers of scalp lacerated and obliterated, orbital roofs left and right were fractured and crushed. Soft tissue on the base of scalp in interior cranial fossa was lacerated with features obliterated.” In the opinion of the doctor, cause of death was the head injury and the death had taken place instantaneously on receiving the injuries. The police noticed the blood on the stone slabs of the courtyard of Asha Ram, the father of the deceased. Its scrappings were taken into possession and sealed in a plastic container. The blood stained stone was also taken from the courtyard of respondent Ram Lal, which was allegedly found near the stair case. The police found injuries on the person of the respondents. On 13.10.1992, the respondent were also got medically examined. Their blood stained apparels were also taken into possession. - 4 - On 14.10.1992, the respondents Santosh and Ram Partap were interrogated, which led to the recovery of two dandas, which were allegedly used by them for inflicting the injuries to Basant Ram and others. The dandas were sent to the examination of the forensic science laboratory and in the opinion of the experts; these were stained with the human blood. On completing the investigation, the challan was presented in the court for the trial of the respondents, for the aforesaid offences. The respondents were charge-sheeted to which they denied and claimed trial. The prosecution examined its witnesses to prove the charges and the respondents, were also examined under Section 313 of the Code of Criminal procedure. They denied the incident as alleged and took the stand that the complainant party had mowed the grass from their land during day time. In the night, the complainant party came to their house, armed with dandas, assaulted and caused grievous injuries to them. On their raising alarm, they ran away, in that process Basant Ram might have fallen down from the stair case of Bhagwan Dass. When called upon to enter into their defence, the respondents examined DW1 MHC Vijay Kumar and DW2 MC Bhagat Ram. After hearing the parties and on going through the record, the respondents were acquitted by the learned trial court, on the following grounds:- - 5 - (a). The true version of the incident was withheld by the prosecution witnesses and the version recorded in the FIR registered on the statement (Ex.PA) of PW1 Bhagwan Dass is embellished, contradictory, concocted and fabricated. (b) The evidence on record suggests that Basant Ram had died as a result of a fall from the stairs. (c ) PWs Bhagwan Dass, Asha Ram and Mohinder Singh are interested witnesses, whereas PW4 Lekh Ram was introduced to seek corroboration to their testimonies, but his presence on the place of alleged occurrence was doubtful. (d) The grievous injuries were sustained on the person of the accused-respondents and the prosecution witnesses improved their version during trial and made a futile attempt to explain it. (e) The recovery of the dandas at the instance of the respondents, pursuant to their disclosure statement was farce thus doubtful. The acquittal of the respondents has been challenged by the State in this appeal. Shri Vikas Rathore, learned Deputy Advocate General vehemently argued that the learned trial court has gravely erred in holding that the presence of the injuries on the persons of the accused probablised their defence, but in fact, the prosecution witnesses have categorically explained, which fact was not - 6 - properly appreciated and the ocular version given by the witnesses was wrongly brushed aside. Further that the witnesses have corroborated the prosecution case on all the material points, there was hardly any contradiction worth the name, therefore, there are grounds to convert the acquittal into conviction. Shri G.C. Gupta, learned Senior Advocate, duly assisted by Mr. Ashish Jamalta, Advocate supported the impugned judgment of acquittal and contended that the findings of the acquittal are borne out from the record, which requires no interference. We have given our thoughtful consideration to the rival contentions of the parties and in order to come to the right conclusion, have reappraised the evidence on record. PW1 Bhagwan Dass, complainant stated that on 11.10.1992, at about 6 or 6.30 p.m. started back to his village from the place known ‘Sai’. He went to the house of his ‘Bua’ (father’s sister) around 7 p.m. where Lekh Ram was present. He had some conversation with him and then left for his residence. After taking a brief rest, he took his meals. He further stated that when he was taking the rest, respondent Ram Lal and his wife Premi Devi and his two sons Ram Partap and Santosh started hurling abuses. He requested them not to use filthy language and told that the dispute regarding