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1990 DIGILAW 48 (HP)

STATE OF HIMACHAL PRADESH v. HARI SINGH

1990-07-20

D.P.SOOD, V.P.BHATNAGAR

body1990
JUDGMENT D. P. Sood, J —This appeal is filed by the State of Himachal Pradesh against the judgment dated 1 January, 1980 of the learned Sessions Judge, Mandi, Kullu and Lahaul Spiti Districts camp at Kullu before whom Hari Singh accused was tried but acquitted for the commission of the offences under sections 458 and 302,1. P. C. The sole question for determination in this appeal is "whether the learned court below has misappreciated the evidence and thus erroneously recorded the order of acquittal of the accused." The answer has to be infirm negative 2. A brief reference may be made to the facts of the instant case to weigh the legality of the impugned judgment. 3. Shri Mela Ram since deceased and his sons originally hailing from village Jahan Khelan in District Hoshiarpur were carrying on their business at Manglore Village in District Kullu. PW 2 Mangat Ram was joint in business and residence whereas his brother Girdhari Lai PW 1 was separately carrying on halwais shop near the business premises of his father. At the material time, the accused was involved in a hotel business opposite to the shop of PW 1 in the same locality. Said Mela Ram was hard of hearing. 4. On April 18, 1977 at about 10 p. m. Hari Singh accused is alleged to have criminally assaulted Shri Mela Ram and resultantly he sustained serious injuries on his person to which he succumbed on the following morning at 10 a. m. despite medical aid having been extended to him. Shortly, the prosecution story is that of April 17, 1977, PW 1 Girdhari Lai demanded the payment of an amount of Rs. 80 from one Devi Singh, Munshi of Anand Kumar, contractor, HP PWD, his customer whereupon the accused while under the influence of liquor intervened instigating said Devi Singh to refrain from making any such payment, This undue intervention resulted in the alteration between PW 1 and the accused but till the occurrence nothing happened, The accused then is alleged to have come to the shop of the deceased (which was closed and where the latter after having visited the shop of PW 1 had slept), called at a loud pitch indicating his intention to purchase cloth for his two shirts but in vain. PW 1 was attracted by the loud voice to that place. PW 1 was attracted by the loud voice to that place. Thereafter the accused allegedly broke open the planks of the shop, entered therein, had an altercation with the deceased where after the accused lifted him in his arms, threw him flat on the mettled road with force, sat on his chest and then gave fist blows to him on his face. PW 1 raised alarm and simultaneously attempted to rescue his father from the accused but suffered 2 to 4 fist blows at the hands of the accused. However, his alarm attracted PWs Mangat Ram, Bihu Ram and Dhani Ram who also witnessed the occurrence after their arrival They jointly succeeded in saving said Mela Ram from the clutches of the accused. The injured was bleeding from his mouth and nose and was in an unconscious state of mind due to which all of them removed him from the road to his shop and made him to lie down on a cot. Dr. G, D. Saini, Incharge of Civil Dispensary Bali Chowki in District Mandi was brought by PW 2 in a truck belonging to Sudesh Kumar, their relation at about 1 a. m. (mid-night intervening April 18, 1977 and April 19, 1977) and subsequently at about 8.30 a, m* At both occasions PW 9 attended the injured but finally the injured expired at about 10.00 a. m The entire episode resulted in the lodging of FIR (Ex. PD) on April 19, 1977 at 4.00 p. m. in Police Station, Banjar which is located at a distance of 6 kms, from the place of occurrence, by PW 1 Girdhari Lal. 5. A case was registered, investigation was commenced and a charge-sheet was filed. Dr. Kuldip Sharma PW 12, who conducted autopsy on the deceased stated that the accused was a well built person. He found bruises of violet colour l"X2lf over the left hip, l c, m. x 1/2 c. m. over the left elbow and lateral aspect of left knee besides ,1” long linear scratches on the foot (dorsal surface) and 1” below the ankle line, He also observed supraperiosteal in the occipital region besides plenty of clotted blood around the posterior branch of middle meningeal artery and clots of blood having extended down till the base of middle cranial fossa. He further found congestion of brain and of both lungs, subdural hapmatoma and presence of clotted blood inside the Laryngeal & Trachea! Cavity besides broken left cornu of the left thyroid cartilage. The doctor opined that the injuries were antemortem and resulted in death. 6. The prosecution examined 14 witnesses. The accused also pro duced 4 witnesses in defence. PWs 1 to 4. 