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Himachal Pradesh High Court · body

2003 DIGILAW 314 (HP)

GOPAL CHAND v. STATE OF H. P.

2003-10-29

A.K.GOEL, M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—This appeal has been preferred by the accused/appellant (hereinafter referred to as the accused) against the judgment dated 3.7.2001 passed by the learned Additional Sessions Judge, Mandi whereby the accused has been conficted under Section 302 of the Indian Penal Code and has been sentenced to life imprisonment and fine of Rs. 3,000/- and in default of payment of fine to undergo simple imprisonment for six months. 2. Case of the prosecution in brief is that Rirku Ram (since deceased) resident of Banwar had five sons, four of them remain outside the village in connection with earning their livelihood. His fifth son Gopal Chand (the accused) used to reside with his father Rirku Ram and was unemployed since 1990. On 25.8.1999 at about 4 or 5 p.m. accused was sleeping in the house. His mother had gone to Dogri and was not present at home. The deceased I on return to his house woke up the accused and asked him to do some work whereupon the accused started beating his father with a Mai (Ext. P-2) as a result of which the deceased received fatal of injuries and he remained lying at the place where he was beaten up. The accused again went to sleep. When he woke up around 1 a.m. in the night he noticed that his father was breathing his last. The accused, therefore, went to his cousin Suresh (PW-1) and informed him of the occurrence whereupon PW-1 woke up his brother Ramesh who advised him that first the matter must be reported to the Ward Member and thereafter they would go to the house of the deceased. Therefore, they went to the house of Ward Member Pritam (PW-2) and narrated the occurrence to him. Thereafter they went to the house of the deceased. One Bishan Dass was also called to the spot At that time the deceased was lying in the verandah in injured condition and despite inquiries he did not speak anything. At about 2 a.m. he succumbed to the injuries. Thereafter at about 8 a.m. on 26.8.1999 PW-2 went to the house of President of the concerned Panchayat, namely, Som Dev (PW-3) and informed him that the accused had murdered the deceased. PW-3 went to the house of the deceased and saw the dead body of the deceased lying in the verandah of the house. Thereafter at about 8 a.m. on 26.8.1999 PW-2 went to the house of President of the concerned Panchayat, namely, Som Dev (PW-3) and informed him that the accused had murdered the deceased. PW-3 went to the house of the deceased and saw the dead body of the deceased lying in the verandah of the house. By that time relative of the deceased had also reached on the spot. Accused was also present in his room and his mother had also returned from the Dogri. On inquiries made by PW-3 the accused and his mother told that whatever was to happen that has happened and nothing should be done in the matter. The relatives of the deceased, however, did not agree to such a proposal and desired that the matter should be reported to the police. Therefore, PW-3 telephonically informed the police on the basis of which F.I.R. Ext. PW-ll/A was recorded at Police Station, Sadar Mandi and the investigation followed. During the investigation the blood and soil from the spot were taken in possession by the police vide memo Ext. PW-3/C. On production by the accused Mai Ext. P-2 the weapon of offence was also taken in possession vide memo Ext. PW-3/D. Blood stained pant of the accused Ext. P-3 on production by the accused was also taken in possession vide memo Ext. PW-3/E. After preparing the inquest report Ext. PW-3/E the dead body was sent for post-mortem examination which was conducted by Dr. Jiva Nand (PW-5). At the time of such examination following ante-mortem injuries were found on the dead body of the deceased:— "1. There were multiple grazed abrasions of irregular shapes and sizes with irregular margins having clotted blood over them, present over lower half of left forearm, writs, hands and fingers, reddish brown in colour, there was underlying contusion extending from middle of forearm to hand containing lot of fluid and clotted blood. There was also fracture of lower end of both bones, left forearm into many pieces with lot of clotted blood around fracture site. 2. One grazed abrasion reddish brown in colour 2x2 cm. in size with irregular margin having clotted blood over it, present on lower part of ventral aspect of right forearm with massive underlying contusion around lower part of forearm, wrist and hand. 2. One grazed abrasion reddish brown in colour 2x2 cm. in size with irregular margin having clotted blood over it, present on lower part of ventral aspect of right forearm with massive underlying contusion around lower part of forearm, wrist and hand. There was also fracture of lower third of both bone right forearm into many pieces with lot of fluid and clotted blood around fracture site. 3. 2x1 bone deep lacerated punctured wound on middle of shin with clotted blood and soft tissue over it with contusion around it extending from lower end of knee upto just above the ankle joint on frontal and side of leg having lot of clotted and fluid blood. 