the cutting of grass and fodder etc. would be settled in the morning in the presence of the respectables of the village. In the mean while, - 7 - Premi Devi threw a stone on him, which missed the mark. At the same time, Basant Ram (deceased) whose house was adjacent to their house also came there and asked the respondents not to use the abusive language. On this, respondent Santosh hit him on his head with a danda. On receiving injury, he fell on the ground. Respondent Ram Partap also dealt a danda blow on his back, thereafter tried to drag Basant Ram towards his house, but he could not pull him. He (PW1) tried to rescue Basant Ram, but Santosh and Ram Partap both starting hitting him with the dandas. One blow landed on dorsum of his left hand and another on his shoulder and many other blows on his upper arm. He shouted for help, Mohinder Singh (son) and Asha Ram (father) of the deceased came there. They asked about the reason for having given beatings to the deceased. They also tried to release the deceased from the clutches of the respondents, but the respondents with a view to take him to their house, were pulling him. But When Mohinder Singh and Asha Ram, both had tried to carry Basant Ram to their house, the respondents assaulted them. Ram Partap and Santosh respondents hit them with dandas while Ram Lal, threw stones upon them. Mohinder Singh withdrew from the scene and ran towards their courtyard along with him. Thereafter, they (PW1 and Mohinder Singh) picked up the dandas from the courtyard to repel the attack. He (PW1) gave danda blow to Ram Partap and Mohinder Singh dealt a blow with a danda to Ram Lal and PW Asha Ram threw stones upon the respondents. Thereafter the respondents ran - 8 - away from the spot. Then they lifted Basant Ram (deceased) from the scene of occurrence and brought him to the verandah. Around 1 a.m. Ram Swarup, the member of their Panchayat came to them. Since the body of the Basant Ram was warm and feeling that he was alive, he informed the police telephonically. Around 8 a.m., police arrived at the spot and at the same time, Tidu Ram Pradhan also reached followed by the member of the Panchayat (Ram Swarup). Thereafter he further improved his version that they sent the member of the Panchayat (Ram Swarup) only after they gathered the impression that Basant Ram was dead. On reaching the police, he admitted to have made his statement (Ex.PA) to the police. In his cross-examination, he stated that PW4 Lekh Ram’s village is at a distance of 2 to 2 ½ k.m. from their place. According to him, Lekh Ram had came to his place to collect money from him which he earned on account of labour charges for the work done in his field about 2/3 months ago and he paid the money to him that evening. He further stated that as soon as Lekh Ram left his place on the day of occurrence, he (PW1) started taking meals. He admitted that Premi Devi was assaulting them on having mown the grass from their land. He was also confronted with his statement Ex.PA, wherein some contradiction had occurred, but he tried to explain that he was not in his senses due to the death of Basant Ram and also because of the injuries received by him when he had made statement to the police. The fact that he had told the accused - 9 - about not to hurl the abuses and that the dispute would be settled with the intervention of the respectable of the village next morning, was not found mentioned in the statement Ex.PA. Further the fact of throwing the stones by Premi Devi was also not mentioned in the said statement. He further stated that the deceased Basant Ram was climbing up the stairs leading to the path of his house when he was dealt with ‘danda’ blow on his head. When reached the upper most step to the stair, he received the injuries. He also stated that his house is opposite to the house of the respondents and the house of the deceased also adjoins the house of the respondents. He further admitted that his house is double storeyed having one room in the upper storey having cemented stairs for approaching the room on upper storey. He also admitted that the deceased Basant Ram was climbing those stairs when he sustained the ‘danda’ blows. He stated that his house and the house of the respondents are separated by a path. He also admitted that he did not get recorded in his statement Ex.PA that the Basant Ram was in the process of climbing the stairs when he was given the ‘danda’ blow and due to its impact, he fell down, but significantly this fact was found mentioned in the statement Ex.PA and he admitted the blood which came out from the injuries of his head spattered on the site where he fell down and police noticed the blood where Basant Ram had fallen. The fact of having given the blow of danda by Ram