Parkash Chand v. The State of Himachal Pradesh — 1998 DIGILAW 47 (HP)

JUDGMENT R.L. Khurana, J. 1. The Appellant, Parkash Chand, has preferred the present appeal against the judgment dated 18.8.1994 of the learned Additional Sessions Judge, Solan, Camp at Nalagarh, whereby he has been convicted for the offence under Section 326, Indian Penal Code, and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000. In default of payment of fine, he was sentenced to undergo rigorous imprisonment for a further period of one year. 2. The Appellant, along with other five co-accused, was charged and tried for the offences under Section 148 and Sections 323, 324, 325 and 307, read with Section 149 of the Indian Penal Code, for having made murderous assault on one Shri Kali Dass and for having caused injuries to Smt. Gurdei, Om Parkash and Prem Chand on 9.11.1988 at about 5 p.m. at Peerthan (a religious seat). 3. The Appellant, as well as his five co-accused stand acquitted of the offences charged against them. However, the Appellant has been convicted and sentenced for the offence under Section 326, Indian Penal Code, as aforesaid. 4. Be it stated that the acquittal of the Appellant and his co-accused of the offences under Section 148 and Sections 323, 324, 325 and 307, read with Section 149, Indian Penal Code, as recorded by the learned Additional Sessions Judge, has not been assailed by the State by way of an appeal or otherwise. Such acquittal has thus become final. 5. Briefly, the prosecution story may be thus stated. On 9.11.1988, when Kali Dass (since deceased) was present in his hut, along with his brother Prem Chand, son, Om Parkash and wife Smt. Gurdei, the Appellant and his five co-accused after forming an unlawful assembly gathered in the open space in front of the hut and started hurling abuses on him and challenging him to come out of the hut and to face the consequences. Kali Ram came out of his hut and with folded hand requested the Appellant and his co-accused not to abuse him and members of his family and also not to create any trouble and unruly scene on the auspicious Diwali day. The Appellant and his co-accused, the moment Kali Dass came near them, assaulted him. Kali Ram came out of his hut and with folded hand requested the Appellant and his co-accused not to abuse him and members of his family and also not to create any trouble and unruly scene on the auspicious Diwali day. The Appellant and his co-accused, the moment Kali Dass came near them, assaulted him. The Appellant and his co-accused Siri Ram gave axe blows on the head of Kali Dass, while the remaining co-accused of the Appellant inflicted lathi blows on his person. When Prem Chand, Om Parkash and Gurdei, the brother, son and wife, respectively of Kali Dass, tried to intervene and save Kali Dass, they were also given axe and lathi blows by the Appellant and his co-accused. On hearing the alarm, several persons gathered at the spot and two of such persons, that is, Sarvshri Ram Gopal and Ghiya Ram rescued Kali Dass, his brother, son and wife. 6. When Kali Dass, his wife and son was proceeding towards Nalagarh, he happened to meet a police party headed by Sub-Inspector, Ashwathama of Police Station, Nalagarh. Kali Dass reported the matter to the said Sub-Inspector, who after recording the statement of Kali Dass, under Section 154, Code of Criminal Procedure, forwarded the same to the police station for the registration of the case. 7. Investigation of the case was carried out by Sub-Inspector Ashwathama. Kali Dass, his wife and son were got medically examined at Rural Hospital, Nalagarh. Weapons of offence, namely, Lathies and axe were taken into possession. 8. On completion of investigation, the Appellant and his co-accused were sent up for trial. They pleaded not guilty. The Appellant and his co-accused in their statements recorded under Section 313, Code of Criminal Procedure have pleaded false implication due to past enmity. It was stated that being Diwali day, a number of persons had gathered at Peerthan, who had consumed liquor and crackers were fired. It was further stated that the people gathering at Peerthan usually quarrel after consuming liquor and that Kali Dass, his wife and son might have sustained the injuries during such brawl. 9. Kali Dass, abovenamed, could not be examined before the learned trial Court, since he, in the meantime, had died. The prosecution case primarily rests on the evidence of PW 2 Om Parkash and PW 3 Gurdei. 9. Kali Dass, abovenamed, could not be examined before the learned trial Court, since he, in the meantime, had died. The prosecution case primarily rests on the evidence of PW 2 Om Parkash and PW 3 Gurdei. The brother of Kali Dass, namely, Prem Chand, was neither cited as a witness nor examined in the present case. Out of the two alleged eye-witnesses, that is, Ghiya Ram and Ram Gopal, only the later has been examined as PW 1. He has not supported the prosecution case. Though he was got declared hostile and subjected to cross-examination by the prosecution, nothing could be elicited to show that either he was suppressing the truth or was in any way interested in the Appellant. The other eye-witness Ghiya Ram, was not examined. He was given up as having been won over. 10. It is well settled that giving up of a witness, as having been won over is of no relevance. It, in fact, tantamounts to non-examination of a witness for which an adverse inference can be drawn. The course open to the prosecution was to examine such witness and on his failure to support the prosecution case to get him declared hostile and then to subject him to cross-examination in order to elicit the truth from him. 11. In the present case, on the failure of the prosecution to examine Ghiya Ram, an independent eye-witness, the only inference, which can be drawn is that had he been examined, he would not have supported the prosecution case. 12. Much reliance has been placed by the learned trial Court, on the testimony of PW 3, Smt. Grudei. Admittedly, this witness is dumb. Before proceeding to record the statement of this witness, the learned trial Court has made the following observations: The witness is completely dumb. Her name and other particulars have been recorded on being suggested to her by the learned Public Prosecutor. The learned Public Prosecutor has asked her to take oath and the witness has nodded in the affirmative in token of swearing in the name of God. Though in para 18 of its judgment, the learned trial Court has observed: PW 3 Gurdei is no doubt dumb, but she is not deaf. She is an intelligent lady. The learned Public Prosecutor has asked her to take oath and the witness has nodded in the affirmative in token of swearing in the name of God. Though in para 18 of its judgment, the learned trial Court has observed: PW 3 Gurdei is no doubt dumb, but she is not deaf. She is an intelligent lady. There is nothing in the observations noted by the learned trial Court at the time of examination of PW 3 that she was not deaf. Section 119, Evidence Act, provides: Dumb witnesses.