IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal Nos.496 & 497 of 2000 Judgment reserved on:6.8.2008. Decided on: September 19, 2008. Cr.A.No.496 of 2000: Pritam Singh & Anr. …Appellants. VERSUS State of H.P. ….Respondent. Cr.A.No.497 of 2000: Dharam Chand & Anr. …Appellants. VERSUS State of H.P. ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants: Mr.Jagdish Vats, Advocate in Cr.A. No.496 of 2000 & Mr.M.S.Chandel, Sr.Advocate with Mr.Dinesh Thakur, Advocate in Cr.A. No.497 of 2000. For the respondent: Mr Anshul Bansal, Addl.A.G. Kuldip Singh, Judge: This judgment shall dispose of Criminal Appeal No.496 of 2000 and Criminal Appeal No.497 of 2000 both having arisen out of common judgment dated 11/16-8-2000 passed by learned Additional Sessions Judge (II), Kangra at Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… Dharamshala in Sessions Case No.36-P/98, RBT No.23-P/99 convicting appellants under Section 304 Part-II read with Section 34 IPC and sentencing each appellant to undergo rigorous imprisonment for three years with fine of Rs.2000, in default of payment of fine each appellant shall undergo rigorous imprisonment for six months. The accused were acquitted under Section 382 IPC. Criminal Appeal 496 of 2000 has been filed by Pritam Singh and Sukh Ram, Criminal Appeal No.497 of 2000 has been filed by Dharam Chand and Kamal Singh. 2. The appellants were prosecuted for causing death of one Hoshiar Singh on 10.5.1998 at about 6.45 P.M. at village Bhaghala, Tehsil Jaisinghpur, District Kangra, Himachal Pradesh and also for committing theft of gun No.9239 belonging to Hoshiar Singh. On the basis of F.I.R. No.28 of 1998, Police Station, Lambagaon case under Sections 302, 382 read with Section 34 IPC was registered against the appellants. 3. The prosecution case, in brief, is that on 10.5.1998 at about 6.30 P.M. Hoshiar Singh deceased had gone to his fields adjoining to his house with a licensed gun. PW-11 Nirmala Devi daughter of Hoshiar Singh heard cries “Maar Diya, Maar Diya, Bachao”. She rushed towards the fields from where the cries had come, she saw at a distance of 15 …3… – 20 steps her father Hoshiar Singh was caught from arms by Dharam Chand and Kamal Singh. Sukh Ram was carrying danda in his hand and Pritam Singh was having an axe in his hand. Sukh Ram was proclaiming openly to finish Hoshiar Singh, hence, Pritam Singh inflicted a blow on the head of Hoshiar Singh from the blunt side of axe, Sukh Ram also gave danda blow to Hoshiar Singh, who fell down and blood started oozing out from his head. PW-11 Nirmala Devi who was accompanied by her mother cried for help to save Hoshiar Singh. Kamal Singh snatched the gun of Hoshiar Singh and ran away towards jungle. 4. PW-12 Vakil Singh and Rajesh, sons of Hoshiar Singh, reached the spot and inquired from their father as to who caused the injuries to him. On this Hoshiar Singh named all the four accused persons, who gave beatings to him and caused injuries. Hoshiar Singh was taken to home by his sons by lifting. On reaching home, Hoshiar Singh demanded water and after taking the same, he became unconscious and died. 5. After the death of Hoshiar Singh PW-12 Vakil Singh and Nirmal Singh went to inform PW-13 Amar Singh, Pradhan of Gram Panchayat. They narrated the incident to Amar Singh. There was no facility of telephone in the house of Pradhan, therefore, Vakil Singh, Nirmal Singh and Amar …4… Singh proceeded to village Rit situated at a distance of about 2 kilometers from the house of Amar Singh. Thereupon, PW-13 Amar Singh informed the police telephonically and Rapat No.Ext.PW-13/A was recorded. On this F.I.R. No.28/98 Ext.PW-14/A came to be registered at Police Station, Lambagaon. The police came into action, spot was inspected, post-mortem on the dead body of Hoshiar Singh was got conducted, statements of witnesses were recorded, recoveries were effected and the report from Forensic Science Laboratory was obtained. On completion of investigation, challan was presented. The learned Additional Sessions Judge framed charge on 11.11.1998 against all the accused under Sections 302, 382 read with Section 34 IPC to which the accused pleaded not guilty and claimed trial. The prosecution has examined 14 witnesses. The statements of accused were recorded under Section 313 Cr.P.C. in which they pleaded their innocence. The accused examined DW-1 Dr.Karan Sharma. On conclusion of trial the learned Additional Sessions Judge convicted all accused, as noticed above, hence, appeals. 