Research › Search › Judgment

Himachal Pradesh High Court · body

2000 DIGILAW 331 (HP)

ATMA RAM v. STATE OF H. P.

2000-12-22

LOKESHWAR SINGH PANTA, R.L.KHURANA

body2000
JUDGMENT Lokeshwar Singh Panta, J.:- In Sessions Trial No. 17 of 1994 on the file of Sessions Judge, Bilaspur, ten persons, namely, (1) Atma Ram, (2) Narain Dass (3) Ram Nath, (4) Jagdish, (5) Smt. Soma Devi, (6) Smt. Satya Devi, (7) Smt. Lachmi Devi, (8) Smt. Savitri Devi, (9) Smt. Roshani Devi and (10) Smt. NirmlaDevi all residents of village Dhanathar, Police Station Sadar, District Bilaspur were charged and tried for the offences punishable under Sections 302,452,147,148,149,427 and 120-B of Indian Penal Code for committing the murder of Ram Parkash (deceased) with the help, of Lathies and stones. 2. By judgment and order dated 9th February, 1999, the learned Sessions Judge, Bilaspur convicted Atma Ram (A-l), Narain Dass (A-2), Ram Nath (A-3), Jagdish (A-4) and Smt. Soma Devi (A-5) under Sections 147,149,452 and 3021.P.C. and sentenced them to undergo rigorous imprisonment for two years under Section 1471.P.C. and to pay fine of Rs.500/- each and in default of payment of fine, they shall further undergo rigorous imprisonment for six months each. Under Section 4521.P.C. they shall undergo rigorous imprisonment for three years each and to pay fine of Rs. 1,000/- each and in default of payment of fine they shall further undergo rigorous imprisonment for six months each. Under Section 3021 P.C. read with section 1491.P.C. they shall undergo rigorous imprisonment for life and to pay fine of Rs. 1,000/- each and in default of payment of fine they shall undergo rigorous imprisonment for one year each. All the sentences shall run concurrently. Smt. Satya Devi (A-6). Smt. Lachhmi Devi (A-7), Smt. Savitri Devi (A-8) Smt. Roshani Devi (A-9) and Smt. Nirmla Devi (A-10) were convicted under Sections 147 and 452 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years each under Section 147 I.P.C. and to pay fine of Rs.500/- each and in default of payment of fine they shall further undergo rigorous imprisonment for six months each. Under Section 452 I.P.C. they shall undergo rigorous imprisonment for three years and to pay fine of Rs. 1,000/- each and in default of payment of fine they shall further undergo for six months rigorous imprisonment. All the sentences shall also run concurrently. For other offences, these accused persons were acquitted. 3. Under Section 452 I.P.C. they shall undergo rigorous imprisonment for three years and to pay fine of Rs. 1,000/- each and in default of payment of fine they shall further undergo for six months rigorous imprisonment. All the sentences shall also run concurrently. For other offences, these accused persons were acquitted. 3. Against the said judgment and order daccused Atma Ram and four others preferred Criminal Appeal No.79 of 1999 and accused Smt. Satya Devi and four others preferred Criminal Appeal No.22 of 1999 whereas Criminal Appeal No.218 of 1999 has been preferred by the State of Himachal Pradesh against the acquittal of Smt. Satya Devi and four others under Sections 302 and 149 of the Indian Penal Code before this Court. All these appeals are heard together and shall stand disposed of by this common judgment. 4. The prosecution version was that on 1.4.194 Sh. Dharam Singh (PW-20) Addl. Station House Officer, Police Station Sadar Bilaspur received a telephonic message at about 6.45 AM from Shri Bichittar Singh (PW-14) Ex-Minister that Ram Parkash (deceased) had been killed by his villagers. The teleph6nic message was entered in roznamcha a copy of which was marked (Ext.PW-14/A). PW-20 visited the spot alongwith other police officials and found the dead body of the deceased at Rishicase village in a rain shelter. He recorded the statement (Ext.PW-1/B) of Smt. Rampiari (PW-1) wife of the deceased under Section 154 of the Code of Criminal Procedure. On the basis of statement (Ext.PW-1/B) First Information Report (Ext.PW-20/A) came to be registered at Police Station Sadar, Bilaspur on the same day at 8.45 P.M. PW-20 started the investigation at the place of occurrence and prepared inquest reports (Exts.PW-8/A and PW-8/B) in the presence of the witnesses. The photograph of the dead body was also taken by constable No.249 Prem Lai (PW-16). The map of the spot (Ext.PW-19/A) was also prepared by PW-20. On 19.6.1994 Shri Rajiv Kumar (PW-19), Junior Engineer of H.P. Public Works Department, sub Division No.l, Bilaspur was requested to prepare site plan marked (Ext.PW-19/A) showing the distance between the houses of the deceased and the accused. Shri Hans Raj (PW-21) was posted as Station House Officer in Police Station Sadar, Bilaspur from April 1994 till September 1994. On 19.6.1994 Shri Rajiv Kumar (PW-19), Junior Engineer of H.P. Public Works Department, sub Division No.l, Bilaspur was requested to prepare site plan marked (Ext.PW-19/A) showing the distance between the houses of the deceased and the accused. Shri Hans Raj (PW-21) was posted as Station House Officer in Police Station Sadar, Bilaspur from April 1994 till September 1994. On 1.4.1994 he was directed buy the Superintendent of Police, Bilaspur to rush to village Rishicase with police force immediately and on reaching there he found PW-20 and District Inspector Shri Govind Ram present on the spot. The deceased was allegedly beaten to death by all the accused persons outside the unoccupied house of one Mast Ram of village Rishicase. PW-21 secured the spot outside the house of Mast Ram and prepared site plan (Ext.PW-21/A) of the house of the deceased as well as the site plan (Ext.PW-21/B) of the house of Mast Ram where the occurrence had taken place. He affected the recovery of boot (Ext.P-1), chappal (Ext.P-2) and Cap (Ext.P-19) which were found lying behind the house of the deceased which were taken into possession vide memo (Ext.PW-21/B) in the presence of witnesses. Broken pieces of roof slates (Ext.P-4) which were lying scattered in the court yard of the deceased were also taken into possession. Six stones (Ext.P-5), broken shutter of window (Ext.P-7), one door of window (Ext.P-6), five broken pieces of window (Ext.P-8); eight pieces of wooden frame of door (Ext.P-9); broken doorbolt (Ext.P-12), one Chitkani (Ext.P-11) and 13 pieces of stones (Ext.P-10)" lying on the ground and first floors of the house of the deceased were also taken into possession. He inspeced the house of Mast Ram and took in possession one blood stained stone (Ext.P-13); broken pieces of Danda ((Exts.P-14 to P- 20); one