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Himachal Pradesh High Court · body

2003 DIGILAW 212 (HP)

PREM BAHADUR v. STATE OF H. P.

2003-08-01

M.R.VERMA

body2003
JUDGMENT M. R. Verma, J.: - This appeal is directed against the judgment dated 15.2.2003, passed by the learned Sessions Judge, Solan, whereby the accused/appellants Prem Bahadur, Ram Lai and Hem Bahadur (hereafter respectively referred to as A-1, A-2 and A-3) have been convicted under Sections 452 and 325 read with Section 34 IPC and each of them has been sentenced to undergo rigorous imprisonment for three years and fine of Rs.2000/- and in default of payment of fine, to undergo imprisonment for six months under Section 452 IPC and to rigorous imprisonment for three years and fine of Rs.2000/- and in default of payment of fine, to suffer further imprisonment for six months under Section 325 IPC. 2. Case of the prosecution against the accused persons is that Prem Bahadur (PW-1) and his wife Pushda Devi (PW-2) are Nepalis and were daily wagers in Public Works Department at Kandaghat. At the relevant time, they alongwith their daughter used to reside in the rented premises at Kandaghat. His neighbours Gopal Bahadur (PW-5) and A-3 were residing in the neaf by premises. On 15.11.2001, it was Diwali, therefore, PW-1 had not gone to attend his duties. During day time a quarrel took place between the wife of PW-5 and wife of A-3 regarding an electric wire. The quarrel between them again started at 11.00 p.m. PW-1 went to advise them not to quarrel. However, the accused persons got and returned to his house. The accused persons, however, followed him and started beating PW-1 with danda, inside his room. In the meanwhile, PW-2 who had earlier gone outside also came there and on seeing her, the accused persons bolted away. Because of the beatings, PW-1 sustained injuries on his head, fore head and nose. The occurrence was reported by PW-1 to the police while accompanied by PW-2 and FIR Ex. PA under Sections 452, 323, 34 IPC was recorded at Police Station, Kandaghat. PW-1 was got medically examined and vide MLC Ex.PL, he was found to have sustained four injuries, out of which one was fracture of nasal bone and occipital bone of the seulp. This injury was grievous and dangerous to life. Section 307 and 325 IPC were, thus, added to the crime. The photographs of the spot Exs.P-4 to P-6 were taken and the negatives thereof are Ex.P-7. This injury was grievous and dangerous to life. Section 307 and 325 IPC were, thus, added to the crime. The photographs of the spot Exs.P-4 to P-6 were taken and the negatives thereof are Ex.P-7. Danda, Ex.P-1 and blood stained Sort/, Ex.P-2 from within the residential premises of PW-1 were taken in possession vide memo Ex. PB in the presence of Satish Kumar (PW- 3) and one Suchitra Attri. A blood stained shirt Ex.P-3 of PW-1, on production by PW-2, was also taken in possession vide memo Ex. in the presence of Bhupender Singh (PW-7) and constable Krishari Dutt. Danda, Ex.P-1, Boru, Ex.P-2 and shirt Ex.P-3 were sent for chemical examination to the Forensic Science Laboratory, Shimla. The report received from the sard Laboratory is Ex. PK, according to which human blood of group whereof could not be ascertained was found on danda, Ex.P-1. On completion of the investigation, the concerned SHO submitted the charge sheet to the concerned Court. 3. The accused persons were tried by the learned Sessions Judge, Solan, on three separate charges framed against each of them under Sections 452 and 307 read with Section 34 I PC. To prove the charges against the accuse persons, prosecution examine nine witnesses in all and tendered in evidence the report of the chemical examiner. Statements of the accused persons were recorded under Section 313 Cr. P.C. wherein they denied the case of the prosecution and claimed to be innocent. On the basis of the evidence on record, the learned Sessions Judge held the accused persons guilty of the commission of offences under sections 452 and 325 read with Section 34 I PC and accordingly convicted and sentenced them as aforesaid. Hence this appeal by the accused persons. 4. I have heard the learned counsel for the accused persons and the learned Deputy Advocate General for the respondent-State and have also gone through the records. 5. It was contended by the learned counsel for the accused that in so for as accused Ram Lai is concerned, there is no evidence at all to prove that he had caused any injury to PW-1 nor it can be gathered from the record that he had the alleged common intention with A-1 and A-3 to cause any convicted in the absence of any incriminating evidence and is, therefore, liable to be acquitted. 