IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 239 of 2007 Judgment reserved on 4.6.2008 Date of decision: June 17, 2008 Ravinder Kumar & anr.. ..Appellants Versus State of HP ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No. For the appellants: Mr.Ramakant Sharma, Advocate For the respondent: Mr.Vivek Thakur, Additional Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. _____________________________________________________ Deepak Gupta, J: This appeal is directed against the judgment dated 21.6.2007 delivered by the learned Sessions Judge, Hamirpur in Sessions Trial No. 25 of 2006 whereby he has convicted the appellant No.1 of having committed an offence punishable under Section 304 Part II and Section 34 of the Indian Penal Code whereas appellant No.2 has been convicted for the offence punishable under Sections 323 and 341 IPC. Appellant No.1 Ravinder Kumar has been ordered to undergo rigorous imprisonment for 5 years and to pay - 2 - a fine of Rs.25,000/- for the offence under Section 304 Part II IPC and also sentenced to under go simple imprisonment of one month for the offence under Section 341 IPC. In case of default of payment of fine, he has been directed to undergo further rigorous imprisonment for 6 months. The substantive sentences have been ordered to run concurrently. As far as appellant No.2 is concerned, the learned trial Court has directed that the period of imprisonment already undergone by her during the trial from 28.7.2006 to 22.8.2006 was sufficient to meet the ends of justice. Dissatisfied by the said judgment, the appellants have filed the present appeal. The prosecution version in brief is that late Shri Kishori Lal had taken his cattle for grazing to the Man Khad on 26.7.2006. At about 6 pm in the evening, the accused persons objected to Kishori Lal grazing his cattle on the land which they claimed belonged to them. Kishori Lal stated that he was grazing the cattle on the bank of the Khad and not in the land of the accused and thereupon both the accused gave him beatings with fist blows etc. and it is also alleged that the appellant No.1 hit Kishori Lal with a stone. Kishori Lal suffered injuries and went to his - 3 - house. There he told his version to his Aunt PW7 Purni Devi and wife PW6 Kamlesh Kumari. He was then taken to the medical store in the village and given some medicines. On the way they met PW3 Mehar Singh, Up-Pradhan of the area who according to the prosecution, advised the deceased Kishori Lal and his wife to report the matter to the police. Kishori Lal, his wife and Aunt Smt. Purni Devi went to the Police Station, Nadaun on the next morning when statement of the complainant Kishori Lal was recorded. This statement was signed by him and is exhibited as PW7/A. On the basis of this statement, FIR was registered. Kishori Lal was taken to the Community Health Centre, Nadaun ( for short: CHC, Nadaun) on 27.7.2006 by the police. The doctor referred Kishori Lal to the Zonal Hospital, Hamirpur for surgical management. Kishori Lal, however, refused to go to Hamirpur and requested that he may be treated at CHC, Nadaun only, since he could not bear the expenses of going to Zonal Hospital, Hamirpur. He died in the morning of 28.7.2006. Thereafter, the case was registered under Section 302 IPC. The police investigated the matter and filed the challan and the accused persons were charged with having committed - 4 - offence punishable under Section 302 read with Section 34 IPC. Finally, they were convicted and sentenced as aforesaid. Kishori Lal in his statement to the police stated that when he was grazing his cattle, accused objected to the same. When Kishori Lal pointed out that he was grazing his cattle not on the land of the accused but on the bank of the khad, appellant No.1 started giving him fist blows on his face and other parts of his body. Kishori Lal tried to run towards his house and then accused/appellant No.2 mother of accused/appellant No.1 obstructed his way and both of them gave him fist blows. Appellant No.1 lifted a stone and hit him on his back and ribs. Kishori Lal raised hue and cry and one person, whom he could not name but recognize by face came there and saved him. He reached his home with difficulty where he apprised his Aunt Purni Devi wife of late Shri Gian Chand about the incident. It is also stated that Up Pradhan Mehar Singh was also informed about the incident. Since he was in great agony and it was dark, he did not lodged the FIR on that day and lodged the report next morning in the presence of his wife and aunt. - 5 - In this statement, the accused/appellant No.1 has been described as Bindu son of Bhag Singh and accused/appellant No.2 Vidya Devi as wife of Bhag Singh. Later supplementary statement of the complainant Kishori Lal was recorded under Section 161 Cr.P.C in which stated that both appellant No.1 and appellant No.2 are the son and wife respectively, of Sher Singh and not of Bhag Singh. Kamlelsh Kumari wife of Kishori Lal was examined as PW6. According to her on 26.7.2006 her husband had taken the cattle for grazing to Man Khad. He came back at about 6 pm. He was not in a position to talk or walk properly and his face was swollen. He told the witness that he had been beaten up by the accused persons with fist blows and a stone. She further states that her Aunt-in- law Purni Devi was not at home and she took her husband to the nearby medical store and on the way they met Up Pradhan Mehar Singh and informed him about the incident and he advised them to report the matter to the police. After getting the medicines from the Medical Store, they came back home. The condition of her husband did not improve and thereafter, she called her Aunt Purni Devi who had returned in the meanwhile. - 6 - Kishori Lal then narrated the incident to her. Since it was already dark, they went to the police station in a jeep next morning at about 8 a.m. to report the matter. At the police station, her husband lodged the FIR and