7 to 9 and 12 are some of the important witnesses The plea of the accused was of total denial and false implication. Rather, as per the accused he was beaten by the three brothers i.e. PWs 1, 2 and 7 on the night of April 18, 1977 while under the influence of liquor on account of his alleged intervention on the demand of money from Devi Singh aforesaid by PW i Girdhari Lai. During this scuffle their father intervened and tried to stop them from beating him but despite that he sustained injuries. Meanwhile, hearing the sound of a truck coming towards that side, all of them ran away from his shop and while running one of them collided with the deceased as a result of which the latter fell down on the mettled road and sustained fatal injuries. On the following morning he got himself medically checked up from DW 4 at Kullu and while going to lodge a report to the Superintendent of Police, Kullu he was arrested by the police at Kullu. 7. The learned Sessions Judge after consideration of the evidence held that the evidence of the occular witnesses is in total conflict with that of medical evidence and that they are all interested. In fact, the entire prosecution evidence was found riddled with a number of contradictions, discrepancies, omissions and irrational features which proved to be fatal to the prosecution case. The accused had been falsely implicated due to inimical relations existing between the parties. It was further observed that the conduct (prior and subsequent) of the eye-witnesses rather made the entire prosecution story unreliable. According to him the prosecution further failed to explain the injuries on the person of the accused which probablised the defence version to be true as to the origin and manner of incident Another factor taken into consideration by the learned Court below in demolishing the prosecution version was the unexplained delay in lodging the F. I. R. 8. According to him the prosecution further failed to explain the injuries on the person of the accused which probablised the defence version to be true as to the origin and manner of incident Another factor taken into consideration by the learned Court below in demolishing the prosecution version was the unexplained delay in lodging the F. I. R. 8. The learned Asstt Advocate General appearing for the State- appellant has contended before us that the view taken by the court below is wholly unsound and perverse. According to him even if the witnesses have given a discrepient version as to the origin and manner of the incident that by itself is not a ground to reject their evidence in toto. According to him the dictum "falsus in uno falsus in omnibus" cannot be made applicable to these witnesses He rather contended that on careful analysis of the evidence, admittedly there existed bitter animosity between the deceased and his family on one side and the accused on the other hand as such there was sufficient motive on the part of the accused to assault the deceased in the manner detailed by the prosecution, According to him the nature of injuries sustained by the deceased corroborate the oral version of occular witnesses 9. Before entering into detailed discussion of the oral and documentary evidence, we may point out certain incontrovertible facts. The time of occurrence, the place of occurrence, inimical relations in between the parties, sustaining of serious injuries by deceased Mela Ram on the mettled road, his removal from the said road to the ahop in an unconscious state, and his death on the following morning after 12 hours of occurrence are all not in dispute. 10. So far alleged motive against the accused for the incident pursuant to inimical relations is concerned, we cannot lose sight of the fact that the prosecution party which was also entertaining the same amount of animosity against the accused had sufficient motive to implicate the accused with the offence in question as well. As repeatedly held, motive is a double-edged weapon and that it can be made use of by either party to wield that weapon of motive against each other. Therefore, the key question for consideration is whether the prosecution has convincingly and satisfactorily established guilt of the accused beyond reasonable doubt by letting in reliable and cogent evidence. 11. As repeatedly held, motive is a double-edged weapon and that it can be made use of by either party to wield that weapon of motive against each other. Therefore, the key question for consideration is whether the prosecution has convincingly and satisfactorily established guilt of the accused beyond reasonable doubt by letting in reliable and cogent evidence. 