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2000 DIGILAW 274 (HP)

AMAR SINGH v. STATE OF HIMACHAL PRADESH

2000-10-06

LOKESHWAR SINGH PANTA, R.L.KHURANA

body2000
JUDGMENT Lokeshwar Singh Panta, J.—The appellant Amar Singh took his trial before the Sessions Judge, Chamba Division under Section 302 of the Indian Penal Code for the murder of Anoop Singh. By the impugned judgment and order, the learned Sessions Judge in Sessions Case No. 9/1998 convicted the appellant on 1.12.1998 and sentenced him to life imprisonment and to pay fine of Rs. 5,000, in default of payment of fine he shall undergo rigorous imprisonment for one y6ar. In this appeal, the appellant has challenged his conviction and sentence. 2. The prosecution case may be briefly stated:— 3. Anoop Singh (deceased) had been residing in the house of Shri Sukhia Ram (PW 4) in village Miyari Gala. On 29.8.1997 at 7.45 p.m. when the deceased was sitting in the tea-stall of Pawan Kumar (PW 1) at Miyari Gala, the appellant who was carrying a bottle of illicit liquor came there. The appellant and the deceased consumed the entire liquor at the tea-stall of PW 1. At about 8.30 p.m. Sat Prakash (PW 11) also came there who was already drunk. The appellant asked PW 1 to arrange more liquor for them and the latter obliged them and served half bottle of illicit liquor which was also consumed by the appellant, deceased and PW 11 jointly. It was further case of the prosecution that the appellant then started playing tape-recorder of PW 1 and then he along with the deceased and PW 11 started dancing in the tea-stall of PW 1. When they were dancing, a quarrel took place between the appellant and the deceased. PW 1 told both of them that they should leave his tea-stall because he wanted to close the stall and accordingly, all of them came out of the tea-stall. Subsequently, the deceased allegedly took out his jacket and threw the same on the heap of fuelwood and started giving the kick blows to the planks of the tea-stall of PW 1. The appellant stopped the deceased from doing so and the former wanted to take the deceased to the nearby path, but, deceased started hurling abuses on the appellant. Subsequently, the deceased allegedly took out his jacket and threw the same on the heap of fuelwood and started giving the kick blows to the planks of the tea-stall of PW 1. The appellant stopped the deceased from doing so and the former wanted to take the deceased to the nearby path, but, deceased started hurling abuses on the appellant. The appellant suddenly took out a lathi from the heap of fuelwood and wielded one blow of lathi on the head of the deceased due to which the deceased fell down and blood started oozing out of the injuries caused on his head as a result of the said blow. It was alleged that thereafter, the appellant had dragged the deceased towards the path and again had given four more blows of lathi on the head and other parts of the body of the deceased in the presence of PW 1 and PW 11. PW 1 had gone to the nearby house of PW 4 where Prakash Chand PW 2 was also present and PW 1 had narrated the entire incident to them. PWs 1, 2 and 4 then came to the spot of occurrence and they found Anoop Singh lying dead below the path and that the appellant and PW 11 both, were not present there. Thereafter, they went to the nearby shop of one Prem Lal and passed on information regarding the incident on telephone to Shri Des Raj, (DW 1) Member Zila Parishad at Khajjiar. The Police had reached the spot of occurrence on the same night. Inspector Shri Kishori Lal (PW 15) on reaching at the spot, recorded the statement of PW 1 (Ext. PA) under Section 154 of the Code of Criminal Procedure on the basis of which FIR (Ext. PK) dated 30.8.1997 came to be registered at Police Station Sadar Chamba at 4.30 a.m. against the appellant. PW 15 prepared site plan (Ext. PQ) and held the Inquest Report (Ext. PR) on the spot. The dead body of the deceased was sent to the post mortem which was conducted by Dr. Raman Puri (PW 10). PW 15 recorded the statements of the witnesses. Shri Rajan Gupta, Additional Chief Judicial Magistrate, Chamba (PW 12) recorded the statement of PW 11 under Section 164 Cr.P.C. On receipt of the report (Ext. PU) of the Scientific Officer, Toxicology and Forensic Science Laboratory, Junga, Dr. Raman Puri (PW 10). PW 15 recorded the statements of the witnesses. Shri Rajan Gupta, Additional Chief Judicial Magistrate, Chamba (PW 12) recorded the statement of PW 11 under Section 164 Cr.P.C. On receipt of the report (Ext. PU) of the Scientific Officer, Toxicology and Forensic Science Laboratory, Junga, Dr. Raman Puri reiterated his opinion about the cause of the death of Anoop Singh recorded by him in post mortem report (Ext. PN). 4. The appellant was arrested on 30.8.1997. After his arrest, he made disclosure statement (Ext. PD) to the Police; in consequence thereof blood stained clothes of the appellant and the weapon of offence were recovered at his instance in the presence of Izaj Mehmood (PW 3). One pair of shoes of the appellant and jacket of the deceased were taken into possession by the police. Blood stained earth and one piece of wood which was also blood stained were also taken into possession from the spot. All the articles were put in sealed parcels and the same were sent to the Forensic Science Laboratory for examination. After completion of the investigation, charge sheet was laid against the appellant for the commission of the murder of Anoop Singh before the Chief Judicial Magistrate, Chamba who committed the case for trial to the learned Sessions Judge. 5. The learned Sessions Judge prima facie, found sufficient material on record and charged the appellant under Section 302 of the Indian Penal Code. The appellant pleaded not guilty to the charge and claimed to be tried. 6. To substantiate its case, the prosecution examined as many as fifteen witnesses including PW 1 and PW 11 eye witnesses. Out of the two eye witnesses, PW 11 turned hostile to the prosecution. PW 2 and PW 4 are the witnesses to whom PW 1 had narrated the entire incident and PW 3 is the witness in whose presence, the appellant made disclosure statement. Head Constable Chain Singh (PW 5), Head Constable Surinder Kumar (PW 6), Constable Naresh Kumar (PW 7), ASI Pritam Singh (PW 8), Anil Kumar, Patwari (PW 9), Kishori Lal (PW 13) and Head Constable Mohan Lai (PW 14) are the formal witnesses. Dr. Raman Puri (PW 10) proved post mortem report (Ext. PN) of the dead body of the deceased. PW 15 has conducted the investigation of the case and recorded disclosure statement of the appellant (Ext. Dr. Raman Puri (PW 10) proved post mortem report (Ext. PN) of the dead body of the deceased. PW 15 has conducted the investigation of the case and recorded disclosure statement of the appellant (Ext. PD) and in consequence to the said disclosure statement lathi (Ext. P-l) was recovered by him at the instance of the appellant. 