IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 39 of 2001. Date of decision: 29.12.2010. State of H.P. ….. Appellant. Vs. Sant Ram & Ors. …. Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellant : Mr R. K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Addl.A.G. For the respondents : Mr. Rakesh Jaswal, Advocate R.B. Misra, J. (Oral. The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 30.8.2000, passed by the learned Addl. Sessions Judge, Mandi in Sessions Trial No. 34 of 1995, acquitting the alleged accused for the offence under Section 302/34 of the Indian Penal Code. 2. The prosecution case in brief is that Bhago Devi (victim/deceased) wife of Daya Ram (PW-1) had sustained fist blows on her head and face in the hands of accused Mohan Lal in presence of Daya Ram (PW-1) and her daughter Kanta Devi (PW-3). Whether the reporters of the local papers may be allowed to see the Judgment? 2 When the victim was assaulted on 30.7.1993 at about 9.00 P.M. in her court yard, Daya Ram, Ratna Devi, Geeta Devi, Bhim Singh, Rup Lal were sitting in her court-yard and accused Mohan Lal came and started washing his hands and feet at the public water tap nearby Court yard, then on asking by PW-1 as to why he was removed from the work, accused under influence of liquor started quarrelling with Daya Ram and beating him and on intervention by Bhago Devi, asking accused Mohan Lal to leave the place, later one not only started beating Bhago Devi/victim/deceased by fist blows but had dragged her to nearby field. Accused Sant Ram accompanying accused Mohan Lal had twisted the arms of Bhago Devi and took her to the field, at that time accused Paras Ram was holding hands of Daya Ram (PW-1), as such, he could not rescue his wife Bhago Devi/victim/deceased. After sustaining fist blows in the hands of accused Mohan Lal, Bhago Devi had fallen down, thereafter, she was taken to the field. She turned unconscious in the night. She vomited out blood during night and with the help of villagers victim was taken to Civil Hospital, Ratti for treatment between 3-4 A.M. on 31.7.1993 and thereafter the police was informed and victim was referred for treatment to PGI, Chandigarh, where she succumbed to the injuries. After post mortem 3 examination and investigation, the accused persons were charged for the aforesaid offences. 3. In order to prove its case, prosecution examined as many as twelve witnesses, namely, Daya Ram (PW-1), Roop Lal (PW-2), Kanta Devi (PW-3), Dr. D. K. Arora (PW-4), Dr. Vijay Kapoor (PW-5), Roop Singh (PW- 6), Constable Baldev (PW-7), H.C. Sita Ram (PW-8), Yogesh Guleria (PW-9), SI Krishan Dutt (PW-10), Rattan Lal (PW-11) & Hans Raj (PW-12), whereas, accused- respondents, through their statements under Section 313 Cr.P.C. denied the prosecution case. 4. On analysis of the prosecution witnesses and the materials on record, we notice that PW-1 Daya Ram has stated that he was working as a Labourer under Ganga Ram, Contractor along with others on 30.7.1993. During day time accused Mohan Lal quarreled with PW-1 and asked him to leave the work site after returning the implements of extraction of sand and Bajri to accused Mohan Lal and came back at his house about 3-4 P.M. Same day at about 9.00 P.M., when PW-1 was sitting in his Court yard along with his wife Bhago Devi/victim/deceased and her children along with Bhim Singh and Rup Lal, accused Paras Ram also came there. Accused Mohan Lal came near public water tap in front of the Courtyard of PW-1 and started washing his hands and feet and on asking by PW-1 from accused Mohan Lal as to why he was asked to leave the work, accused 4 Mohan Lal has made complaint against PW-1 and stated that PW-1 was doing back biting. Accused Mohan Lal assaulted PW-1, whereupon Bhago Devi/victim/deceased intervened and asked accused Mohan Lal to leave the place. At that moment, accused Mohan Lal started beatings Bhago Devi/victim/deceased with fist blows and had dragged her to nearby field and given multiple blows on her face. Accused Sant Ram violently twisted the arms of victim/deceased when she stood and thereafter she was taken to the field. Accused Paras Ram present at the spot had caught hold of PW-1 Daya Ram, as such, he could not rescue the victim. After sustaining assault, victim