6. 6. It was further contended by the learned counsel that the prosecution has concealed the genesis of the occurrence and there are material contradictions and improbabilities in the prosecution case which render the prosecution version highly suspicious and unreliable. In these circumstances, the conviction of A-1 and A-3 is also bed in law and deserves to be set aside. 7. On the other hand, the learned Deputy Advocate General contended that though A-2 had not caused any injury to the injured, yet he had come to his house along with the other two accused with the common intention of giving beating to PW-1, therefore, he had the requisite common intention with the other two accused to cause injury to PW-1 and has, therefore, been rightly convicted with the aid of Section 34 of the Indian Penal Code. 8. It was further contended by the learned Deputy Advocate General that in view of the eye account of the occurrence given by the injured (PW-1) corroborated by his wife Pushpa Devi (PW-2) and the medical evidence the charges against the accused are clearly prover therefore, they have been rightly convicted and sentenced by the trial Court and the impugned convicti6n and sentences do not call for any interference. 9. No doubt the injured PW-1 and his wife (PW-2) have by and large attempted to. support the prosecution version but on a combined reading of their statements and the FIR material contradictions in the version given by them in the Court, the version given at the time of lodging of the FIR. Ext. PA by PW- and the version given in the statement under Section 161 of the Code of Criminal Procedure by PW-2 clearly emerge which he render the prosecution version highly doubtful and the conclusion that the genesis of the occurrence has been concealed, inevitable. 10. As per the contents of FIR Ext. PA recorded by Surinder Pal, SI (PW-4) on the report of PW-1, the version regarding the occurrence is that the injured is a daily-wager with the H.P. PWD. and on 15.11.2001, i.e. the date of the alleged occurrence, he did not attend to his duties. During day time a quarrel took place between the wives of Gopal Bahadur (PW-5) and accused Hem Bahadur because the electric wire provided by PW-1 to the residence of PW-5 was snatched by someone. and on 15.11.2001, i.e. the date of the alleged occurrence, he did not attend to his duties. During day time a quarrel took place between the wives of Gopal Bahadur (PW-5) and accused Hem Bahadur because the electric wire provided by PW-1 to the residence of PW-5 was snatched by someone. In the night they again committed quarrel and at about 11.00 p.m. PW-1 went to reconcile the dispute between them but the accused persons then got ready to quarrel with PW-1 who to save himself from them, returned to his room but the accused followed him and gave him Danda blows in the room. In the meanwhile, PW-2, who had gone out of the room, came into the room and on seeing her, the accused bolted away. The occurrence, as per the contents of the FIR, was reported by PW-1 at the Police Station at 12.10 a.m. on 16.11.2001. 11. In this evidence PW-1 has stated that on the date of occurrence after discharging his duties, he returned to his quarter at 5.30. p.m. and at that time he notice that the accused persons who used to reside in his near vicinity and were known to him very well, were taking liquar in the room of accused Hem Bahadur. His further version is that Krishan Gopal and Hem Bahadur started fighting with each other on account of the snatching of extension wire of electricity given by him to Gopal. PW-1 seeing them quarrelling, intervened to make them to understand that it was Diwali’, therefore, they should not fight with each other and he settled the matter between them and came back to his room. Evidently, this version given by PW-1 on oath about his being on duty on the relevant day and returning home at 5.30 p.m. after discharging his duties and his mediating in the quarrel between Krishan Gopal and Hem Bahadur, is absolutely different and contradictory of the version as given in this regard in the FIR Ext. PA. 12. Evidently, this version given by PW-1 on oath about his being on duty on the relevant day and returning home at 5.30 p.m. after discharging his duties and his mediating in the quarrel between Krishan Gopal and Hem