7. In his statement recorded under Section 313 Cr.P.C. the appellant denied the allegations levelled against him and stated that he has been falsely implicated in the case. The appellant has not raised any specific plea in his statement. However, he examined Des Raj, Member Zila Parishad as DW 1 in his defence who informed the police of police post Khajjiar about the death of some person. The defence of the appellant as suggested to PW 1 was that it was PW 1 and his brother who killed Anoop Singh and the case has been falsely cooked up against him which PW 1 has emphatically denied. 8. On appraisal of both oral and documentary evidence on record, the learned Sessions Judge found the appellant guilty of the offence for which he was charged and accordingly convicted and sentenced him. Now the appellant has challenged the legality and correctness of the judgment and order of the learned Sessions Judge in this appeal. 9. We have heard Shri Anup Chitkara, learned Counsel appearing for the appellant and Sh. M.S. Guleria, learned Deputy Advocate General for the State and analyzed the entire material placed on record. 10. Out of the two eye-witnesses, namely PW 1 and PW 11 only PW 1 supported the prosecution case whereas PW 11 has turned hostile to the prosecution. PW 1 deposed that on 29.8.1987 at about 6 p.m. the deceased had come to his tea-stall and thereafter at about 7.45 p.m., the appellant also came there and both of them joined together to take liquor inside his tea-stall. In meantime, PW 11 also joined them. After consuming one bottle of liquor, the appellant, the deceased and PW 11 switched on his tape-recorder and started dancing; while they were dancing, the appellant pushed the deceased which resulted in exchange of arguments between them and they started shouting at each other and ultimately their shouting turned into a quarrel. It was about 9 p.m. when he turned the above said three persons out of his tea-stall and thereafter closed the tea-stall. It was about 9 p.m. when he turned the above said three persons out of his tea-stall and thereafter closed the tea-stall. He further explained that thereafter, the deceased started giving kick blows to the planks of his tea-stall and also started hurling abuses to the appellant and that the appellant took out lathi from the heap of fuelwood and inflicted one blow of lathi on the head of the deceased as a result of which the deceased fell down on the ground. The deceased was the tenant of PW 4 at the relevant time whose house is at a distance of 15 ft. from his tea-stall. The appellant then dragged the deceased by catching him from hair of his head and taken him towards the roadside where he was given four more blows on his head. On seeing the incident he went to the house of PW 4 and informed and narrated the entire incident to him and PW 2 who was also present there at that time. Thereafter all of them came to the place of occurrence and found Amar Singh lying dead on the footpath which was at a distance of about five feet from the main road but the appellant and PW 11 were not present there. All the three of them then went to the shop of one Prem Chand and informed Shri Des Raj (DW 1) Member, Zila Parishad at Khajjiar on telephone regarding the incident and subsequently at about 11 p.m. the Police from Khajjiar reached at the spot. The police from police station, Chamba also reached the place of occurrence at about 3 a.m. on the same night and recorded his statement (Ext. The police from police station, Chamba also reached the place of occurrence at about 3 a.m. on the same night and recorded his statement (Ext. PA) under Section 154 Cr.P.C. The suggestions of the defence in the cross-examination of PW 1 were that there had been exchange of hot words between him and the deceased on that night and the deceased had broken the bottle of liquor; that the deceased caught hold of him by his neck and from the collar of his shirt and had thrown a challenge to the effect that the deceased would show him the result and thereafter, the deceased had gone to his house to bring chhura and at that time the appellant and PW 1 fled away from the scene of occurrence; that PW 1 and his brother followed the deceased and had given beatings to him by means of lathi as a result of which deceased had died and false case having been made against the appellant. All those suggestions have been emphatically denied by the PW 1. 11. PW 11 another eye-witness of the occurrence admitted having gone to tea-stall of PW 1 on the day of the occurrence for taking kerosene oil when he saw PW 1, appellant and the deceased jointly taking liquor in the tea-stall. PW 1 told him that he did not have any kerosene oil. He explained that at that time he was already drunk and the appellant had offered him one peg of liquor which he had consumed. The appellant thereafter switched on the tape-recorder of PW-1 and started dancing. On persuasion of the appellant, he also joined him in the dance but the deceased refused to participate and kept standing. He denied that any quarrel or fight took place in his presence between the appellant and the deceased. However, in his cross-examination conducted by the learned Public Prosecutor, the witness admitted that the police had recorded the statement on the night of the occurrence. He has denied the entire version of PW 1 with regard to the genesis and manner of the occurrence. However, the witness stated that the deceased had hurled abuses on PW 1 and caught hold of him by his neck and thereafter the deceased had gone to his house to bring Chhura. He has denied the entire version of PW 1 with regard to the genesis and manner of the occurrence. However, the witness stated that the deceased had hurled abuses on PW 1 and caught hold of him by his neck and thereafter the deceased had gone to his house to bring Chhura. He stated that after PW-1 had closed the tea-stall, he left that place and he did not know if the appellant remained there or he also left to his house. However, he admitted the contents of his statement (Ext. PP) recorded by PW-12 under Section 164 