1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 513 of 2001. Reserved on: 25.8.2008 Date of Decision: October 14 ,2008 ____________________________________________________________ Janki Dass and others Appellants . . Versus State of H.P. Respondent Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? yes For the appellants : Shri Vinay Thakur, Advocate. For the respondent : Shri J., S. Guleria, Law Officer. ______________________________________________________________ SURINDER SINGH, J. Challenge in this appeal is to the judgment of learned Sessions Judge whereby he held the appellants Janki Dass and his son Bhagat Singh (appellants No.1 and 2) guilty for the offence punishable under section 304(II) with the aid of section 120-B read with section 149 of the Indian Penal Code and others under section 304(II) read with section 149 of the Indian Penal Code, consequently the appellants were sentenced as under: 1.Janki Dass 2.Bhagat Singh rigorous imprisonment for five years and fine of Rs.2,000/- u/s 304 (II) with the aid of section 120 Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 B read with section 149 of the Indian Penal Code. In default of payment of fine, the appellants are sentenced to simple imprisonment for six months each. 3.Rakesh Singh 4.Pardeep Singh 5.Prem Singh 6.Tilak Raj 7.Hira Singh rigorous imprisonment for five years and to pay fine of Rs.2,000/- each under section 304(II) read with section 149 IPC The background facts, as projected by prosecution, in nut shell are as follows: Karam Chand (deceased) is the husband of PW1 Kalmi Devi and PW4 Yash Paul his son. They are Scheduled caste and have been residing about ½ km away from main village Kamlahu falling under Police Station Rampur Bushahr, Distt. Shimla. All the appellants except Hira Singh (appellant No.7) are the residents of village Kamlahu (Challawat) whereas Hira Singh, the son-in-law of the Janki Dass appellant is a resident of a nearby village Madhog. Appellant Janki Dass was having his orchard below, across the Highway. The two storied house of deceased Karam Chand was above the road in his own orchard. It is alleged that there was no body to look after the orchard of appellant Janki Dass. Therefore, he employed a Gorkha, named Jagat Ram, and hired a room on the ground floor of two storied house of Karam Chand to house his Chowkidar for watch and ward of his orchard. 3 Jagat Ram aforesaid was having a minor daughter aged about 6-7 years, who was residing with him. The deceased Karam Chand was also having a minor daughter of a similar age. The daughters of the deceased and Gorkha Chowkidar used to pick up the quarrel with each other quite oftenly which caused annoyance to the landlord Karam Chand, thus Jagat Ram was requested to vacate the premises, but all the requests of the deceased and his wife PW1 Kalmi Devi fell to deaf ears, which made their life miserable. On 23.6.1997 PW1 Kalmi Devi and her husband Karam Chand deceased finally evicted Jagat Ram Gorkha Chowkidar and his daughter from the tenanted premises. He went to village Challawat with his lock, stock and barrel to the house of his employer Janki Dass appellant and complained against Karam Chand and his wife, which caused annoyance to Janki Dass and his other family members. Janki Dass and his son Bhagat Singh both visited the house of Karam Chand between 1-2 P.M., on the same day i.e.on 23.6.1997 and threatened to set their house on fire and do away with their lives during the night. 4 The complainant did not report the matter to the police because they belonged to the same village and used to work in their house and farm. It is alleged that on 23.6.1997 during the night, after meals, when Karam Chand and his other family members retired to their beds, during mid-night intervening 23/24 June, 1997 appellant Hira Singh called Karam Chand outside, while standing in the compound of their house. On hearing the call, Karam Chand and his wife came out into their verandah of the upper storey.PW1 Kalmi Devi saw Hira Singh and heard him proclaiming that he has some urgent work with Karam Chand and swore that he would not cause any harm to him. On his assurance Karam Chand came down to the compound/courtyard of his house, the moment he reached there Hira Singh caught hold of him from his neck and started giving him kick- blows. The other appellants No. 3 to 6 were hiding themselves near the house of Karam Chand. They abruptly came out and started beating Karam Chand with kicks and blows. Kalmi Devi shouted for help, attracted by her cries her son PW4 