HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 13 of 2005 With Cr.A. No.: 14 of 2005 Reserved on: 17.3.2009. Decided on: 6.4.2009. Cr.A. No.13 of 2005 Bhuvneshwar Chand alias Pawan Kumar ……… Appellant. Versus State of Himachal Pradesh ………Respondent. Cr.A. No.14 of 2005 Bakshish Chand ……… Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. Cr.A. No.13 of 2005: For the Appellant: Mr.Bhupender Ahuja, Advocate. For the respondent: Mr.R.M. Bisht and Mr.Rajesh Mandhotra, Deputy Advocate Generals. Cr.A. No.14 of 2005: For the Appellant: Mr.Anup Chitkara, Advocate. For the respondent: Mr.R.M. Bisht and Mr.Rajesh Mandhotra, Deputy Advocate Generals. Whether reporters of local newspapers may be allowed to see the judgment? Yes. Per V.K. Ahuja, J.: This judgment shall dispose of two appeals one filed by Bhuvneshwar Chand alias Pawan Kumar and another by Bakhshish Chand, against the judgment of the court of learned Presiding Officer (Additional Sessions Judge), Fast Track Court, Kangra at Dharamshala, dated 29.9.2004, vide which both the appellants were held guilty under Section 302/34 IPC and were convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.50,000/- each. In default of payment of fine, the appellants were to undergo further imprisonment for two years. Briefly stated the facts of the case are that on 6.7.2002, at about 8.30 a.m., a telephonic message was received at Police Station, Nurpur from one Mohinder Singh that one Som Raj has been attacked with a drat by his nephew Pawan and brother Bakhshish, and there is likelihood of some bloodshed and the police should reach the spot and do the necessary proceedings. This rapat was recorded at the Police Station. A police party, headed by PW-23 R.P. Jaswal, SHO, Police Station, Nurpur, proceeded to the spot and recorded the statement of Smt.Kanta Devi, wife of Som Raj, under Section 154 of the Cr.P.C. at 9.50 a.m. In her statement, the complainant alleged that her husband Som Raj had retired from Army and he was having a dispute with his brothers Bakhshish appellant and Joginder for the last one year in regard to a passage. It was alleged that Bakhshish Chand was having enmity with her husband for this reason. Today, at about 7.45 a.m., she and her sons Govind and Hemant were standing in the courtyard and her husband was coming to the house from maize fields. It was alleged that when her husband reached near the water tank, Bakhshish Chand and his son Pawan Kumar came from their house by jumping the wall, in furtherance of their common intention and Pawan Kumar gave a drat blow on the neck of her husband, which drat he was having in his hand. He also proclaimed that he would finish him. On this, her husband fell down near mango tree and he died at the spot. It was further alleged that Bakhshish Chand snatched the drat from his son Pawan Kumar and ran towards his house and Pawan Kumar ran towards the forest through the maize fields. She and her sons raised an alarm ‘mar diya-mar diya’ and one Jagdish Raj, Ward Member, reached the spot. She tried to give water to her husband but he was already dead. On this statement, which was sent to the Police Station, a case was registered and after registration, the investigation was conducted. On completion of the investigation, the challan was filed before the court of learned ACJM, Nurpur, who committed the case to the court of the learned Sessions Judge and thereafter the case was assigned to the learned trial Court, who tried the respondents, as detailed above, leading to their conviction. We have heard the learned counsel for the parties and have gone through the evidence and other record of the case. Firstly, we shall take up the case of appellant Bhuvneshwar alias Pawan Kumar, son of Bakhshish Chand. The submissions made by the learned counsel for the appellant Pawan Kumar were that the prosecution evidence consists of only the statements of the interested witnesses, namely, the wife and son of the deceased and their statements are not such upon which implicit reliance can be placed in the absence of due corroboration from the statement of other witnesses. It was submitted that the guilt of appellant Pawan Kumar was not established, but the learned trial court had come to a wrong conclusion which findings are liable to be reversed. In the alternative, it was submitted that in case the court comes to the conclusion that the fatal blow had been given by the appellant Pawan Kumar, he had no intention to kill and it was a single injury and he never tried to inflict another blow upon the deceased to confirm if he was dead of not. It was submitted that the case does not fall under Section 302 IPC, but under exceptions and falls under Section 304 IPC and the sentence imposed upon the appellant Pawan Kumar deserves to be reduced accordingly. It was also submitted that the fine imposed upon the appellant is excessive and is liable to be reduced accordingly. We will firstly take up the evidence as against the appellant Pawan Kumar since it is clear from the evidence that there was only one blow given to the deceased and the said blow proved to be fatal resulting in the death of the deceased Som Raj. Coming to the evidence, the most material witness is PW-9 Kanta Devi, wife of Som Raj, who has stated in her statement about the dispute in between Bakhshish Chand and her husband in regard to a path. She further stated that on 6.7.2002, at about 7.45 a.m., her husband was standing near water tank in the courtyard and appellant Pawan Kumar came running with a drat in his hand and he