Cr.P.C. but said that the contents contained in the said statement were as a result of pressure exercised upon him by the police for which he was tutored. However, it has come in his evidence that he had shown his willingness to make his statement before the Magistrate. It has come in his evidence that had he not made the statement before the Magistrate as suggested by the Police, he would have been implicated falsely in the present case. 12. PW 2 and PW 4 have fully corroborated the version of PW 1. It is evident from their statements that they came to the scene of occurrence, they saw blood in the compound of tea-stall of PW-1 and found dead body of the deceased lying on the path and there were injuries on his head. PW-10 Dr. Raman Puri deposed that he conducted the post mortem on the dead body of the deceased and found that there was lacerated wound on left pinna and 3 inch lacerated wound on the left side of the forehead of the deceased and brain matter was coming out of the same and fragments of bone were visible. Dr. Puri also found one inch lacertated wound on the left parietal region of the deceased and it was deep with underlying fracture. Two lacerated wounds on the left side of the scalp behind and above the mestoid region with underlying fracture were also noticed. Dr. Puri explained that whole of skull bones of the left side from frontal till occipital bone were having multiple depressed fractures with underlying haemorrhage giving the skull a boggy feeling on left side. He also explained that there was massive intracranial haemorrhage with brain laceration. In the opinion of Dr. Dr. Puri explained that whole of skull bones of the left side from frontal till occipital bone were having multiple depressed fractures with underlying haemorrhage giving the skull a boggy feeling on left side. He also explained that there was massive intracranial haemorrhage with brain laceration. In the opinion of Dr. Puri, the deceased died due to the said multiple depressed fracture of skull bones with brain laceration and intracranial haemorrhage and the injuries found on the dead body of the deceased were individually sufficient to cause his death in the ordinary course of nature. In the opinion of the Doctor these injuries could have been caused by means of lathi (Ext. P-l). Apart from these injuries Dr. Puri also noticed multiple contusions on both the knees of the deceased and one linear contusion 3-1/2" x 1/2" on the outer side of right forearm near wrist. There were multiple linear abrasions and contusions on the left side of the chest near nipple and two linear contusions on the left shoulder; multiple abrasions on the back and multiple lacerated wounds on the right side of the chin with clotted blood were also noticed on the dead body of the deceased. Dr. Puri opined that the multiple injuries on the back of the deceased were suggestive of the fact that he was forcibly dragged. According to Dr. Puri, the deceased died within few minutes after the said injuries were caused to him. The suggestion put to Dr. Puri that the abrasions noticed by him on the dead body of the deceased could be caused by a fall on stony surface, has been emphatically denied by him. 13. PW-12 Shri Rajan Gupta, Additional Chief Judicial Magistrate, Chamba deposed that he recorded statement Ext. PP of PW-11 under Section 164 Cr.P.C. after satisfying himself that PW-11 was making the said statement voluntarily and proved the written willingness of PW-1 recorded on statement Ext. PP marked Ext. PP/1. It has come in the evidence of Shri Gupta that he had explained to PW-1 that he was not bound to make statement and to this effect he had appended a certificate at the bottom of the document Ext. PP marked as Ext. PP/2. PP marked Ext. PP/1. It has come in the evidence of Shri Gupta that he had explained to PW-1 that he was not bound to make statement and to this effect he had appended a certificate at the bottom of the document Ext. PP marked as Ext. PP/2. In his cross-examination, Shri Gupta said that on his asking from PW-11 as to why he was making the statement, the witness had replied that he wanted to tell the truth and for making his statement, the witness was given sufficient time to think before his statement could be recorded. He denied that PW-15 the Investigating Officer was present in the court room when the statement of PW 1 was recorded. 14. The close scrutiny of the aforesaid evidence on record would make it evident that there was sufficient, unambiguous and clinching evidence adduced on record to connect the appellant causing injuries to the deceased with lathi blows as a result of which the deceased had died. PW-1 solitary eye-witness has stood the test of cross-examination because his testimony has not been shaken and ( impeached despite lengthy and effective cross-examination by the learned Counsel for the appellant. The appellant has not proved any enmity between him and PW-1 because not a single suggestion has been put to the witness in his cross-examination and the suggestion that it was PW-1 who had motive to kill the deceased in connivance with his brother has been emphatically denied by him. PW-1 has given a vivid and detailed account of the occurrence which is reliable, believable and convincing and his testimony has been fully corroborated by the medical evidence on record. The evidence of PW-1 that the deceased was dragged by the appellant was evident from the fact that there was trail of blood at the place of occurrence which has been shown in photographs Exts. P-18 to P-24 taken by Shri Kishori Lal (PW-13) a photographer at Khajjiar and was asked by the Police to take photographs at the place of occurrence. The statement Ext. PA of PW-1 was recorded immediately after the occurrence at about 3 a.m. by the police. Therefore, the learned Sessions Judge has rightly placed reliance on the evidence of PW-I who is a truthful witness and his evidence is quite credible and convincing. The statement Ext. PA of PW-1 was recorded immediately after the occurrence at about 3 a.m. by the police. Therefore, the learned Sessions Judge has rightly placed reliance on the evidence of PW-I who is a truthful witness and his evidence is quite credible and convincing. In the teeth of the clear-cut and specific evidence of Shri Rajan Gupta, the Magistrate who proved the statement of PW-11 recorded under Section 164 Cr.P.C. it cannot be said that PW-11 made the statement before the Magistrate under pressure, duress or threat of the Police. If the