Yash Paul and son-in-law Mohan Lal who was also staying with them on that day, came out from their residence and came down to rescue Karam Chand. By the time they reached there he was dumped at some distance 5 near the High way, by appellants No. 3 to 7. Thereafter they got escaped. Kalmi Devi, Yash Paul (PW4) and Mohan Lal (now dead) picked up Karam Chand to take him to their house but found no life in his body, finding him dead left him at some distance. A bed-sheet was brought to cover his dead body. Kalmi Devi along with Mohan Lal went to inform PW 2 Laiq Ram, the real brother of the deceased to main village Kamlahau where he had gone with a band party. They returned with Laiq Ram to the spot and Laiq Ram saw his brother Karam Chand lying dead on the path leading to the house of the deceased. Thereafter he went to PW5 Lachu Ram Member Gram Panchayat Badholi to inform him. Thereafter, he along with Shri Lacho Ram went to the police station to report the matter. On their request, the FIR was registered on 24.6.1997 at 7 p.m. under sections 302 and 109 IPC read with section 3(x) of the Scheduled Cates and Scheduled Tribes (Prevention of Atrocities) Act, 1989. PW12 Shri Satish Negi Dy.S.P.took up the investigation. The police visited the spot, prepared the inquest papers, took the dead-body into possession and sent it for post-mortem examination. The photographs (Ex.P-1 to Ex.P-11) of the dead-body were taken in various postures. The site plan Ex.PW13/A was also prepared. 6 PW 11 Dr. Bhupender Gupta M.O. conducted the post mortem examination on the dead body. He found that the right nostril was having a clotted blood. The Doctor noticed ante mortem wounds multiple in nature, on the back of the body especially on right lumber and right para lumber spine region. The injury marks looked like to have been caused by stick. There were also ante mortem bruises on right forearm, left kidney was found normal but right kidney was found lacerated and the pool of blood was present in abdominal cavity around right kidney. In the opinion of the Doctor, said Karam Chand had died due to the injury to the right kidney leading to excessive hemorrhage. He issued the post mortem report Ex.PW11/B. The probable duration between the death and post mortem was up to 36 hours. The viscera of the deceased was also sent for forensic science laboratory. As per the report Ex.PX it did not contain any of poison or alcohol. After recording the statement of the witnesses, under section 161 Cr.P.C. and on the completion of the challan, it was presented in the court for trial under the aforesaid sections. The appellants were charge-sheeted for the aforesaid offences, they pleaded not guilty and claimed trial. 7 To prove its case, the prosecution examined PW1 Kalmi Devi wife PW2 Laiq Ram and PW4 Yash Paul. The prosecution also relied upon the statements of Sadh Ram (PW3) who was accompanying PW2 Laiq Ram in the band party, PW5 Lacho Ram Member Panchayat, PW6 LHC Tek Chand Police Photographer, PW7 H.C. Devi Singh, PW8 Constable Mohinder Singh, PW9 Narinder Kumar Constable, PW10 Krishan Lal Patwari, PW11 Dr.Bhupender Gupta, PW12 Satish Negi Dy.S.P. and PW13 Prabhu Dutt Inspector SHO. Mohan Lal, the son-in-law of Karam Chand could not be examined as he had died of his natural death, before recording his statement in the court. The appellants were also examined under section 313 of the Code of Criminal Procedure. They were put the circumstances, which were found attendant upon them but their case was denial simplictor and pleaded their innocence. The appellants were also called upon to enter into their defence, but no defence evidence was led. At the end of the trial, the learned trial court acquitted the appellants under section 3(x) of the Scheduled Cates and Scheduled Tribes (Prevention of Atrocities) Act, 1989, whereas each of them were convicted and sentenced for the other offences under the Penal Code as aforesaid, which 8 has been assailed in this appeal on the ground that the learned trial court failed to appreciate that none of the appellants 3 to 7 were armed with any weapon and it was highly improbable that so many persons had congregated to launch an assault on a single man. Since they were not armed it could not be said that the common object of the so called unlawful assembly was to commit the offence of culpable homicide not amounting to murder. Further the medical evidence is quite inconsistent with the ocular evidence of the prosecution witnesses and there have been material contradictions in the statements of the