6. I have heard Mr.Jagdish Vats, learned counsel for the appellants in Criminal Appeal No.496 of 2000 and Mr.M.S.Chandel, learned Senior Advocate assisted by Mr.Dinesh Thakur, Advocate for appellants in Criminal …5… Appeal No.497 of 2000, Mr.Anshul Bansal, learned Additional Advocate General, for the respondent / State in both the appeals and gone through the record. In order to appreciate the submissions of either side in the appeals, it is necessary to refer to evidence which has come on record. 7. PW-1 Chander Parkash, Patwari has proved Aks Tatima Ext.PW-1/A, PW-2 Vinod Kumar, son of deceased Hoshiar Singh handed over the licence Ext.P-1 of the gun to police which was in the name of his father Hoshiar Singh vide seizure memo Ext.PW-2/A. PW-3 Raj Kumar has stated that on the following day of the death of Hoshiar Singh he visited his house on 11.5.1998. He accompanied the dead body for post mortem to hospital. He did not support the prosecution and was declared hostile and was cross examined by the prosecution and stated that inquest paper Ext.PW-3/A was got signed from him by the police in Police Station. He admitted his signatures on seizure memos Ext.PW-3/B, Ext.PW-3/C and Ext.PW-3/D which he signed without going through their contents. He has also admitted his signatures on seizure memo Ext.PW-2/A. He has denied that his statement was recorded by the police on 11.5.1998. He denied that accused Dharam Chand had made any disclosure statement. He, however, admitted his signatures on disclosure statements Ext.PW-3/E, Ext.PW-3/F and …6… Ext.PW-3/G but has denied that these disclosure statements were not made in his presence. He has denied that gun Ext.P-2 and ammunition Ext.P-3 were got recovered by the accused Dharam Chand in his presence. He has denied that shirt Ext.P-4, trousers Ext.P-5 were recovered at the instance of accused Dharam Chand. The seizure memo Ext.PW-3/F was got signed by the police from him in the police station. He has denied that seizure memo Ext.PW-3/H was prepared by the police on the spot and was signed by him on the spot. He has denied that axe Ext.P-6 and Danda Ext.P-7 were got recovered in his presence. He has also denied that seizure memo Ext.PW-3/J was prepared in his presence on the spot. He has denied that shirt Ext.P-8, trousers Ext.P-9 were got recovered at the instance of Pritam Singh in his presence vide seizure memo Ext.PW-3/J. He has denied that accused Kamal Singh got recovered trousers and shirt from his house vide seizure memo Ext.PW-3/K in his presence. He has, however, admitted his signatures on the seizure memo. He has denied that shirt Ext.P-10 and trousers Ext.P-11 were got recovered by accused Kamal Singh in his presence. He denied having made statement portion A to A of statement Mark-B. 8. PW-4 Ravinder Kumar has denied that accused Dharam Chand, Pritam Singh and Kamal Singh were …7… interrogated in his presence and they made disclosure statements in his presence. He did not support the prosecution and was declared hostile. He denied that Dharam Chand made disclosure statement Ext.PW-3/E but he admitted his signatures on Ext.PW-3/E. He admitted his signatures on disclosure statements Ext.PW-3/F, Ext.PW-3/B but denied that those disclosure statements were made in his presence. He denied that Dharam Chand got recovered gun Ext.P-2, ammunition Ext.P-3 from forest. He denied that Dharam Chand got recovered shirt Ext.P-4 and trousers Ext.P-5 from his house. He denied that these articles were taken into possession in his presence vide seizure memo Ext.PW-3/H. He has denied that accused Pritam Singh got recovered axe Ext.P-6, Danda Ext.P-7, shirt Ext.P-8, trousers Ext.P-9 vide seizure memo Ext.PW-3/J, but he admitted his signatures on seizure memo Ext.PW-3/J. He has denied that accused Kamal Singh got recovered shirt Ext.P-10, trousers Ext.P-11 from his house vide seizure memo Ext.PW-3/K but he admitted his signatures on seizure memo Ext.PW-3/K. He did not read the papers before appending his signatures nor the papers were read over to him by the police. 