version of PW-11 about making the statement under the pressure of the Police is to be believed, he would have definitely told the Magistrate about the said pressure at the time of recording of his statement by the Magistrate. Therefore, the only inference which could be drawn from his conduct was that he had made the statement Ext. PP voluntarily and there was no pressure of the Police on him and it was only lateron he has resiled from his earlier statement in the Court. The learned Sessions Judge has rightly relied upon the statement Ext. PP recorded under Section 164 Cr.P.C. by PW-12 and there is no reason for us to take a different view. 15. Shri Anoop Chitkara, learned Counsel for the appellant contended that the prosecution has failed to prove beyond reasonable doubt that it was only the appellant and none else who assaulted the deceased Anoop Singh and he has taken us through some portions of the evidence of PW-1, PW-4, PW-11, PW-12 as well as answer to question No. 16 put to the appellant under Section 313 Cr.P.C. and further to the evidence of DW-1 Des Raj. In his statement PW-1 has said that PW-11 Satpal was with him throughout the fight which ensued between the appellant and the deceased whereas PW-1 told PW-4 that there was a quarrel between the appellant, deceased and PW-11. The learned Counsel pointed out that it has come in the evidence of PW-11 that the appellant, deceased, the witness and PW-1 had joined together and took liquor and no quarrel or fight took place in his presence in between the appellant and the deceased. 16. The learned Counsel pointed out that it has come in the evidence of PW-11 that the appellant, deceased, the witness and PW-1 had joined together and took liquor and no quarrel or fight took place in his presence in between the appellant and the deceased. 16. In his statement DW-1 said that when he visited the spot of occurrence, PW-1, his brother; PW-4; one Prem Lai and PW-2 were present there and when he inquired from PW-1 regarding the murder of the deceased, PW-1 told him that he along with the deceased and PW-11 took liquor together and the deceased under the influence of liquor, started giving fist blows to his counter. PW-1 requested the deceased not to do so, thereafter, the deceased started saying that he will see PW-1 at Chamba and after that the deceased had run away from the spot. PW-1 also told him that he followed the deceased outside the shop and since it was dark at that time, he came back and closed his shop. He further disclosed that when PW-1 was coming after closing his shop he found the deceased lying dead nearby his shop and at that time PW-1; his brother; PW-11 and deceased were present at the spot. Once the evidence of eyewitness PW-1 corroborated by the statement of PW-11 recorded under Section 164 Cr.P.C. by the Magistrate and the narration of true facts disclosed by PW-1 to PW-2 and PW-4 have been accepted by the learned Sessions Judge, we find no cogent reason to upset the well reasoned order. Some discrepancies and contradictions appearing in the statements of the witnesses pointed out by the learned Counsel for the appellant are in our view of no consequence and it is proved by the prosecution beyond all reasonable doubt that it was the appellant and none else who committed the murder of Anoop Singh. 17. In Bhagirathv. Some discrepancies and contradictions appearing in the statements of the witnesses pointed out by the learned Counsel for the appellant are in our view of no consequence and it is proved by the prosecution beyond all reasonable doubt that it was the appellant and none else who committed the murder of Anoop Singh. 17. In Bhagirathv. State of Madhya Pradesh, AIR 1976 Supreme Court 975; State of Punjab v. Bhajan Singh, AIR 1975 Supreme Court 258; State (Delhi Administration) v. Gulzarilal Tandon, AIR 1979 Supreme Court 1382 and Varkey Joseph v. State of Kerala, AIR 1993 Supreme Court 1892, relied upon by the learned Counsel for the appellant, their Lordships have settled the position of law that the burden to prove the guilt of the accused is always on the prosecution who must stand at its own legs and it cannot take advantage of the weakness of the defence. In Leela Ram (Dead) through Duli Chand v. State of Haryana and another, (1999) 9 Supreme Court Cases 525, their Lordships have held that the different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. Their Lordships further, proceeded lo observe that as a matter of fact, it depends upon individual to individual and there cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise. In Rana Partap and others v. State of Haryana, AIR 1983 Supreme Court 680, their Lordships said as under:— "6......Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and un-imaginative way." 18. In Rammialias Rameshwar v. State of M.P., (1999) 8 Supreme Court Cases 649, their Lordships of the Supreme Court observed that in appreciation of evidence post-event conduct of witness cannot be predicted. It varies from person to person as different people react differently to what they witness. In State of U.P. v. M.K. Anthony, AIR 1985 Supreme Court 48, it is said that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness has given evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. 19. It has been proved by the prosecution on the basis of the above stated evidence that a quarrel took place in between the appellant and the deceased and the appellant under drunkenness kicked the planks of the tea-stall of PW-1 and thereafter, picked up a lathi and inflicted repeated blows on the head of the deceased, who was also dragged by the appellant on the path. The consumption of alcohol can be a mitigating circumstance against the appellant to get into proper mood to commit the offence and it cannot be said to be a mitigating circumstance to bring the offence under the exception provided in the Penal Code as held by their Lordships of the Supreme Court in G.P.L. Narasimha Raju and others v. The State of Andhra Pradesh, AIR 1971 Supreme Court 1232. 