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2000 DIGILAW 305 (HP)

LACHHI DEVI v. STATE OF HIMACHAL PRADESH

2000-11-27

R.L.KHURANA

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JUDGMENT R.L. Khurana, J.:- The appellant Smt. Lachhi Devi, hereinafter referred to as the accused, was tried for the offence under Section 307, Indian Penal Code, for having attempted to commit the murder of Shri Mahant Ram by causing injuries on his head with an axe. She stands convicted by the learned Sessions Judge, Bilaspur, vide judgment dated 5.11.1997 for the offence under Section 325, Indian Penal Code, and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.10,000/-. In default of payment of fine, she has been sentenced to undergo rigorous imprisonment for a further period of one year. 2. Briefly stated the prosecution story runs thus. On 5.7.1993, at about 6 PM the injured PW 1 Sh. Mdhant Ram was present at his cowshed which is located about 2 kms from his house. The accused came there and started fixing a fence. Since the parties were having some boundary dispute, PW1 asked the accused as to what she was doing. The accused picked up an axe and gave a blow therewith on the head of PW 1 Mahant Ram as a result of which he fell down unconscious. 3. A case for the offence under Section 326, Indian Penal Code, came to be registered at Police Station, Ghumarwin, on the same day at about 9.50 P.M. vide F.I.R. No. 58/93, Ex. PW 14/A. During the course of investigation, it was revealed that since no one was present at the spot at the time of occurrence, PW 1 lay injured and unconscious at the spot till he was spotted by PW 3 Dhian Singh who called some villagers and with their help had carried PW 1 to Ghumarwin Hospital. PW 1 was medically examined by PW 4 Dr. Jagdish Gupta. The following injury was found by him on the person of PW 1: "Lacerated wound over scalp 6cm x 4cm with communited fracture skull with multiple bone chips scattered. Pulsations and underlying brain matter visible in the wound. Clotted blood present all around the wound." 4. PW 4 Dr. Jagdish Gupta opined the injury to be grievous and dangerous to life having been caused within the probable duration of 24 hours. He also opined that the injury was possible with the axe Ex.P. 1. He referred PW 1 for further treatment and management at District Hospital, Bilaspur. Clotted blood present all around the wound." 4. PW 4 Dr. Jagdish Gupta opined the injury to be grievous and dangerous to life having been caused within the probable duration of 24 hours. He also opined that the injury was possible with the axe Ex.P. 1. He referred PW 1 for further treatment and management at District Hospital, Bilaspur. PW 1 remained under treatment at Bilaspur till 19.7.1993 whereafter he was referred to PGI Chandigarh. PW 1 remained under treatment at Chandigarh till 27.8.1993. 5. Blood stained clothes of PW 1 as well as the axe Ex.P. 1 were taken into possession by the police and sent for chemical examination. Human blood of group A was found on the clothes as well as on the axe Ex.P. 1. 6. After the completion of investigation, on having been sent up for trial for the offence under Section 307, Indian Penal Code, the accused did not plead guilty and she claimed trial. 7. The prosecution in support of its case examined fifteen witnesses in all. The case of the accused in her statement recorded under Section 313, Code of Criminal Procedure, is that of denial and false implication on account of enmity at the instance of the son of PW 1 Mahant Ram, who is an employee of the Police Department. No defence was led by the accused. 8. On consideration of the evidence led before him, the learned Sessions Judge came to the conclusion that no case for the offence under Section 307, Indian Penal Code, was made out against the accused and that only a case under Section 324, Indian Penal Code was made out. He, accordingly, convicted and sentenced the accused for such offence as aforesaid. 9. The conviction and sentence as imposed upon her, is being assailed by the appellant by virtue of the present appeal. 10. Ex. PW I/A is the copy of the report recorded at S.No.23 on 5.7.1993 in the daily diary of the Police Station, Ghumarwin on the basis of which a formal FIR Ex.PW 14/A came to be recorded for the offence under Section 326, Indian Penal Code. The report Ex.PW 1 I/A is shown to have been recorded on the basis of the statement of PW 1 Mahant Ram (injured). Therefore, Ex.PW 1 I/A is the statement recorded under Section 154, Code of Criminal Procedure. 11. The report Ex.PW 1 I/A is shown to have been recorded on the basis of the statement of PW 1 Mahant Ram (injured). Therefore, Ex.PW 1 I/A is the statement recorded under Section 154, Code of Criminal Procedure. 11. Shri Mahant Ram, abovenamed injured, while appearing in court as PW 1 has denied having made a statement to the police. He has deposed in this context as under: ".......I become unconscious. I was sitting outside the cow-shed on one side of the- wall of the cow-shed. I regained consciousness in the hospital at Chandigarh after surgery. 1 was told that I was firs taken to the Police Station, Ghumarwin, but I was not in a position to make any statement because I was unconscious at that time. I was told that my statement was recorded at Bilaspur on the day of occurrence but I did not make any statement. For first 15 days I remained admitted in District Hospital at Bilaspur and thereafter for 55 days in PGI at Chandigarh....." During the course of cross-examination, he has further stated: "......I regained consciousness after surgery in the PGI. In the PGI my son told me that a case has been registered against the accused on my behalf with the police.....The fact of causing me injury with Kulhari by the accused has been stated by me for the first time today in the court." 