IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No. 269 of 1999 alongwith Cri. Appeal No. 451 of 1999 Reserved on : July 5, 2010 Date of Decision: November 3, 2010 Cri. Appeal No. 269 of 1999 Murari Lal Appellant Versus State of Himachal Pradesh Respondent Cri. Appeal No. 451 of 1999 State of Himachal Pradesh Appellant Versus Murari Lal Respondent Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. Cri. Appeal No. 269 of 1999 For the appellant: Mr. Rakesh Jaswal, Advocate, vice counsel. For the respondent: Mr. Vivek Thakur, Addl. Advocate General. Cri. Appeal No. 451 of 1999 For the appellant : Mr. Vivek Thakur, Addl. Advocate General. For the respondent : Mr. Rakesh Jaswal, Advocate, vice Counsel. Sanjay Karol, J. These appeals arise out of judgment dated 24.6.1999 passed by the learned Additional Sessions Judge in Trial No. 26 of 1995, titled as State of Himachal Pradesh Whether the reporters of Local Papers are allowed to see the Judgment? 2 vs. Murari Lal. The Court below convicted the accused of the charged offences and sentenced him to undergo rigorous imprisonment for a period two years for an offence punishable under Section 307, IPC, and pay fine of Rs.500/- for an offence punishable under Section 506, IPC. In default of payment of fine accused is to further undergo simple imprisonment for a period of one month. 2. Criminal Appeal No. 269 of 1999, titled as Murari Lal vs. State of H.P., has been filed by the accused for setting aside his conviction and sentence and Criminal Appeal No. 451 of 1999, titled as State of H.P. vs. Murari Lal, has been filed by the State seeking enhancement of quantum of sentence. 3. Nand Lal, SI (PW-9) was posted as ASI at Police Station, Mandi. In connection with investigation of ‘some case’ on 27.10.1994 he was on his way to the Hospital at Mandi. He saw Sarla Devi (PW-2) being taken to the Hospital at Mandi in an injured condition. He rushed to the Hospital and moved application (Ext.PW-9/A) and sought opinion as to whether the injured was in a fit condition to make her statement. Medical Officer opined the injured to be “not fit for the said purpose”. Consequently, he recorded statement (Ext.PW-1/A) of Shri Lekh Raj (PW-1) who was accompanying Sarla Devi. PW-9 made his endorsement (Ext.PW-9/B) and forwarded the same to Police Station, Mandi, where FIR No. 417 of 1994 3 (Ext.PW-9/C) dated 27.10.1994 under Sections 326, 323, 506, IPC was registered. 4. As per statement (PW-1/A) recorded under Section 154, Cr.P.C., PW-1 states that: “I am resident of abovesaid place and am running a shop at Margaon. On 27.10.1994 around 5.30 p.m. when I was going to my home after closing the shop reached at village Chanalsa around 5.45 p.m., Murari Lal s/o Mast Ram, caste Rajpur, R/o Chanalsa met me there and told that he would take revenge that day but I did not retort. Then he started pelting stones at me from backside. I called out the villagers that Murari Lal was pelting stones at me. Murari Lal told me to call the family members and he would also kill them. Thereupon, I called my family members. At this, my mother exhorted Murari Lal from the house not to do so. In the meantime, my elder sister-in-law (Bhabhi) Smt. Sarla came over there and aforesaid Murari Lal struck adze on her left temporal region. Consequently huge quantity of blood started oozing from the wound. Thereafter, we brought her to the hospital at Mandi in a ‘Mazada’. She is also in an unconscious state. The incident was witnessed by S/Sh. Shayam Singh and Narpat Singh, R/o Chanalsa”. 5. PW-9 commenced investigation by visiting the spot of the incident. He took into possession weapon of offence i.e. adze (Ext.P-1) produced by Champa Devi 4 (PW-3) in the presence of Shayam Singh and Mehar Singh (both not examined) vide memo Ext. PW-3/A dated 31.10.1994. She also produced Dupatta belonging to Sarla Devi. The same was taken into possession vide recovery memo Ext.PW-3/B dated 31.10.1994 in presence of Shayam Singh and Hem Singh (PW-4). Statements of the witnesses were recorded. The Investigating Officer searched the house of accused on 1.11.1999 but could not find anything incriminating there. MLR (Ext.PW7/A) was obtained by police. Sample of hair of PW-2 was taken by the police and Dupatta allegedly having hair of PW-2 was sent to the Chemical Examiner alongwith Ext.P-1 for examination. Report of Chemical Analyst was taken on record. As per the opinion of Dr.H.K.Sharma (PW-7), PW-2 suffered fracture of left parietal bone (compound fracture of skull) and injury which was dangerous to life. 6. With completion of investigation, challan was presented in Court for trial and accused was charged for having committed an offence punishable under Sections 307 and 506, IPC, to which he did not plead guilty and claimed trial. 7. In order to prove its case prosecution examined 10 witnesses and statement of the accused under Section 313, Cr.P.C. was also recorded wherein he pleaded innocence. In defence he also examined one Doctor to prove injuries on his person. 5 8. Court below convicted the accused. Hence the present appeals. The Court found that accused had motive to commit the crime and the prosecution was able to prove the charged offence, beyond reasonable doubt through spot witnesses, namely Smt. Sarla Devi (PW-2), Smt. Champa Devi (PW-3) and Shri Hem Singh (PW-4). 