had fallen down unconsciously. Bhim Singh and Rup Lal wanted to save them from the beatings of accused persons, however, accused persons have also assaulted them and had violently pushed them. Victim-deceased was taken firstly to the house, where she was unable to say anything, as she was unconscious and during night she vomited out blood. Therefore, with the help of villagers, she was taken to the Civil Hospital, Ratti for treatment on 31.7.1993 at 3-4 A.M. and the police was informed. Chief Medical Officer, Civil Hospital, Ratti referred Bhago Devi for treatment at P.G.I. and when she was being taken to PGI, she succumbed to the injuries on way. In cross-examination, PW-1 had reiterated that accused Paras Ram had caught hold of 5 him, as such, he could not rescue his wife. PW-1, however, was not exactly remembering that Bhim Singh and Rup Lal wanted to rescue them. On 31.7.1993, under shock PW-1 had awakened Khem Chand, Gorkhi Ram, Bhima at night and the victim was taken to the hospital. They reached in the hospital at about 5.30 A.M., thereafter he informed the police. PW-1 in cross- examination has stated that he had not recorded the names of Sant Ram and Paras Ram in the first report as assailants. PW-1 has very categorically indicated in cross-examination that he is unable to tell that how many blows of hands and foot had been given by accused Mohan Lal to the victim. However, according to PW-1, accused Mohan Lal had administered 3-4 blows to the victim in his presence on her head near the area of ear. Thereafter, accused Mohan Lal had dragged his wife to the field below. Therefore, he did not know how many blows were given there by the accused persons to the victim, further stated apart from 4-5 blows, no other blow was given in his presence, whereas accused Sant Ram had twisted the arm of his wife. However, as per the testimony of PW-1, he had not sustained any injury when accused Paras Ram had caught hold of him. 5. Testimony of PW-1 was corroborated by PW-3 Kanta Devi, daughter of Bhago Devi/victim/deceased. As per testimony of PW-1, when she was present in her court yard on 30.7.1993 at about 9.00 P.M. along with 6 her parents, sister Ratna Devi, Geeta Devi, Bhim Singh, Rup Lal, accused Mohan Lal came near public water tap and started washing his hands, legs and face and on asking by PW-1/her father as to why he was ousted from the work, accused Mohan Lal started abusing his father and on intervention by her mother/ Bhago Devi for pacifying the quarrel and by asking accused Mohan Lal to go from there, accused Mohan Lal started giving fist and kick blows to her mother and when her father wanted to save her mother, accused Paras Ram caught hold of him. Accused Mohan Lal had dragged her mother/Bhago Devi/victim/deceased to the nearby field. Accused Sant Ram also appeared and started beatings to her mother and violently twisted the arm of her mother. Bhim Singh and Rup Lal had been telling the accused not to beat Bhago Devi. However, they did not try to dis-engage the parties. After receiving beatings, her mother turned unconscious and had fallen down and could not speak. Thereafter, she was brought to the room by her father and in the night, her condition had turned worse, as such, in the morning, she was taken to Civil Hospital, Ratti, from there, she was referred to PGI, Chandigarh, on way, she died. In cross-examination, PW-3 has specifically denied that there was dispute regarding discharge of water of the house with the accused. She has stated that earlier there were quarrels between the parties 7 on account of children, however, in her presence no talks of enmity took place between the parties and there was no enmity on the part of her mother. In cross-examination, PW-3 has very categorically stated that accused Mohan Lal had assaulted multiple blows of fist on the head of her mother and first blow was given on her head near the area of ear. At that time, accused Paras Ram was noticed by her there. However, she did not notice accused Sant Ram there. 6. PW-4 Dr. D. K. Arora, examined the victim- deceased Bhago Devi and found the following injuries:- 1. Alleged history of being beaten by someone yesterday. O.E. Semi conscious. Pulse 70 P.M. Pupils were reacting sluggishly to light. 