-A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open court. Evidence so given shall be deemed to be oral evidence. While dealing with the manner in which the evidence of a dumb witness is to be recorded under Section 119, Evidence Act, it has been held by the High Court of Gujarat in Kumbhar Muss Alib v. State of Gujarat AIR 1966 Guj 101, in the following terms: If evidence is recorded under that section, there must be a record of signs and not the interpretation of signs. It was further held that if the trial Court fails to record the signs made by the witness the in answer to questions put to him and records only interpretation of such signs, there is no correct compliance of Section 119, Evidence Act. This also does not enable the appellate Court to know whether the interpretation of the signs is correct or not. 13. A Division Bench of the Kerala High Court in Kadungoth Alavi v. State of Kerala 1982 Cri. L.J. 9, while impressing upon the need to examine a deaf and dumb witness with the help of an expert or some person who is very much familiar with the witness, has observed: As the learned Sessions Judge cannot be expected to have anything more than a layman's knowledge in conversing with a deaf and dumb person, it was highly improper on his part to embark upon the examination of PW 4 without the help of an expert or a person familiar with his mode of conveying ideas to Ors. in day-to-day life. in day-to-day life. The learned trial Court, therefore, in the present case has committed an error, in relying upon the statement of PW 3, Smt. Gurdei. The only other witness left in the case is PW 2 Om Prakash, son of Kali Dass and PW 3, Smt. Gurdei. 14. It is significant to note that as per the prosecution case, the Appellant and his co-accused are alleged to have given axe and lathi blows to PW 2, Om Parkash, PW 3, Smt. Gurdei and Gian Chand also. The Appellant and his co-accused were charged and tried for the offences under Sections 323 and 325, read with Section 149, Indian Penal Code for having caused simple and grievous injuries to Smt. Gurdei and Om Parkash. The learned trial Court did not accept the evidence of PW 2, Om Parkash in this regard and has acquitted the Appellant and his co-accused of such offences. The learned trial Court has observed in para 25, of its judgment; as under: 25. As discussed under Point No. 1, the evidence of the prosecution with respect to the complicity of the accused, other than accused Parkash Chand, is contradictory and inconsistent. Though, the injuries on the person of Om Parkash and Gurdei show that some accused persons other than accused Parkash Chand also took part in the commission of the crime and caused hurts to Om Parkash and Gurdei, but the evidence with respect to the complicity of the other accused persons, being contradictory and inconsistent, it is not possible to say as to which of the other five accused persons actually took part in the commission of the offence and/or which of them voluntarily caused hurts to Om Parkash and Gurdei. Point has been answered accordingly. Ex. PN is the medico-legal certificate in respect of Kali Dass. A perusal of the same shows that as many as six injuries were found on his person. Two of such injuries were on the region of head. While one injury was opined to have been caused by a sharp edged weapon, the second was opined to have been caused by blunt weapon. Both the injuries on the head were found to be of grievous nature. 15. According to PW 2, Om Parkash, at the relevant time, the Appellant and his two co-accused, Siri Ram and Gian Chand were armed with axe. Both the injuries on the head were found to be of grievous nature. 15. According to PW 2, Om Parkash, at the relevant time, the Appellant and his two co-accused, Siri Ram and Gian Chand were armed with axe. The remaining three co-accused of the Appellant were armed with Lathis. PW 2 has deposed in the following terms: When my father was requesting them to withdraw, accused Parkash Chand, Siri Ram and Gian Chand who were armed with axes and accused Baldev who was armed with a Danda attacked my father. Ex. PM is the statement of Kali Dass, which was recorded under Section 154, Code of Criminal Procedure. As stated above, Kali Dass could not be examined during the course of trial since he had died in the meanwhile. A perusal of Ex. PM shows that as per the version of Kali Dass only the Appellant and his co-accused Siri Ram were armed with axe and both of them had given one axe blow each on his head. The version coming in Ex. PM stands contradicted by PW 2 Om Parkash, according to whom three persons were armed with axe and that all the three had given axe blow on the head of Kali Dass. 16. The evidence coming on record, therefore, does not specifically establishes that the grievous injury with sharp-edged weapon found on the head of Kali Dass was caused by the Appellant and none else. The story of the prosecution that the Appellant and his five co-accused constituted an unlawfully assembly was not accepted by the learned trial Court. The common intention of the Appellant and his co-accused was also held not proved. Therefore, the onus was heavily on the prosecution to prove that the injury in question was caused by the Appellant and none else. The prosecution has not been able to prove this fact beyond a reasonable doubt. Therefore, the Appellant cannot be held guilty of the offence under Section 326, Indian Penal Code, for which he stands convicted and sentenced. 17. As a consequence, the present appeal is allowed. The conviction and sentence imposed upon the Appellant by the learned trial Court are set aside and he is acquitted of the offence under Section 326, Indian Penal Code. 18. The Appellant is on bail. His bail bonds shall stand cancelled and discharged. 17. As a consequence, the present appeal is allowed. The conviction and sentence imposed upon the Appellant by the learned trial Court are set aside and he is acquitted of the offence under Section 326, Indian Penal Code. 18. The Appellant is on bail. His bail bonds shall stand cancelled and discharged. The amount of fine, if already paid by the Appellant, shall be refunded to him forthwith.