Danda (Ext.P-21), one wooden piece (Ext.P-22) and one blood stained stone (Ext.P-23) in the presence of the witnesses. All these articles recovered by PW-21 were sealed in packets. A-l made disclosure statemet Ext.PW-7/A in the presence of Shyam Lal (PW-7) to the effect that after giving beatings to the deceased, he threw the Danda in the field and in pursuant to the disclosure statment, A-l got Danda (Ext.P-24) (two pieces) recovered from the field in the presence of PW-7 and Roop Lai (PW-8). A-l made disclosure statemet Ext.PW-7/A in the presence of Shyam Lal (PW-7) to the effect that after giving beatings to the deceased, he threw the Danda in the field and in pursuant to the disclosure statment, A-l got Danda (Ext.P-24) (two pieces) recovered from the field in the presence of PW-7 and Roop Lai (PW-8). Thereafter, (A-3) also made the disclosure statement (Ext.PW-7/B) stating that he had concealed Dandawhich was used by him for having blows to the deceased behind the house of Mast Ram beneath the stone. Pursuant to his disclosure statement, Danda (Ext.P-25) was recovered by him in the presence of PWs 7 and 8. A-2 also made disclosure statemet (Ext.P-7/C in the presence of PW-7 to the efect that he concealed Danda which was used by him for the commission of the offence behind the newly constructed house of A-l in the bushes and pursuant to the said disclosure statement Danda (Ext.P-26) was recovered by him in the presence of PWs 7 and 8. After the recovery of Dandas from the places where they were concealed by A-l, A-2 and A-3, PW-21 prepared site plans of those places marked (Ext.PW-2/C, PW-21/D and PW21/E). During the investigation of the case it was noticed by PW-21 that nobody was residing in the house of Mast Ram in whose courtyard the occurrence had taken place. PW-21 recorded the statements of other witnesses. 5." Dr. P.S. Dogra(PW-12) Medical Officer, District Hospital, Bilaspur conducted post-mortem of the dead body of Ram Prakash on 2.4.1994 at about 11 A.M. and found the following injuries on his body:- (i) Dark red bruise in left fore-arm covering 90% of surface of left forearm. The arm was swollen. There was no fracture of underlying bones, (ii) Reddish blue bruise in left upper arm on posterior aspect effecting 3/5 part of the arm. Swelling present. (iii)Dark red bruise on right side of the back in an area 8"x6" over shoulder Girdle. No fracture of underlying bones. (iv) Bruise in an area 6"x4" above left buttock just away from mid line, (v) Bruise on lateral aspect of lower part of left thigh 4"x2-l/2" size. (vi)Lacerated wound 3"xl" just above left heel. Bony fragment present in the wound. (vii)Lacerated wound 1" x .3cm in size on right side of the chin. No fracture of underlying bones. (iv) Bruise in an area 6"x4" above left buttock just away from mid line, (v) Bruise on lateral aspect of lower part of left thigh 4"x2-l/2" size. (vi)Lacerated wound 3"xl" just above left heel. Bony fragment present in the wound. (vii)Lacerated wound 1" x .3cm in size on right side of the chin. (viiijLacerated wound on right side of forehead 2 cm x .5cm in size, (ix) .5cm Lacerated wound on the left Annals, (x) .5x.2cm wound on rim of the left Penna. 6. Dr. S.P. Dogra issued post mortem report (Ext.P-12/B) and in his opinion Ram Prakash (deceased) died of shock caused by ante mortem injuries which were sufficient to cause his death in the ordinary course of nature. The probable time between injuries and death was recorded 3 to 6 hours and between death and post mortem was 12 to 24 hours. According to the opinion of Doctor Dogra, the injury on the person of the deceased could be caused by multiple blows with Dandas and stones like (Ext.P-14 to P-20 and P-24 to P-26) and the possibility of having those injuries caused by Dandas and the stones with repeated blows could not be ruled out. 7. Dr. Arun Sharma Scientist (Bio and Serology) State Forensic Laboratory, Bharari, Shimla stated in report (Ext.PW-21/L) that the human blood of group "O" was found on Ext.No.1 (Stone), Ext.No.3(stone), Ext.No.5 (piece of wood), Ext.No.7A (shirt), Ext.No.7B (pant) and Ext.No.7C(vest). On Exhibit No.2 (Danda), Ext.No.4 (piece of wood), Ext.No.6 (round wood), Ext.No.7D (underwear) and Ext.No.8 (sample of blood) human blood was found but its blood group could not be determined. On receipt of the post mortem report and Chemical Examiners report, PW-21 laid charge-sheet against all the above named accused in the court of Additional Chief Judicial Magistrate, Bilaspur who committed the case for trial to the Sessions Judge. The learned Sessions Judge found prima facie case against the accused and charged them accordingly. All the accused persons pleaded not guilty to the charges leveled against them and claimed to be tried. 8. The prosecution examined 21 witnesses namely, Smt. Ram Pyari (PW-1) widow of the deceased, eye-witness Sunil Kumar (PW-2) son of the deceased, eye-witness Shri Krishan Dayal (PW-3). All the accused persons pleaded not guilty to the charges leveled against them and claimed to be tried. 8. The prosecution examined 21 witnesses namely, Smt. Ram Pyari (PW-1) widow of the deceased, eye-witness Sunil Kumar (PW-2) son of the deceased, eye-witness Shri Krishan Dayal (PW-3). Dhiana Ram (PW-4), Smt. Kanta Devi (PW-5) (hostile witness), Runka Ram (PW-6); Shyam Lal (PW-7) a witness of disclosure statement and recovery of weapons of offence i.e. Dandas, Roop Lai (PW-8) recovery witness of Dandas, Smt. Satya Devi (PW-9) (hostile witness), Smt. Chando Devi (PW-10), Dr. D.R. Sehgal (PW-11), Dr. P.S. Dogra, (P-12); Shri Shakti Singh, Pharmacist (PW-13), Sardar Bachitter Singh (PW-14) Ex-Minister; Dev Raj (PW-15) Patwari; Constable No.249 Prem Lai (PW-16); Constable No.380 Amar Singh (PW-17); Nain Singh (PW-18), Shri Rajiv Kumar (PW-17); Nain singh (PW-18), Shri Rajiv Kumar (PW-19) Junior Engineer, Shri Dharam Singh (PW-20) Additional Station House Officer and Station House Officer Shri Hans Raj (PW-21) in support of its case. Before the Sessions Court in their respective statemets recorded under Section 313 Cr.P.C. the accused persons contended that they were falsely implicated in the case by the interested witnesses due to enmity. It has also been stated by A-l that some villagers and Pancayat Members had some grudge against the deceased. A-4 stated that he is living in the house of one Smt. Manso Devi since his childhood at aplace which is situate at a distance of three kilometers from the house of the deceased on 1.4.1994 (the day of occurrence) he worked as stone dresser at