witnesses, which renders the case of the prosecution highly doubtful. Shri Vinay Thakur, learned counsel for the appellants has forcefully argued that the learned trial court has wrongly placed its implicit reliance on the testimony of PWs 1 to 5 with respect to the alleged role played by the appellants Janki Dass and his son Bhagat Singh. He also ventilated that Jagat Ram Gorkha, who was allegedly employed as a Chowkidar was not examined and the close relatives (PWs 1 to 4) have given a varied and tainted version, which is not supported by the medical evidence. Therefore, a reasonable doubt has crept in and there is nothing on record 9 to show as to who had caused fatal injury to the deceased, especially when the appellants were unarmed and otherwise also their presence on the spot was not proved. Since the trial court has ignored all these aspects, therefore the case of the prosecution cannot be said to have been proved in accordance with law. To press his point the learned counsel has also led me through the evidence on record, to show that the submissions made by him actually makes the case of the prosecution highly suspect. Contra, Shri J. S. Guleria, learned Law Officer, for the State has supported the impugned judgment of conviction and sentence as correct and reasonable. He forcefully argued that there are no contradictions in the statements of the prosecution witnesses and further that PW1 Kalmi Devi and her son Yash Paul (PW4) have identified the assailants in the electric light and they being their co-villagers who have been residing in the same area and that the minor contradictions are bound to be there in their statements owing to their illiteracy, rural background and time gap between the date of the alleged occurrence and their examination in the court. I have given my thoughtful consideration to the rival contentions of the learned counsel 10 for the parties and have reappraised and closely scrutinized the statements of the witnesses. Admittedly, PW1 Kalmi Devi,PW4 Yash Paul are the witnesses of the occurrence and PW2 Laiq Ram the brother of the deceased has been examined to lend strength to their version and PW3 Sadh Ram another brother of the deceased, who used to reside separately in village Kamlahu, close to the residence of appellant Janki Dass, has been examined to prove conspiracy alleged to have been hatched by the appellant Janki Dass and Bhagat Singh. Admittedly, all these witnesses are closely related to each other. Therefore, their testimony requires to be examined very closely and cautiously. Thus, I proceed to scan their testimonies. Precisely, PW1 Kalmi Devi has testified that Janki Dass appellant was having his orchard near to her house below the Highway. He had no provision for the residence of Chowkidar in his orchard, therefore, in the year 1997, prior to the occurrence, he employed Jagat Ram Gorkha as his chowkidar and hired a room on a monthly rent of Rs.100/- in her house on the ground floor, where he resided with his daughter aged about 7/8 years. The daughter of Gorkha Chowkidar, used to pick up quarrel with the daughter of Kalmi Devi of the 11 same age group. Therefore, she (PW1) and her husband asked appellant Janki Dass to shift his chowkidar elsewhere but he refused. She also complained Chowkidar but in turn he threatened them with dire consequences. She stated that he made their life miserable. Therefore, said Gorkha Chowkidar was finally evicted from the tenanted premises. He removed his bag and baggage from there and visited the house of appellant Janki Dass. At that time Mohan Lal, her son-in-law had also visited them. Thereafter, on the same day during the noon Janki Dass and his son Bhagat Singh appellants visited them and demanded an explanation with respect to the eviction of their Chowkidar and threatened to eliminate them during the night and to set their house on fire. They did not make any complaint, regarding this fact to any one being the residents of the same village and their entire family used to work at the house and in the Farm of Janki Dass and Bhagat Singh. He further stated that after taking the meals in the evening when they went to sleep, around mid-night, Hira Singh appellant visited their house and called out her husband Karam Chand. He came out followed by her as well as her son-in-law Mohan Lal. They saw Hira Singh in front of their house. Hira Singh swore that he would do nothing and 12 asked him to come down. When Karam Chand went down to Hira Singh in the courtyard, he started beating him other appellants, namely, Rakesh, Pradeep, Tilak