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1997 DIGILAW 263 (HP)

STATE OF HIMACHAL PRADESH v. DARSHANI DEVI

1997-06-30

KAMLESH SHARMA, SURINDER SARUP

body1997
JUDGMENT KAMLESH SHARMA, J.—This appeal at the instance of State of Himachal Pradesh is against the judgment dated 11-4-1988, passed by Addl. Sessions Judge, Solan and Sirmaur Districts at Nahan, whereby the respondents were acquitted of offences under Sections 302, 452, 147 and 148 I.P.C. 2. The prosecution case in brief is that deceased Lachhman Dass and respondent Ram Chander were brothers. Deceased Lachhman Dass and his wife Lajwanti (PW-1) on the one side and respondents Ram Chander and his wife Darshani Devi on the other side had strained relations and were residing separately. On Diwali night intervening lst/2nd November, 1986 at about 2.30 A.M. respondent Darshani Devi came to the house of deceased Lachhman Dass and Lajwanti (PW-1) with loosened hair and raised hands posing as Goddess and demanded Dhoop from Lachhman Dass. As soon as Lachhman Dass came out of his house and asked respondent Darshani Devi that for which Goddess she was demanding Dhoop1, she caught hold of him from the neck and threw him on the ground. In the meantime, other respondents, including her husband respondent Ram Chander joined her and gave fist and leg blows to deceased Lachhman Dass. When Lajwanti (PW-1) raised hue and cry Ashok Kumar (PW-3), Rajinder, Jatinder and Sham Lal came on the spot and saved deceased Lachhman Dass from the clutches of respondents and brought him in his room. Thereafter, ail the respondents went to their respective houses. The further case of the prosecution is that deceased Lachhman Dass was taken to hospital at about 3 A.M. where he was declared dead. His dead body was brought to his house and when preparations for its cremation were being made the police came at 10 A.M. and recorded statement of Lajwanti (PW-1) on the basis of which F.I.R., Ext. PA, was lodged and further Investigation was conducted. 3. Post-mortem on the dead body of deceased Lachhman Dass was conducted by Dr M.L, Gupta (PW-5), who has produced his post-mortem report on record as Ext. PD, whose relevant observations are as under: - “1. External Appearance : Conditions of subject:.. The deceased moderately built and nourished, short statured, wearing Banyan, Swetor, shirt, underwear and Pyjama. Post mortem staining was present on the back from neck to thighs. Rigor mortis was present. The eyes were closed and congested. Pupils were dilated. The face was cyanosed. PD, whose relevant observations are as under: - “1. External Appearance : Conditions of subject:.. The deceased moderately built and nourished, short statured, wearing Banyan, Swetor, shirt, underwear and Pyjama. Post mortem staining was present on the back from neck to thighs. Rigor mortis was present. The eyes were closed and congested. Pupils were dilated. The face was cyanosed. Bleeding was present on the mouth and nostrils and hands were half clenched. The tongue was swollen, but not protruding and was dark in colour. There was no discharge of urine faeces and seminal fluid. There were 7 crescentic marks produced by the finger nails which were brown, dry on the left side of the neck extending from the left angle of mandible to the mid clavicular line as shown in the diagram (as far as possible) and the distances amongst each other. There were crescentic marks 9 more on the left shoulder as shown in the diagram adjacent to the previous one. There were two more crescentic marks on the right shoulder one on the anterior aspect and one on the posterior aspect. There was a mark probably thumb 1.5 cm by 2 cm wide on the centre of the neck just below the cricoid cartilage. The area showed slight swelling as compared to the adjacent skin with fracture of two cartilages of trachea underneath it, The subcutaneous tissue underneath it showed ecchymosis." In the opinion of the doctor, deceased Lachhman Dass died of asphyxia caused by throttling. In his cross-examination, he has explained that time of death I shown in his report was given to him by the police. He has himself ascertained the time between the death and the post-mortem as within 24 hours for the reason that rigor mortis was present on the person of deceased Lachhman Dass which starts fading after 24 hours. He has further stated