Partap was also not found mentioned in his statement Ex.PA. He stated that about six years prior to the - 10 - occurrence he had a fracture on his hand, which was crushed in a machine. The first blow of the danda had landed below the base of thumb and the index finger and a little above the protruded bone of the wrist. Further, in his cross-examination, he described the parts of the body of Asha Ram and Mohinder Singh, which was hit by Ram Partap and Santosh respondents, but these facts were also not found mentioned in his statement Ex.PA when confronted with it. According to him, he did not narrate the details of the incident to Ram Swarup on his arrival on the spot. PW2 Asha Ram stated that on 11.10.1992, around 8.30 p.m., after the meals his son Basant Ram went out of his house to feed the cattle. He noticed some quarrel going on between Bhagwan Dass, Ram Lal, his wife and sons. Both the parties were abusing each other. The respondents also used abuses against his son Basant Ram. On hearing the shouts of Bhagwan Dass (PW1) ‘MAAR DIYA MAAR DIYA’ he came out along with Mohinder Singh and saw that respondents Ram Partap and Santosh were giving beatings to Bhagwan Dass while Ram Lal respondent was trying to pull him towards his house. This fact was not stated so by PW1 Bhagwan Dass. He further stated that his son was lying, about 6 feet from the last step of the staircase and was being dragged by Ram Lal who took it about 6 feet towards his house. He (PW2) asked and challenged why they were giving beatings to his son. Thereafter he along with Mohinder Singh tried to physically lift him to their place, but the - 11 - respondents attacked them with the dandas. Ram Partap hit Mohinder Singh on his head with a ‘danda’ and the another ‘danda’ blow landed on his back and one blow hit the ankle of Mohinder Singh, which was either given by Santosh or Ram Partap. Ram Lal was also armed with a ‘danda’. He gave the danda blow on his head and forearm which started bleeding. Another ‘danda’ blow was given by Ram Partap on his back, but it did not cause any serious injury. Thereafter Bhagwan Dass and Mohinder Singh brought some ‘dandas’ lying in his courtyard and gave beatings to the respondents. He himself also picked up the stones and threw it on Ram Partap and Santosh and thereafter the respondents withdrew and they lifted Basant Ram to their room. His head and nose were bleeding. During the midnight, he died and he sent for the member Ram Swarup and Tidu Ram, Pradhan. In his cross-examination, he admitted that Jia Lal, the brother of the wife of the deceased was employed as head constable in the police department at Solan. He had also reached the hospital Baddi where the dead body was taken for the post-mortem in the forenoon on 12.10.1992 he was confronted with his statement Ex.DB, recorded under Section 161 Cr.P.C. The fact that he told the police that the respondents were quarreling with Bhagwan Dass and also that they were abusing them did not find mentioned. He also stated that he had informed the police that his son had fallen near the staircase or from there he was dragged about six feet towards his house by - 12 - Ram Lal, also did not find mentioned in the said statement. He denied that his son was hit on the step of the staircase leading to the upper storey of Bhagwan Dass, but according to him, he had been hit on the step of another staircase leading to the path, which is at a distance of 30/35 feet from the door of their house. He also stated that there was a trail of blood from the point where his son had fallen and at the point when he was lying when he saw him for the first time on coming out of his house. Next morning, it was shown to the police and police lifted the blood sample. According to him, the staircase on which his son was ascending was shown to the police. He also pointed out his right forearm to the police on which he was given a ‘danda’ blow by Ram Lal, but these facts did not find mentioned in his statement Ex.DB. He also stated that the blood which flowed from the injury also fell on the spot. He stated that those ‘dandas’ which were used by Bhagwan Dass and Mohinder Singh and left on the spot were not produced to the police in his presence. He further stated that the police had taken into possession the ‘dandas’ left on the spot next day along with the stones which he had thrown on Ram Lal. According to him Ram Swarup was the first person to reach their place. He came around 1.30 a.m. They sent him to call Pradhan of the Panchayat, but he came next morning when the police had already arrived, but there was no such mention in his statement Ex.DB to this effect with which he was confronted. - 13 - PW3 Mohinder Singh also stated on the same lines as stated by Bhagwan Dass and