4. There was linear abrasion on lateral side of right knee 3x1/2 cm with clotted blood over it. 5. Neck skin is soiled with dry soil on contusion and crushing of underlying fascia muscles, vessels (including external juglar, and external carotid) with lot of fluid blood in triangle of neck on right side with clots in between. There was a contusion around the cervical spine c-4, c-5, c-6 on right side with lot of clotted blood present on site. There was contusion around spinal cord from c-3 to c-6." As per the opinion of PW-5 the deceased died due to combined effect of compression injury to neck and spinal cord and hemorrhagic shock. The post-mortem report prepared by PW-5 is Ext. PW-5/B. At the time of postmortem of the dead body viscera was preserved. The viscera so preserved, blood stained earth, Mai Ext. P-2, Pant Ext. P-3, blood sample of the deceased and wearing apparels of the deceased were sent to the State Forensic Science Laboratory for chemical analysis. As per the report Ext. PX received from the said Laboratory no poison or alcohol was detected in the viscera. As per the report Ext. PY the blood stained earth, Ext. P-2, P-3, shirt and Pajama of the deceased were found to contain human blood which was not sufficient to find out the group of the blood. During the course of investigation it was also found that the accused was seen beating the deceased with Mai by Kumari Satisha (PW-10) and her younger brother Santosh and they informed their mother Himachali (PW-4) of the occurrence at the time when the accused was beating the deceased. During the course of investigation it was also found that the accused was seen beating the deceased with Mai by Kumari Satisha (PW-10) and her younger brother Santosh and they informed their mother Himachali (PW-4) of the occurrence at the time when the accused was beating the deceased. On completion of the investigation and being satisfied that the accused had committed the murder of the deceased the Officer Incharge Police Station, Sadar Mandi submitted a charge-sheet against the accused. 3. On the basis of the charge-sheet the learned Additional Sessions Judge, Mandi framed a charge against the accused under Section 302 of the Indian Penal Code to which the accused pleaded not guilty. To prove I the charge against the accused prosecution examined 11 witnesses. Statement of the accused was recorded under Section 313 Cr.P.C. wherein he denied the incriminating evidence and claimed that he has been falsely I implicated in the case. The accused, however, did not lead any defence evidence. 4. On the basis of the material on record, the leaned Additional Sessions I Judge convicted and sentenced the accused as aforesaid, hence, this appeal. 5. We have heard the learned counsel for the accused and the learned Deputy Advocate General for the respondent/State and have also gone through the records. 6. The learned counsel for the accused has assailed the impugned conviction and sentence on the following grounds:— (i) that the statements of the prosecution witnesses, particularly PWs 1 to 4 and 10, are unreliable because of enmity between them and the accused, therefore, neither the eye account of the beating of the by deceased by the accused nor the statement of PW-1 re arding making of extra-judicial confession by the accused are reliable; (ii) that the version that the accused and the deceased were alone in the house at the relevant time, is false and wife of the deceased was present in the house, therefore, the circumstance of the accused and the deceased last seen together is not established and non-production of wife of the deceased is fatal to the case of the prosecution; (iii) that the medical evidence does not support the prosecution version; and (iv) that even if the prosecution version is believed, the accused can at the most be said to have committed an offence under Section 326 or 304 (Part II) of the Indian Penal Code. Ground No. (i) 7. Ground No. (i) 7. Elaborating this ground, the learned counsel for the accused contended that it clearly emerges from the statements of PW-1, PW-2, PW-3, PW-4 and PW-10 that the accused had not good relations with his Brathars (members belonging to the different branches of the same family) and PW-4 and her husband Bishan Dass and admittedly lodged complaints against the accused, therefore, statements of these witnesses are unreliable rendering the eye account of beating of the deceased by the accused as given to PW-10 and the evidence of PWs 1 to 4 regarding the alleged extra judicial confession by the accused and corroborating statements of PW-1 and PW-10, highly doubtful and the conviction of the accused on the basis of such evidence cannot be sustained. 8. On the other hand, the learned Deputy Advocate General had contended that there is no lawful reason to discredit the aforesaid prosecution witnesses who cfre near relations of the accused and at the relevant time had no enmity with the accused and the statements of PWs. 1 to 4 and 10 are confidence inspiring and natural and prove the charge against the accused beyond any reasonable doubt. 9. From the admissions made by PWs. 1 to 4 and 10 it undoubtedly emerges that there were accusations against the accused regarding beating Rirku (the deceased) and PW-4 and he was complained against on such accusations. It also emerges that because of the aforesaid beatings and violent behaviour of the accused, his relatives including PW-4 were scared of him. It may be pointed out that the date(s) when Rirku and PW-4 were beaten by the accused had not come on record so as to ascertain as to whether such beatings took place and consequential complaints were filed immediately before the occurrence or after the occurrence or in the remote past. In any case, it is admitted case of the witnesses that such complaints were compromised. In view of the compromise between the parties to the complaints), it cannot be said that husband of PW-4 or PW-4 have inimical relations with the accused. Had it been so, there could not have been a compromise between them. In any case, it is admitted case of the witnesses that