12. Relying upon the above statement of PW 1 Mahant Ram, it was contended by the learned counsel for the accused that when the maker of the first information report himself has resiled, such report Ex. PW 1 I/A or PW 14/A cannot be relied upon and that the entire prosecution case is rendered doubtful. The accused is entitled to be acquitted on this short ground alone. 13. It is by now well settled that a first information report cannot be used as a substantive or primary evidence of the truth of its contents. It can be used as a substantive or primary evidence only when he same has come to be treated as a dying declaration of the maker thereof. Otherwise, a first information report, which is vital and valuable from the stand point of the accused, can be used only for the purpose of corroborating, contradicting or discrediting the maker thereof and no other person. Otherwise, a first information report, which is vital and valuable from the stand point of the accused, can be used only for the purpose of corroborating, contradicting or discrediting the maker thereof and no other person. [See : Nisar Ali v. State of U.P., AIR 1975 SC 366]. 14. The Madras High Court in NA. Victor Immanuel and others v. State [1991 Cri. L.J. 2014], had an opportunity to consider the question as to what would be the effect when the informant, on whose statement the case has been registered, gives a go-by to his statement and gives a retracted statement subsequently before the Magistrate. It was held: ".....No doubt true it is, the said Murugan, on whose statement, the case had been registered, had given a go-by to his statement by his appearing before the Chief Judicial Magistrate, Chengalpattu and giving retracted statement subsequently. The fact that there is a retracted statement subsequently. The fact that there is a retracted statement of the first informant is not by itself sufficient to throw the case of the prosecution lock, stock and barrel. It is to be remembered here that the first information report is not at all a substantive piece of evidence in the eye of law. It can be used during the course of trial, as a material, corroborative or contradictory. If the first informant disowns his statement during the course of trial, of course, after getting the requisite permission of the Court, the prosecution would be entitled to treat him as a hostile witness and put questions to him which may be put in cross-examination and thereby elicit, by way of contradiction, his prior statement in the first information...." 15. PW 1 Mahant Ram though in his statement has denied the making of the first information report, has stated that he was given an axe blow on his head by the accused. His statement to this effect is as under- "On 5.7.1993,1 had gone to my cow shed at about 6 30 P.M. and the accused was cutting wild bushes at a distance of 4-5 yards from my cow-shed. His statement to this effect is as under- "On 5.7.1993,1 had gone to my cow shed at about 6 30 P.M. and the accused was cutting wild bushes at a distance of 4-5 yards from my cow-shed. She came to my cow-shed and after taking my kulhara which was lying in my cow-shed, she gave me kulhara blow on my head Blood started oozing out and my clothes were stained with blood and I became unconscious" 16 In Motiram Krishanao and other v. State of M.P. [Air 1995 Nagpur] a statement of the prosecutrix recorded during investigation of the case was treated as a first information report. An objection was raised that since there was no proper first information report in the case, the trial stood vitiated. It was held that omission to record first information report is not an illegality which would vitiate the trial. 17. The Allahabad High Court in Ram Deo Singh and others v. The State [AIR 1959 Allahabad 511], has held that it is not necessary that before a person can be convicted under Section 323 or 325, Indian Penal Code, there should be a first information report. Even if the first information report was not proved the trial would not vitiate. 18. A Division Bench of Calcutta High Court in A. W. Khan v. The State [AIR 1962 Calcutta 641], has held that a first information report is not an indispensable requisite for the investigation of a crime. The lack of first information report would not and cannot vitiate the trial. 19. To the similar effect, it has been held in Jagdish B. Rao v. Govt. of the Union Territory of Goa, Daman and diu and another [1976 Cri. L.J. 132]. 20. The position that emerges is that the absence of first information would not vitiate the trial and the court can record a conviction on the basis of evidence coming before it. 21. In the present case, there is no eye witness of the occurrence. The entire prosecution case is based on the sole testimony of the injured PW 1 Mahant Ram coupled with medical evidence. There is no denying that a conviction can be maintained on the sole testimony of the injured coupled with medical evidence, if the evidence of the injured inspire confidence. 22. PW 4 Dr. The entire prosecution case is based on the sole testimony of the injured PW 1 Mahant Ram coupled with medical evidence. There is no denying that a conviction can be maintained on the sole testimony of the injured coupled with medical evidence, if the evidence of the injured inspire confidence. 