and Prem Singh who were hiding themselves behind her house, rushed towards her husband and gave beatings. She and her children started crying. Hira Singh, Tilak, Rakesh, Pradeep and Prem Singh appellants took her husband to the highway below her house and dumped him there. Thereafter they managed to escape. She along with Mohan Lal rushed to the spot, lifted Karam Chand to take him to their house but dropped him at a distance and after some time, when they tried to lift him again, they found that Karam Chand was no more. She stated that appellants had done her husband to death. Thereafter she along with Mohan Lal rushed to village Kamlau (Main) to inform the brothers of the deceased regarding the occurrence namely S/Shri Bhadru Ram, Laiq Ram (PW2) and Sadh Ram (PW3). After informing them, all of them came to the spot and confirmed the fact of death of Karam Chand. She narrated the entire incident to Laiq Ram, thereafter he went to inform the Pradhan and lodged the F.I.R. on the next date in the morning. She further stated that Janki Dass and Bhagat Singh had instigated the other appellants to do away with the life of her husband. 13 In her cross-examination, she stated that the entire incident was narrated to PW2 Laiq Ram by her. He was residing at a distance of about one km. from her home. She categorically stated that she had seen Rakesh, Pradeep, Prem Singh and Tilak Raj hiding themselves at the back side of their house and rushing out of the place of hiding and attacking her husband, from the verandah of her double storeyed house. Further according to her, the back side of her house was not visible from the verandah and also the place where the accused persons were hiding. She did not see any of the appellants armed with any weapon. She further stated that they had attacked her husband in her court-yard. She denied that on the day of the alleged occurrence, the deceased had taken liquor and was drunk. She further stated that there was a village fair in their village on the day of occurrence. She admitted that the said quarrel had taken place in the darkness outside her house and she suspected the appellants were responsible for causing the death of her husband but voluntarily stated that she had seen the accused persons causing hurt to her husband. Further according to her, appellant Janki Dass had started entertaining ill-will against her because they had evicted his Chowkidar from the house who was firstly reluctant 14 to vacate the house but later, he stepped out of the room along with his bag and baggage, thereafter he did not see him again. She further stated that she had reported the matter to the Pradhan Krishan Gopal and again Laiq Ram had complained to him after the occurrence. She did not know if there was election rivalry with Krishan Gopal. She denied that Janki Dass and Bhagat Singh had not visited their house after they had evicted the Chowkidar. The witness was re-examined on the request of learned Public Prosecutor because in the cross-examination, she stated that at the relevant time when the incident had taken place it was dark, whereas, in examination-in-chief she stated that the appellants were seen by her causing hurt to Karam Chand. Learned defense counsel did not oppose the re-examination by the learned Public Prosecutor and then she stated that she had seen the appellant Hira Singh and others in the moon-light and she had also switched on the electric light out side the house and saw the accused appellants aforesaid. In cross- examination, she has stated that she switched on the light from inside when appellant Hira Singh had called her husband out. She denied that she 15 had made the statement of having switched on the light at the instance of Public Prosecutor. PW2 Laiq Ram, the brother of the deceased, stated that his brother Karam Chand was residing outside the village at a distance of about one km from his house along with his family in his orchard. He corroborated the version of PW1 as far as housing of Gurkha in the ground-floor of the house of PW1 as a tenant by appellant Janki Dass prior to the occurrence is concerned. He stated that during the intervening night of 23/24th of June, 1997 around 1.00 a.m, wife of the deceased PW1 Kalmi Devi visited him and informed that appellants Pradeep, Rakesh, Prem Singh and Tilak Raj had committed the murder of her husband. She had also informed his other brothers Bhadru Ram and Sadh Ram. All of them had also rushed to the spot and found Karam Chand lying dead near his house on the path leading to his