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Himachal Pradesh High Court · body

2001 DIGILAW 182 (HP)

RAM KRISHAN v. STATE OF H. P.

2001-08-02

M.R.VERMA, R.L.KHURANA

body2001
JUDGMENT M.R. Verma, Judge:-Since both these appeals arise out of the same judgment dated 27.10.1999 passed by the learned Additional Sessions Judge, Mandi, therefore, these are being disposed of by this common judgment. 2. Brief facts leading to the presentation of these appeals are that Laxmi Dutt (PW-1), resident of village Mandap in Tehsil Karsog was running a tailoring shop at the material time in village Maghandi at a distance of about one kilometer from his residential house. Manohar Lal (since deceased) was his younger brother and was running a shop of general merchandise at Maghandi in the business premises of PW-1 in the morning and evening while during the day time he used to teach students of a nearby school. On 26.11.1998 at about 7.30 p.m. when the deceased was present in his aforesaid business premises, Ram Krishan (appellant in Criminal Appeal No. 532/99) and Harmender Singh (respondent No. 2 in Criminal Appeal No. 223/2000)(hereafter referred to as the accused persons) came there while under the influence of liquor. They wanted to take more liquor at the said business premises of the deceased, therefore, they asked the deceased to give them some eatables. The deceased, however, asked the accused persons not to take liquor in his business premises which infuriated them and as a result they quarrelled with the deceased and slapped him. The accused persons also threw the goods at the business premises of the deceased helter-skelter. When the deceased asked them not to indulge in such mischief, they asked him to get lost. Thereupon the deceased went to the houses of Pawan Kumar (PW-5) and Dogar Ram residents of village Thaltu. The deceased informed them about the acts and conduct of the accused persons and then returned to his business premises along with PW-5 and Dogar Ram requested the accused persons not to commit the mischief in the business premises of the deceased, however, the accused persons asked them to get lost. The deceased then went to his house arid informed Laxmi Dutt (PW-1) and Karam Dass (PW-6) and other persons present in the house about the acts and conduct of the accused persons. The deceased then went to his house arid informed Laxmi Dutt (PW-1) and Karam Dass (PW-6) and other persons present in the house about the acts and conduct of the accused persons. Laxmi Dutt (PW-1), Amba Dutt (PW-2), Nanak Chand (PW-3) and Prem lal along with the deceased, came to the business premises of the deceased and reached there at about 8.15 p.m. They enquired from the accused persons as to why they had picked up a quarrel with the deceased? On such enquiry, the accused persons stepped out of the business premises of Manohar Lai (deceased) and accused Ram Krishan picked up stone Ext. P-1 and hit Manohar Lai (deceased) with that stone on the left side of his head and as a consequence, the deceased dropped dead at the site where he had sustained injury with stone Ext. P-1 and rolled down the hill-side upto a distance of about 50 feet. The accused persons thereafter pelted stones on the other persons present there thereby causing simple hurt to PW-6 and Dogar Ram. On hearing the noise from the spot, Man Singh (PW-7) also came to the place of occurrence. He asked the accused persons not to pelt stones and took them to their houses. PW-1, PW-7 and Khuba Ram went to the house of Krishna Devi (PW-4), Pardhan of the Gram Panchayat and informed her of the murder of Manohar Lai (deceased). She accompanied them to the place of occurrence and inspected the dead body of the deceased. Thereafter, PW-1, PW-4 and PW-7 went to Police Station, Karsog and lodged FIR. Ext. PW-1/A under Sections 452, 323,427,302/34 of the Indian Penal Code against the accused persons and the investigation in the matter followed. SHO. Harbhajan Singh, S.I. (PW-13) visited the place of occurrence and took the dead body of Manohar Lai in possession. The dead body and the place of occurrence were got photographed and the developed photographs are Exts. PW-10/A-1 to PW-10/A-8. The report M.arg Exts. PW-13/B and PW-13/C were prepared and the dead body was sent for post mortem examination. Stone Ext. P-1 was also taken in possession vide recovery memo. Ext. PW-4/A and was sealed. Stone Ext. P-2-was also taken in possession from the business premises of the deceased vide recovery memo. Ext. PW-4/B. The post mortem of the dead body of the deceased was Conducted by PW-14 Dr. Stone Ext. P-1 was also taken in possession vide recovery memo. Ext. PW-4/A and was sealed. Stone Ext. P-2-was also taken in possession from the business premises of the deceased vide recovery memo. Ext. PW-4/B. The post mortem of the dead body of the deceased was Conducted by PW-14 Dr. Girish and the post mortem report issued by him is Ext. PW-14/A. As per opinion of PW-14, the deceased died due to the injuries to brain caused by the head injury. 3. On completion of the investigation and on being satisfied of the commission of offences punishable under Sections 452,323,427,302/34 of the Indian Penal Code, the concerned Station House Officer submitted charge sheet against the accused persons. The accused persons were tried by the learned Additional Sessions Judge for the commission of the said offences. 