9. In this case certain undisputed facts stand proved on record. From the statement of PW-2, it is evident that her husband was posted as Head Constable at Police Station, Gohar, also in District Mandi. The alleged offence also took place in the very same District. From the statement of PW-9 and application (Ext.PW-9/A), it is evident that Sarla Devi was not found fit for recording her statement. For medical treatment she was admitted in the Hospital at Mandi on 27.10.1994 at about 8.50 p.m. Undisputedly Village Taryasala is at a distant place from Mandi and Gohar is also not far off from there. Record does not suggest that complainant had made any endeavour to get in touch with the husband of PW-2 and inform him about the incident. According to the prosecution she had suffered a major injury and was in an unconsciousness/semi-unconsciousness state of mind. It is therefore highly unbelievable that the husband, who was member of police force of the State and posted in the very same District was not informed about the incident. It is not the case of prosecution that her husband was posted in 6 a remote area which was not accessible by road or by telephone. This fact, as would be seen hereinafter becomes significant. 10. Now PW-9 does not give reference of the case in relation to which he was on his way to the Hospital. By some providence he happened to meet the injured accompanied by PW-1. Instead of making inquiries from PW-1 about the cause of injury he straightway moved an application (Ext.PW-9/A) with the Medical Officer. Why so? What was the necessity to record the statement of the injured. PW-2 might have suffered injuries for any reason. It could be a case of an accident also. 11. On 27.10.1994 in the Hospital Doctor records the injuries to be grievous and advises that x-ray of the skull to be got done. As per her own version, PW-2 remained admitted in the hospital for a week. Now allegedly X-ray examination was carried out on 29.10.1994. Importantly this was done at Primary Health Centre, Ratti, a place different and distant from the District Hospital, Mandi. X-ray form (Ext.PW-5/B) alongwith the report records that Sarla Devi was brought for x-ray examination by Constable Dev Ram on 29.10.1994. On the basis of this x-ray Doctor opined that there is fracture on the left parietal bone. Based on the same PW-7 gave his opinion on 31.10.1994 : “MLC x-ray No.56-57 CHC Ratti - Report given by Dr. Jaya Vaidya, Radiologist ZH 7 Mandi on 29.10.94. Fracture of Lt. parietal bone seen. Hence injury is compound – grievous”. Thereafter, on 2.11.1994 another report is obtained by police and PW-7 opined that, “This injury is “dangerous to life” since there is “compound fracture of SKULL” 12. Undue interest and undue haste by the police in getting various opinions from the Doctor stands exhibited on record. That apart, and most importantly, aforesaid opinion is based on x-ray (Ext.PW-5/A) allegedly belonging to PW-2. PW-9 categorically states that he is not aware who got Sarla Devi examined for x-ray. Now Constable Dev Raj who took her for getting the skull x- rayed has not been examined in Court. None of the Doctors or police officials have stated that x-ray machine in the hospital at Mandi was not functioning and, therefore, patient was taken out of the hospital for getting the same done somewhere else. How and under whose authorities did the patient leave the hospital? Under whose authority was x-ray carried out at PHC Ratti. Why the Radiologist who conducted x-ray examination of PW-2 at Ratti was not associated during investigation or examined in Court? These questions remain unanswered and unexplained by the prosecution. 13. In this background, statement of Dr. Jaya Vaidya (PW-5) becomes relevant which is reproduced in entirety:- 8 “I am working as Radiologist, Z.H. Mandi with effect from May 1993. In this case, X-ray of Sarla Devi Ex.PW-5/A was brought to me by the police for determination of fracture if any in the skull bone of Sarla Devi. This x-ray (in two sheets), had been done at P.H.C. Ratti. I had examined the X-ray and had found fracture of left parietal bone as per my report Ex.PW-5/B. Cross-examination by Sh.Uttam Singh, Adv. Counsel for the accused persons. I did not examine Sarla Devi.” 14. Dr. H.K.Sharma (Pw-7) states that x-rays examination of Sarla Devi was done on 28.10.1994 at PHC Ratti. He categorically states that “I cannot say who had carried out the X-ray examination, but the skigram was examined by the radiologist of DH Mandi. X-ray report had been examined by me on 2.11.1994 and on the same day I had furnished supplementary opinion Ex.PW-7/B.” 15. From the aforesaid discussion, it cannot be said with certainty that Ext.PW-5/A is actually that of PW- 2. Thus prosecution case is rendered to be extremely doubtful, if not false. There is nothing on record which by clear, convincing and reliable material could, beyond reasonable doubt, prove that PW-2 actually sustained injuries of compound fracture. 16. Through statement of Dr.Surinder Singh (DW- 1) accused has proved that on 28.10.1994 he was also 9 medically examined by him. He sustained the following injuries:- “1. Skin deep one cm. long lacerated injury on right cheek with clotted blood present on the wound. 