the house of Paras Ram (DW- 5) resident of village Thuran from 9 a.m. to 5 p.m. on daily wage along with Durga Ram (DW-3) and Prem Lai (DW-4). The learned Sessions Judge, relying on the eye-witnesses account of PWs 1,2,3 and 4 supported by the medical evidence and other connecting evidence, convicted and sentenced all the accused persons for the above said offences. Now the accused have preferred the abovesaid two appeals challenging the correctness and validity of their conviction and sentences and the State in the third appeal has challenged the order of acquittal of A-6 to A-10 recorded by the trial court under Section 302 read with Section 149 of the Indian Penal Code. 9. We have heard Mr. Ramakant Sharma, learned counsel appearing on behalf of A-l to A-5, Mr. 9. We have heard Mr. Ramakant Sharma, learned counsel appearing on behalf of A-l to A-5, Mr. M.S. Chandel, Advocate appearing on behalf of A-6 to A-10 and Mr. M.S. Guleria, learned Deputy Advocate General for the State. Mr. Ramakant Sharma, learned counsel vehemently contended that the learned Sessions Judge has misread and misappreciated the evidence of PWs 1,2,3 and 4 the alleged eye-witnesses, who are interested and relatives of the deceased and their testimony was full of contradictions. According to the learned counsel none of the alleged eye-witness has seen A-l to A-5 giving Danda blow to the deceased nor they could prove that stones were also pelted by them upon the deceased resulting his death. Mr Sharma then contended that the disclosure statements relied upon by the prosecution were not made by the A-l to A-3 voluntarily and the discovery of the Dandas pursuant to the said disclosure statements was not free from doubt and that the blood group found on the recovered Dandas by the Chemical Examiner has not been found matching with the blood group of the deceased. The learned counsel also contended that the learned Sessions Judge has not considered the evidence of DW-3, DW-4 and DW-5 who have categorically stated that A-4 had worked on the day of occurrence as daily wage at the house of DW-5 throughout the day and therefore, his presence at the scene of crime has not been established by the prosecution and his conviction is not valid and legal. He also contended that there was not an iota of evidence on record to prove that A-1 to A-5 entered the house of the deceased with the intention to cause his death and therefore, the charge of Section 452 JPC has not been proved against them by the prosecution. The learned counsel has placed reliance upon some decisions and precedents which shall be referred to and dealt with at the later stage. 12. Per contra, learned Deputy Advocate General vehemently contended that from the proper examination of the entire evidence of the eye- witnesses, it stands proved that all the accused persons were in the habit of throwing stones upon the house of the deceased and giving him beatings with Dandas and stones and that there could not be any manner of doubt to disbelieve the reliable and convincing evidence of the eye-witnesses corroborated by the medical evidence. He also contended that the minor inconsistencies and contradictions if any found in the evidence of eye-witnesses were bound to come with the passage of time which are not fatal to the prosectuion case and the learned Sessions Judge has rightly accepted the evidence of the witnesses and on the basis of reliable evidence the accused. persons were convicted. The learned Deputy Advocate General also contended that the acquittal of A-6 to A-10 under Section 302 read with Section 149 of the Indian Penal Code recorded by the learned Sessions Judge was not sustainable as the prosecution had proved its case beyond reasonable doubt that they with common object also participated in committing murder of Ram Prakash and therefore, their conviction has to be set aside and accordingly sentenced. 13. Mr. M.S. Chandel, learned counsel appearing on behalf of A-6 to A-10 contended that the learned Sessions Judge has wrongly held these accused guilty of the offence under Section 147 I.P.C. and Section 452 I.P.C. in the absence of any evidence appearing against them. He also contended that there was not an iota of evidence on record to prove that these accused persons had any dispute with the deceased and his family members nor they were found having entered into the courtyard of the deceased. The learned counsel has taken us through the evidence of the relevant witnesses which would eliminate the presence of A-6 to A-10 at the house of the deceased having participated in pelting stones on the house of the deceased when other accused persons had done so. 14. We have given our anxious and thoughtful consideration to the respective contentions of the learned counsel on either side. In order to appreciate their contentions we propose to re-assess and re- appreciate the entire ocular and documentary evidence adduced on record. In her deposition, PW-1 unequivocally stated that on the day of occurrence at about 2 p.m. her husband came to his house carrying a pitcher of water from the Bawori (small water pond), she along with her two sons Sunil Kumar (PW-2) and Anil Kumar were present at their house. Her third son Sanjeev Kumar had gone to Bilaspur to verify the result of the complaint (Ext. Her third son Sanjeev Kumar had gone to Bilaspur to verify the result of the complaint (Ext. PW-I/A) dated 30.3.1994 made by her to the Deputy Commissioner, Bilaspur alleging therein that she and other members of the family were apprehending danger to their lives at the hands of A-l, A-2 and A-3 and one Vijay Kumar. She deposed that four months prior to the day of occurrence, the members of the Gram Panchayat Badol had constructed a path on the side of her land which was objected to by her husband on the ground that the rain water flowing from the upper side will damage his land and at that time the Panchayat had assured that it would raise the level of the path towards their land so that the water would not flow and damage their land, but the Panchayat did not raise the level of the path as agreed to and resultantly, her husband closed the path and on account of the act of her husband, the residents of village Dhanattar including the accused persons started nourishing grudge against her family. She stated that all the accused persons on 11.11.1993 had burnt their firewood which was kept by them on the aforesaid path and later on the matter was compromised by the parties with the intervention of the Police. On 24.3.1994 when her two sons Sanjeev