9. PW-5 Surjit Singh, MHC has stated that case property was deposited with him. He deposited the case …8… property in the Malkhana. He handed over seven sealed parcels on 18.6.1998 to Constable Dhruv Dev for depositing with FSL Junga. PW-6 Dhurv Dev has stated that articles handed over to him by PW-5 Surjit Singh were deposited by him with FSL Junga. PW-7 Shesh Ram has stated that he remained posted as Constable at Police Station, Lambagaon in the year 1998. On 11.5.1998, he took the dead body along with the application and inquest papers for post mortem to Sub Divisional Hospital, Palampur, he got the post mortem conducted on the dead body by a doctor. In cross examination, he has stated that he, accompanied by ASI PurshotamLal, Investigating Officer, reached the spot at about 11.30 P.M. on 10.5.1998. He along with ASI PurshotamLal and HC Sandip Kumar remained on the spot, but no investigation was conducted in his presence. They had seen the dead body of Hoshiar Singh lying on the spot when they reached there. The application for post mortem and inquest papers were handed over to him by ASI at about 10 a.m. on 11.5.1998. PW-8 LHC Ram Sarup has stated that he checked the gun Ext.P-2. PW-9 S.I. Kushal Kumar, S.H.O. Lambagaon has stated that on completion of investigation ASI PurshotamLal handed over the file to him, he prepared police report and presented the same in the Court. …9… 10. PW-10 Dr.S.K.Bhatia has stated that on 11.5.1998 on the application Ext.PW-10/A which was accompanied by inquest papers Ext.PW-3/A, he conducted post mortem examination on the dead body of Hoshiar Singh found the following injuries:- “(i) A lacerated wound fronto occipital junction of skull size 2 ½” x 1” underlying bone was fractured through which brain matter and blood was coming out. (ii) A lacerated wound two in number present both side of occipital region of skull size 1” x ½”, 1 ½” x ½” and blood was coming out. (iii) A lacerated wound with echymosis just behind the right ear size 1” x ½” clotted blood present. (iv) There were multiple abrasions back of the body six in number size (i) 4” x 1” (ii) 3” x 1” (iii) 4” x 1” (iv) 2” x 1” (v) 3 ½” x 1” and 2” x 1”. (All were reddish brown in colour). (v) There was an abrasion with echymosis left arm near the elbow size 1” x ½” reddish brown in colour.” The probable time that elapsed between injury and death cannot be ascertained. He issued post mortem report Ext.PW-10/B. Injury No.1 could be possible by axe Ext.P-6 …10… if struck from its blunt side, injuries No.3 and 4 could be possible by Danda Ext.P-7, injury No.2 could also be possible from blunt side of axe Ext.P-6. 11. PW-11 Nirmala Devi has stated that Sukh Ram accused is her real paternal uncle. Dharam Chand, Pritam Singh accused are sons of Sukh Ram and accused Kamal Singh is son of accused Dharam Chand. On 10.5.1996 at about 6.30 P.M. her father Hoshiar Singh had gone to the fields with his gun Ext.P-2. At about 6.45 P.M. they heard cries of her father saying “Maar Diya, Maar Diya, Bachao”. On hearing the cries, she rushed towards the side from where the cries had come, her mother followed her. At a distance of 15 – 20 steps she saw that her father was caught from arms by accused Dharam Chand and Kamal Singh. Sukh Ram was carrying danda and accused Pritam Singh was having an axe. Sukh Ram was proclaiming to finish her father. In the meantime, Pritam Singh inflicted an axe blow from the blunt side on the head of her father. Sukh Ram gave danda blow on the person of her father, who fell down. She and her mother cried for help. Kamal Singh accused snatched gun from her father and fled away towards jungle. The land where her father was given beatings belongs to them. On hearing their cries, her brothers Vakil Singh and Rajesh came on the spot. On their asking her …11… father named all four accused who gave beatings to him, her father was lifted by her brothers to home, where he demanded water which was given to him. Thereafter, he became unconscious and died. Vakil Singh and Nirmal Singh were sent to inform Amar Singh Pradhan. The accused and her father were having land dispute which was pending in the Court. The police came to their house at about 1 A.M. but police could not visit the spot. The spot was shown by her to police. She identified Ext.P-6 and Danda Ext.P-7 with which injuries were inflicted. 12. In cross examination, she has stated that Vakil Singh had gone to report the matter to Pradhan Amar Singh at about 8 P.M., her father was brought at home at about 7 or 7.15 P.M. She had narrated the whole episode to her brother Vakil Singh before he left to report the matter to Amar Singh. The house of Amar Singh Pradhan is about 2 kilometers from their house. She denied that she was not present on the spot nor her father disclosed the incident to her brother Vakil Singh about the incident. During intervening night of 10th and 11th May, 1998 police stayed in their house. She, her mother, Vakil Singh and Rajesh were also there. Police did not interrogate them on reaching their house. The police interrogated them in the morning. Amar Singh Pradhan had reached their house at about 6 A.M. Her …12… statement was recorded by the police at about 6 A.M. on 11.5.1998. The place of occurrence