IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.411 of 2006 Decided on : November 11, 2009 Pankaj Kumar …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : M/s Ajay Kumar & N.K. Thakur, Advocates. For the Respondent : Mr. P.M. Negi, Deputy Advocate General. Surjit Singh, J(Oral) Appellant Pankaj Kumar has filed this appeal against the judgment, dated 28th November, 2006, of learned Additional Sessions Judge (Fast Track Court), Kangra at Dharamshala, whereby he has been convicted of offences, under Sections 302, 452, 323, 342, 324, read with Section 34 of the Indian Penal Code and sentenced as follows: Section under which convicted. Sentence awarded 302 To undergo imprisonment for life and to pay a fine of Rs.50,000/-; in default of payment of fine to undergo simple imprisonment for a further period of one year. 452 To undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/-; in default of payment of fine to undergo simple imprisonment for a further period of one year. Whether reporters of the local papers may be allowed to see the judgment? …2… 324 To undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-; in default of payment of fine to undergo simple imprisonment for a further period of ten days. 342 To undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-; in default of payment of fine to undergo simple imprisonment for a further period of one month. 323 No sentence. 2. Prosecution’s case, which led to the trial of the appellant, may be noticed. Deceased Manoj Kumar and his father PW-5 Satish Kumar, as also the appellant and his two brothers Neeraj and Ankaj, are residents of village Nalsuha in Dehra Tehsil of Kangra District. On 23rd July, 2004, deceased Manoj Kumar went to the fields to graze his cattle in the morning. One Daljeet, also resident of village Nalsuha, asked the deceased as to who had grazed his cattle in his field. Neeraj, a brother of the appellant, who is now facing trial for this very incident, before the Juvenile Justice Board, was also there. He told Daljeet that cattle of deceased Manoj Kumar had trespassed into his field. Manoj Kumar denied the allegation. 3. Manoj Kumar returned to his house and told his father, PW-5 Satish Kumar, about Neeraj’s making a false allegation against him that he grazed his cattle in the field of said Daljeet. PW-5 Satish Kumar then complained to the family members of Neeraj and the appellant that false allegation had been made by Neeraj. Thereafter, PW-5 Satish Kumar and his son deceased Manoj went to sleep. …3… PW-5 Satish Kumar’s wife and deceased Manoj’s mother PW-12 Kusum Sharma was not at home that day, as she had gone to Chintpurni to see her parents. Around 4.30 p.m., when PW-5 Satish Kumar and his son deceased Manoj Kumar were asleep, appellant Pankaj Kumar, accompanied by his brothers Neeraj and Ankaj, who are also facing trial before the Juvenile Justice Board, went to the room, where PW-5 Satish Kumar and deceased Manoj were sleeping. Pankaj was armed with Drat Ex. P-1 and his brothers were armed with a hockey stick and an iron rod. They gave beatings to both, PW-5 Satish Kumar and his son deceased Manoj. Deceased Manoj was hit on the head with Drat by appellant Pankaj. Thereafter, the appellant and his brothers went away, chaining the door of the room from outside. PW-5 Satish Kumar went to the first floor of the house, using the stairs located inside the covered portion of ground floor of his house, and shouted to PW-6 Sulakshna Devi, a neighbour, to open the door. PW-6 Sulakshna Devi went there and unchained the door from outside. She was told by PW-5 Satish Kumar that he and his son had been assaulted by the appellant and his two brothers, named above. PW-5 Satish Kumar then gave a ring to his wife PW-12 Kusum Sharma, who was at Chintpurni. She returned by Bus. Then a TATA SUMO vehicle of PW-10 Manoj Kumar was requisitioned from village Nehran Pukhar. …4… 4. In the meanwhile, PW-8 Raj Kumari, Member Gram Panchayat, was also apprised of the incident and she reached the spot. Injured were carried to Dehra by the vehicle of PW-10 Manoj Kumar. They were accompanied by PW-8 Raj Kumari and PW-12 Kusum Sharma, wife of PW-5 Satish Kumar. On the way, PW-9 Dheeraj Kumar, a nephew of PW-12 Kusum Sharma, met them at Nehran Pukhar. He too was apprised of the incident. He was having scooter with him and he also accompanied the injured to Dehra on his scooter. Initially, PW-5 Satish Kumar and his son deceased Manoj went to the Police Station at Dehra. They were asked to go to the Hospital first and seek treatment. They then went to Civil Hospital, Dehra, where they were medically examined by PW-2 Dr. Kulbhushan Sood, who noticed the following injuries on their person: Injuries noticed on the person of Satish Kumar: 1. A four inch long incisded wound on the left fronto temporal region, bleeding on touch, bone deep. Bone also having cut mark on its surface. No contaminants, wound gapping. 2. A lacerated 2cm long wound on the right forearm overlying 3inch x 1 inch bruise, oozing blood, gapping. No contaminants. Bruise is pink-red colour. 3. A 3 inch x 2 inch haemotoma on the back side of right ear which is fluctuant. …5… 4. A 5½ x3½ inch bruise external to left nipple on the chest with superficially abraded surface. 5. Multiple bruises on the back as shown of red pink colour. Some of them conforming to the shape of hockey stick. Which have abraded surface and giving crepitus. Injuries noticed on the person of Manoj Kumar: 1. A 3 shape 3 cm long lacerated wound on the frontal part of scalp, on the right side, about 2 inch from hair line, bleeds on touch. It is bone deep. No contaminants. 