4. To prove the charges against the accused, the prosecution examined 14 witnesses. The accused persons in their statements under Section 313 of the Code of Criminal Procedure denied the case of the prosecution and claimed that in fact the deceased and his companions had picked up quarrel with them and they were be laboured. They have denied pelting of the stones or causing of injury to the deceased and claimed that the deceased had fallen down the hill-side and died as a result of the fall. However, the accused persons did not lead any defence. 5. On consideration of the material brought on record, the learned trial Judge held accused Ram Krishan guilty of the commission of offence punishable under Section 302 of the Indian Penal Code and accordingly convicted and sentenced him to rigorous imprisonment for life and to fine of Rs. 5,000/- and in default of payment of fine to undergo simple imprisonment for one year. He was, however, acquitted of the charges under Sections 452, 437 and 323 of the Indian Penal Code. Accused Harmender Singh, was acquitted of the charge against him. 6. Feeling aggrieved by his conviction and sentence as aforesaid, accused Ram Krishan has preferred Criminal Appeal No. 532 of 1999 whereas being aggrieved by the order regarding acquittal, the State has preferred Criminal appeal No. 223 of 2000. 7. We have heard the learned counsel for the accused persons and the learned Assistant Advocate General for the State and have also gone through the records. 8. 7. We have heard the learned counsel for the accused persons and the learned Assistant Advocate General for the State and have also gone through the records. 8. In so far as the acquittal of the accused persons of the heads of charge under Sections 452, 323, 427/34 of the Indian Penal Code is concerned, we do not find any reason whatsoever to interfere therewith. 9. To prove a charge under Section 452 of the Indian Penal Code, the prosecution is required to prove: (i) That the accused committed trespass, (ii) That it was committed after making preparations for- (a) causing hurt, or (b) assaulting, or (c) wrongful restraint. 10. As per the prosecution, the accused persons while under the influence of liquor visited the spot of the deceased with a view to take liquor and asked him to supply some eatables. On refusal of the deceased, a quarrel ensued and the deceased left the shop to inform other persons about the act and conduct of the accused persons. Neither this version as contained^ the FIR Ex.PW-1/A nor the statement of any witness disclose that the accused had entered into the shop after making preparations for causing hurt or assault or wrongful restraint to the deceased or any other person or to put the deceased or any other person in fear of hurt, assault or wrongful restraint. Thus, there is no evidence on the record to prove the necessary ingredients to constitute an offence under Section 452 of the Indian Penal Code. The learned trial Judge has, therefore, rightly concluded that the prosecution has failed to prove the head of charge under Section 452/34 of the Indian Penal Code against the accused persons. 11. To prove a charge under Section 427 of the Indian Penal Code, the prosecution has to prove: (i) That the thing in question was property; (ii) That the accused caused its destruction or such change therein or in its situation as has destroyed or diminished its value or utility or effected it injuriously; (iii) That the accused did so intending or knowing that he was likely to cause loss or damage to any person or the public, (iv) That such loss or damage was wrongful and amounts to Rs.50/ -or more, 12. As per the prosecution, the accused persons threw the goods inside the shop helter skelter. PW-1, PW-2, PW-3, PW-5 and PW-6 have stated so. As per the prosecution, the accused persons threw the goods inside the shop helter skelter. PW-1, PW-2, PW-3, PW-5 and PW-6 have stated so. However, none of them have stated as to which property in fact was destroyed or damaged by the accused in the manner as aforesaid. None has stated that the alleged mischief was committed qua the property worth Rs.50/- or more. No article whatsoever had been taken in possession during investigation for production in the court to show any damage having been caused thereto. In case anything was destroyed or damaged that could be and should have been taken in possession for production in the Court to lead credence to the version of alleged mischief. Even the aforesaid witnesses in their examinations - in - chief have not stated about destruction of or damage to anything. A bare look at the photograph of the shop Ex. DX reveal that the articles in the shop are displayed in an orderly manner and are not lying helter skelter. It is not the case of the prosecution that these articles were rearranged after the occurrence. Thus there is no evidence to prove even this head of charge and the learned trial Judge has rightly concluded so. 13. As per the prosecution, the accused caused simple hurt to one Dogar Singhand Karam Dass (PW-6) by pelting stones at them. Said Dogar Singh has not been