such complaints were compromised. In view of the compromise between the parties to the complaints), it cannot be said that husband of PW-4 or PW-4 have inimical relations with the accused. Had it been so, there could not have been a compromise between them. Such like stray incidents once compromised cannot be treated as a continuing cause of strained relations nor can it be a cause for false implication of the accused in the commission of an offence for which extreme penalty of death is provided in law. More over, enmity by itself is no reason to discard the testimony of a witness if his evidence otherwise is cogent and confidence inspiring. House of the deceased in the Verandah whereof the occurrence took place is admittedly in the close vicinity of the house of Bishan Dass husband of PW-4 and father of PW-10. In such a situation, it is quite natural that the children of Bishan Dass could have seen the accused beating the deceased. PW-10 has stated that one evening she was playing with her younger brother in her court-yard and saw that the accused was beating the deceased with a Mai and that she narrated the occurrence to her mother PW-4. There is nothing unnatural or doubtful in her statement which is corroborated by PW-4. The accused is admittedly . her first cousin and she has denied the suggestion that her family was not on talking terms with the accused or she was made to make a false statement by her parents. This denial does not seem untrue because of the compromise between her parents and the accused. The evidence of PW-10 that the deceased was beaten by the accused with a Mai Ext. P-2 is thus natural, cogent and confidence inspiring and cannot be discarded simply for the reason that once there was a quarrel between her mother and the accused which was finally amicably settled and compromised. 10. So far as PWs 1, 2 and 3 are concerned, there is nothing on the record, not even a suggestion in their cross-examination to show that they are inimical towards the accused for any reason or have strained relations with him. 11. According to the prosecution, the accused made extra judicial confession to PW-1 about his having beaten the deceased. PW-1 is the cousin of the accused. 11. According to the prosecution, the accused made extra judicial confession to PW-1 about his having beaten the deceased. PW-1 is the cousin of the accused. He has stated that on 25.8.1999 at about 1.00 p.m. in the night accused came to his house, woke him up and told him that he had beaten his father Rirku Ram and froth was coming out of his mouth and that he had committed a mistake and asked that he be saved. PW-1 has further stated that he woke up his brother Ramesh and informed him of the incident. Said Ramesh advised that the matter must be brought to the notice of the Ward Member and thereafter they would proceed to the house of the accused. The version given by PW-1 is supported by PW-2 who has stated that on the night intervening 25th/26th of August, 1999 at about 1.30 a.m. PW-1 and his brother Ramesh came to his house, woke him up and informed that the deceased was beaten by the accused and froth was coming out of his mouth and that the beating of his father by the accused, who had come to the house of PW-1, had been confessed by the accused to him. He has further stated that thereafter they went to the house of Rirku Ram and Bishan Dass was also called by them to the spot and saw the deceased lying in the Verandah in injured condition, froth was coming out of his mouth and there was dim breathing. He asked Rirku Ram as to what had happened but he could not reply and succumbed to the injuries at about 2.00 a.m. He has further stated that at about 6.00 or 6.30 a.m. he went to PW-3 and informed him about the occurrence. PW-3 has corroborated the version of PW-2. 12. PW-2 and PW-3 are respectively Ward Member and President of the Gram Panchayat. They are not shown to be inimical towards the accused or interested in falsely implicating him. Similarly, no enmity or any interest is falsely implicating the accused by PW-1 is made out. On the contrary, he is a close relation of the accused being his cousin and it is he to whom the accused is stated to have made the extra judicial confession. Similarly, no enmity or any interest is falsely implicating the accused by PW-1 is made out. On the contrary, he is a close relation of the accused being his cousin and it is he to whom the accused is stated to have made the extra judicial confession. PW-1 has supported the prosecution version as a whole regarding making of extra judicial confession by the accused regarding beating the deceased. 13. No doubt, extra judicial confession in the very nature of things is a weak piece of evidence but it is not open to the Court to start with the presumption that extra judicial confession is a weak type of evidence. The reliability of extra judicial confession will depend on the nature of the circumstances under which the confession was made and the credibility of the witness to whom such a confession is made. One of the tests to judge the truthfulness or otherwise of an extra judicial confession is whether the person to whom the confession has been made by the accused, is a person in whom the accused could repose confidence. In the case in hand, as already stated here-in-above, PW-1 is a resident in the near vicinity of the house of the accused and is his first cousin. There is nothing on the record to suggest that PW-1 had inimical relations with the accused. At the time of making confession by the accused that he had beaten his father, the deceased, was alive. The confession was only to the extent that the accused had beaten the deceased and froth