Kumar and PW-2 Sunil Kumar were coming from the school, A-l,A-2,A-3 and one Vijay had given beatings to them on the way. The matter was reported to the Police and the injured were got medically examined. Her husband was an Ex-service man. On the day of occurrence, it was A-5 wife of A-2 who first came to her house followed by A-l,A-2,A-3, and A-4 armed with Dandas and started pelting stones on her house. They also threatened that they would kill all the members of her family. In the meantime, A-6 to A-10 also came there who too started pelting stones on her house as a result whereof windows and doors of her two storied house were broken. Her two sons namely, PW-2 and Anil Kumar had taken shelter in the upper storey whereas she along with her husband remained silent in the lower storey of their house. Her two sons namely, PW-2 and Anil Kumar had taken shelter in the upper storey whereas she along with her husband remained silent in the lower storey of their house. On apprehending danger to their lives, she went to the upper storey and asked her sons to save themselves who immediately jumped out of the windows of the house in the field and thereafter, she also jumped through the window but her husband could not come out and concealed himself in the house. She along with her two sons then went to the house of Smt. Kanta Devi (PW-5) wife of Chhota Ram for taking shelter and when she was running to the house of PW-5, her Chhapals were left in the field. PW-5 told her that her husband had manage^ to escape from his house and had gone towards the house of Mast Ram being followed by all the accused persons. Her husband was ultimately overpowered by all the accused persons in the courtyard of Mast Ram. On hearing the cries of her husband, she came out of the house of PW-5 and raised alarm "Bachao, Bachao". She saw A-l to A-5 giving merciless beatings to her husband with Dandas and stones blows whereas A-6 to A-10 were juSt standing and saying that her husband be finished. She immediately rushed towards village Galani and called one Premi, PW-7 Raunka Ram and one Jagga Ram who came with her to the place of occurrence. On reaching at the scene of occurrence, she found that her husband was lying with injuries on all parts of his body. The blood was oozing out of those injuries. He was taken in a Palki (Palanquin) for medical treatment to District Hospital, Bilaspur, but he succumbed to his injuries oh the way at village Rishikesh. Her statement (Ext. PW- 1/B) under Section 154 Cr. P. C. was recorded by the Police at about 8 p.m. The entire incident was witnessed by her and her son (PW-2) in the courtyard of Mast Ram. A suggestion was put to her in the cross- examination by the accused persons that her husband started giving beatings to the police officials when he was asked not to close the path which she emphatically denied. She also denied the suggestion that some compromise was entered into between her husband and the residents of the village. A suggestion was put to her in the cross- examination by the accused persons that her husband started giving beatings to the police officials when he was asked not to close the path which she emphatically denied. She also denied the suggestion that some compromise was entered into between her husband and the residents of the village. She categorically denied the other suggestion that she could not witness the occurrence because she was confined in a room of Chhota Ram. PW-2 has corroborated the entire testimony of PW-1. It has come in his evidence that on 1.4.1994 all the accused persons gave beatings to his father and also pelted stones on their house as a result whereof the windows and doors of their house were broken. He along with his mother and brother Anil Kumar with great difficulty could escape from their house through window but his father ran towards the house of Mast Ram to save his life. At the courtyard of the house of Mast Ram A-l to A-5 gave Danda and stones blow on the person of his father and the lady accused persons were only instigating them to kill his father. They called Jagga Ram, Premi Devi and PW-7 from village Galani to save them and the life of their father. When they returned to the place of occurrence he found his father lying in an injured condition who was taken to hospital but he died on the way. He stated that he saw the entire incident from the upper side of the house of PW-5 where he along with his mother and brother took shelter. 15. In the presence of PW-3, the Police took into possession broken pieces of slates, window panes, doors and other articles from the courtyard of the house of the deceased. A pair of plastic shoes (Ext.P-1) belonging to PW-2 and a pair of Chappal (Ext.P-2) belonging to PW-1 and a cap (Ext.P-3) were also taken into possession by the Police in his presence. This witness deposed that he too went along with the police to the courtyard of the house of Mast Ram where nobody lived and found big blood stained stone which was take into possession by the Police. Broken pieces of Dandas numbering about marked Exts P- 14 to Ext.P-20 were also taken into possession by the Police. This witness deposed that he too went along with the police to the courtyard of the house of Mast Ram where nobody lived and found big blood stained stone which was take into possession by the Police. Broken pieces of Dandas numbering about marked Exts P- 14 to Ext.P-20 were also taken into possession by the Police. In addition one more blood stained Danda of Safeda was also taken into possession by the Police from the spot in his presence. The witness has identified all the Dandas in the Court. He stated that he had signed all the recovery memos in the presence of another witness, namely, Jagga Ram. The witness was a ward member of the Gram Panchayat during the relevant time. It has also come in his evidence that there was a dispute between the complainant and accused persons with regard to path and they were having inimical relations with each other on that account. In his cross-examination the witness has admitted that one complaint was made by the villagers against the deceased for causing obstruction on the existing path passing through the land of the deceased as well as spoiling the water of the Bowari. He admitted that the police visited the village on 21st and 22nd March in connection with the said complaint which was lateron compromised vide (Ext.DA). It has come in the evidence of PW-4 who was working on the day of occurrence at the house of A-1 that A-1, A- 2, A-3 and A-5 had gone towards the house of the deceased and they returned back after about half an hour. On return, they told him that a quarrel had taken place with the deceased. 