IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.154 of 2006 Decided on : September 15, 2009 Ramesh Chand …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 Appellants : Mr. Harish Behl, Advocate. For the Respondent : Mr. P.M. Negi, Deputy Advocate General. Surjit Singh, J (Oral) Appellant Ramesh Chand has been convicted of offence of double murder, under Section 302 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.25,000/-, by the Sessions Court, vide judgment dated 22nd April, 2006. So, he has preferred the present appeal for setting aside the said judgment as also his conviction and sentence and acquitting him of the charge. 2. Prosecution case may be summed up thus. On 5th June, 2005, at 8.50 a.m., a telephonic call was received at Police Station, Dehra, that a fight had taken place in village Kariyada and the police should reach the place. Call was attended by ASI Brahmu Ram (PW-15), who entered Whether reporters of the local papers may be allowed to see the judgment? …2… the substance thereof in the Rojnamcha at Serial No.6, copy Ex. PW-15/A. He then proceeded to the spot, accompanied by HHC Shakti Chand, Constable Tarsem Lal and Constable Ravinder Kumar, by a Government vehicle bearing registration No.HP-39-7271. On reaching the spot, he saw that dead body of Gian Chand was lying in the courtyard of Maya Devi (PW-3) and Gian Chand’s wife Prito Devi was lying injured at a short distance. PW-3 Maya Devi told PW- 15 ASI Brahmu Ram that around 8.30 a.m., she saw injured Prito Devi being chased by the appellant, with a knife in his hand and when she (Prito) reached in front of her house, she stumbled over a Beed and fell and then the appellant stabbed her with the knife in the abdomen. She further reported that in the meanwhile Prito Devi’s husband Gian Chand reached and when he tried to rescue Prito Devi, appellant left her and stabbed Gian Chand with the knife in his neck and chest, as a result of which he fell and died on the spot. 3. The aforesaid report made by PW-3 Maya Devi was recorded in the form of her statement, under Section 154 of the Code of Criminal Procedure, which is Ex. PW-3/A. It was sent to the Police Station, where case was formally registered vide FIR Ex. PW12/A, on the basis of it (Ex. PW-3/A). 4. PW-15 ASI Brahmu Ram then conducted inquest, in respect of the dead body of Gian Chand and …3… prepared report Ex. PW-1/D and filled in form Ex. PW-1/E and sent the dead body to the Hospital, with written request Ex. PW-1/C, for conducting postmortem examination of the dead body. Postmortem was conducted by PW-1 Dr. Jitender Sexena, who noticed the following antemortem external injuries: “Description of wound 1. There was a deep incised wound at left anterior triangle of neck measuring 4 cm horizontally and 1.5 cm deep. Edges were smooth clear cut and everted. There was gaping of wound and underlying fatty tissue were coming out from the wound. The blood was still running out of the wound. 2. There was an incised wound on anterior abdominal wall on left hypochondrium measuring horizontally 3 cms. All layers of abdominal wall were cut.” On opening the body, at the site of injury No.1, aforesaid, internal jugular vein and common carotid artery were found severed. Also, an incised wound on the abdominal wall was noticed. Abdominal cavity contained blood. Stomach contained semi-digested food about 400 ml. Doctor opined that the cause of death was excessive external haemorrhage due to cutting of internal jugular vein and left common carotid artery on left side of the neck. Time gap between the injury and the death was opined to be between 15 minutes and one hour and between death and …4… postmortem less than six hours. Postmortem was conducted at 1.50 p.m. on 5th June, 2005, itself. 5. Prito Devi, who was lying injured, was rushed to the Hospital. She was medically examined by PW-1 Dr. Jatinder Sexena, on the written request, Ex. PW-1/G, of the Police, and the following injuries were noticed on her person: “1. There was an incised wound of 8 cm horizontally and just above umblicus on left side. The wound was skin deep with epidermal layer incised Margins were regular and sharp. 2. There was a superficial incised wound on right side abdomen just above umblicus, horizontally, measuring 3 cms in length, margins were regular and sharp. 3. There was bleeding from anus. No source of bleeding could be visualised. 4. There was an incised wound at anterior axillary line at 3rd and 4th intercostals space vertically measuring 4 cms. The wound was deep and open in thoracic cavity. 