was coming out of his mouth. He made the confession within a few hours of the occurrence when he realised the critical condition of the deceased. Thus, the confession made by the accused is to a near relation with a view to seek his help in the matter who is not shown to have any ill will or bias against the accused to falsely implicate him in the case. There is nothing in the statement of PW-1 which may render his evidence regarding making extra judicial confession by the accused to him about the beating of the deceased, unreliable. There is nothing in the statement of PW-1 which may render his evidence regarding making extra judicial confession by the accused to him about the beating of the deceased, unreliable. On the contrary, the confession is not only corroborated by the fact that beating of the deceased by the accused with a Mai is clearly made out in view of the eye account given by PW-10 but it is also supported by uncontroverted circumstance that when PW-1 and PW-2 visited the house of the deceased, he was found lying in injured condition. Thus, there is no reason what-so-ever to doubt the evidence of PW-1 regarding making of extra judicial confession by the accused regarding beating the deceased. 14. In view of the above discussion, the contention that the statements of PWs I to 4 and 10 are unreliable and could not have been acted upon to convict the accused, is devoid of any merit and substance. Ground No. (ii) 15. It was contended by the learned counsel for the accused that in view of the evidence on record it is established that wife of the deceased was also residing with him and it is admitted by the witnesses that she was present in the house. Therefore, it cannot be said that the deceased was last seen with the accused and further non-production of the wife of the deceased who was present in the house and was the best person to state as to how the deceased sustained the injuries, is fatal to the case of the prosecution. 16. On the other hand, the learned Deputy Advocate General contended that the wife of the deceased was not in the house at the time of the occurrence but had gone to her Dogri and she returned to the house when the deceased had died because of the injuries sustained by him. 17. PW-1 has stated that when he reached at the place of occurrence, wife of the deceased was not present, only the accused and the deceased were present in the house. In the cross-examination, he has specifically stated that the mother of the accused was in the Dogri. 17. PW-1 has stated that when he reached at the place of occurrence, wife of the deceased was not present, only the accused and the deceased were present in the house. In the cross-examination, he has specifically stated that the mother of the accused was in the Dogri. The sum of substance of statement of PW-2 is also that when he went to the house of the deceased, he saw the deceased lying in the Verandah in injured condition and froth was coming out of his mouth and at that time the accused was in his room. He has nowhere stated about the presence of the wife of Rirku in the house nor he has been cross-examined about her alleged presence. 18. PW-3, who is the Pardhan of the Gram Panchayat, has also stated that only the accused and the deceased were present in the house on the day of occurrence as was revealed to him on inquiries made by him in this regard. 19. PW-4 has stated that the mother of the accused usually remained in the house of Rirku (the place of occurrence) but on the relevant night she was not there. 20. The Investigating Officer (PW-11) has also stated that the mother of the accused was not present in the house on the day of occurrence and had gone to the house of her another son. He has further clarified that he made inquiries from the mother and other brothers of the accused as mentioned by him in his Zimmi but since they were not found on the spot at the time of occurrence, therefore, their statements under Section 161 of the Code of Criminal Procedure were not recorded. He has further stated that when he reached on the spot for the purpose of investigation, brothers and mother of the accused were found present there. However, this admission does not mean that they were present in the house even at the time of occurrence because according to PW-2, the relatives etc. of the deceased were called after the deceased had already died. 21. It is thus established that on the day of occurrence only the accused and the deceased were present in the house. It is not in dispute that the deceased had sustained injuries as were noticed on his dead body at the time of his post mortem. of the deceased were called after the deceased had already died. 21. It is thus established that on the day of occurrence only the accused and the deceased were present in the house. It is not in dispute that the deceased had sustained injuries as were noticed on his dead body at the time of his post mortem. Thus, the accused, who was with the deceased in the house can legitimately be presumed to know as to how the deceased sustained the injuries. However, he has kept silent regarding the cause of injuries sustained by the deceased and no cause has been assigned by him either by way of cross-examination or in his statement under Section 313 of the Code of Criminal Procedure for sustaining of the injuries by the deceased. Therefore, this contention also does not hold good. Ground No. (iii) 22. It was contended by the learned counsel for the accused that the version of the prosecution that finding of blood stains on the pants of the accused does not in any manner involve the accused in the commission of the offence for the reason that being a son of the