16. PW-5 in her deposition admitted that PW-1 came weeping and uttering Marrite-Marrite" Bachao-Bachao, with her two sons, namely, (PW-2) and Anil Kumar to her house PW-1 told her that the village people had attacked them including her husband and then she alongwith PW-1 and PW-2 hidden themselves in the room of her house. She of course turned hostile to the prosecution but she corroborated the version of PWs 1 and 2 that after saving their lives from the attack of A-l to A-5, PWs 1 and 2 and Anil Kumar had gone to her house for seeking shelter where they had hidden themselves to save their lives. She of course turned hostile to the prosecution but she corroborated the version of PWs 1 and 2 that after saving their lives from the attack of A-l to A-5, PWs 1 and 2 and Anil Kumar had gone to her house for seeking shelter where they had hidden themselves to save their lives. The learned counsel for A-l to A-6 has placed much reliance on the testimony of this witness wherein she has denied the involvement of these accused in the commission of the alleged offences. It was pointed out by the learned counsel that according to the statement of this witness PWs 1 and 2 remained inside her room for about 1-1/2 hours and in fact it has come on record that the alleged occurrence took place at the court yard of Mast Ram for about 1/2 hour only and in such circumstances PWs. 1 and 2 could not possibly see A-l to A-5 giving Dandas blows and pelting of stones on the person of the deceased at the courtyard of the house of Mast Ram. We are not inclined to accept the contention of the learned counsel in view of the clear, cogent and convincing evidence of PWs 1 ad 2 that they had gone to the house of PW-5 to save themselves as they were attacked by A-l to A-5 at their house and they wanted to take the help of PW-5 and other members of her family. PWs. 1 and 2 have categorically stated that on hearing the cries of the Ram Parkash (deceased). They saw A-l to A-5 from the path that the deceased was being given merciless beatings with Dandas by A-l to A- 5. When they could not get protection or help from PW-5, they went to another village, namely, Galani to call, Jagga Ram, Smt. Premi Devi and PW-6. We find no material discrepancy or contradiction in the statements of PWs 1,2 and 5 which may raise suspicion or doubt in our mind about the involvement of A-l to A-5 in the commission of the crime. The learned counsel then contended that the evidence of PW-6 cannot be accepted being an interested witness as he is related to PW- 1 is also not sustainable. It is not in dispute that PW-6 is the brother of PW-1, PW-1 went to his house and apprised him about the occurrence. The learned counsel then contended that the evidence of PW-6 cannot be accepted being an interested witness as he is related to PW- 1 is also not sustainable. It is not in dispute that PW-6 is the brother of PW-1, PW-1 went to his house and apprised him about the occurrence. It was but natural for PW-1 to have sought the help of his near and dear in such circumstances. PW-6 categorically stated that PW-1 told him that her husband was given beatings by the sons of Ganga Ram and other residents of her village. It is not in dispute that A-1 to A-5 are the sons of Ganga Ram whereas A-5 is the wife of A-2. PW-6 accompanied PW-1 to the place of occurrence and found the deceased with blood injuries on his person lying in the courtyard of Mast Ram. It has come in his evidence that the stones and dandas were also lying there and at that time Ram Parkash injured told him that he was given beatings by the sons of Ganga Ram. The injured was thereafter taken in a Palki to the Hospital but he succumbed to his injuries on the way at village Rishicase. The distance between his house and the house of PW-1 is about one furlong. In this cross- examination he maintained that injured Ram Parkash told him that he was given beatings by the sons of Ganga Ram and other residents of the village and nothing could be elicited from his cross-examination by the accused persons to discredit and disbelieve his testimony. The testimony of PWs. 1 and 2 referred to above is clear, reliable, convincing and unimpeachable to prove that A-l to A-5 came at their house and started pelting stones with the result that windows, doors and roof slates of the house of the deceased were broken to pieces. They also deposed that in such circumstances they had saved themselves by jumping from the windows and taken shelter at the house of PW-5. PW-5 has also corroborated their versions to the extent that PW-1, PW- 2 and Anil Kumar the second son of PW-1 came to her house shouting Mardeta Mardeta Bachao Bachao and she had given shelter to them in her house. PW-5 has also corroborated their versions to the extent that PW-1, PW- 2 and Anil Kumar the second son of PW-1 came to her house shouting Mardeta Mardeta Bachao Bachao and she had given shelter to them in her house. The deceased also escaped from his house with a hope to save his life but when he reached at the court yard of the house of Mast Ram, he was laid down by A-1 to A-5 and was given beatings with Lathies and stones. The testimony of PWs 1 and 2 has been fully corroborated by PW-6. Smt. Satya Devi (PW-9) also deposed that she had seen the deceased running towards the house of Mast Ram followed by two men who were throwing stones upon him. She identified A-l and A-2 to be the same persons who threw stones on the deceased. Thereafter she has resiled from her earlier statement made to the Police under Section 161 Cr.P.C. However, in her cross-examination on behalf of the prosecution, she admitted that she had run away from the spot immediately when a stone had fallen near her. Smt. Chandu (PW-10) stated to have seen the occurrence from the other side of the Nullah when she noticed 4-5 gents and 3-4 ladies in the court yard of Mast Ram at about 2 P.M. She also heard noise of giving beatings to the deceased who was crying for help. 17. Dr. D.R. Sehgal (PW-11) medically examined PW-2 and Sanjeev Kumar his brother on 24.3.1994 when they were given beatings by A-1 ,A-2,A-3 and one Vijay. Dr. Sehgal noticed certain injuries on their persons and issued medico legal certificate (Exts.PW-1 I/A and PW-11/B). The medical exami-5102001(1) Cur.LJ. (H.P.) nation of PW-2 and Sanjeev Kumar would also go to testify the version of PWs.l and 2 that A-l,A-2 and A-3 had given beatings to these