2. 1 cm. long laceration on medial end of right eye brow. 3. 3 cm long laceration of scalp over left parietal bone with clotted blood present on the wound. 4. 1½ cm long laceration of scalp over vertex centrally. Clotted blood was present on the wound and the depth of the injury was skin deep.” 17. PW-9 in his cross-examination does not deny this fact. He also does not specifically deny that accused Murari Ram had also lodged a report against the complainant party 18. On the question of complicity of the accused with the charged offence, statements of spot witnesses i.e. complainant Lekh Raj (PW-1), Sarla Devi (PW-2), Champa Devi (PW-3) and independent witness Hem Singh (Pw-4) need to be examined. . Importantly here we may mention that prosecution has not examined several witnesses cited in the challan. Pushpa, Shayam Singh, Narpat, Dila Ram, Ravinder Singh and Prem Singh were given up. 19. In Court, PW-1 states that when he was crossing village Chanalsa he noticed the accused 10 accompanied by his wife and children coming from the fields. Without rhyme or reason accused picked up fight and threatened to set him right. Though he kept silent but accused started pelting stones on him. One such stone hit his left wrist and chain of his wrist watch opened. He cried for help. His mother and sister-in-law Sarla Devi heard the cries. By shouting from the house his mother asked accused not to pelt stones. Sarla Devi (PW-2) and Champa Devi (PW-3) and his niece Pushpa also rushed to help him. When PW-2 reached the spot she inquired from the accused the cause of quarrel and beatings. Then accused took out adze from behind and gave a blow with it on her head as a result of which she fell on the ground and became unconscious. She also started bleeding from her head. The incident was witnessed by Narpat, Shayam Singh, Hem Singh (PW-4), Champa Devi (PW-3) and Pushpa Devi. After dropping the adze at the spot accused managed to escape. Champa Devi picked up the same and retained it with herself. He then brought Sarla Devi to the Zonal Hospital and get her admitted. Matter was reported to the police vide statement (Ext.PW-1/A). 20. Importantly in Court he has made several improvements and contradictions from his earlier statement (Ext.PW-1/A) wherein following facts are not mentioned, (i) Accused was present with his wife and children. (ii) Stones thrown by accused hit his left wrist as 11 a result of which chain of the wrist watch get opened, (iii). Hearing cries Puspa and Champa Devi also came at the spot. (iv) Incident was witnessed by Narpat, Shayam Singh, Hem Singh, and (v) accused ran away from the spot by dropping adze which was picked up and retained by Champa Devi. When confronted with his statement (Ext.PW-1/A) he admits these facts not to be recorded therein. 21. Further according to PW-1 accused continued to pelt stones for more than 15-20 minutes. He admits that house of Parkash Chand is at a distance of 10-12 paces from the spot and houses of 10-12 families are also there in Village Chanalsa. Importantly, no stone was recovered from the spot by the investigating officer. He also admits that incident took place in the thrashing floor of Kahan Singh from where his house is not visible. Fact that Village Chanalsa is on a higher elevation than Village Taryasal stands proved by uncontroverted statement of PW-9, according to whom Village Taryasal is also not visible from village Chanalsa (place of crime). Then obviously version of PW-1 that he cried for help and his mother and PW-2 saw the accused pelting stones at him and his mother asked him not to do so is false. 22. Importantly, prosecution has also not examined the mother, Parkash Chand, Hirdya Ram whose fields were just adjacent to the place of occurrence. Even 12 residents of Village Chanalsa have not been associated by police or examined by prosecution. Wife of the accused and his children have also not been examined Noticeably incident took place at 5.45 p.m. when normally villagers are returning home or have already came back after work. Witness has not received any injury due to pelting of stones which admittedly continued for more than 15-20 minutes. Even according to PW-1, PW-2 had taken 15-20 minutes to reach at the spot. As per PW-2 the spot is at a distance of half a kilometer from their house. Version of PW-1 that while pelting stones accused chased him does not appear to be true as according to PW-2 accused limps while walking. She has categorically does not deny that accused is a disabled person. PW-1 is physically fit and a young person. He could have very easily and conveniently rushed back to his house leaving the accused far behind. The genesis of the prosecution case appears to be extremely doubtful. 23. Now according to PW-2 when she reached the spot accused threatened to kill her and after taking out adze from his back he gave her a blow with it. PW-2 supported the prosecution story. She further states that (i) her Dupatta which had fallen from her head was picked up by Champa Devi, (ii) accused threatened to kill her and then thereafter gave a blow with adze. Significantly these facts are not mentioned in statement (Ext.PW-1/A). 