house. He went to inform Krishan Gopal Pradhan who advised him to report the matter to the Police. Lachhu Ram Member and Nand Lal had accompanied him to the Police Station and he lodged the FIR Exhibit PW2/A. The Police visited the spot and prepared the inquest report Exhibit PW2/B. He identified his signatures there and further stated that the Police also took the photographs of the dead body. 16 In cross-examination, he has stated that on 23.6.1997 from morning till evening, he was in his house and visited the house of deceased on having been informed about his death but he had not seen the occurrence. Further, according to him, Gurkha Chowkidar was of quarrelsome nature and he was present when the Police visited the spot on 24.6.1997. After the occurrence he had visited the house of Janki Dass only once and thereafter he was not seen. He stated that Kalmi Devi had expressed her doubt about the involvement of Tilak Raj, Prem Singh, Rakesh and Pradeep in causing the murder of Karam Chand. He has specifically stated that PW1 had informed that the occurrence had taken place in her courtyard. He also stated that her son-in-law had brought the dead body from a distance of about ten paces towards the house of the deceased. He also stated that Gorkha Chowkidar did not complain in his presence against Kalmi Devi and her husband to appellant Janki Dass or to any other person of his community. PW3 Sadh Ram is the another brother of the deceased. According to him, on 23.6.1997 there was a village fair. The local deity had visited his village. He was a member of the band-party of the village-deity. On 23.6.1997 during the night 17 he was present in the house of Panna Lal Gupta of his village which was located near the house of Janki Dass. He had been staying with the band party in the house of Panna Lal Gupta and he heard Bhagat Singh appellant asking his brother Rakesh to get ready and proceed to beat the member of the band party. He asked Bhagat Singh who was sought to be beaten by them. On this, he told that his brother Karam Chand was to be beaten as he had turned their Chowkidar out from the tenanted premises. When Bhagat Singh asked Rakesh Kumar to get ready and proceed to the house of Karam Chand, Janki Dass was also present but he did not see Prem Singh, Pradeep and Tilak Raj appellants with them. At that time, it was 10.30 p.m. According to him, he returned to his house located besides the house of Laiq Ram (PW2) on 24.6.1997 during midnight around 1.00 A.M. He did not find his brother there. His wife informed that Karam Chand, his brother, was done to death by Tilak Raj, Prem Singh, Pradeep, Rakesh and Hira Singh. He rushed to the spot and on seeing the dead body he was shocked. Thereafter, he along with other brothers went to inform the Pradhan and thereafter reported the matter to the Police. In cross-examination, he has stated that when the appellant Bhagat Singh had asked his brother Rakesh to get ready and 18 proceed to the house of his brother for beating him, at that time he along with one Mendku were together below the house of Panna Lal along with ¾ persons in the upper verandah of the house of Panna Lal. The house of appellant and Janki Dass was at a distance of about 8-10 mtrs from the house of Panna Lal. He further stated that he asked Janki Dass as to why his brother was to be beaten, Janki Dass informed that his Gurkha Chowkidar was turned out by him from the tenanted premises. When they left the place, he took the food and played the drums and the fair was over around mid night. He was confronted with his statement recorded under Section 161 of the Code of Criminal Procedure with respect to the fact that he heard the accused appellant Bhagat Singh asking his brother Rakesh to get ready and proceed to the house of Karam Chand for beating him wherein it was not so recorded but it was mentioned that Janki Dass and Bhagat Singh had loudly been saying that they were proceeding towards the house of Karam Chand Nagalu for the purpose of eliminating him as he had turned out his Chowkidar out of his house but there was no mention of appellant Rakesh Kumar having been asked to get ready and proceed to the house of deceased for beating him. 19 PW4 Yash Pal is the minor son of deceased who was aged about fourteen years at the time of the alleged occurrence and sixteen years when he was examined in the Court. According to him, his elder sister Nirmala Devi was married to Mohan Lal many years back. Mohan Lal had died. While corroborating the statement of his mother, he stated that Gorkha Chowkidar