she identified the signatures of her husband Ex.PW6/A on the said FIR. Thereafter the police took her husband to CHC Nadaun. She remained in the hospital but her Aunt Purni Devi came back home. The doctor advised that her husband should be taken to Zonal Hospital at Hamirpur but she could not take her husband to Hamirpur as she was not in a position to bear the expenses. Kishori Lal died on the morning of 28.7.2006. In cross-examination, she has stated that they had gone to the Medical Store in a jeep on the evening of 26.7.2006. Next day also they came in a jeep to lodge the FIR in Police Station, Nadaun. Suggestion has been put to her that the deceased died by falling from the retaining wall of her house. She denied that there is any retaining wall of her house. She also denied the suggestion that the accused persons have been falsely implicated since there were minor verbal altercations regarding the grazing of cattle. The statement of PW7 Purni Devi is similar to the statement PW6. - 7 - PW1 Ashok Kumar is an alleged eye witness who witnessed the incident. He turned hostile. According to him, he had gone to Man Khad 3 – 4 years ago at about 11a.m during rainy season. He states that he did not go to the Man Khad on the evening of 26.7.2006. He was declared hostile and cross-examined by the prosecution. In his cross-examination, he denied the suggestion that he had snatched the stone from accused Ravinder Kumar and thrown it on the ground. He volunteered that Ravinder had himself thrown the stone on the ground. He denied the suggestion that he sent Kamlesh Kumar and the deceased to their house. He volunteered that the accused and the deceased left for their houses of their own. He also denied that any stone was recorded in his presence but admitted his signatures on the seizure memos. To the similar effect is the statement of PW2 Kamlesh Kumar who has also denied the entire incident. Both the witnesses have denied that anything had happened in their presence. PW3 Mehar Chand also turned hostile. According to him, he met the deceased Kishori Lal and his wife on the evening of 26.7.2006. According to him, they did not have - 8 - any talk. He did not notice the condition of the deceased. In cross-examination by the prosecution, he admitted that he was summoned by the police. He however, denied having made any statement to the police. PW4 Dr. B.S.Rana, states that on 27.7.2006, he was working as Medical Officer, CHC, Nadaun. On the application of police, he had examined Kishori Lal son of Paras Ram and noticed three injuries on the person of Kishori Lal. The patient was referred to Zonal Hospital, Hamirpur. Since the patient was poor, he insisted that he be treated at CHC, Nadaun itself. The condition of Kishori Lal deteriorated. He again wanted to refer him to Zonal Hospital, Hamirpur but before that Kishorii Lal succumbed to the injuries suffered by him. He has proved on record MLC Ex.PW4/B. According to him, the injuries took place between the periods of 12 to 24 hours of the examination with a blunt weapon. He stated that the injuries were possible with fist blows and with a blow of stone Ext. P1 shown to him in the Court. According to him, all the injuries were grievous in nature. PW5 conducted the post-mortem examination on the body of the deceased. His statement supports the - 9 - version of the prosecution that the injuries were ante- mortem and according to him, the probable duration between injury and death was less than 48 hours. He further opined that the injuries of such nature are sufficient to cause death. In cross-examination, he has stated that if the patient had been given expert treatment immediately, he could have been saved. PW8, PW9 and PW10 are formal in nature. PW11 is the investigating officer SI Jagdish Chand. According to him, the MHC, had recorded the statement of Kishori iLal under his instruction and thereafter Kishori Lal had signed the statement vide his signatures Ex.PW6/A. He has stated that the statement Ex.PW11/A, was written down under his dictation. He further states that when the deceased came to the police station, his condition was quite bad and there were apparent injuries on his face, ribs and back. The face of the deceased was also swollen. He was sent to CHC, Nadaun for further treatment. According to him, he recorded the supplementary statement Ex.PW11/A correcting the name of father and husband of the accused from Bhag Singh to Sher Singh. He states that on investigation, he found that PW1 Ashok Kumar had witnessed the incident - 10 - and, therefore, examined Ashok Kumar who informed that the incident was also witnessed by PW2 Kamlesh Kumar. According to him, appellant No.1 got the stone recovered vide memo Ex.PW/A in the presence of Ashok Kumar, PW Mehar Singh and one Balbir Singh. It is on this basis of this evidence that the appellants have been convicted. Shri Ramakant Sharma learned counsel for the appellants has contended that no reliance can be placed on the prosecution evidence and that the learned Sessions Judge has erred on basing the conviction on the statements of PW6 & PW7 i.e. wife and aunt of the deceased. He also points out that whereas in the original complaint, the name of father/husband of the accused was given as Bhag Singh but later it was corrected to Sher Singh. He also contends that in the complaint, it is mentioned that the aunt was told about the occurrence immediately when Kishori Lal came home. However, in evidence, the version was changed and it was mentioned that the aunt was not at home when Kishori Lal reached in the evening on 26.7.2006 and she came after a couple of hours. Shri Ramakant Sharma contends that on the basis of this evidence, it is apparent - 11 - that the story set up by the prosecution is false and the witnesses are falsely trying to implicate the accused. On the other hand, Shri Vivek Thakur learned Additional Advocate General has supported the judgment of the learned Sessions Judge. After