Bahadur, is absolutely different and contradictory of the version as given in this regard in the FIR Ext. PA. 12. PW-1 further goes on to state that at that time his wife had gone out to answer the call of nature and his daughter was also in the vicinity and he was all alone and the time was 10 or 11 p.m. He has further deposed that all the accused after entering the room enquired from him as to who he was to give them advice and he told them that they were drunk and the matter could be discussed in the morning. However, A-3 picked up a Danda, of oak tree and hit PW-1 therewith on his head leading to fracture of skull. A-1. then snatched the Danda, from A-2 and gave it blow on the back side of the head of PW-1. PW-1 lost consciousness and is not aware as to what happened thereafter. After arrival of his wife, he was removed to the Police Station in a van where his statement was recorded at about 11.00 p.m. whereon he put his left thumb impression and thereafter he was removed to the hospital. Here again, it is not in his deposition that while any of the accused was beating him, his wife had entered the room nor it is his version that on seeing her the accused bolted away from the place. It is his admitted case that after sustaining the injuries, he had fallen unconscious. Thus, PW-1 had partly contradicted the version in Ext. PA and partly had made material improvements thereon. 13. In his cross-examination, PW-1 has clearly and unambiguously admitted that he was not in his senses in the Police Station and regained consciousness only on feeling the prick of stitches and injection which admittedly was done in the hospital after the recording of the FIR Ext. PA. He further goes on to state that the matter was reported at the obtained thereon with the help of a Policewala. PA. He further goes on to state that the matter was reported at the obtained thereon with the help of a Policewala. It is thus after sustaining the injuries, he had become unconscious and was not in his senses even when in the Police Station and regained consciousness only when he felt the pricks of stitches and injection in the hospital by which time the FIR stood recorded. It is admitted case of the prosecution as also of PW-1 that after having sustained the injuries, he had become unconscious. In these circumstance, it is highly doubtful that the FIR Ext, PA contained the version of PW-1, who, according to the prosecution, is the only witness of the occurrence as a whole. 14. It is assumed that the facts were narrated by PW-2 and were recorded as such in the FIR which was subsequently read over to the injured and he thumb-marked it after having admitted it to be correct, (which is not so even according to PW-1), the FIR cannot be said to contain true account of the occurrence. It is admitted by PW-1 himself that at the time of occurrence took place. Even the version of PW-2 is that at about 11.00 p.m. she went out of the room to answer the call of nature and returned after about twenty minutes. She saw PW-1 lying in blood pool in the room and had sustained injuries on the head. It is net in her evidence that she had seen any of the accused present in the room or that they bolted away from the place of occurrence after she had returned to the room. From her evidence it is clear that she herself had not seen anything. If so, she could narrate the occurrence only if she had been informed about the sequence of events by PW-1. It is, however, not even so. It is her admitted case that PW-1 regained consciousness on the third day of the incident and she enquired from him about the incident on 16th of the relevant month. If so, she cannot be said to be aware of the true state of affairs about the incident at the time when the FIR Ext. PA was recorded. It is clearly borne out by her own statement that she had not given any version of the occurrence to the Police at the Police Station. If so, she cannot be said to be aware of the true state of affairs about the incident at the time when the FIR Ext. PA was recorded. It is clearly borne out by her own statement that she had not given any version of the occurrence to the Police at the Police Station. She has stated that she is unaware as to what the Police did after they had reached at the Police Station and had added that perhaps certain proceedings were done by the Police. It is, however, not in her statement that her husband narrated the occurrence to the Police on the basis of which Ext. PA was recorded. Her version is also contrary to the contents of the FIR Ext. PA and contradictory of the statements of PW-1 inasmuch as she has stated that on Diwali day both of them were on duty towards Kiartu on Chail road and contrary to the contents of the FIR has specifically denied that on the date of occurrence PW-1 had not attended to his duty. 15. In view of the above discussion, the prosecution has not been able to prove that the FIR Ext.PA in fact contained true version of the occurrence having been given by either of these two witnesses particularly PW-1 by whom the occurrence as recorded in the FIR purports to have been reported. This situation can arise only when the true facts are concealed. 