boys on 24.3.1994. The oral eye witnesses’ account of PWs 1 and 2 and the version of PW-6 has been duly corroborated by PW-11. Dr. P.S. Dogra who conducted the post mortem on the dead body of the deceased could be caused with multiple blows of Dandas and Stones like Exts. P-14 to P-20 and P-24 to P-26. Dr. The oral eye witnesses’ account of PWs 1 and 2 and the version of PW-6 has been duly corroborated by PW-11. Dr. P.S. Dogra who conducted the post mortem on the dead body of the deceased could be caused with multiple blows of Dandas and Stones like Exts. P-14 to P-20 and P-24 to P-26. Dr. Dogra also opined that the death was a result of the cumulative effect of all the injuries causing the hypovolumic shock leading to death of the deceased and those injuries found on the body of Ram Parkash were sufficient to cause his death in the ordinary course of nature. PW-13 also medically examined the deceased in the court yard of Mast Ram after he received injuries and advised PWs 1 and 6 present at the place of occurrence to take the injured to hospital for further medical treatment. From the close scrutiny of the entire evidence of the eye witnesses corroborated by PWs4, 5, 6,9,10 and medical evidence, we have no hesitation to conclude that the prosecution has proved the charges levelled against A-1 ,A-2,A-3,A-4 and A-5 and we do not find any cogent reason to differ with the finding and reasoning recorded by the learned Sessions Judge convicting them for the above said offences. The contention of the learned counsel for the accused that no reliance can be placed upon the evidence of the interested witnesses cannot be accepted. It was not a case of mere suspicion but the evidence is definite positive, legal unimpeachable and reliable adduced by the prosecution against A-l to A-5. It is established law that the evidence of witnesses should be appreciated by keeping ground reality and fact situation in mind. In view of the close relationship, witnesses naturally would have a tendency to exaggerate or add facts but while appreciating the evidence exaggerated facts are to be ignored unless it affects substratum of prosecution story. In the case of State of U.P. v. M.K. Anthony, AIR 1985 SC 48, the Supreme Court has pointed out that while appreciating the evidence of a witness, the approach must be whether evidence of the witness read as a whole appears to have a ring of truth. In the case of State of U.P. v. M.K. Anthony, AIR 1985 SC 48, the Supreme Court has pointed out that while appreciating the evidence of a witness, the approach must be whether evidence of the witness read as a whole appears to have a ring of truth. Once the impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks 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 and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies, trivial matters not touching the core of the case, hyper-technical approach in’ persuasion of the evidence should be avoided. Their Lordship further proceeded to observe: (at p.55 of AIR): "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. Cross-examination is an unequal duel between a rustic and refined lawyer." 18. In the present case, we do not find any deficiency, drawbacks and infirmities in the evidence of the eye witnessses nor we are inclined to discard their testimonies mainly on the ground that they are interested and related witnesses. The ratio of the judment in Namdeo Daulata Dhayagude and others v. State of Maharashtra AIR 1977 Supreme Court 381 relied upon by Mr. Ramakant Sharma, leaned counsel to contend that the evidence of the eye witnesses and other witnesses could not be relied upon on the ground of contradictions will not lend any support to the case A-l to A-5. In that case their Lordships have held as under: "Where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points. It would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused." 19. It would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused." 19. Here PW-1 in her statement (Ext.PW-1/B) recorded under Section 154 Cr.P.C. by the Police the witness has given full details of the occurrence and the names of A-l to A-6 who were involved in the commission of the offence levelled against them and we find no contradiction in her earlier statement and deposition noted in the court. In Loola Ram (Dead) through Dull Chand v. State of Haryana and another. (1999) 9 Supreme Court Cases 525, their Lordships have held as under: "Although the High Court is within its jurisdiction as the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of the witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contraditions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variatios by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepanices ought not to obliterate otherwise acceptable evidence." (Para 9) Further it is observed: "One hardly comes across a witness whose evidence does not contain some exaggeration or embellishment-sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their overanxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same." (Para 12) Their Lordships proceeded to hold as under: "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. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaciton 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." ..... (Parall) 20. In a recent judgment State of H.P. v. Lekh Raj and another (2000) 1 Supreme Court Cases 247, their Lordships have held as under: "Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecutions case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavored by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be and to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement." (Para7) 21. In State of Rajasthan v. Teja Ram and others AIR 1999 Supreme Court 1776 it has been held as under: "The over-insistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against rton-examination of such person as prosecution witness the Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighborhood may be replete with other residents also." (Para 20) 22. In the light of the above settled position of law, we do not agree with the contention of Mr. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighborhood may be replete with other residents also." (Para 20) 22. In the light of the above settled position of law, we do not agree with the contention of Mr. Ramakant Sharma that the evidence of PWs 1, 2 and 6 shall be discarded on the sole ground that they are interested and related witnesses of the deceased. 