2. Swelling over the chin. Bluish discolouration of skin ½ x ½”. Swelling over the left eye. 3. Unable to open the mouth and unable to speak. Neck N.A.D. 4. No bleeding from swelling or from vagina. Admitted for observation as a case of aphasia.” PW-4 further stated that he noticed external injuries of simple in nature. These injuries could be caused by fall and scuffle and these cannot be caused by slapping. Volunteered that the nature of injuries was simple. 8 7. PW-5 Dr. Vijay Kapoor, after post mortem examination of the victim opined that the cause of death of Bhago Devi was head injury. The injuries could be caused by fist blows. Such injuries were sufficient to cause internal injury to brain and internal injury to brain with fist blows was the cause of death. PW-5 has further stated in cross- examination that all injuries noted by him in the post mortem report are possible by fall on hard surface, however, in his opinion such injuries cannot be caused by slapping, as slapping is usually done on the face. PW-5 has observed these injuries on the face, but not on the cheeks. As per his opinion, the external injuries were simple but when he opened the internal organs, he found grievous/fatal injuries in the brain. 8. PW-2 Roop Lal stated that on 30.7.1993 at about 9.00 P.M., he along with Paras Ram, Bhim Singh, Daya Ram, victim Bhago Devi and her children were in the court yard of PW-1, when accused Mohan Lal came and started washing his hands and feet at the public water tap near the court-yard. At that time, Daya Ram asked accused Mohan Lal as to why he had been asked to leave the work, accused Mohan Lal had informed Daya Ram that other labourers had also been asked to leave the work. PW-1 and accused persons started quarrelling with each other. Accused Paras Ram had caught hold of him. At that time, Bhago Devi/victim/deceased asked 9 accused Mohan Lal to leave the court-yard and slapped accused Mohan Lal. Thereafter, accused Mohan Lal slapped Bhago Devi/victim/deceased, at that time, accused Paras Ram had left PW-1 free. Both the parties thereafter started quarrelling with each other and had gone to the field. PW-2 did not observe Bhago Devi in unconscious condition. In cross-examination, PW-2 has stated that accused Mohan Lal was slapped by the victim and accused Mohan Lal had also slapped Bhago Devi. Rather the quarrel continued thereafter and Bhago Devi was taken to the field in his presence. Accused persons had slapped twice Bhago Devi, who in turn also slapped the accused persons. According to PW-2, nothing beyond that happened in his presence. PW-2 has also stated that he did not see anybody giving beatings to Bhago Devi, as it was dark. Rup Singh (PW-6), Constable Baldev (PW-7), H.C. Sita Ram (PW-8), Yogesh Guleria (PW-9), SI Krishan Dutt (PW- 10), Rattan Lal (PW-11) & Hans Raj (PW-12), have endeavoured to support the prosecution case to the extent and role assigned to them. 9. On analysis of the prosecution witnesses and the materials on record, we notice that in view of the testimony of PW-4 Dr. D.K. Arora, the injuries were simple in nature. These injuries could not be possible by slap. However in view of the testimony of PW-5 Dr. Vijay Kapoor, the injuries on the body of the deceased 10 could be caused by fist blows which were sufficient to cause internal injury to brain and internal injury to brain with fist blows was the cause of the death. In cross-examination, PW-5 has very categorically indicated that though external injuries were appeared to be simple, but on opening of the internal organs, he found grievous/fatal injuries in the brain. 10. Bhago Devi (victim-deceased) had vomited out the blood in the night of 30.7.1993, but as per the testimonies of PW-4 & PW-5, the cause of death was because of the injuries inflicted by fist blows in the brain, which is corroborated by the testimonies of PW- 1 & PW-3 that fist blow was given to Bhago Devi on her head near the area of ear. As per the testimony of PW- 1, accused Mohan Lal had administered 3-4 blows to the victim on her head near the ear. Testimonies of PW-1 & PW-3 are corroborated, though both are interested witnesses, however on detail analysis of the testimonies of these prosecution witnesses, PW-1 & PW- 3 appeared to be natural and supporting