16. According to the prosecution, one blow of the Danda was given on the head of PW-1 by A-3 and another blow was given by A-1. If so, the injured would have sustained two injuries. It is, however, evident from the contents of MLC Ext. PL that at the time of medical examination of the injured, apart from bleeding from the nose, he was found to have sustained three lacerations one on the forehead, the second on the nasal bridge and the third on the left posterior occipital region. There is no explanation as to how three injuries were caused to the injured by two Wows. 17. According to the prosecution, injuries were caused to PW-1 with Danda Ext. P-1. When the opinion of the medical expert (PW-9) was sought as to whether the injuries sustained by PW-1 could have been caused with Danda Ext. There is no explanation as to how three injuries were caused to the injured by two Wows. 17. According to the prosecution, injuries were caused to PW-1 with Danda Ext. P-1. When the opinion of the medical expert (PW-9) was sought as to whether the injuries sustained by PW-1 could have been caused with Danda Ext. P-1, the opinion given by him is that possibility cannot be ruled out that the injuries if caused by Ext. P-1 could be different than the injuries sustained by PW-1. Finally, he has stated that he cannot opine whether injuries were the result of Ext. P-1 or by a fail. Thus, there is no positive opinion even about the possibility of the injuries found on the person of PW-1 having been caused with Danda Ext. P-1. 18. Danda Ext. P-1 is stated to have been taken in possession by HC Harpal Singh (PW-8) vide memo. Ext. PB in the presence of Suchitra Attri and Satish Kumar (PW-3) on 16.11.2001 and he had made it into a parcel and sealed it with seal H. PW-3 Satish Kumar has nowhere stated that the Danda which was taken in possession by the Police in his presence, was blood-stained. Suchitra Attri has not been examined whose very presence in Kandaghat on 16.11.2001 is doubtful in view of the statement of PW-2 who had stated that Suchitra had come there on the third day of Diwali meaning thereby that she had come there on 17.11.2001. PW1 has stated that he had signed recovery memo. Ext. PB in the Police Station on 16.11.2001. It means that he was not present at the place of occurrence from where the Danda was taken in possession vide memo Ext.PB. Thus admittedly his signatures were subsequently procured at the Police Station. . t 19. Surinder Pal (PW-4) states that on 20.11.2001 Danda Ext. P-1 was produced before him by MHC Bhupinder Singh and he sealed it with seal impression O and took in possession vide memo. Ext. PD marginal witnesses whereof are Satish Kumar and Devinder Sharma. There is no explanation given by PW-4 as to what prompted him to re-seal and take in his possession Danda Ext. P-1 when it stood seized by PW-8 vide memo. Ext. PB. Ext. PD marginal witnesses whereof are Satish Kumar and Devinder Sharma. There is no explanation given by PW-4 as to what prompted him to re-seal and take in his possession Danda Ext. P-1 when it stood seized by PW-8 vide memo. Ext. PB. Satish Kumar (PW-3), the only other independent witness of this process examined by the prosecution, has stated nothing about this part of the version of the prosecution case. The want of any explanation about resealing of the weapon of offence by the Investigating Officer after it had been seized and sealed, can lead to a reasonable inference that it has been tampered with. Thus, neither recovery of Danda Ext.P-1 in accordance with law is established nor the medical evidence connects it with the injuries as the weapon of offence. Finding of human blood on this Danda is thus of no help to the prosecution. 20. There is no dispute that PW-1 had sustained injuries, therefore, the findings of blood on the plastic Boru and on his shirt is also of no help to connect the accused with the commission of the offence. 