11. PWs 1 to 4 are the occular witnesses. Close perusal of their deposition reflects contradictions, improvements, exaggerations and coloured version put forth before the trial court particularly in respect of the origin and manner of alleged assault. PW 1 is none other than the son of the deceased who claims to have witnessed the entire occurrence from beginning to end and also identified the accused as the sole perpetrator of the crime, 12. PW I has stated that at about 10 p. in he was urinating by the roadside when he was attracted by the shouting of the accused outside the shop of his father; that he saw the accused breaking open the planks of the shop for 4-5 minutes and thereafter dragging his father from the shop outside and then lifting him in his arms and ultimately throwing him from a bight of 3 feet on the mettled road. Admittedly, as per his statement a quarrel had taken place between him and the accused just a day earlier to the occurrence. Taking cumulatively the entire circumstances into consideration, his natural behaviour would have been to demonstrate with the accused as to why he was disturbing his father at such an odd time when the latter had gone to his bed and that way he would have easily prevented the accused from committing the mischief any further. Rather his version shows that he continued to be a passive spectator to all the happenings till the accused after having thrown the deceased on the mettled road, sat on his chest and started giving fist blows. The abovesaid narration qua the origin and manner of incident throws a doubt on the prosecution version and makes PW 1 Girdhari Lai a wholly unreliable witness. The same reasoning applies to the statements of PWs 2 to 4 qua this aspect of the case 13. The abovesaid narration qua the origin and manner of incident throws a doubt on the prosecution version and makes PW 1 Girdhari Lai a wholly unreliable witness. The same reasoning applies to the statements of PWs 2 to 4 qua this aspect of the case 13. Viewing this aspect from another angle, accused was unarmed and he was all alone at the material time, On the other band, 4 persons i e., PWs 1 to 4 belonging to the complainant party were on the scene of occurrence. In their presence, the accused could not have dared to shout openly and commit the mischief in the manner detailed above. On the contrary, the said witnesses either separately or jointly could have rushed towards the accused at the very outset and apprehending the commission of the mischief on his part restrained him from breaking open the planks of the shop or at the subsequent stage they could have separated the accused from the deceased while the former was dragging him from inside the shop towards the road. 14. Another circumstance which totally be lies the prosecution version is that as per PWs 1 and 2, the deceased was sleeping inside the shop and the entire incident occurred at that place whereas according to PWs 3 and 4 the deceased was sleeping in a room adjoining to the abovesaid shop. In other words, the planks of the shop were broken according to PWs I and 2 whereas the planks of the door of the room were broken by the accused and the deceased was dragged outside therefrom as per PWs 3 and 4. Perusal of positive photographs PW 13/1 to PW 13/3 also endicates towards breaking open of the entrance door of the room. This is a major contradiction and it does not probablise the version put forth by either of the witnesses. Further, in examination-m*chief, PWs 2 to 4 have stated to have witnessed the entire occurrence but in their cross-examination they admit that they were attracted to the scene of occurrence by alarm raised by PW 1. Now as per the latter he raised alarm when the accused had sat over the chest of the deceased and started giving fist blows and when he (PW 1) had attempted to save his father from the clutches of the accused. Now as per the latter he raised alarm when the accused had sat over the chest of the deceased and started giving fist blows and when he (PW 1) had attempted to save his father from the clutches of the accused. This story is not detailed in the FIR Ex, PD which was lodged by PW 1 Girdhari Lal. 15. Another circumstance which demolishes the prosecution version and makes PWs 1 to 4 wholly un-reliable is that as per the latters version Mela Ram deceased when shifted from the road to the shop premises, was bleeding from his nose and mouth and he was unable to talk. Admittedly, Dr. G. D. Saini, PW 9, was brought from Bali Chowki to the place of occurrence and he extended medical aid to the injured. According to PW 9, he found the patient /, e.9 the deceased in a semi-conscious condition because of probable internal injuries having been sustained by him but he did not observe any such bleeding as stated by PWs 1 to 4. Rather, on his second visit at 8,30 a m. he found the deceased to be in a very serious condition inasmuch as he was gasping for breath. The medical expert did not observe any bleeding. PW 9 is an independent and disinterested witness. He has no animosity either against the complainant party or interestedness in the accused. The statement of this witness reflects a major discrepancy on material points to that of the statements of PWs 1 to 4. This fact, as stated above, by itself also creates a dent in the prose cutionversion and makes PWs 1 to 4 totally unreliable. 