that there were no nail marks on the right side of the neck. He could not infer from the nail marks found on the left side of the neck as well as on the left and right shoulders whether these were of right or left hand or of male or female or of which size of hand. He has admitted that lot of pressure is required for throttling and explained that it is not must that throttling would cause mark of pressure on both sides of the windpipe. He has admitted that lot of pressure is required for throttling and explained that it is not must that throttling would cause mark of pressure on both sides of the windpipe. He has also admitted that there was no mark of violence on the right side of the neck of deceased lachhman Dass. In his opinion, so many hands were used for throttling the neck of deceased Lachhman Dass which might be 2,3 or 4 and the assailant could be on his front and on the back. He has further clarified that he did not find any of the teeth of deceased Lachhman Dass broken. 4. Out of the eye-witnesses only Ashok Kumar (PW-3), complainant Lajwanti (PW-1) and Haminder Kumar (PW-2), son of deceased Lachhman Dass have been produced. Lajwanti (PW-1) and Haminder Kumar (PW-2) have supported the prosecution but according to Lajwanti (PW-1) it was respondent Darshani Devi who had throttled deceased Lachhman Dass whereas according to Haminder Kumar (PW-2) respondent Ram Chander had also pressed the throat of deceased Lachhman Dass when he was lying on the ground. Both of them have stated that all other respondents had given severe beatings to deceased Lachhman Dass with first and leg blows and he was seriously injured. The only other eye-witness Ashok Kumar (PW-3) has not supported the proseuction. He has stated that when he came on the spot after hearing noise he found respondents Darshani Devi and Ram Chander and deceased Lachhman Dass grappling with each other and he separated them. Thereafter, all of them went to their houses. According to him, at that time deceased Lachhman Dass was alright and had not received any injury. He has also denied the presence of other respondents on the spot at the time of occurrence. The other eye-witnesses who were named in the F.I.R. Ext. PA were given up. 5. From the perusal of the statements of eye-witnesses, the trial court has rightly held that the presence of respondents Kakoo alias Surinder, Harish alias Pinka, Dinesh alias Babla and Ajeet Kumar on the spot and their participation in the alleged occurrence is doubtful. The oral testimony of Lajwanti (PW-1), Haminder Kumar (PW-2) is inconsistent with the medical evidence given by Dr. The oral testimony of Lajwanti (PW-1), Haminder Kumar (PW-2) is inconsistent with the medical evidence given by Dr. M.L Gupta (PW-5) inasmuch as according to the version given by them as a result of fist and leg blows deceased Lachhman Dass had received multiple injuries and his one tooth was also broken whereas Dr. M.L. Gupta did not find and such injury and broken tooth except the nail marks as stated in Paragraph-3 above. One of the material contradictions in their statements is that according to Lajwanti (PW-1) only Darshani Devi had throttled deceased Lachhman Dass whereas according to Haminder Kumar (PW-2), Ram Chander had also pressed his throat but neither of their version has been corroborated by Dr. M.L. Gupta, who has opined that, "So many hands were used for throttling the neck. It was more than one, may be 2,3 or 4." Further, being close relations, the statements of Lajwanti (PW-1) and Haminder Kumar (PW-2) deserve to be examined cautiously and in the absence of corroboration by other eye-witnesses, who were admittedly present on the spot, these cannot be accepted on their face value. The only independent eye-witness Ashok Kumar (PW-3) has not supported their version. 