21. The defence of the accused as suggested to the prosecution witnesses is that on the date of occurrence PW-1 did not go to his work and continued to take liquor in his premises and had a quarrel with certain Gorkhas. The suggestive defence stands probabilised in view of the findings already recorded that the FIR is not proved to contain the version of occurrence given by the injured or his wife either after seeing the occurrence or on the basis of facts stated to her by PW-1 and certain admissions of the prosecution witnesses. 22. Gopal (PW-5) has stated that when PW-1 came to his house, tie was drunk. Though he has stated that he was informed by PW-2 that the accused had beaten PW-1, yet this version is unreliable for the reason that PW-2 herself was not aware about the true facts of the occurrence till 16.11.2001 as already stated hereinabove. Therefore, she could not have informed Gopal as to who had beaten PW-1. He has admitted that at the time of occurrence there were five or six Nepalis in the house of A-3. However, when the Police reached on the spot, those Nepal is were not there and he is not aware as to when they left the house of A-3. He has admitted that at the time of occurrence there were five or six Nepalis in the house of A-3. However, when the Police reached on the spot, those Nepal is were not there and he is not aware as to when they left the house of A-3. This admission assumes importance in view of the defence set up by the accused, more so, in view of the evidence of PW-1 that the police took PW-1 to the Police Station in the N morning at 8.30 a.m. to identify the accused persons. If the accused persons were next door neighbours of PW-1, as is the case of the prosecution and also of PW-1, why the identification of the accused persons was required, is not explained. The necessity to identify the accused will arise only when he is not previously known to the eye- witness(s) and the question about the correct identity of the accused is involved. 23. The occurrence took place during night. There is nothing on the record to show that there was sufficient light in the room where the occurrence took place to identify the assailants and in case there was light and PW-1 recognized the assailants then there was no necessity of getting the accused identified from him by the Police. 24. The recovery of shirt Ext. P-3 alleged to be worn by the injuries at the time of the occurrence, is also not beyond suspicion. This shirt was presented by PW-2 as is mentioned in recovery memo. Ext.PC. PW-1 had sustained injuries which rendered him unconscious, therefore, in the normal course it is improbable that his blood-stained shirt will be removed before removing him to the Police Station or to the hospital. In any case, PW-2 does not support the version that she handed over the shirt Ext. P-3 to the Police. Secondly, the shirt so taken in possession was, admittedly, of dark blue colour. As per the report of the Chemical Examiner Ext. PK, the shirt which was analysed in the laboratory was of black colour. It cannot be assumed that a Scientific Officer/Chemical Examiner or a responsible Police official holding the rank of Sub Inspector and the post of Officer Incharge of a Police Station would not be in a position to distinguish between black and dark blue colours. 25. PK, the shirt which was analysed in the laboratory was of black colour. It cannot be assumed that a Scientific Officer/Chemical Examiner or a responsible Police official holding the rank of Sub Inspector and the post of Officer Incharge of a Police Station would not be in a position to distinguish between black and dark blue colours. 25. In view of the above discussion and the circumstances pointed out therein, the prosecution version is not beyond suspicion and the charge against the accused persons and commission of the offences for which they have been convicted, is not proved beyond reasonable doubts. Therefore, the accused persons are entitled for benefit of doubt. 26. As a result, this appeal is allowed and the conviction of and sentences awarded to the accused persons are set aside and they are acquitted of the offences for which they have been convicted and sentenced. 27. The accused who are in jail undergoing the sentences of imprisonment awarded to them, be set at liberty forthwith, if not required to be detained under any other process of law. Fine, if recovered, be refunded to them.