5. There was an incised wound at anterior abdominal wall at umbilicus measuring 2 cm horizontally. Injuries No.1, 2, 4 and 5 were opined to be grievous, having been caused with some sharp edged object, in less than six hours. …5… 6. Prito Devi died in the Hospital at 1.30 p.m., on 5th June, 2005, itself. Inquest was conducted by ASI Tarsem Sharma (PW-16), who prepared report Ex. PW-1/H and filled in form Ex. PW-1/J. Postmortem was conducted by PW-1 Dr. Jitender Sexena, who noticed the following injuries: “DESCRIPTION OF WOUND 1. There was a large incised wound at anterior abdominal wall, just above umlicus measuring 8 cm horizontally. The margins are everted with fatty tissue coming out of the wound. 2. There was a superficial incised wound on anterior abdominal wall on right side, just above umbilicus measuring 3 cm in length. 3. There was bleeding from anus but no source of bleeding could be ascertained. 4. There was a vertically oblique incised wo9und on chest at left anterior axillary line at the level of third intercostals space. Wound was stabbed directing horizontally depth was around 3 to 4 cms, muscles also cut below wound alongwith pleura and left lung. On opening the chest the blood with serous fluid gushing from the wound site. 5. There was an incised wound on anterior abdominal wall on left side at the level of wound No.1 measuring 2 cm in length. Wound No. 1, 2 and 5 were within …6… abdominal wall and not reached upto peritoneum.” On opening the body, doctor noticed cut on left side at third intercostals space of plura, left lung having incised wound at the level of third intercostals space and the abdominal wall was having three incised wounds. Cause of death was opined to be haemorrhagic shock, on account of severe and excessive loss of blood from the wound at chest wall which damaged left lung, and caused internal haemorrhage. Time lag between the injury and death was opined to be two to six hours and between death and postmortem less than six hours. 7. Appellant was arrested on the very day of the occurrence, from his residence in a village of Hamirpur District, where he lived separate from his brothers. On 7th June, 2005, when he was in police custody, he made disclosure statement that he had thrown a knife in a check dam, below his house and had kept concealed his shirt Ex.P-8), pants (Ex.P-9), vest (Ex. P-14) and a pair of Chappal (Ex.P-15) (plastic) hidden on a bed, under the mattress, in his room and only he was aware of the concealment of those things. Memo. of his statement was prepared, which is Ex. PW-5/A. He then led the police to the check dam and got recovered knife (Ex.P-4), which was taken into possession vide Memo. Ex. PW-6/B and sealed in a parcel. He also got recovered his clothes, i.e. shirt …7… Ex. P-8, pants Ex. P-9, vest Ex.P-14 and a pair of Chappal Ex. P-15, which were taken into possession vide Memo. Ex. PW-6/C and sealed in a separate parcel. 8. Clothes of the two deceased as also of the appellant, and knife Ex.P-4 were sent to the Chemical Examiner, who opined that clothes of deceased Gian Chand were stained with human blood of Group-B and clothes of deceased Prito Devi were stained with human blood of Group-A. He also reported that there were stains of human blood of Group-A on shirt Ex. P-8 of appellant Ramesh Chand. Stains of human blood were also found on the pants, vest and pair of Chappal of Ramesh Chand, which are Ex. P-8, Ex. P-9, Ex. P-14 and Ex. P-15, respectively, but the blood group could not be determined. Knife Ex. P-4 was reported to have stains of blood but its original and group could not be determined. 9. Appellant was challaned in the Court of concerned Judicial Magistrate, who, after complying with the requirement of Section 207 of the Code of Criminal Procedure, committed the case to the Sessions Court. The Sessions Court charged the appellant with offence, under Section 302 of the Indian Penal Code. Appellant pleaded not guilty. So, he was put on trial. 10. Prosecution examined a number of witnesses, but it mainly replied upon the testimony of two eye- witnesses, namely PW-2 Anita Devi and PW-3 Maya Devi, …8… and the witnesses of discovery of knife and clothes of the appellant, namely PW-5 Rajinder Pal, PW-6 Kuldip Chand and PW-17 SI Om Prakash to whom disclosure statement was made by the appellant and who, pursuant to the said disclosure statement, effected recovery of knife Ex. P-4 and clothes and pair of Chappal of the appellant, i.e. shirt Ex. P- 8, pants Ex. P-9, vest Ex. P-14 and pair of Chappal Ex. P-15. 