23. Now we shall deal with the plea of alibi taken by A-4 in his defence. He examined DW-3, DW-4 and DW-5 in his defence, but could not convince that he was working at the house of DW-5 on the day of occurrence. His presence on the scene of occurrence and participation in the crime has been proved by PWs. 1 and 2 in their testimony and he has been named in the F.I.R. by PW-1 who was one of the assailants in the commission of the crime at both the places. No documentary evidence showing the presence of A-4 working at the house of DW-5 has been produced nor any receipt of the wages received by him has been produced. It has been admitted by DW-4 that he had not seen DW-5 and his son marking the - - presence of A-4 in the attendance register on 1.4.1994. It has come in the evidence of DW-3 that he had given one affidavit in favour of A-4 when he was arrested by the Police in the present case stating that A-4 was present with him on 1.4.1994. DW-3 and DW-4 have also categorically stated that they alongwith A-4 worked on the construction of the house of DW-5 only for 15 to 20 days in the month of April, 1994. In the teeth of overwhelming and clinching evidence of PWs. 1 and 2, the plea of A-4 that he was not at the scene of the occurrence cannot be accepted. A-4 has made no attempt to call for the" attendance register maintained by DW-5 showing his presence on the construction work of the house of.DW-5 on 1.4.1994 nor he has produced any receipt about the payment of wages received from DW-5 of the said date. A-4 has made no attempt to call for the" attendance register maintained by DW-5 showing his presence on the construction work of the house of.DW-5 on 1.4.1994 nor he has produced any receipt about the payment of wages received from DW-5 of the said date. Thus, there is not an iota of evidence available on record to establish the plea of alibi of A-4 and under such circumstances the trial court has rightly rejected his plea of alibi. We are therefore, unable to accept the submission of Mr. Ramakant Sharma that the plea of alibi has been legally proved by A-4 in the case. 24. Pursuant to disclosure statement (Ext.PW-7/A) made by A-l to Investigating Officer (PW-21) in the presence of Shyam Lal (PW-7). two pieces of "Lathies" (Ext.P-24) were recovered from the fields nearby the house of Mast Ram with which the deceased was given beatings by him. In his presence A-3 also made disclosure statement (Ext.PW-7/B) pursuant to which "Lathi" (Ext.P-25) was recovered underneath the stones on the back side of the house of Mast Ram. A-2 also made disclosure statement (Ext.PW-7/C) on the basis of which "Danda" (Ext.P-2) was got recovered by him from newly built house of A-l. The recovery of "Lathis" at the instance of A-l,A-2 and A-3 were also effected in the presence of Roop Lal (PW-8). The evidence of the recovery witnesses has not been shattered by A-l, A-2 and A-3, in their corss-examination. PW-21, Investigating Officer has also corroborated the version of recovery witnesses. The contentions of Mr. Ramakant Sharma that in recovery memos (Exts.PW-8/C, PW-8/D and PW-8/E) of "Lathies" at the instance of A-l, A-2 and A-3 has not been proved by the prosecution by examining the marginal witness Jagga Ram and the disclosure statements made by these accused persons were not voluntarily cannot be accepted. Out of the two marginal witnesses the prosecution has examined one PW-8 who has testified the recovery of "Lathies" at the instance of A-l,A-2 and A-3 which were later on identified by him in the Court. Out of the two marginal witnesses the prosecution has examined one PW-8 who has testified the recovery of "Lathies" at the instance of A-l,A-2 and A-3 which were later on identified by him in the Court. From the evidence of PWs 7 and 8 the fact discovered by PW21 with the help of (i) the disclosure statements and (ii) the recovery of incriminating articles on the strength of such statements was that it was A-l, A-2 and A-3 who concealed those articles at the hidden places and during the interrogation of these accused persons they had made the disclosure statements to PW-1 in the presence of PW-7. The non-examination of Bhoop the another witness of the disclosure statements (Exts.PW-7/A, PW-7/B and PW-7/C) will not render the disclosure statement discredited as those were made by three accused persons voluntarily without any compulsion or duress exercised by PW-21, Investigating Officer as nothing has been suggested by the accused to PW-7 and PW-21 that the disclosure statements were recorded under some compulsion and duress of the Police. 25. In, State of Himachal Pradesh v. Jeet Singh (1999) 4 Supreme Court Cases 370, their Lordships have said as unden- "It is not necessary that during the interrogation of the accused by the Investigating Officer the other witnesses should be present. On the contrary, the Investigating Officer interrogated the accused persons without the presence of others and the mere fact that any witness to the recovery did not overhear the disclosure statements of the accused is hardly sufficient to hold that no such disclosures were made by the accused." 26. On consideration of the disclosure statements ad the recovery of the "Lathies" at the instance of A-l.A-2 and A-3, the prosecution has established beyond all reasonable doubt that these accused persons committed the murder of Ram Parkash with the help of the said weapons. Further, the prosecution case has been supported by the report (Ext.PW-21/A) submitted by Chemical Examiner wherein it has been specifically stated that the blood group O was found on the stones which was recovered by PW-21 from the place of the occurrence near the house of Mast Ram. Further, the prosecution case has been supported by the report (Ext.PW-21/A) submitted by Chemical Examiner wherein it has been specifically stated that the blood group O was found on the stones which was recovered by PW-21 from the place of the occurrence near the house of Mast Ram. The Dandas which were recovered at the instance of A-l,A-2 and A-3 during the investigation were also found blood stained but the group of the blood could not be ascertained which would also show that those Dandas were used by these accused persons for committing the crime. PW-21, also took into possession roof slates (Ext.P-4), six stones (Ext.P-5), broken shutter of window (Ext.P-7), one door of window (Ext.P-6) and five broken pieces of window (Ext.P-8) from the ground and first floors of the house of the deceased. These articles were damaged by A-l,A-2,A-3,A-4 and A-5 by pelting stones at the house of the deceased when they trespassed his house and found the deceased, PWs 1 & 2 and Anil Kumar inside the house. 