is about 250 – 300 metres from their house. The police visited the spot at about 6 A.M. She has denied that Sukh Ram suffered injuries on the spot and became unconscious. She had shown her ignorance that Sukh Ram remained admitted in the hospital for 4 -6 days. She has shown her ignorance that land is recorded in possession of Bartan Daran. She has denied that Sukh Ram alone had gone to his land. She has denied that her father wanted that Sukh Ram should not take his share in the l and. She has denied that her father had inflicted injuries on the head of Sukh Ram with the butt of the gun and Sukh Ram acted in self-defence. She has denied that except Hoshiar Singh and Sukh Ram nobody else was present on the spot. 13. PW-12 Vakil Singh has stated that on 10.5.1998 he reached home at about 7 P.M. and at that time none was present in the house. He and his brother Rajesh heard the cries of their mother and sister Nirmala Devi PW-11 from the side of their field crying “Maar Diya, Maar Diya, Bachao”, both of them proceeded towards that side and saw their father was lying in serious condition on the spot. He asked from him the cause, who disclosed that he was badly beaten by the family of Sukh Ram accused. He disclosed the names …13… of Sukh Ram, Pritam Singh, Kamal Singh and Dharam Chand who had given him beatings. He had suffered injuries on the head which was bleeding. He along with his brother lifted their father to their house who after taking water expired. He, Nirmal Singh and Partap Singh went to the house of Amar Singh Pradhan to intimate him about the occurrence. He narrated the incident to Pradhan who proceeded to village Rit situated at a distance of 2 kilometers. They also accompanied him at about 9.45 P.M. Amar Singh informed the police telephonically stating that Hoshiar Singh had been beaten by Sukh Ram and his family members with Dandas and Kulhari etc. The police reached their house at about 1 A.M. He and Raj Kumar signed police papers Ext.PW-3/A. In cross examination, he has stated that whatever was stated and disclosed to him by his mother and sister and his father was narrated by him to Pradhan Amar Singh, his statement was not recorded during night by the police. He has shown his ignorance that Sukh Ram was got admitted by the police in the hospital. He has denied that injuries were inflicted by his father on the person of Sukh Ram with the butt of the gun. 14. PW-13 Amar Singh has stated that he remained Pradhan of Gram Panchayat Bhangetar since January 1996. On 10.5.1998 Nirmal, Partap and Vakil PW-12 came to him …14… at about 9 P.M. Nirmal and Partap disclosed to him that Sukh Ram and his family members have committed murder of Hoshiar Singh so they wanted to report the matter to the police. He proceeded to village Rit and from there reported the matter to the police telephonically at about 9-9.45 P.M. On the following day at about 6.30 A.M. he went to the village of deceased and accused. He was declared hostile and cross examined by the prosecution. In the cross examination conducted by the prosecution, he has stated that PW-12 Vakil Singh had not stated to him that Sukh Ram and his two sons Pritam Singh and Dharam Chand and Kamal Singh on seeing his father alone in the fields gave him beatings and injured him with Danda and an axe. He was confronted with his statement portion A to A in Ext.PW- 13/A. He had not stated on telephone to the police that Sukh Ram and his family members with dandas and lathis caused the death of Hoshiar Singh. He was confronted with portion A to A Rapat Roznamcha Ext.PW-13/B. In cross examination conducted on behalf of the defence, he has stated that Nirmal Singh and Partap along with Vakil gave him intimation, he asked from them as to how Hoshiar Singh had died, but they told that neither they were aware as to how the occurrence took place nor anybody else was aware of the same. They had not stated that occurrence was …15… witnessed by Nirmla Devi and Gita Devi nor they stated in what manner the occurrence took place. On the following day, he remained in the village of deceased for about 3-4 hours but during that period nobody disclosed to him in what manner the occurrence took place. 