11. We have perused the record and heard the learned counsel for the appellant as also the learned Deputy Advocate General. 12. Two eye-witnesses examined by the prosecution, in support of its case, are PW-3 Maya Devi and PW-2 Anita Devi. PW-3 Maya Devi stated that on the 5th day of the month, around 8.30 a.m., when she was cleansing utensils in her house, she heard cries “Bachao Loko Bacha Lo” and then she saw deceased Prito Devi came running towards her house, with appellant Ramesh Chand following her. She further stated that Prito fell near her house, after stumbling over a Beed and in the meanwhile the appellant over-reached her and dealt blows of knife in her chest and abdomen. She deposed that she and one more lady, who is wife of Mansa Ram, went to rescue Prito but in the meanwhile Gian Chand, husband of Prito, came there and on seeing Gian Chand the appellant left Prito and attacked her husband Gian Chand and stabbed him with the …9… knife in the neck and the chest, due to which Gian Chand died, on the spot, near the shed of PW-2 Anita Devi. She further stated that the appellant thereafter escaped from the spot. Further, she stated that several people from the village collected and Prito, who was lying injured, was shifted to the Hospital. She stated that after some time police came to the spot and recorded her statement Ex. PW-3/A (under Section 154 of the Code of Criminal Procedure). She identified knife Ex. P-4 to be the same which the appellant was wielding. 13. PW-2 Anita Devi stated that on the fateful day, around 8.30 a.m., Prito came running and crying “Mar Diya Mar Diya Bachao”, being chased by the appellant and that when Prito Devi reached near the bathroom of PW-3 Maya Devi, she stumbled over a Beed and fell down and the appellant then stabbed her in the abdomen. She further testified that she cried for rescuing Prito Devi and PW-3 Maya Devi and one Suvidha came out. She deposed that in the meanwhile Gian Chand, husband of Prito Devi, reached and he too was assaulted by the appellant and dealt blows of knife on his neck and abdomen, as a result of which he fell near her shed and died. She also identified knife Ex. P-4 to be the same with which Prito and her husband Gian Chand were attacked by the appellant. 14. Testimony of the two eye-witnesses is corroborated by the statement of PW-1 Dr. Jitender Sexena, …10… who conducted medical examination of Prito Devi, when she was still alive and thereafter conducted postmortem examination of her dead body and also conducted the postmortem of the dead body of Gian Chand. The witness testified that the injuries could have been caused by means of knife Ex. P-4, though in the cross-examination he did say that injuries on the person of Prito and the dead body of Gian Chand were more likely with a double edged weapon than the knife Ex. P-4, which was single edged. 15. Testimony of the two witnesses is further corroborated by the fact that stains of human blood of Group-A were found on shirt Ex. P-8, which the appellant got discovered, pursuant to his statement, under Section 27 of the Evidence Act, Ex. PW-5/A, as also clothes worn by deceased Prito at the time of the incident, as per report Ex. PW-1/N of the Chemical Examiner. The report shows that stains of blood of Prito were there on shirt Ex. P-8 got discovered by the appellant. 16. Discovery of clothes, i.e. shirt Ex. P-8, pants Ex. P-9, vest Ex. P-14 and pair of Chappal Ex. P-15, and knife Ex. P-4, pursuant to disclosure statement Ex. PW-5/A, is proved by the testimony of PW-5 Rajinder Pal and PW-6 Kuldip Chand, two unofficial witnesses, and the statement of PW-17 SI Om Prakash, to whom the aforesaid disclosure statement was made and who effected the recovery. …11… 17. There does not seem to be any reason to disbelieve the testimony of the two eye-witnesses, especially when it is corroborated by the aforesaid evidence. Their testimony appears to be believable, even in the absence of the aforesaid corroborative evidence, because they are not shown to have any axe to grind by falsely implicating the appellant. No doubt, learned counsel for the appellant submits that since the dead bodies were found around the houses of the two witnesses and the police might have suspected their involvement and because of such suspicion pressurized them to become eye-witnesses, but this submission is just speculative and imaginary and not based on any material, on record. 