each other, admitting the true prosecution story. PW-2 to the great extent has also supported the prosecution case indicating the presence of accused Mohan Lal on the spot and corroborating the quarrel having taken place between accused Mohan Lal. However, in view of the testimony of PW-2, the assault was not said to be given by fist blow. Accused Paras Ram was said to have 11 caught hold of complainant Daya Ram (PW-1), thereafter he was freed by him. However, the role of accused Sant Ram in view of the testimony of PW-2 was not substantial, whereas in view of the testimony of PW-1, accused Sant Ram was said to have twisted the arm of Bhago Devi and was also said to have assaulted the victim, whereas, PW-2 while corroborating the prosecution case has not noticed the presence of accused Paras Ram. Accused Paras Ram was noticed by PW-1 & PW-3, whereas PW-1, PW-2 & PW-3 have stated that accused Paras Ram had caught hold of complainant (PW-1)/Daya Ram. However, accused Paras Ram was not alleged to have inflicted any injury to the victim/ deceased. As per the testimonies of PW-2 & PW-3, corroborating each other, have not indicated about any role regarding assault by accused Paras Ram to the victim not giving ‘Lalkar’ even or instigating accused Mohan Lal to hit victim/deceased. We also notice that accused Mohan Lal was not having any weapon in his hands. However, in view of the testimony of PW-1 & PW-2, victim/deceased was said to have been assaulted firstly on her head and thereafter multiple fist blows on her face. In view of the testimony of PW-1, fist blows were given on her head near the area of ear and by such fist blows, the brain was injured. Such grievous injuries by the fist blows were corroborated by the testimony of PW-5 Dr. Vijay 12 Kapoor. There is complete corroboration of the testimonies of PW-1 & PW-2 with the ocular evidence of PW-3 and the medical opinion of PW-5. 11. In view of the above circumstances, analysis and prevailing, we find that the prosecution has been able to prove the presence of accused Mohan Lal in the Court yard of PW-1 on 30.7.1993 at about 9.00 P.M. and the prosecution has also been able to prove that the quarrel took place and accused Mohan Lal had given fist blows on the head of Bhago Devi/victim/deceased and thereafter multiple injuries on her face including the area of ear and dragged Bhago Devi/victim/deceased to the field. Not mentioning by complainant (PW-1) in the FIR why Bhago Devi/victim/deceased was taken to the field, will not make the prosecution case weak. Non-examining of other independent witnesses other than PW-2, shall also not make the prosecution case doubtful, because the testimonies of PW-1 & PW-3 though related to the victim, but have corroborated each other in its entirety and the prosecution case. Whereas PW-2 has also corroborated PW-1 though not to the expectation of the prosecution. 12. In our considered view, Bhago Devi/victim received fist blows in the hands of accused Mohan Lal, causing injuries on the face and the head near the area of ear of the victim, whereby the victim had succumbed to such injuries. Therefore, accused Mohan 13 Lal could be held guilty of offence under section 325 IPC and since other accused, namely, Paras Ram and Sant Ram had not co-operated with him in any kind of assault on Bhago Devi/victim/deceased, as such, in the facts and circumstances, no offence could be said to be made out against accused Paras Ram and Sant Ram and both these accused are entitled to benefit of doubt. 13. On analysis of the impugned judgment, we find that learned Addl. Sessions Judge has not appreciated the prosecution witnesses and materials on record correctly, therefore, finding arrived at and giving benefit of doubt to accused Mohan Lal, is not legally sustainable, therefore, verdict of learned Addl. Sessions Judge in respect of accused Mohan Lal is set aside, whereas in the facts and circumstances, accused Paras Ram and Sant Ram are given benefit of doubt. 14. Since we have set-aside the impugned judgment in respect of accused Mohan Lal and held him guilty of offence under Section 325 IPC, as such, accused Mohan Lal has to be heard on the quantum of sentence. List on 28.2.2011. (R.B. Misra) Judge (Sanjay Karol) Judge December 29, 2010 (rana)