produced. PW-6 has stated that accused Ram Krishan had hit him and Dogar Singh with stones resulting in injuries to both of them. Laxmi Dutt (PW-1) son of PW-6 has also stated so. However, Amba Dutt (PW-2), Nanak Chand (PW-3) and Pawan Kumar (PW-5) who were admittedly present on the spot at the time of causing alleged injuries to P\A/-6 and Dogar Singh by the accused have net stated so. There is no medical evidence to corroborate the statements of PW-1 and PW-6 that accused caused simple hurt to Dogar Singh and PW-6. Thus, in the absence of corroboration of the statement of PW-6 by any independent evidence, the head of charge under sections 323/34 of the Indian Penal Code cannot be held a proved. The learned Additional Sessions Judge has therefore, rightly held that the prosecution had failed to prove this head of charge against the accused persons. 14. Thus, in the absence of corroboration of the statement of PW-6 by any independent evidence, the head of charge under sections 323/34 of the Indian Penal Code cannot be held a proved. The learned Additional Sessions Judge has therefore, rightly held that the prosecution had failed to prove this head of charge against the accused persons. 14. Now, we revert to the head of charge under Section 302 read with Section 34 of the Indian Penal Code. As already stated, the learned trial Judge held accused Ram krishan guilty of the commission of an offence under Section 302 of the Indian Penal Code whereas accused Harmender Singh was acquitted of this head of charge. According to the prosecution, the fatal head injury on the head of the deceased was caused by accused Ram Krishan by giving a blow with stone Ext. P-1 in furtherance of the common intention of the accused person. On the contrary, the accused persons while not disputing their presence on the sport at the material time, have claimed that the deceased died of a fall and they are innocent. These are the rival contentions of the parties which had been urged before us. 15. There is no dispute that the deceased died of a head injury. Therefore, the fatfe of the case mainly depends on the answer to the question as to whether the fatal injury was sustained by the deceased by a fail or accused Ram Krishan is the author thereof. 16. PW-1 Laxmi Dutt, PW-2 Amba Dutt, PW-3 Nanak Chand, PW-5 Pawan Kumar and PW-6 Karam Dass are the eye-witnesses of the occurrence and all of them have stated that accused Ram Krishan hit the deceased on left-side of his head with a stone and the deceased dropped dead on the spot and rolled down the hill-side. It is not in dispute that the place to which the deceased rolled down from the place of occurrence is about 50 to 60downwards. It is, however, not the case of the prosecution that the body of the deceased was examined by anyone before it rolled down the hill-side and he was found dead before his body so rolled down. It is not in dispute that the place to which the deceased rolled down from the place of occurrence is about 50 to 60downwards. It is, however, not the case of the prosecution that the body of the deceased was examined by anyone before it rolled down the hill-side and he was found dead before his body so rolled down. It is\for the prosecution to prove that the death of the deceased was caused, by the injury inflicted by accused Ram Krishan and by no other injury which the deceased might have sustained while rolling down the hill-side. The eye account which mainly consists of the statements of near relatives of the deceased, does not rule out the possibility of the deceased having sustained the fatal injury when he rolled down the hill-side because none has examined the body of the deceased before it rolled down the hill-side to ascertain whether he was alive or dead. Therefore, the answer to the question as to whether the deceased had died before his body rolled down the hill-side, has to be found from medical evidence which consists of the post mortem report Ext. PW-14/A and statement of PW-14 who conducted the post mortem examination of the dead body of the deceased. 17. As per the contents of Ext. PW-14/A and the statement of PW-14, following ante mortem injuries were found on the dead body of the deceased at the time of post mortem examination:- "I. Lacerated wound over left temporal region 1-1/2" X 1/2"size redish brown in colour. II. abrasion on middle of forehead, redish brown in colour, irregular in nature. III. Multiple vertical abrasion on left side of face raddish brown in colour. IV. Irregular abrasions oh left upper part of neck reddish brown in colour. V. Abrasion on left side of chest 4" X 1/2". VI. Irregular abrasion on right forearm near elbow joint reddish brown. VII. An abrasion on right knee joint enteriorly, VIII. Two abrasion on right side of lower back. IX. Fracture in left temporal region, ertebra normal. Membrane torn in the left temporal region. Haematoma on the brain surface and multiple lacerations on the brain surface." 18. As per the opinion of PW-14, the deceased died due to the injuries to brain caused by the head injury and the death occurred immediately after sustaining of the fatal injury. IX. Fracture in left temporal region, ertebra normal. Membrane torn in the left temporal region. Haematoma on the brain surface and multiple lacerations on the brain surface." 