15. PW-14 ASI PurshotamChand has stated that on 10.5.1998 at about 9.15 P.M. he received telephonic information from PW-13 Amar Singh which was recorded in daily diary, a copy of which is Ext.PW-13/B and on that basis he recorded F.I.R. Ext.PW-14/A. He took with him other police officials and proceeded to the spot and reached the house of deceased Hoshiar Singh at about 1 A.M. He remained asking Nirmala Devi, Gita Devi, Vakil Singh and Rajesh but they were not telling anything and they were unconscious. In the morning, they regained consciousness. He took them to the spot except Gita Devi. He prepared inquest report Ext.PW-3/A. Dharam Chand was arrested on 12.5.1998, Kamal Singh and Pritam Singh were arrested on 13.5.1998, Sukh Ram was arrested on 18.5.1998. On 18.5.1998 Pritam Singh made a disclosure statement Ext.PW-3/F and then axe Ext.P-6 and danda Ext.P-7 were recovered. In cross examination on behalf of the defence he has stated that after reaching the spot he made only summary inquiry but did not record statement of anybody. …16… He has also stated that he cannot show any record which could go to show that till 11 A.M. on 11.5.1998 somebody who witnessed the occurrence was known to him. Sukh Ram accused was sent to the hospital on 11.5.1998. He remained admitted in the hospital for 5 -7 days. He had obtained MLC of Sukh Ram accused and attested copy of which is Mark ‘DA’. He had come to know that Sukh Ram had suffered head injury. The spot of occurrence was not got safeguarded / protected from anybody from 1 A.M. to 6 A.M. because it was near jungle and dark night. Sukh Ram was not arrested till 18.5.1998 because he was admitted in the hospital. Pritam Singh accused was interrogated everyday till 18.5.1998. 16. Dharam Chand, Kamal Singh, Pritam Singh accused in their statements under Section 313 Cr.P.C. denied the prosecution case and pleaded their innocence. Sukh Ram accused in his statement under Section 313 Cr.P.C. has stated that he had gone to collect grass from the land which was in his possession. Hoshiar Singh deceased wanted to exclude him from that land. In the evening when he was cutting the grass he came there armed with a gun. He threatened him and asked him that he should move out from that place immediately. He started pushing him which was resisted by him, a struggle ensued between them. On his …17… resistance he (Hoshiar Singh) launched an attack with the butt of the gun. On seeing his threatening posture he took a danda so as to protect himself and started moving the same. But this did not deter him. He might have suffered injuries when there was struggle and he tried to protect himself from the attack launched by him (Hoshiar Singh). He apprehended danger to his life. He in consequence of attack suffered number of injuries. He remained admitted in the hospital for 6/7 days. None else was present at the place of occurrence. None struck anybody with danda and axe. 17. DW-1 Dr.Karan Sharma has stated that he remained posted in Sub Divisional Hospital, Palampur from July, 1985 to 1998. He examined Sukh Ram on 11.5.1998 and found following injuries on his person:- “1. Lacerated sound scalp 2 cm x 2 cm x ½ cm with irregular margins and floor covered with blood clot with serum oozing, present over right parietal region. 2. Lacerated wound with irregular margins and floor covered with blood clot with serum oozing present 2 cm behind right ear. 3. Contusion right little finger over middle with swelling purple colour. X- ray was advised which showed no fracture. …18… 4. Contusion purple coloured 4 cm x 2 cm over left side of back. Present over paraspinal region at L2-L3 level. 5. Contusion 4.2 x 3 cm over right gluteal region. 6. Contusion 4 cm x 4 cm purple colour over left side of chest with tenderness. X-ray for fracture ribs showed no fracture.” The patient was admitted in the hospital on the same day and was discharged on 15.5.1998. The injuries No.1 and 2 were present over head. The injuries No.1 and 2 can be caused by the butt of the gun. He issued MLC copy of which is Ext.DW-1/A and bears his signatures. In cross examination, he has stated that injured was examined at 11.45 A.M. and history of fight was given by the police. The defence has tendered in evidence Jamabandi for the year 1992-93 Ext.DA. 18. On behalf of the appellants, it has been submitted that the prosecution has examined PW-11 alleged eye- witness of the occurrence. In order to bring home the charge, the prosecution has also relied on oral dying declaration of deceased Hoshiar Singh. The post mortem report Ext.PW-10/B and the recoveries have been relied by the prosecution in support of the case that all accused participated in giving beatings which led to the death of …19… Hoshiar Singh. Sukh Ram accused in his statement under Section 313 Cr.P.C. has specifically stated that he was collecting grass from the land which was in his possession and deceased Hoshiar Singh wanted to exclude him from that land. 19. PW-11 has stated that she heard the cries of