gave a drat blow on the neck of her husband. Pawan Kumar was followed by his father. She fell down due to shock. She further stated that she saw Pawan Kumar giving drat to his father Bakshish Chand. Bakhshish Chand went towards his house and Pawan Kumar went through the maize fields towards the jungle. She stated that this occurrence was watched by her and her son Govind Singh and when she raised an alarm, Ward Member Jagdish Raj, who is their neighbour, came to the spot. She tried to give water to her husband but he was no more. She further stated that Bakhshish Chand and his son came to their courtyard by jumping over the wall. She admitted of having made statement Ext.PW-9/A to the police when the police came to the spot at about 9.50 a.m. PW-9 Kanta Devi further admitted in cross examination that her son Hemant was also present at the spot and it was so recorded in the FIR. However, she had not given the name of Hemant in her examination-in-chief, who, as per evidence, appears to be younger to PW-10 Govind Singh. She was confronted with her statement made to the police in which she had not stated that Pawan Kumar had given drat to his father, though it was recorded therein that Bakhshish Chand had snatched the drat from his son Pawan Kumar. In cross examination, she further stated that when the incident took place, she was in the courtyard where her son was also standing and her son Hemant was behind her, who was leaving for school. She also stated that her husband tried to save himself by raising his arms. She admitted the fact that her parental house is in village Nangal and Krishana Devi, wife of Ranjit Singh, who is the brother of her husband, is also living at Nangal. But she denied the suggestion that she never liked the visits of her husband to Nangal for the reasons that she was suspecting that her husband was having relations with Krishana Devi. She denied the suggestion that on that day, her husband had made preparation to go to Nangal and had been demanding money from her. The learned trial Court, while referring to this part of the statement of this witnesses, had observed that there was no occasion for the deceased to demand money from his wife, who was not in service and the deceased himself was an ex army man. The other eye witness examined in this case is PW-10 Govind Singh, son of PW-9 Kanta Devi and the deceased Som Raj, who also stated about the dispute in regard to a path. He stated that he alongwith his younger brother and mother were present in the courtyard and his father was present near the water tank. The accused persons came from their house after jumping over the wall and accused Pawan Kumar was having a drat in his hand, who inflicted the drat blow on the neck of his father on the left side and his father fell on the ground. He raised an alarm ‘Bachao-Bachao’ and Jagdish Raj, Ward Member, came to the spot. He also stated that the accused was saying “AAJ TERE KO MAAR HE DALLAN GEY”. The drat was taken by Bakhshish who went to his home, while accused Pawan Kumar ran towards the Jungle through the maize fields. He also stated that the accused Bakhshish Chand, while leaving the place, left his chappal there and the other part was recovered by the police from his courtyard. He also identified the drat as Ext.P-1 as well as chappal Ext.P-14, which Bakhshish Chand had left in the courtyard. This witness was confronted with his police statement Ext.DA, wherein it was not recorded that his brother Hemant was also present there at that time. He stated that Bakhshish Chand took the drat from Pawan Kumar smoothly, meaning thereby that it was not snatched forcibly. He was confronted with the police statement Ext.DA wherein he has used the word that Bakhshish has snatched the drat from Pawan Kumar. He admitted that his father had changed the dress and put money in his pocket for visiting his in-laws’ house. He, however, denied the suggestion that his father and mother had quarreled on that day. The second son, namely, Hemant Kumar was not examined by the prosecution and may be for the reason that he was a young boy, younger to PW- 10 Govind Singh, whose age on the date of recording of his statement on 12.6.2003 has been mentioned as 15 years. This clearly shows that on the date of occurrence, PW-10 Govind Singh may be of the age of 14 years or less and, therefore, the prosecution had not examined the younger son of the deceased as an eye witness. It has come up in evidence of PW-9 Kanta Devi and PW-10 Govind Singh, both the eye witnesses, that on hearing their cries, Jagdish Raj, Ward Member, had come to their house, who is living nearby. The said Jagdish Raj was given up by the prosecution as having been won over by the accused. However, the accused, in their defence, had examined the said Jagdish Raj as DW-1, who has stated that Dy.S.P. came to the spot and at about 9.30 a.m., he accompanied the police party for search of the accused persons. He saw Bakhshish Chand talking to some person and he pointing out to the Dy.S.P. and Bakhshish Chand was taken by the police. He stated that he did not notice any blood stains on his clothes. The police obtained his signatures on a blank paper. He stated that whenever the deceased visited his in-laws, his wife used to quarrel with him and she was suspecting her husband of having relations with the wife of Ranjit Singh. He further stated that the deceased had been complaining to him 2-3 times regarding the quarrel with his wife and one day prior to the occurrence, Som Raj had come to his house at 9.30 p.m. and