20. The learned Counsel for the appellant next contended that possibility cannot be ruled out that Pawan Kumar (PW-1) the alleged eye-witness himself has committed the murder of deceased Anoop Singh and subsequently, falsely implicated the appellant. He pointed out that in his statement (Ext. PA) recorded under Section 154 Cr.P.C. PW-1 said that the appellant switched on the tape recorder and thereafter all the four persons who were in the tea-stall started dancing and while dancing they started arguing and scuffling with each other. The deceased then remarked that all the local persons are flatterers and hearing this PW-1 told them to get out of his tea-stall as he had to close the stall. But in his deposition before the court PW-1 said that during the time when they were dancing the deceased was caused a push by the appellant and thereafter they exchanged arguments and then they started shouting at each other and turned into a quarrel. In his cross-examination PW-1 said that he had told the Police that a push had been caused by Amar Singh to Anoop Singh while they were dancing (witness confronted with the contents of Ext. PA-1 wherein it was not so recorded). In his cross-examination PW-1 said that he had told the Police that a push had been caused by Amar Singh to Anoop Singh while they were dancing (witness confronted with the contents of Ext. PA-1 wherein it was not so recorded). According to the learned Counsel, from the above pointed statement of PW-1, it is clear that the theory of exchange of abuses between the appellant and the deceased was introduced lateron by the prosecution and PWs 1 and 2 have changed their stand which was not taken by them when their statements were recorded by the Police and thus their testimony cannot be believed. No doubt it is stated by the appellant in answer to question No. 7 of his statement under Section 313 Cr.P.C. that there had been a quarrel in between Pawan Kumar and Anoop Singh, because Anoop Singh had objected to the stopping of the tape-recorder by PW-1, but in the teeth of overwhelming evidence noted by us in the earlier part of the judgment, it cannot be said that PW-1 had the motive to commit the murder of Anoop Singh. The defence of the appellant was that he left the place of occurrence immediately after PW-1 had closed the tea-stall, was not found plausible and satisfactory by the learned Sessions Judge and rightly so when PW-1 and PW-11 have categorically stated that the appellant was at the scene of crime in the company of the deceased after PW-1 closed his tea stall. 21. The learned Counsel also taken pain to point out that in his evidence PW-1 stated that PW-11 was not at the scene of occurrence nor the appellant was there when he came back to the spot with PWs 2 and 4 whereas PW-4 stated that none else except the dead body of the deceased was lying there and their evidence has been contradicted by DW-1 when he stated that only Pawan Kumar (PW-I his brother; Sat Pal alias Sat Prakash (PW-11) and deceased were in the tea-stall when quarrel took place. It has come in the cross-examination of DW-1 that the police had recorded the statement of PW-1. He said that he could not say whether it was the appellant who committed the murder of deceased. DW-1 admittedly was not the eye-witness of the crime and he reached at the scene of occurrence with the Police after the occurrence had taken place. He said that he could not say whether it was the appellant who committed the murder of deceased. DW-1 admittedly was not the eye-witness of the crime and he reached at the scene of occurrence with the Police after the occurrence had taken place. DW-1 was given up by the prosecution from examination. From the scrutiny of his evidence, we find that his evidence is of no help to the appellant to disprove the prosecution case which stands fully proved against the appellant. His version has been rightly discarded by the learned Sessions Judge and it cannot be accepted to prove that the appellant has been falsely implicated in this case by PW-1 or by the police. The learned Counsel next contended that the appellant was not armed with a deadly weapon which would have deterred PW-1 to make efforts to save the deceased, nor any effort was made by PW- 11 Sat Parkash to save the deceased from the clutches of the appellant and that there was no motive of the appellant to commit the crime, therefore, the appellant could not be found guilty of the offence and that the reasonings recorded by the learned Sessions Judge are erroneous and perverse and therefore, the appellant is entitled for acquittal. To support his contention, the learned Counsel has placed reliance in Kishore Chandv. State of H.P., AIR 1990 Supreme Court 2140, where their Lordships in this case found no motive having been attributed to the appellant to commit crime and this was one of the reason which weighed with the Honble apex Court to set aside the conviction of the accused. In the case on hand it was not even the case of the prosecution that the crime was committed by the appellant with some motive, thus, this contention of the learned Counsel raised is not sustainable. 22. The learned Counsel for the appellant next contended that the defence version is more probable than the facts brought on record by the prosecution. The learned Counsel has pointed out suggestion put to PWs 1, 2, 4 and 15 that PW-1 and his brother had killed Anoop Singh and a false case was cooked up against the appellant which they have emphatically denied. The learned Counsel has pointed out suggestion put to PWs 1, 2, 4 and 15 that PW-1 and his brother had killed Anoop Singh and a false case was cooked up against the appellant which they have emphatically denied. PW-15 Investigating Officer has also denied the suggestion of the appellant that during investigation there was evidence against Pawan Kumar (PW-1) and his brother involving them in the commission of the crime. The suggestion that Pawan Kumar and his brother were brought to Chamba by him in custody has also been denied by him. The learned Counsel heavily relied upon the evidence of DW-1 who was the prosecution witness but was not examined for unknown reasons and whatever he has stated before the court it was all hearsay what he heard from PW-1 and therefore, his evidence cannot be relied upon and accepted to hold that it was Pawan Kumar and his brother who committed the murder of the deceased and not the appellant. The decisions relied upon by the learned Counsel for the appellant in Jagar Nath v. State of H.P., 1996(1) Sim. L.C. 178; Rai Singh v. State of Haryana, AIR 1971 SC 2505 and Dudh Nath Pandey v. State of U.P., AIR 1981 SC 911, have been rendered in the factual situations involved in those cases and the ratio of those decisions cannot be uniformly applied in the facts and circumstances of the present case. 23. Learned Counsel also contended that the testimony of PWs 4 and 5 should not be accepted as they are not the truthful witnesses. It is true that the