Asha Ram, but in cross- examination, he stated that he and Bhagwan Dass procured ‘dandas’ from the courtyard and counter attacked the respondents, but when confronted with his statement Ex.DC, it did not find mentioned therein, which was a substantial improvement during the trial. PW4 Ram Swarup stated that he was called during the midnight by Ravi son of Basant Ram and went to their house. He found Basant Ram lying dead in the ‘verandah’ and on having made the inquiry from Asha Ram, he told him that a quarrel had taken place over the mowing of grass and in the course of that quarrel, respondents Ram Partap and Santosh hit Basant Ram on his head by a ‘danda’. Mohinder Singh, Asha Ram and Bhagwan Dass also sustained the injuries on their person and they told him that the said injuries were caused by the respondents. Basant Ram was lying dead. From there he went to the place of Tidu Ram, Pradhan. He was having fever and was not in a position to visit the spot, but Pradhan told him to inform the police by telephone from the place known “Sai”. Then he informed the police that a fight took place in village Awarni and a man had died. In cross-examination, he stated that he did not tell the police that Asha Ram told him that respondent Ram Partap and Santosh had given the ‘danda’ blows on the head of Basant Ram. He stated that some traces of the blood were available on - 14 - the stone in the courtyard and some samples were taken by the police, but he did not remember whether it was taken from the courtyard of Ram Lal. According to him, he had spoken to the police officials who attended the call and not to Dasaundhi Ram from where he had made a call. He also did not tell the person attending the call that Basant Ram was murdered by respondents Santosh and Ram Partap but simply told that Basant Ram was murdered. PW5 Lekh Ram an alleged eye witness stated that he had gone to the house of Bhagwan Dass in village Salamu on the day of alleged occurrence around 7.30 p.m., but he was not found present there, he waited him till his arrival. Bhagwan Dass came around 8 p.m. He had a talk with him about the business and left the place at 9 p.m. He did not say that he had come to collect the wages as stated by Bhagwan Dass. He further stated that when he could hardly cover 10 mtrs. from the house of Bhagwan Dass, he heard the cries. On this, he returned to the spot and saw Basant Ram lying on the ground in the courtyard. He also saw Ram Partap and Santosh respondents using dandas and causing the injuries to him and further that Ram Lal respondent was trying to drag Basant Ram. Further Mohinder Singh and Bhagwan Dass also counter attacked the respondents with the ‘dandas’. In cross-examination, he was confronted with his statement Ex.DD, recorded by the police under Section 161 of the Code of Criminal procedure to the effect that he had heard - 15 - the cries when he had left house of Bhagwan Dass as alleged but this fact was not found mentioned therein. He further stated that deceased Basant Ram was seen by him being given beating by Ram Partap and Santosh with dandas, this fact was also not mentioned in the said statement. Further he stated that he told the police that Bhagwan Dass and Mohinder Singh picked up ‘dandas’ and counter attacked the respondents was also not found mentioned. Certainly, this was a material improvement made during the trial. He also stated that he did not come to the house of Asha Ram to see the condition of Basant Ram as he was reluctant to become a witness of the case. Admittedly, he was a resident of a place 2 to 2 ½ K.M. away from the spot. Surprisingly even he did not go to the house of Asha Ram on 12.10.1992 to mourn the death of Basant Ram nor he had gone to the Baddi hospital where the dead body was taken for post- mortem. He also stated that he did not go even to the police to inform that he was an eye witness. It is important to note that he stated that he was taken to the police post by PWs Asha Ram and Bhagwan Dass and when his statement was recorded the respondents Ram Partap and Santosh were lodged in the police lock-up. However, he denied that he was introduced as a witness at the instance of the complainant party. PW7 Dr. Ravi Kant Behal conducted the autopsy of the dead body and according to him, Basant Ram had an ante mortem head injury on account of which he died. - 16 - PW9 Dr. M.S. Rana had examined Asha Ram, Bhagwan Dass and Mohinder Singh. There were simple injuries on the right fore arm and wrist joint of Asha Ram (PW1). Both the injuries were simple in nature and appeared to have been caused more than 6 hours before the examination by means of some blunt weapon. His MLC is Ex.PL. On the examination of Bhagwan Dass, the Doctor found simple injuries on his left