told him that his wife left the house after quarrelling with him, as he had made preparations to go to Nangal. He went there and got compromise effected and the wife of the deceased was sitting on road side and she was sent back to her house. He admitted that summons were received by him 2-3 times and he also visited the court, but his statement was not recorded. No suggestions were put up to PW-9 Kanta Devi when she appeared in the witness box that there was a dispute one day prior to the occurrence in between her and the deceased which was settled by this witness. Therefore, this plea taken by DW-1 Jagdish Raj does not inspire confidence and cannot be accepted as correct. There may be any such dispute in between the deceased and his wife or that, she may be objecting to the visiting of the deceased to his in-laws house where the wife of her husband’s brother was living, but that does not give any license to the accused Pawan Kumar to cause the injury. There is nothing in the statement of any of the witnesses that Pawan Kumar and his father came at the spot, raised an objection regarding the visits of the deceased to the wife of Ranjit Singh at Nangal or having objected at any time that this act of the deceased was bringing any dishonour to the family. The dispute, as per the evidence referred to above, is only in regard to the passage which dispute was in between the deceased and his brother appellant Bakhashish Chand, which has no connection with the visit of the deceased, if any, to the house of his brother’s wife at Nangal. In case there was any such dispute, before inflicting injury on the person of the deceased, the appellant Pawan Kumar or his father Bakhshish Chand must have raised an objection and in case, after altercation in between them, then blow had been given, the circumstances under which this blow was given could have been considered by the court. Apart from the above, the prosecution had examined PW-1 Dr. Ashutosh Joshi, Medical Officer, who conducted the post mortem on the body of the deceased and gave his report Ext.PW-1/D. According to the opinion of the Medical Officer, he found one sharp wound on the left side of the neck of the deceased and the cause of death was due to injury of sharp object on the left side of the neck, which injury was antemortem in nature. The probable time that elapsed between the injury and the death was instantaneous and between death and post mortem 8-12 hours. Apart from the above, there is also some evidence led as against the appellant, which can be taken as corroborative evidence to the statements of two eye witnesses and the statement of the Medical Officer who conducted the post mortem can be taken as corroborative evidence. PW-23 Shri R.P. Jaswal, the SHO and Investigating Officer in the case, has stated that he was taking the accused in the Jungle when the accused told that he wanted to urinate and he ran away in the forest. He, however, stated that the case under Section 224 of the IPC was registered against the accused. He further stated that one Rajesh Kumar, Chowkidar of the Village, told him that somebody was crying in the nallah and the said boy had fastened a wire in the neck and another corner of the wire was fixed in the tree and that boy was crying for saving him and to take him to the police as he has committed the murder of his uncle. He recorded the said statement of Rajesh Kumar under Section 154 of the Cr.P.C. and sent the same to the Police Station for registration of the case. He further stated that the accused had injuries in his neck due to the wire fixed by him and in both the cases under Section 224 IPC and 309 IPC, the accused has been convicted. This part of the evidence has been sought to be further corroborated by the testimony of PW-16, Kanshi Ram, who found the accused lying under the tree with a wire in his neck and one part of the wire tied with a tree. On enquiry, he confirmed that he was the same person who had committed the murder. PW-17 Rajesh Kumar has also stated in regard to the fact that he saw the accused Pawan Kumar attempting suicide. A perusal of the impugned judgment shows that the learned trial Court had also considered the fact that the accused Pawan Kumar’s conduct in running away from the place of occurrence, then surrendering in the court, his escape from the custody and attempting to commit suicide, in which he had been convicted and that it corroborates the prosecution story. However, we are not inclined to accept this reasoning of the learned trial Court that the fact that the accused was convicted in a case under Section 224 and 309 IPC leads to any such inference that it is a corroborative piece of evidence that the accused had committed the murder in question. The reason for his escape or reasoning for his attempt to commit suicide has not been proved on record and we cannot use these facts as corroborative piece of evidence as against the accused. Further, it is also in evidence of PW-23 Shri R.P. Jaswal, SHO, that he recorded the statement of accused Pawan Kumar in regard to the blood stained clothes, but the said clothes could not be recovered since the accused escaped from custody and thereafter he could not get the police remand and, therefore, recovery of blood stained clothes could not be effected. Therefore, there is no such corroborative evidence in regard to the recovery of the clothes. During the course of arguments, we have observed that some minor contradictions were raised before the learned trial Court during the course of arguments, which have