deceased was tenant of PW-4 and the house of PW-4 is at a distance of 15 ft. from the tea-stall of PW-1. The shop of PW-2 is at a distance of about 300-400 ft. from the tea-stall of PW-1 and the shop of one Madan is at a distance of about 40 ft. from his tea stall. It has come in the evidence of PW-2 that there are four houses and shops near the tea-stall of PW-1. from the tea-stall of PW-1. The shop of PW-2 is at a distance of about 300-400 ft. from the tea-stall of PW-1 and the shop of one Madan is at a distance of about 40 ft. from his tea stall. It has come in the evidence of PW-2 that there are four houses and shops near the tea-stall of PW-1. According to the learned Counsel had there been any scuffle taken place in between the appellant and the deceased while they were dancing at the tune of tape-recorder, all the persons whose shops and houses are situated adjacent to the tea-stall of PW-1 could have heard the noise and there is no evidence on record that anyone in the neighbourhood including PWs 2 and 4 heard such noise from the tea-stall of PW-1 and this circumstance will also prove that the prosecution case was false nor the occurrence had taken place in the manner in which it was projected by it. We do not find any substance in this submission too of the learned Counsel. When first blow of lathi was given by the appellant on the head of the deceased it was PW-1 who immediately proceeded to go to the house of PW-45 who was the landlord of the deceased and while he was proceeding towards the house of PW-4, he saw the appellant dragging the deceased on the path and inflicting four more blows with the same lathi on the body which were found fatal to the deceased. No benefit can be derived by the appellant from the fact that no body in the neighbourhood heard the noise of scuffle having taken place between the appellant and the deceased. 24. The learned Counsel for the appellant also attacked the order of learned Sessions Judge on the ground that the learned Sessions Judge has wrongly relied upon the statement of PW-4 made by him under Section 164 Cr.P.C. before the learned Magistrate which was made by him as per his version under pressure and threat of the Police. We have already dealt with this argument when we have considered the first contention of the learned Counsel at the time of appreciating the evidence of Mr. Rajan Gupta, learned Additional Chief Judicial Magistrate and found that PW-11 had made the statement before the Magistrate voluntarily without any pressure, duress or threat from the Police. We have already dealt with this argument when we have considered the first contention of the learned Counsel at the time of appreciating the evidence of Mr. Rajan Gupta, learned Additional Chief Judicial Magistrate and found that PW-11 had made the statement before the Magistrate voluntarily without any pressure, duress or threat from the Police. The appreciation of the evidence considered by the learned Sessions Judge on this point cannot be found perverse or infirm on any ground. 25. The learned Counsel also then contended that the evidence of eye-witness PW-1 has to be scrutinized with due care and caution and more particularly when it is the case of the appellant that it was Pawan Kumar who committed the murder of the deceased in connivance with his brother. The contention is unfounded and devoid of merit. The appellant has not taken the defence that it was Pawan Kumar who committed the murder of the deceased in his statement under Section 313 Cr.P.C, A bald suggestion was put to PW-1 which | he emphatically denied. The specific defence of the appellant was that after Pawan Kumar closed his tea-shop, he immediately left the scene of occurrence and if this defence is to be accepted, it does not appeal to the reason as to how the appellant has projected his defence that it was Pawan Kumar and his brother who killed the deceased. The entire defence of the appellant is therefore, found false. PW-1 immediately informed PWs 2 and 4 about the incident and thereafter all the three witnesses went to the scene of the occurrence and found the dead body of the deceased there. They went to the house of one Prem Lal to inform DW-1 on telephone about the occurrence who in turn called the Police. On arrival of the police, statement was made by PW-1 under Section 154 Cr.P.C, naming the appellant as assailant and also disclosed the names of other witnesses. The appellant had given true version of the incident in his report which formed the base for recording of the First Information Report. On arrival of the police, statement was made by PW-1 under Section 154 Cr.P.C, naming the appellant as assailant and also disclosed the names of other witnesses. The appellant had given true version of the incident in his report which formed the base for recording of the First Information Report. Once we find that there are no infirmities in the evidence of the sole eye witness and his testimony is found wholly reliable, the defence of the appellant that it was PW-1 and his brother who committed the murder cannot be accepted and the decisions relied upon by the learned Counsel for the appellant in State of Rajasthan v. Bhola Singh and another, AIR 1994 Supreme Court 542; Alii Mollah and another v. State of W.B., (1996) 5 Supreme Court Cases 369; Kali Ram v. State of Himachal Pradesh, AIR 1973 Supreme Court 2773; State of Himachal Pradesh v. Wazir Chand and others, AIR 1978 Supreme Court 315, are not wholly applicable to the facts and circumstances of the present case and the law laid down in those cases are fully accepted. 