hearing the learned counsel for the parties and having gone through the record in detail, I am of the considered opinion that the prosecution version cannot be brushed aside in its entirety. Admittedly, there is no enmity between the accused and the complainant side. The deceased Kishori Lal himself made a statement to the police about 14 hours after the incident. The delay in lodging the FIR is well explained. The intention was to get Kishori Lal treated at the local level and therefore, the complaint was lodged on the next day. This Court cannot loose sight of the fact that Kishori Lal and his family were so poor that even when his condition had deteriorated, his family could not afford to shift him from CHC, Nadaun to Zonal Hospital, Hamirpur which is barely at a distance of about 30 Kms. The version given by Kishori Lal appears to be absolutely true. His signatures on the statement were identified by his wife PW6. - 12 - The investigating officer has stated that the version of the deceased Kishori Lal was recorded by MHC at his instance. The statement of Kishori Lal stands proved to the hilt. There are two minor inconsistencies between this statement and the evidence of the witnesses led in Court. First is with regard to the name of father/husband of the accused being mentioned as Bhag Singh instead of Sher Singh and second is with regard to time when the aunt Purni Devi was informed about the occurrence. In my opinion, these contradictions are not contradictions at all and in any way are not such a major contradictions so as to render the prosecution version un- reliable. Admittedly, Kishori Lal was facing difficulty in speaking and there may have been mispronunciation in the names. He was in great pain and agony. It is not anybody’s case that he was referring to some other persons in the statement. There is no suggestion that there are any other mother and son of the same name in the village. Even the accused have put a suggestion that there was some dispute with regard to the grazing of cattle. Hostile witnesses have also talked about something having happened between the accused and - 13 - the deceased. The identity of the accused persons is not in doubt. Even with regard to the alleged contradiction as to whether the aunt PW7 Purni Devi was told this occurrence immediately on Kishori Lal reaching home or two hours later is not at all material. The statement recorded under Section 154 Cr.PC is not a detailed encyclopedia of the incident but is only a gist of the occurrence. In my opinion, the version given in the statement of Kishori Lal inspires confidence and stands supported by medical evidence and the statements of PWs 6 and 7. As far as statement of PW3 is concerned, no reliance can be placed on this witness. Though he admits that he met the deceased and PW6, according to him, he did not even notice the condition of the deceased. This is totally improbable. As far as PWs 1 and 2 are concerned, their statements are virtually worthless. All these statements do not inspire confidence. One way or the other, no reliance can be placed on the same. As far as the recovery of stone is concerned, I am of the view that the prosecution has miserably failed to prove the same. The stone is alleged to have been identified by the accused in the presence of PW1, PW3 - 14 - and Balbir Singh. PW1 and PW3 have totally denied that the accused got any stone recovered in their presence. Balbir Singh was not examined and there is no reasonable explanation as to why he was not examined. Even otherwise, it is difficult to believe the version of the prosecution that stone recovered by them is the same stone which was mentioned by Kishori Lal in his statement. Kishori Lal in his statement to the police stated that accused No.1 picked up a stone and hit him on his back and on the ribs with the same. The stone allegedly recovered by the police was weighing 6 kgs and is 9 inches long. It is not possible to pick up such a large stone with one hand and if such stone was picked up the injuries could have been more. Keeping in view all the facts and circumstances of the case, I am of he considered opinion that the incident did take place. The deceased was beaten up by both the accused. The accused No.1 may have used a stone of much smaller weight and size. However, there is nothing on record to indicate that the intention of accused No.1 was to cause death or to cause such bodily injury which was likely to cause death. The act of the accused was not so serious that it would have caused - 15 - death. In the fight the accused had beaten Kishori Lal with first blows. At best, some small stone may have been used. If the intention was to cause death then the stone would have been used to give a blow on the head. Admittedly, the attack was on the back and the chest. The intention was, therefore, to cause grievous injury but not to cause death. Therefore, I am of the opinion that the accused/appellant No.1 was wrongly convicted under Section 304 Part II IPC but should have been convicted for having committed an offence under Section 325 IPC. As far as accused/appellant No.2 is concerned, I feel that she has been properly convicted and sentenced and calls for no interference. Coming to the sentence to be imposed on accused/appellant No.1 in respect of the offence under Section 325 IPC, I feel that sentence of three years rigorous imprisonment would suffice to meet the ends of justice. In addition, the accused/appellant No.1 shall pay fine of Rs. 25,000/-. In default of payment of fine, he shall undergo rigorous further imprisonment for 6 months. In case the fine is deposited, the entire amount of fine be - 16 - paid to PW 7 Smt. Kamlesh Kumari, wife of the deceased Kishori Lal. As far as the offence under Section 341 is concerned, I uphold the sentence imposed by the learned Sessions Judge. Both the sentences shall run concurrently. The appeal is disposed of in the aforesaid terms. June 17, 2008 ( Deepak Gupta ),J. s.