deceased, blood stains could appear on his pants in the normal behaviour and conduct of a son. 23. At the time of post mortem examination of the dead body of the deceased, PW-5 found various ante-mortem injuries on the dead body and as per his opinion, the deceased died due to combined effect of compression injury to neck and spinal cord and haemorrhagic shock. He has further opined that the ante-mortem injuries found on the dead body of the deceased could be caused by the Mai Ext. P-2. Thus, what is clear from the medical opinion, is that the deceased had sustained injuries, two of which proved fatal and such injuries were capable of being caused with Mai Ext. P-2. This opinion, thus, lends full corroboration to the version of PW-10 who has stated that the deceased was beaten up by the accused with Mai Ext. P-2. In the facts and circumstances of the case and for want of any explanation by the accused, finding of the blood on his pants is another circumstance which points the accusing finger towards the accused. It cannot, therefore, be said that the medical evidence does not support the prosecution version. Ground No. (iv) 24. P-2. In the facts and circumstances of the case and for want of any explanation by the accused, finding of the blood on his pants is another circumstance which points the accusing finger towards the accused. It cannot, therefore, be said that the medical evidence does not support the prosecution version. Ground No. (iv) 24. In view of the above discussion, it is proved is that the accused caused injuries to the deceased with Mai Ext. P-2 and two of such injuries proved fatal, therefore, the question necessarily arises as to whether the accused is guilty of commission of an offence punishable under Section 302 or under Section 304 (Part-II) or Section 326 of the Indian Penal Code. 25. It was contended by the learned counsel for the accused that PW-5 has not been examined nor has opined as to whether the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. The deceased died much after sustaining the injuries without getting any medical aid. According to the learned counsel for the accused it is admitted case of the prosecution that the deceased was not given any medical aid, therefore, one of the possibility is that the injuries were incapable of causing death of the deceased and were not intended to cause his death. It was further contended that when the accused was chided by his father, as is the version of the prosecution, he might have got enraged and in such situation caused injuries to his father. If so, this can at the most be an offence under Section 326 or 304 (Part-II) of the Indian Penal Code. 26. In fact there is no evidence as to what circumstances led the accused to beat his father causing such injuries to him which ultimately proved fatal. However, as per the contents of the charge-sheet, it is admitted case of the prosecution that the deceased had five sons four of whom are earning for themselves and are residing separately. The accused, however, was unemployed and did not do any work since 1990, therefore, the deceased used to scold him. On the day of occurrence the accused was sleeping in the house when at about 4.00 p.m. the deceased returned home and woke up the accused and asked him to do some work which led the accused to beat his father with the Mai. On the day of occurrence the accused was sleeping in the house when at about 4.00 p.m. the deceased returned home and woke up the accused and asked him to do some work which led the accused to beat his father with the Mai. In our view, a father asking his son, who has no independent means of livelihood to work, cannot be treated as a grave and sudden provocation to the son to cause death of his father. The weapon of offence used by the accused, the parts of the body chosen for giving blows of P-2 to the deceased and the number of blows so given, clearly make it out that the accused had the intention to do away with his father. Had it not been so, the accused should have taken steps, particularly after noticing the critical condition of the deceased, for his treatment which he did not do. He just went to PW-1 and told him that he had beaten his father and thus committed mistake and he be saved. Thus, it was his personal interest and safety which prompted him to go to PW-1 and not the intention to seek help for treating his father. Had he committed the offence on sudden and grave provocation, it was for him to explain it. His having kept silent as to the circumstances which led him to cause injuries to his father and the consequential death of his father leads to the legitimate inference that he intentionally and knowingly caused such injuries to the deceased which resulted in his death. 27. No doubt, the prosecution has not sought opinion of PW-5 as to whether the injuries sustained by the deceased were in the ordinary course of nature sufficient to cause death nor the doctor has given any opinion in this regard. The fact, however, remains that the deceased died of the injuries caused to him by the accused with a Mai capable of causing death when used as a weapon of offence, therefore, it cannot be said that the accused has wrongly been convicted under Section 302 of the Indian Penal Code and ought to have been convicted either under Section 326 or at the most under Section 304 (Part-II) of the Indian Penal Code. 28. For the reasons and conclusions here-in-above, we do not find any merit arid substance in the present appeal which is accordingly dismissed. 28. For the reasons and conclusions here-in-above, we do not find any merit arid substance in the present appeal which is accordingly dismissed. Appeal dismissed. -