22. PW 4 Dr. Jagdish Gupta had medically examined the injured PW 1 Mahant Ram at Rural Hospital, Ghumarwin, on 5.7.1993 at 9.40 P.M. He found one injury on the person of PW 1 as detailed above. In his opinion the probable duration of the injury was within 12 hours having been caused by a blunt weapon. The injury was grevious and could be caused by an axe like P 1. 23. The clothes of the injured PW 1 Mahant Ram, namely, shirt, Jacket/vest, Pyjama, Underwear towel and the axe, Ex. P.l were sent for chemical examination and vide report, Ex. PW 2/A, all these articles were found to be stained with human blood of group A. There is no evidence to show that the blood group of PW 1, Mahant Ram is A. In the present case, such matching of blood group was of great importance, since there is no eye witness to the alleged occurrence. 24. PW 1 Mahant Ram has deposed that he was given an axe blow on his head by the accused. It is the admitted case of the prosecution that the parties have longstanding dispute and litigation with regard to land. The defence taken by the accused is also that she has been falsely implciated on account of enmity at the instance of the son of PW 1 who is working as a steno in the office of Superintendent of Police. 25. The evidence coming on the record, thus, is required to be appreciated in the light of admitted enmity between the parties. 26. PW 7 Harbans Singh is one of the persons who had carried the injured PW 1 Mahant Ram from the spot firstly to the police station and then to the hospital. He has deposed" “When I reached the spot, on enquiry the injured told me that he has been given injury by Amru and Krishna. In the police station, the injured stated to the police that he has been given injury by Smt. Luxmi with a kulhara." 27. He has deposed" “When I reached the spot, on enquiry the injured told me that he has been given injury by Amru and Krishna. In the police station, the injured stated to the police that he has been given injury by Smt. Luxmi with a kulhara." 27. During the course of cross-examination, the witness has explained the reason as to why PW 1 Mahant Ram had changed his version in the police station. He has stated:- "In village Silh, Dharam Singh met us there and on his enquiry, the injured told him that he has been given injury by Amar Singh and Krishanoo Ram. Then Dharam Singh told the injured that Krishnoo Ram was with him at Bilaspur on that day and how could he give injury to him. Then the injured changed his statement and named the accused Lachhmi." 28. Be it stated that Krishanoo Ram abovenamed, is none else but the husband of the accused. 29. PW 11 Arjun Dass, Head Constable is purported to have recorded the statement of PW 1 Mahant Ram, Ex. PW 11/A, under Section 154, Code of Criminal Procedure, the making of which has been denied by PW 1 Mahant Ram. PW 11 has admitted that when the injured was brought to the police station, he was in a semi conscious state. Inspite of the fact that PW 1 was found to be in a semi conscious state, surprisingly enough PW 11 did not bother to obtain the opinion of a doctor to know whether he was fit to make a statement. PW.3 has admitted that he found PW. 1 in an unconscious state at the spot and was taken to hospital. 30. It is in evidence of the prosecution that son of PW. 1 was and is working as a Steno with the Superintendent of Police. Earlier he was posted at Solan and presently he is posted at Bilaspur. On an earlier occasion, that is, on 9.10.1992, he had made a complaint Ex.PW.8/A to the Station House Officer, Ghumarwin against the husband of the accused. In view of the specific denial by PW. 1 Mahant Ram regarding the making of the report in respect of the present case to the police, the possibility of the case having come to be registered at the instance of the son of PW.l cannot be ruled out. This fact finds corroboration from PW. In view of the specific denial by PW. 1 Mahant Ram regarding the making of the report in respect of the present case to the police, the possibility of the case having come to be registered at the instance of the son of PW.l cannot be ruled out. This fact finds corroboration from PW. 1 when he states that while at P.G.I., he was told by his son that a case stood registered against the accused on his behalf. 31. The axe Ex P. 1 admittedly belongs to PW. 1. He has, while appearing as PW.l, stated that axe Ex. P.l which was lying in his cow-shed was picked up by the accused and thereafter she had dealt a blow therewith on his head when he was sitting outside the cattle-shed by the side of the wall. He claims to have seen the accused picking up his axe. He also admits that the accused was cutting the bushes with the help of an axe. In other words, the accused at the relevant time was also having her axe with her. If that be so, there is no reason why the accused would go all the way to the cow-shed of PW1 for picking up his axe. She could have easily dealt a blow on the head of PW. 1 with the axe she was already having in her hand. 32. Looking into the evidence led by the prosecution from all angles, the only conclusion is that the prosecution has not been able to bring home any offence against the accused. On the facts and in the circumstances of the case, it is not safe to maintain a conviction on the sole testimony of PW.l. 33. As a result, the present appeal is allowed. The conviction and sentence imposed upon the accused by the learned Sessions Judge are set aside and she is acquitted of the offence under Section 325, Indian Penal Code. 34. The accused is on bail. Her bail bonds shall stand cancelled and discharged. The amount of fine, if already deposited, shall be refunded to her forthwith. The case property shall be dealt with in accordance with the directions of the learned trial court.