18. As per the opinion of PW-14, the deceased died due to the injuries to brain caused by the head injury and the death occurred immediately after sustaining of the fatal injury. In the cross-examination, PW-14 has stated that the head injury noticed by him could be caused by stone Ext. P-1. Now, as per the eye account, the accused gave only one blow with stone Ext. P-1 to the deceased on his left temporal region which could cause only one injury to the temporal region of the deceased. The cause of death, however, is brain injury as a result of head injury. In his examination-in-chief, PW-14 has not specifically referred to any of the aforesaid nine injuries as head injury nor he has referred to the fatal injury in a manner so that it can be clearly made out whether anyone of the aforesaid injuries could be the fatal injury. Further, he has not stated as to which one of the aforesaid nine injuries was sufficient in the ordinary course of nature to cause death. The confusion is multiplied by his statement in the cross-examination that" That injury which had caused the death is not visible in the photograph Ext. PW-10/A-2 of Shri manohar Lal. There was a contusion in the left temporal region and the said injury was not visible because of presence of hair. There was no bleeding on the external side of this injury which had caused the death." From this statement it is clear that a contusion was also present on the left temporal region of the deceased which was the fatal injury though this injury, i.e. contusion, has not been mentioned in the report Ext. PW-14/A or the examination-in-chief of PW-14. There is no opinion that this contusion could have been caused by stone Ext. P-1 and was incapable of being caused in the process of the deceased rolling down the hill-side. 19. As already stated here-in-above, a hit with a stone would have caused only one antemortem injury. If that injury had resulted in instantaneous death of the deceased, there could not be other antemortem injury on the body of the deceased. P-1 and was incapable of being caused in the process of the deceased rolling down the hill-side. 19. As already stated here-in-above, a hit with a stone would have caused only one antemortem injury. If that injury had resulted in instantaneous death of the deceased, there could not be other antemortem injury on the body of the deceased. The existence of multiple antemortem injuries mostly on the left side of the body of the deceased is indicative of the fact that he sustained as many as nine injuries including abrasions while he rolled down the hill-side to an admitted distance of 50 to 60 feet and while sustaining such injuries which are antemortem, he was alive and the fatal injury which caused instantaneous death, was sustained by him while he rolled down the hill-side. Therefore, in view of the medical evidence, it cannot be said that the fatal injury was caused to the deceased by accused Ram Krishan and was not sustained when the deceased rolled down the hill-side. It is not the -case of the prosecution that accused Ram Krishan had pushed the deceased down the hill-side. 20. Man Singh (PW-7) on hearing the noise from the place of occurrence, had come to the spot. He took the accused persons to their houses. However, when he reached on the spot, neither he came to know nor was informed of the death of the deceased which appears to be unnatural. If the deceased had died when he came on the spot, as is the case of the prosecution, he would have come to know of the death of the deceased. However, he learnt about it only when he again returned to the spot after taking the accused persons to their houses. 21. In view of the above discussion, it cannot be said that the prosecution has proved beyond reasonable doubt that the fatal injury was caused to the deceased by accused Ram Krishan. He is, therefore, entitled to benefit of doubt. 22. In view of the above conclusion, the head of charge under Section 302 read with Section 34 of the Indian Penal Code against accused Harmender Singh cannot be held as proved. Even otherwise, on re-appraisal of the evidence we find that the learned trial Judge has rightly concluded that the charge against him was not proved. 23. 22. In view of the above conclusion, the head of charge under Section 302 read with Section 34 of the Indian Penal Code against accused Harmender Singh cannot be held as proved. Even otherwise, on re-appraisal of the evidence we find that the learned trial Judge has rightly concluded that the charge against him was not proved. 23. Resultantly, Criminal Appeal No. 223/2000 is dismissed and the order acquitting accused Harmender Singh of the charge against him and acquitting accused Ram krishan of the offences under Sections 452, 323 and 427 of the Indian Penal Code is affirmed; Criminal Appeal No. 532/1999 is allowed and conviction and sentence of accused Ram Krishan are set aside and he is acquitted of the offence under Section 302 of the Indian Penal Code. 24. Accused Ram Krishan is presently in jail undergoing the sentence of imprisonment awarded to him by the Learned Additional Session Judge. He be set at liberty forthwith if not required to be detained under any other process of law.