26. The learned Counsel then contended that the recovery of the shoes of the appellant and that of the deceased by the Police does not connect the appellant with the commission of the alleged offence and the entire recovery is false. He explained that it has come in the evidence that when the clothes of the appellants were recovered and taken into possession, pant of grey colour was found having washed blood stains and if the appellant could wash blood stains from his pant he could have washed or changed his pair of blood stained shoes which were taken into possession by the Police and thus recovery of blood stained shoes of the appellant is false. According to the learned Counsel the recovery memo (Ext. PJ) was prepared after giving the number of First Information Report. Recovery Memo (Ext. PJ) was prepared by the Investigating Officer (PW-15) on 30.8.1997 in the presence of PW-4 and DW-1 pursuant to which old black plastic shoes were taken off from the appellant. PW-4 has testified that a pair of shoes (Exts. P-9 and P-10) were taken into possession by the Police from the appellant which was subsequently sent to State Forensic Science Laboratory. In the report of Ext. PW-4 has testified that a pair of shoes (Exts. P-9 and P-10) were taken into possession by the Police from the appellant which was subsequently sent to State Forensic Science Laboratory. In the report of Ext. PV of Forensic Science Laboratory, it was noticed that human blood of B group was found on the shoes of the appellant. During the post mortem examination, Dr. Raman Puri had also taken into possession blood stained clothes of deceased i.e. shirt (Ext. P-11). Pant (Ext. P-12) and underwear (Ext. P-13) which were subsequently sent to the Forensic Science Laboratory for examination. In the report (Ext. PV) of the Forensic Science Laboratory, human blood of group B was found present on these clothes. In the face of this clear and unambiguous evidence on record, the prosecution has proved that shoes (Exts. P-9 and P-10) belonging to the appellant were having the same group of human blood which were contained on the clothes of the deceased. The other circumstance accepted by the learned Sessions Judge in addition to the direct evidence was the presence of blood and the trial of blood at the place of occurrence. This circumstance has been proved by PW-13 photographer who Exhibited on record positive photographs (Exts. P-18 to P-24) and their negatives (Exts. P-25 to P-31). The perusal of these photographs would go to show that there was trial of blood at the place of occurrence and PW-2 has also stated that there was blood in the compound of tea-stall of PW-1. Blood was found at the place of occurrence by the Investigating Officer (PW-15) and this fact was reflected by him in site-plan (Ext. PQ). Site plan also supports the position of the spot which was mentioned by PW-1 and inspected by the Investigating Officer (PW-15) and these documents would fully corroborate the ocular evidence on record. It is no doubt, true that number of First Information Report No. 268/97 has been mentioned on document Ext. PJ, but it will not prove that document Ext. PJ was prepared by the Investigating Officer at 3 a.m. when the appellant was called for interrogation. The appellant has not put any suggestion to the Investigating Officer that after his arrest on 30.8.1997, the document Ext. PJ was prepared at 3 a.m. as pleaded by the learned Counsel for the appellant. PJ was prepared by the Investigating Officer at 3 a.m. when the appellant was called for interrogation. The appellant has not put any suggestion to the Investigating Officer that after his arrest on 30.8.1997, the document Ext. PJ was prepared at 3 a.m. as pleaded by the learned Counsel for the appellant. In answer to question No. 23, the appellant stated that he was arrested on 29.8.1997 itself which is not found true from the record. The high pathetical contention of the learned Counsel that if the appellant could not wash blood stains appearing on his pant, why could he not wash out the blood found on his shoes deserves rejection as it was for the appellant and none else who should explain this fact. Learned Counsel for the appellant further contended that it was dark outside the tea-stall of PW-1 and the appellant was there on the day of the occurrence and that it might be possible that accidentally, the blood had stuck on his shoes. The contention raised deserves to be rejected without any specific defence having taken by the appellant that his shoes contained blood when he was going from the tea-stall of PW-1. PW-15 the Investigating Officer has stated that the document Ext. PJ was prepared in the presence of PW-4 and DW Des Raj. DW Des Raj has said that the shoes of appellant were taken into possession by the Police of Police Post Khajjiar and Ext. PJ was prepared on the spot in his presence. Once it is accepted that the pair of shoes which were taken into possession by the Police belongs to the appellant on which blood of group B was found, it stands proved on record that the seizure memo was prepared for taking a pair of shoes of the appellant by the Investigating Officer in the presence of the witnesses. Learned Counsel also contended that the report Ext. PV of the State Forensic Science Laboratory, is not permissible under law as it was exibited without formal proof. In support of this submission he has relied Ranchhod Mula v. State, 1961 (2) Cri. LJ 472 149, (Gujarat High Court), State of H.P. v. Edward Samual Chareton, 2000 (2) Sim. L.C. 228. 27. We have perused the said report (Ext. PV) which is prepared by Dr. In support of this submission he has relied Ranchhod Mula v. State, 1961 (2) Cri. LJ 472 149, (Gujarat High Court), State of H.P. v. Edward Samual Chareton, 2000 (2) Sim. L.C. 228. 27. We have perused the said report (Ext. PV) which is prepared by Dr. Arun Sharma, Scientific Officer, (Bio and Serum) State Forensic Science Laboratory and this report along with another report (Ext. PU) was produced on record by PW-15 Investigating Officer in the supplementary challan. No suggestion has been put to the Investigating Officer by the defence that both these reports were not correct submitted by the competent authority. This submission also merits rejection. 28. The learned Counsel for the Appellant pointed out that the recovery of lathi and clothes of the appellant at his instance pursuant to disclosure statement is not sufficient to connect the appellant with the commission of the offence. He pointed out that it has come in the evidence of PW-2 Parkash Chand that the Police remained on the spot till the next morning of the night of the incident and the Danda was recovered from a place situate about 50-60 metres away from the place where the dead body of Amar Singh was lying. If according to the learned Counsel the Police was present at the spot throughout the next day then it would raise a suspicion that the weapon of the offence could not be recovered earlier by the Police and thus fake recovery has been shown by the Police. In support of his submission, learned Counsel placed reliance in Pohalya Motya Valvi v. State of Maharashtra, AIR 1979 Supreme Court 1949. This submission also does not find favour with us in the face of the clear and reliable evidence adduced on record. The disclosure statement (Ext. PD) was made by the appellant to PW-15 in the presence of PW-3 Izaj Mehmood. The evidence of PW-3 and PW-15 