been considered by the learned trial Court and the learned trial Court has repelled the contention in this regard. However, we have not been taken to any such contradiction in the statements of the eye witnesses and the contradictions referred to in the impugned judgment were in regard to the testimony of the Investigating Officer who was not an eye witness. No such infirmities in the prosecution case were pointed out during the course of arguments and no such contradictions were also referred. Therefore, these cannot be referred to again in the absence of any arguments. However, we have gone through the evidence of the principal eye witnesses mentioned above and we do not find any infirmity in the prosecution case or the testimony of the eye witnesses that the injury in question was inflicted with the drat by the appellant Pawan Kumar on the person of the deceased, which proved fatal and the deceased died as a result of the said injury. The only question left for consideration is as to whether the offence made out was under Section 302 IPC or under Section 304 IPC. The submissions made by the learned counsel for the appellant were that it was a case of single blow and the appellant was under a provocation since the deceased was going to visit the wife of his father’s brother at Nangal and, therefore, for that reason, he may have inflicted this blow which proved to be fatal. It was further submitted that the appellant had not stayed at the spot to confirm if the deceased was dead or not and had run away from the spot and since it was only a case of single blow, the provisions of Section 302 IPC are not attracted, but of 304 Part I or Part II. To substantiate his submissions, the learned counsel for the appellant had relied upon the decision in Hari Ram versus State of Haryana, 1983 Supreme Court Cases (Cri) 159, in which it was observed that the appellant had the intention to chastise the deceased and in the heat of moment thrust jelli into the chest of the deceased, causing his death. It was observed that the intention to kill was absent and the offence made out was under Section 304 Part II of the IPC. The decision in Jagtar Singh versus State of Punjab, 1983 Supreme Court Cases (Cri) 459, was also relied upon in which the accused, a young man, on the spur of moment, to some extent on deceased’s provocation, in a sudden and chance quarrel on a trivial issue, caused the injury with knife in the chest. It was held that the intention to cause death or to cause that particular injury which proved fatal was absent. Therefore, conviction under Section 302 IPC was changed to one under Section 304 Part II of the IPC. Both the decisions are based upon the facts of those cases. It is also clear that in the present case, neither any quarrel had taken place nor any exchange of hot words had taken place in between the deceased and the accused, and there was no provocation, what to talk of grave and sudden, at the spot due to any act of the deceased or otherwise. The intention to kill is apparent from the act of the appellant, who came with a drat in his hand after jumping over the wall and immediately he gave one fatal blow on the neck of the deceased leading to his death. There is nothing in the facts of the case to show as to why he had come to the spot with the drat and there is nothing to suggest that the drat was in his hand in connection with some agricultural work, which he was doing at that time and, therefore, his coming to the spot jumping from the wall with the drat in his hand and immediately causing fatal blow on the neck of the deceased clearly shows that he had an intention to kill the deceased. There is nothing that he gave blow on some other part of the body of the deceased and accidentally it struck the deceased at his neck, which was a vital part, leading to his death. The intention has to be gathered from the facts and circumstances of the case and the mere fact that a single blow was given on a vital part, in itself, is not sufficient to hold that he had no intention to kill and, therefore, we are not inclined to accept the submission of the learned counsel for the appellant that the guilt of the appellant was not established under Section 302 of the IPC. We are accordingly of the view that the findings of the learned trial Court holding the appellant Pawan Kumar guilty under Section 302 IPC do not call for an interference by this Court. Coming to the guilt of appellant Bakhshish Chand, the submissions made by the learned counsel for the appellant were that there is nothing to show that he shared any common intention with appellant Pawan Kumar to cause injury or there was any prior meeting of minds or common intention could be gathered from the acts of the appellant in asking his co-accused to inflict the blow on the person of the deceased. To substantiate his plea, the learned counsel for appellant Bakhshish Chand had relied upon the following decisions. The decision in Chaturbhuj Pandit and others versus State of Bihar (now Jharkhand), (2006) 2 Supreme Court Cases (Cri) 329, shows that four appellants came to the house of informant with a view to demolish boundary wall which, according to them, was an encroachment on their land. On protest having been raised, one of the appellants set fire to thatched straw roof resulting in its burning. It was held that it cannot be inferred that all the appellants shared the common intention of setting informant’s roof on fire and, therefore, it was the individual act of one of the appellant for which he alone was liable