2. A 4 inch long incised wound on left parieto temporal area, gapping. Aponeurosis deep, bleeds on touch. No contaminants. 3. Multiple linear bruises of pink colour as shown in picture. Chest is very painful on springing, fracture of ribs was suspected and patient was subjected to X-Ray and X- Ray examination was done. In the meanwhile, police also reached the Hospital. PW-5 Satish Kumar made statement Ex. PW-5/A to ASI Brahmu Ram (PW-19). The statement was singed by deceased Manoj Kumar, besides PW-5 Satish Kumar. It was sent to the Police Station, where case was formally registered on its basis vide FIR Ex. PW-18/B. Deceased Manoj Kumar’s condition did not stabilize. So, he was referred to Medical College-cum-Hospital at Dharamshala. There CT Scan was conducted and extradural haemotoma was noticed. He was …6… referred to PGI for management of his injury. He died at the PGI on 28th July, 2004. 5. Postmortem examination was conducted by PW-24 Dr. Srinivasan, who noticed the following injuries: 1. Surgical cramiotomy wound 31 cm long present in the left frontal parietal and occipital region of scalp starting 3 cm lateral to left eye brow ending 5 cm behind the left pinna. 2. Split lacerated wound 2x0.5cm x bone deep present in the right frontal region. 7.5cm above the right eye brow and 2.5cm lateral to the middle line edges. Edges irregular, margins contused. 3. Cut lacerated (stitched) wound 3.3 cm x 0.6 cm x aponeurosis deep present in the left parietal region 7.5 cm above the left pinna. Edges irregular, margins contused with slight undermining of the lower edge. 4. Brownish scabbed abrasion 2x0.5cm present on the front of right knee 3 cm below the patella. 5. Brownish scabbed abrasion 5 x 1 cm present on the front of right leg 6 cm below injury No.4 6. Laceration 2 x 0.6 cm x skin deep present on the tip of inner aspect of right bigtoe. He gave the opinion that injuries No.2 and 3 above were sufficient to cause death, in ordinary course of nature, individually as also collectively. …7… 6. Learned trial Court came to the conclusion that the appellant armed with Drat and accompanied by his brothers Neeraj and Ankaj, who were armed with a hockey stick and an iron rod, went to the house of PW-5 Satish Kumar and entered the room where he alongwith his son deceased Manoj Kumar was sleeping and assaulted them. It was also held that the appellant hit the deceased on his head with Drat Ex. P-1 and that he and his brothers also voluntarily caused hurts to PW-5 Satish Kumar and the deceased and then confined PW-5 Satish Kumar and his son deceased Manoj Kumar in their room, by chaining the door from outside. Consequently, the appellant was convicted and sentenced, as aforesaid. 7. We have heard the learned counsel for the appellant as also the learned Deputy Advocate General and gone through the record. 8. It is submitted by the learned counsel representing the appellant that the story put forward by the prosecution is false and that as a matter of fact PW-5 Satish Kumar and his son deceased Manoj had sustained the injuries in some other incident around 1 or 1.30 p.m. and that the fact is borne out from the testimony of PW-8 Raj Kumari, who deposed that she was informed at 1.30 or 2 p.m., telephonically, by DW-1 Manohar Sethi that vehicle be arranged for taking PW-5 Satish Kumar and his son, who had sustained injuries, to the Hospital, PW-10 Manoj …8… Kumar, who stated that he started from Nalsuha village, with the injured in his vehicle, at 1.30 or 2 p.m. and DW-1 Manohar Sethi, who stated that PW-5 Satish Kumar and his deceased son Manoj came to his shop in injured state at 1 or 1.15 p.m. He also placed reliance, in support of the aforesaid plea, on the testimony of PW-2 Dr. Kulbhushan Sood, who testified that duration of injuries noticed by him on the persons of PW-5 Satish Kumar and deceased Manoj, at the time of their medical examination at 7.30 p.m. on 23rd July, 2004, was within 6 to 12 hours. 9. We have considered the submission, in the light of the evidence on record. All the witnesses, except PW-2 Dr. Kulbhushan Sood, on whose testimony the learned counsel has based his argument, were declared hostile, during trial. They were cross-examined by the prosecution with the leave of the Court, as they made statements contradictory to the statements made by them to the police, during investigation. 10. Prosecution examined PW-6 Sulakshana Devi, a neighbour of injured PW-5 Satish Kumar. She too was declared hostile by the prosecution, on account of her having stated certain facts contrary to what she disclosed to the police in her statement, under Section 161 of the Code of Criminal Procedure, but one fact, which she stated is that she was called to open the door by PW-5 Satish Kumar in the evening. She denied the suggestion put to her, on …9… behalf of the appellant, that PW-5 Satish Kumar and his son had sustained the injuries at 1 p.m. Her statement that she was called to open the door in the evening was not challenged. 