would go to show that on 2.9.1997 the appellant made the said disclosure statement while in Police custody stating that he had thrown Danda in the field of maize of Miyali Gala below the path and he could recover the same. In the same disclosure statement he disclosed that he had kept his clothes inside his house behind the wooden box and he could recover them. Consequent to the said disclosure statement Danda Ext. In the same disclosure statement he disclosed that he had kept his clothes inside his house behind the wooden box and he could recover them. Consequent to the said disclosure statement Danda Ext. P-l was got recovered from the maize field in the presence of PW-2 which was taken into possession by the police vide seizure Memo. Ext. PD. Similarly, the appellant has produced his clothes i.e. shirt Ext. P-2, Pant Ext. P-3 and Sweater Ext. P-4 from inside the house in the presence of PW-2 and the same were taken into possession by the Police vide seizure Memo. Ext. PC. The report Ext. PV of the Forensic Science Laboratory shows that human blood was found on pant Ext. P-3 of the appellant but no conclusive result was found about the classification of the blood. Thus, the contention of the learned Counsel that the pant of the appellant was not sent to the Forensic Science Laboratory is found without substance. The testimony of the witness with respect to the disclosure statement of recovery of these articles has not been shaken and impeached by the defence in cross-examination, therefore, the learned Sessions Judge has rightly held that the disclosure statement was made by the appellant to the Investigating Officer and pursuant thereof the incriminating articles were recovered at his instance. 29. The last submission of the learned Counsel that from the evidence on record, it is proved that there was no pre-meditation of the appellant to commit the murder of the deceased and the occurrence took place at the spur of the moment and that the weapon used was only wooden Danda if at all found having been used by the appellant is the circumstance which will at the most be a case of culpable homicide not amounting to murder punishable under Section 304 of the Indian Penal Code. In support of this submission, the learned Counsel has placed reliance upon number of decisions of the apex Court which we need not refer all of them unnecessarily burdening the record. However, some of the decisions are considered. In support of this submission, the learned Counsel has placed reliance upon number of decisions of the apex Court which we need not refer all of them unnecessarily burdening the record. However, some of the decisions are considered. In Mathew alias Mathachan v. State of Kerala, AIR 1991 Supreme Court 1376, a knife wound was given to the deceased by the accused; in Mst Madani v. State of Rajasthan, AIR 1994 Supreme Court 1713, three fatal blows with Bhala were inflicted by the accused on the deceased; in Chuttan v. State of M.P., 1994 (1) Crimes 230 (Supreme Court) more than one injury were inflicted by the accused with stick blows; in Jagpati v. State of H.P., AIR 1993 Supreme Court 1360, the accused inflicted Danda and Balli blows on the head of the deceased and death was as a result of one injury only and in Rakesh Singh v. State of H.P., AIR 1996 Supreme Court 3173, hockey blows were struck on the body of the deceased by the accused. Considering all the facts and circumstances, their Lordships of the Supreme Court in all these cases held the accused guilty of the offence punishable under Section 304 of the Indian Penal Code. 30. Per contra, the learned Deputy Advocate General contended that the offence committed by the appellant is squarely covered under clauses 3rdly and 4thly of Section 300 as the act was done by the appellant with the intention of causing bodily injury to the deceased and the bodily injury intended to cause death was sufficient in the ordinary course of nature and further that he knew that while committing the said act it was so immensely dangerous that it in all probability will cause death or such bodily injury as was likely to cause death of the deceased. The learned Deputy Advocate General placed reliance in Jangeer Singh and others v. State of Rajasthan, AIR 1998 Supreme Court 2791; State of U.P. v. Hem Raj and others, AIR 1999 Supreme Court 2147; Kashmiri Lal and others v. State of Punjab, AIR 1997 Supreme Court 393 and Koli Lakhmanbhai Chanabhai v. State of Gujarat, AIR 2000 Supreme Court 210. 31. We have considered this aspect of the matter in the light of the evidence adduced on record. 31. We have considered this aspect of the matter in the light of the evidence adduced on record. We are fully in agreement with the submission of the learned Deputy Advocate General that the case of the appellant is squarely covered under clauses 3rdly and 4thly of Section 300 of the Indian Penal Code. The eye-witness account of PW-1 would go to show that the appellant first assaulted the deceased with the blow of lathi (Danda) on his head and thereafter the deceased was dragged by him on the path and then again inflicted four blows of lathi on his body which were found fatal. The medical evidence has fully corroborated the eye-witness account of PW-1. Dr. Puri found multiple injuries on the head and other parts of the body of the deceased and the skull of the deceased had been fractured. According to the opinion of the Doctor, the deceased died due to said injuries and individually each of those injuries was sufficient to cause the death in the ordinary course of nature. The injuries were inflicted by the appellant on the vital part of the body of the deceased when the appellant was under the influence of liquor. The FIR was promptly lodged in which the name of the appellant was given who inflicted lathi blows and evidence of PW-1 was corroborated by recovery of lathi, recovery of blood-stained shoes of the appellant at the time of arrest, which are additional mitigating circumstance to prove the intention and guilt of the appellant to cause the death of the deceased and therefore, the appellant is not entitled to take any benefit of the exception to alter his conviction from murder to culpable homicide not amounting to murder and the conviction of the appellant for committing the murder of the deceased is maintained. 32. No other submission has been made before us by the learned Counsel on either side. 33. In the result, there is no merit in this appeal and it is accordingly dismissed. Appeal dismissed.