27. We have meticulously re-appraised and re-assessed the entire evidence on record and we have no hesitation to conclude that the learned Sessions Judge has rightly convicted and sentenced A-1.A-2.A-3, A-4 and A-5 under Sections 147,149,452 and 302 of the Indian Penal Code and, therefore their convictions and sentences are maintained. Criminal Appeal No.22 of 1999. 28. This appeal has been filed by Smt. Satya Devi (A-6) Smt. Lachhmi Devi, (A-7) Smt. Savitri Devi, (A-8) Smt. Roshani Devi (A-9) and Smt Nirmla Devi (A-10) against their conviction and sentence recorded by learned Sessions Judge under Sections 147 and 452 of the Indian Penal Code. The learned Sessions Judge has found them guilty because they had pelted stones at the house of the deceased alongwith other convicted person. It appears that the learned Sessions Judge has lost sight of the definition of house-trespass contained in Section 442 of the Indian Penal Code which reads as under:- "442. House-trespass:- Whoever commits criminal tespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commithouse-trespass. Explanation:- The introduction of any p£rt of the criminal trespassers body is entering sufficient to constitute house- trespass." 29. Explanation:- The introduction of any p£rt of the criminal trespassers body is entering sufficient to constitute house- trespass." 29. The criminal trespass has been defined under Section 441 IPC which reads as under:- "441. Creiminal trespass:- Whoever enters, into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence is said to commit "criminal trespass". 30. The prosecution has not proved on record that A-6, A-7.A-8, A-9 and A-10 had trespassed the courtyard or the house of the deceased when the other accused persons at the first instance came to his house armed with lathies pelting stones which resulted damage to his house in which the deceased, PWs 1,2 and Anil Kumar were residing. PW-1 in her statement (Ext.PW-1/B) has specifically stated that it was A-5 Smt. Soma Devi wife of A-2 who first came in the courtyard of their house and started pelting stones followed by A-1,A-2,A-3 and A-4 who are the sons of Ganga Ram. All these accused persons pelted stones on the house of the deceased from his courtyard as a result thereof some windows and doors were damaged. In her statement Ext.DA and Mark D-l recorded under Section 161 Cr.P.C. she only stated that A-6 to A-10 had pelted stones on their house from some field outside their house. Similar statement was made by her in the court. PW-2 has also stated in the court on similar lines. On consideration of the entire evidence of PW-1 and PW-2 it is plain that these accused persons never trespassed the property of the deceased. In her first version made in her statement (Ext.PW-1/B), PW-1 has not named A-6 to A-10 joining other accused in pelting stones on their house. It appears that PW-1 and PW-2 have tried to implicate these accused persons in a heat of over zeal. In the teeth of such evidence, the prosecution has not proved the ingredients of "house trespass" punishable under Section 452 IPC against these five ladies accused. It appears that PW-1 and PW-2 have tried to implicate these accused persons in a heat of over zeal. In the teeth of such evidence, the prosecution has not proved the ingredients of "house trespass" punishable under Section 452 IPC against these five ladies accused. In the facts and circumstances of the case we are of the considered view that the findings and reasoning of the learned Sessions Judge are unsustainable and erroneous and he has misled himself in coming to the conclusion that the guilt of A-6,A-7,A-8, A-9 and A-10 under Sections 147 and 452 I.P.C. was established by the prosecution. We accordingly set aside their conviction and sentences and acquit them of the charge under Section 147 and 452 of the Indian Penal Code. Crl. Appeal No. 218 of 1999. 31. In this appeal the State has assailed the acquittal of A-6 to A-10 for the offence under Sections 302 and 149 of the Indian Penal Code. The evidence led by the prosecution to prove the said charge against these accused persons was the evidence of PW-1 and PW-2. Both these witnesses have only stated that these accused persons were telling A-l to A-5 at the place of occurrence that the deceased should be finished. It has come in their evidence and the evidence of PW-6 that when they reached in the courtyard of the house of Mast Ram, none except the deceased was found there. PW-6 has not heard these accused persons saying that the deceased and his family members be finished. In their statements PWs 1 and 2 have only stated that A-6 to A-10 had also gone to the house of Mast Ram where Ram Prakash was injured by A- 1 to A-5 with the intention to kill him and they were instigating te other accused to do away their lives. These accused persons had not participated in giving Danda or stone blows to the deceased. The evidence of PWs. 1 and 2 that A-6 to A-10 had instigated the other accused is not believable and reliable to the extent that these accused persons had also joined the other accused to commit the murder of the deceased. These accused persons had not participated in giving Danda or stone blows to the deceased. The evidence of PWs. 1 and 2 that A-6 to A-10 had instigated the other accused is not believable and reliable to the extent that these accused persons had also joined the other accused to commit the murder of the deceased. For the lack of reliable and convincing evidence on record, the trial court has rightly acquitted A-6 to A-10 for offence under Section 302 I.P.C. and under Section 149T.P.C. and we find no sound reason to interfere in the reasoning and finding of the trial court. 32. No other point has been urged by the learned counsel on either side. 33. For the above reasons, the trial court was therefore, justified in convicting A-l,A-2,A-3,A-4 and A-5 under Sections 147, 149,452 and 302 of the Indian Penal Code and accordingly their appeal No.79 of 1999 is dismissed. The conviction and sentence of A-6, A-7,A-8,A-9 and A-10 is set aside and their Criminal appeal No.22 of 1999 is accepted. They are acquitted. The amount of fine imposed upon them by the trial court and being deposited pursuant to order dated 9.3.1999 shall be refunded to them. Their bail bonds are discharged and cancelled. Criminal appeal No.218 of 1999 filed by the State of Himachal Pradesh against A-6 to A-10 shall stand dismissed.