13 Assuming that PW-1 may not have noticed Champa Devi picking up of Dupatta belonging to PW-2 but, however, it cannot be said that he did not see or hear the accused threatening to PW-2. PW-1 gives reference of only adze which fact is not corroborated by PW-2, who only mentions about Dupatta. 24. We find that the testimony of the aforesaid witnesses not to be wholly truthful and inspiring confidence. There are serious contradictions, improvements, embellishments and improbabilities in their statements. It would be extremely unsafe to rely upon them to convict the accused for the charged offence. 25. Coming to witness PW-3, to begin with her presence at the spot appears to be extremely doubtful. She appears to have been introduced later on. Her name is not mentioned in statement (Ext.PW-1/A). PW-1 is categoric in naming the persons present at the spot. In Court he states that hearing his cries Puspa, Champa and Sarla ran to save him. Now according to PW-2, Pushpa was ahead of her and according to PW-3, Sarla was ahead of her. Undisputedly, it took 15-20 minutes for these witnesses to reach the spot and the distance between each one of them was 10-15 paces. Now Pushpa was the first one to have reached the spot. What did she see and do first there has not come on record. Why was she given up being an unnecessary witness is not clear. She being the 14 first one to have reached the spot would have revealed true sequence of events, which took place at that time. 26. Further PW-3 admits that most of the facts narrated by her are not mentioned in her statement recorded under Section 161, Cr.P.C. Here we may clarify that such improvements/ contradictions have not been taken note of by us for the reason that statement with which she was confronted with was not proved in accordance with law. It is not a legal evidence. The contradicted statement was neither marked nor legally proved through the scribe or the related witness. 27. It is well settled that omissions in the statements of the prosecution witnesses made to police cannot be regarded as self contradiction but serious and glaring omissions can be relied upon as a relevant circumstances. Previous statement sought to be contradicted is to be placed before the witness to show that he did not make the said statement and also to enable him to give explanation for such omission. Same is required to be marked and/or exhibited as the case may be. 28. In Tahsildar Singh and another vs. State of U.P., AIR 1959 SC 1012, the Apex Court held that:- “25. It is not necessary to multiply cases. The two conflicting views may be briefly stated thus: (i) omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness-box; 15 and (ii). they must be in regard to important features of the incident which are expected to be included in the statement made before the police. The first proposition not only carries out the intention of the legislature but is also in accord with the plain meaning of the words used in the section. The second proposition not only stretches the meaning of the word "statement'' to a breaking point, but also introduces an uncertain element, namely, ascertainment of what a particular witness would have stated in the circumstances of a particular case and what the police officer should have recorded. When the section says that the statement is to be used to contradict the, subsequent version in the witness box, the proposition brings in, by construction, what he would have stated to the police within the meaning of the word "statement". Such a construction is not permissible. 26. From the foregoing discussion the following propositions emerge: (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement: illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word "only" can be implied i. e., the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement: illustration: in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the 16 Court cannot stand together: illustration: the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the Court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing i. e., at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false. 27. The aforesaid examples are not intended to be exhaustive but only illustrative. The same instance may fall under one or more heads. It is for the trial Judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness box, to give a ruling, having regard to the aforesaid principles, whether the recital intended to be used for contradiction satisfies the requirements of law.” 29. In Binay Kumar Singh vs. State of Bihar, (1997) 1 SCC 283, the Apex Court held that:- “12. The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court. This principle is delineated in S. 155 (3) of the Evidence Act and it must be borne in mind when reading S. 145 which consists of two limbs. It is provided in the first limb of S.145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him but the second limb provides that "if it is intended to contradict him by the writing his attention must, before the writing can be provided, be called to those parts of it which are to be used for the purpose of contradicting him." There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross- examination even without resorting to the procedure laid down