6. Another reason for not accepting the version given by Lajwanti (PW-1) and Haminder Kumar (PW-2) is the delay in filing the F.I.R. Admittedly, the incident happened in the night intervening 1st/2nd November, 19B6 at about 2.30 a.m. and it was known to Lajwanti (PW-1), Haminder Kumar (PW-2) and all other present in the hospital at 3 a.m. that he was dead still nobody reported the matter to the police, even while bringing the dead body to their house despite the Police Station, Gunnughat falling on the way from Hospital at Nahan. The explanation given by Lajwanti (PW-1) and Haminder Kumar (PW-2) that their relation Jiwanoo had told them to report the matter to the police after the cremation of the dead body does not inspire confidence. They have contradicted themselves by their further statement that Jiwanoo Ram had made the said statement only after they had brought the dead body of Lachhman Dass from the hospital. They have contradicted themselves by their further statement that Jiwanoo Ram had made the said statement only after they had brought the dead body of Lachhman Dass from the hospital. Even if their statement is accepted their conduct of not disclosing to the doctor that deceased Lachhman Dass was given beatings and keeping quiet till Inspector Dev Raj (PW-9) reached their house next morning at 10 a.m. on receipt of telephonic call from local M.L.A. and recorded the statement of Lajwanti (PW-1) does not seem to be natural. 7. One more circumstances on record is that F.I.R. dated 3rd November, 1986 had reached the Magistrate on 4th November, 1986 though the Magistrate resides in the same town where the Police Station is situated. This assumes importance in view of the fact that inquest report Ext. PG, which was prepared immediately after the recording of the statement of Lajwanti (PW-1) under Section 154 Cr.P.C. Ext. PA in her presence as well as that of other witnesses, does not mention that Darshani Devi had caught hold of deceased Lachhman Dass from the neck and thrown him on the ground which was already mentioned in her statement under Section 154 Cr.P.C. Ext. PA and creates serious doubt that F.I.R. was recorded later and after due deliberations. 8. There cannot be any quarrel to the proposition laid down in the State of Karnataka v. Moin Patel and others, AIR 1996 SC 3041, cited by Shri Pathik, learned Addl. Advocate Geneal, that where the F.I.R. is promptly lodged and the investigation started promptly on the basis of the F.I.R., the mere delay in dispatch of the F.I.R., and for that matter in receipt thereof by the Magistrate would not make the proseuction case suspect because provision of Section 157 Cr.P.C. is designed to keep the Magistrate informed of the investigation of a cognizable offence so as to be able to control the investigation and if necessary to give proper direction under Section 159 Cr.P.C. But in the present case we have found delay| in lodging F.I.R., as such, delayed receipt of report by the Magistrate concerned! becomes relevant. 9. In another judgment in Bhikari Behera v. State of Orissa, 1995 Cri LJ 2998, cited by Shri Pathik, learned Addl. becomes relevant. 9. In another judgment in Bhikari Behera v. State of Orissa, 1995 Cri LJ 2998, cited by Shri Pathik, learned Addl. Advocate General, the proposition laid-down is that the proceedings for inquest under Section 174 Cr.P.C. have a very limited scope, i.e., merely to ascertain whether a person had died in suspicious circumstances or an un-natural death and if so, what is apparent cause of the death ? The question regarding the details as to who the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceeding under Section 174 Cr.P.C. Again there can be no dispute with this proposition. But in the present case in the inquest report Ext. PG while giving brief description of the case it is mentioned that at 12.30 a.m. respondents Ram Chander and his wife Darshani Devi alongwith their nephews entered in the verandah of Lachhman Dass and gave him beating with fist and kicks, threw him on the ground and pressed his throat and chest as a result of which he has died. This description is in material contradiction with the statement! of Lajwanti (PW-1) under Section 154 Cr.P.C. on the basis of which F.I.R. Ext. PA was registerd first by the same I.O. who had thereafter prepared inquest report Ext. PG, therefore, in the normal course the brief description of the case in the inquest report should have been as that of F.I.R. and there should not have been any discrepancy as has been found in the present case which creates a doubt that the F.I.R. was not recorded at the time it is alleged to have been recorded and it was recorded after due deliberations. 10. The result of above discussion is that we do not find any infirmity in the impugned judgment and the appeal is dismissed. Bail bonds furnished by the respondents are discharged. Appeal dismissed.