18. Learned counsel for the appellant submitted that statement Ex. PW-3/A was recorded after meditation and deliberations, because as per testimony of witnesses it was recorded after the inspection of the spot, by PW-15 ASI Brahmu Ram. Merely for the reason that PW-15 ASI Brahmu Ram, before recording statement Ex. PW-3/A, inspected the spot, it cannot be said that the earliest version given to the police is the result of any meditation or deliberations or it contains coloured version. 19. Learned counsel has further argued that information supplied to the police by PW-4 Bahadur Singh, Pradhan of the Panchayat, telephonically, which was entered in the Rojnamcha, vide entry, copy Ex. PW-4/A, is …12… required to be treated as the earliest version. This submission is also without merit, because PW-4 Bahadur Singh was not on the spot nor had anybody conveyed the details of the incident to him, when he informed the police telephonically, per entry in the Rojnamcha, copy Ex. PW-4/A. A bare reading of Ex. PW-4/A suggests that he was casually informed that an incident of fight had taken place and he transmitted this information to the police, on telephone, just to set the police machinery into motion. 20. It is next submitted by the learned counsel for the appellant that though the eye-witnesses claimed to have tried to rescue Prito Devi, but there were no blood stains on their clothes, which fact renders their testimony doubtful. No doubt, the witnesses admitted that no blood stains had appeared on their clothes and at the same time they stated that they tried to save Prito Devi but they did not say that they physically intervened to save her. In fact from their testimony it appears that before they could try to intervene, the appellant had already dealt blows of knife to Prito Devi and then released her on his own, when Prito’s husband deceased Gian Chand reached. 21. Another submission made by the learned counsel is that as per postmortem report Ex. PW-1/F and the testimo0ny of PW-1 Dr. Jitender Sexena, deceased Gian Chand had semi-digested food about 400 ml in his stomach, which indicated that he had taken meals 3-4 hours prior to …13… his death. He submits that the deceased was not supposed to have consumed meals at 5 or 5.30 a.m. He urges that most probably deceased Gian Chand died 3-4 hours after taking his meals, on the previous night. We find no merit in this submission also. Doctor is not categorical, with respect to his opinion that the meals could have been consumed 3-4 hours prior to death. Rather, he has specifically stated that the same could have been consumed less than 3 to 4 hours prior to death. It is a common knowledge that people in villages take their meals before leaving for their fields and in summer months they leave for their fields even before sunrise. Therefore, it can legitimately be presumed that the semi-digested food, which was found in the stomach, was that which the deceased consumed in the morning of 5th June, 2005. 22. Yet another argument advanced by the learned counsel for the appellant is that no test identification parade of dagger was conducted and in the absence of such parade it cannot be held conclusively that the knife Ex. P-4 is the same, which was allegedly used by the appellant as weapon of offence. This submission in no way dilutes the ocular version of the incident given by PW-2 Anita Devi and PW-3 Maya Devi, who have very categorically stated that the appellant was wielding a knife and he dealt blows to Prito Devi and her husband Gian Chand with the same. …14… 23. It is further submitted by the learned counsel that as per testimony of PW-6 Kuldip Chand about 100-150 persons were present at the spot of recovery of knife, when the recovery was effected and that this fact suggests that the police and the people were aware of the knife being at the site of its alleged discovery, long before the making of the alleged disclosure statement by the appellant. This submission is also imaginary. It is a matter of common knowledge that whenever the police is seen in rural areas, especially after a serious crime, like double murder, as in the present case, people of not only that particular village, in which the incident takes place, but also from the neighbouring villages gather on the spot. For the foregoing reasons, we are of the considered view that the appeal is without merit. The same is, therefore, dismissed. ( Surjit Singh ), J September 15, 2009(sd) ( Surinder Singh ), J