11. It is not only the statement of PW-6 Sulakshana Devi that gives a lie to the submission made by the learned counsel, but also appellant’s own statement, under Section 313 of the Code of Criminal Procedure, which suggests that the plea is concocted. In reply to Question No.55, he stated that on 23rd July, 2004, around 1 p.m., he took Manoj Kumar up to the road-head, as he and his father had sustained injuries and that several persons were there, at the road-head and when those persons asked PW-5 Satish Kumar and deceased Manoj Kumar how they sustained the injuries, they did not reveal anything. It is not believable that when a father and a son are having serious injuries and the people of their village ask them as to how they sustained the same, they would keep quiet. 12. Also, the aforesaid statement of appellant is contrary to what DW-1 Manohar Sethi testified. According to DW-1 Manohar Sethi, PW-5 Satish Kumar and deceased Manoj were brought to his shop, in injured state, by Pankaj, but Pankaj himself does not say that he carried them to the shop of DW-1 Manohar Sethi. Instead says that he carried them to the road-head. …10… 13. PW-8 Raj Kumari stated that Pankaj was seen at the shop of PW-1 Manohar Sethi, when PW-5 Satish Kumar and his son deceased Manoj were there, but Pankaj himself does not say that he went to the shop of DW-1 Manohar Sethi. 14. Opinion evidence of PW-2 Dr. Kulbhushan Sood also does not advance the aforesaid submission. It is well settled that direct evidence, if believable, takes precedence over the opinion evidence of an expert. Also, the opinion evidence of this witness is not very specific that the injuries were sustained between 6 and 12 hours. What he has opined is that the injuries could have been sustained within 6 to 12 hours, meaning thereby they could have been sustained within six hours. 15. On the other hand, statement of PW-5 Satish Kumar is quite natural and believable. There cannot be any reason for him to have saved the real culprits, had they been other than the appellant and his brothers and instead to falsely implicate the appellant and his brothers. His statement is corroborated, to some extent, by the testimony of PW-6 Sulakshana Devi, who stated that she was called, in the evening, to unchain the door from outside. Not only this, PW-6 Sulakshana Devi even testified that when she opened the door PW-5 Satish Kumar told that he had been beaten up and so she got afraid and went to call her husband. It is not believable that when PW-5 …11… Satish Kumar told PW-6 Sulakshana Devi that he had been beaten up that he would not have disclosed the names of the persons, who gave the beating. 16. Testimony of PW-5 Satish Kumar is also corroborated by the fact that at the time of their medical examination, PW-5 Satish Kumar and deceased Manoj Kumar told the doctor, PW-2 Dr. Kulbhushan Sood, that they had been assaulted by the appellant and his brothers Neeraj and Pankaj. His statement is further corroborated by the earliest version, which was given to the police at 7.30 p.m., vide statement Ex. PW-5/A, which was recorded, under Section 154 of the Code of Criminal Procedure, and on which the formal FIR is based. PW-9 Dheeraj Kumar also corroborated the prosecution story. He says that PW-5 Satish Kumar and deceased Manoj met him at Nehran Pukhar and both of them told that they had been beaten up by the appellant and his two brothers. 17. For the foregoing reasons, we find no merit in the aforesaid submission of the learned counsel for the appellant. 18. Another submission that has been made on behalf of the appellant is that the alleged act of the appellant does not amount to the offence of murder and that it amounts only to an offence of voluntarily causing grievous hurt or at the most offence of culpable homicide …12… not amounting to murder, punishable under Section 304 (second part) of the Indian Penal Code. 19. Deceased had two lacerated wounds on his head. One was 2cm x .5cm x bone deep in the right frontal region and the other was 3.3cm x 0.6 cm x aponeurosis deep in the left parietal region. No fracture of the underlying skull was noticed. On account of the impact of the blows only extradural haemotoma was caused, as per testimony of PW-1 Dr. Suresh Thakur of Rajindera Medical College-cum-Hospital, Dharamshala and PW-3 Dr. Ram Singh of PGI, as also PW-24 Dr. Srinivasan. That means the blows on the head, which resulted in the aforesaid two lacerated wounds, were not very forceful, which fact suggests that the appellant and his brothers might not have had the intention to cause death or injuries, which were sufficient in the ordinary course of nature to cause death. However, the very fact that the deceased was hit twice on the head, though not with great force, suggests that the appellant and his brothers were knowing that the injuries they were causing were sufficient to cause death and, therefore, their act falls within the mischief of Section 304 (second part) of the Indian Penal Code. 20. In view of the abovestated position, appeal is partly accepted, conviction and sentence of the appellant for offence, under Section 302 of the Indian Penal Code, as ordered by the trial Court, are set aside. Instead, the …13… appellant is convicted of offence, under Section 304 (second part) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-; in default of payment of fine to undergo rigorous imprisonment for a further period of one year. Conviction of the appellant for the remaining offences as ordered, and sentences for the said offences awarded by the trial Court, are upheld. All the sentences of substantive imprisonment shall run concurrently. Appeal stands disposed of accordingly. ( Surjit Singh ), J November 11, 2009(sd) ( Surinder Singh ), J