16. Another glaring discrepancy appears from the version ofPW2 Mangat Ram and that of Dr. G. D. Saini, PW 9. According to the former he bad narrated the incident to the latter when he was brought in the vehicle to the place of occurrence from Bali Chowki. However, PW 9 categorically states on oath that he was simply told by PW 2 that the injured was in a serious condition. Apart from it, had the cause of incident been narrated to PW 9 Dr. G D. Saini, who is a Government employee, he would have definitely reported the matter to the police taking into consideration the gravity of the condition of the patient at the material time. Apart from it, had the cause of incident been narrated to PW 9 Dr. G D. Saini, who is a Government employee, he would have definitely reported the matter to the police taking into consideration the gravity of the condition of the patient at the material time. The abovesaid circumstances taken together do reflect that prosecution has not come with clean hands before the trial court and the latter rightly rejected the prosecution story. 17. Another circumstance relied upon by the trial court and rightly so in. discrediting the prosecution version is the conduct of the complainant party, prior and subsequent to the occurrence in not having taken the steps to lodge the FIR immediately after the occurrence. Admittedly, the Police Station, Banjar was at a distance of 6 kms* from the place of occurrence. There was also a Primary Health Centre. Even the advice of PW 9 Dr. G. D. Saini to shift the patient to Primary Health Centre, Banjar which was sufficiently near and where the deceased could have been extended extensive medical aid also remained unheeded. The conduct of PW 1 in having sent for the doctor twice from Bali Chowki through PW 2 Mangat Ram by putting into service the truck aforesaid, took a long time in extending medical help to the deceased. Thus, the deceased appears to have been neglected totally by his sons despite the advice of the doctor to have got him admitted in Primary Health Centre, Banjar immediately. 18. Last but not the least the subsequent conduct of Girdhari Lal PW 1 in having reported the matter at 4 p. m. on April 19, 1977 despite the death of his father at 10 a. m. to his knowledge also raises a grave suspicion as to the authenticity of the prosecution version. In this case FIR Ex. PD was lodged after an inordinate delay of 18 hours. In the peculiar circumstances of this case, there is no evidence that the night was dark, road was rough and that the assault was so fierce that PWs 1, 2 and 7 could not proceed straightway to the Police Station to lodge the report. On the contrary, the complainant party had all the facilities to lodge the report of the incident immediately at Police Station, Banjar since they had a truck at their disposal which was put in service twice to bring Dr. On the contrary, the complainant party had all the facilities to lodge the report of the incident immediately at Police Station, Banjar since they had a truck at their disposal which was put in service twice to bring Dr. G. D. Saini, PW 9, from Bali Chowki till 8 30 a. m. It would not have taken more than half an hour for them to not only report the matter in the Police Station but also to get maximum medical aid in the Primary Health Centre over there. The explanation that PW 1 went to Police Station next morning at about 10 00 a. m., but as S. H. O. was not there, he could not lodge the report except on his second visit at 4.09 p. m. This explanation lacks authenticity as the next senior officer who was incharge of the Police Station was duty bound to record the report with regard to the offence of such serious nature. 19. Another circumstance which weighed with the trial court is that prosecution did not explain as to how and under what circumstances the accused had received injuries on his person. As per the defence the accused has categorically stated the origin and the manner in which he sustained injuries. Rather he has adduced 4 witnesses in support of his defence, which we need not discuss in view of the weakness of the prosecution version. In that view of the matter, the possibility of the defence version being true in the facts and circumstances of this case cannot be excluded. It is well established that the reasons for reversing a judgment of acquittal should be cogent and if two views are reasonably possible the appellate court should be slow in interfering with the judgment of the trial court even if it is possible for it to take a different view after process of labourious reasoning. Thus the trial court has rightly directed itself to weigh the evidence in favour of the accused. 20. For the reasons stated above we see no ground to interfere with the findings of the trial court to dislodge the same. In the result the judgment of the trial court is confirmed and the appeal preferred by the State is dismissed Appeal dismissed.