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2004 DIGILAW 194 (HP)

Dorje Ram v. State Of Himachal Pradesh

2004-08-11

M.R.VERMA

body2004
JUDGMENT : M.R. Verma, J.— 1. This appeal is directed against the judgment dated 9.3.2004 passed by the learned Sessions Judge, Kinnaur at Rampur whereby the appellant accused (hereinafter referred to as the accused) has been convicted under Sections 307,457 and 324, IPC and has been sentenced to simple imprisonment for 7 years and fine Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for one year u/s 307, IPC, simple imprisonment for five years and fine Rs.3,000/- and in default of payment of fine to undergo simple imprisonment for six months u/s 457, IPC and simple imprisonment for 3 years and fine Rs.2,000/- and in default of payment of fine to undergo simple imprisonment for three months u/s 324, IPC. 2. The case of the prosecution against the accused is that in the year 1996 Maheshwari Devi (PW1) used to reside with her parents in village Urtu. On 19.10.1996 her parents, uncle and aunt went to Ghatu in connection with agricultural work and were to stay there for the night in their Dogras. PW1 was asked to take care of Sarvdayal aged 4 years and Poonam Devi (PW2), aged 8 years. After taking their meals at about 7 p.m. when PW1 and the aforesaid children left for a room in the house of Khelu Ram uncle of PW1, Banti Devi [referred to as Lajwanti Devi (PW5) at a later stage] also accompanied them to sleep in the room. At about 8 p.m. all of them slept in the room. At about 4 a.m. when they were asleep the accused who wanted to marry PW1 but who alongwith her parents was unwilling to marry him entered into the room through a window in the upper storey of the house, lit the torch, removed the quilt from over PW1, gave two blows on her neck and threatened to kill her. PW1 raised cries and called her uncle Dewa Ram (PW3) who was sleeping in the adjoining house owned by him. The accused gagged the mouth of PW1 with one hand and with the other gave a Chhura blow on her stomach and the injury so caused started bleeding. Accused then gave another blow which PW1 tried to save and as a result hit Sarvdayal just below his left knee and the injury caused to him also started bleeding. The accused gagged the mouth of PW1 with one hand and with the other gave a Chhura blow on her stomach and the injury so caused started bleeding. Accused then gave another blow which PW1 tried to save and as a result hit Sarvdayal just below his left knee and the injury caused to him also started bleeding. On hue and cry raised by PW1 the accused with the help of torch light bolted away through the window in the upper storey and the house. On raising of alarm by PW1, Banti Devi (PW5) and Poonam Devi (PW2), Deva Ram (PW3) came on the spot and was informed of the occurrence. PW1 was removed for treatment to a Hospital at Nirmand where she made a statement u/s 154, Cr.P.C. Ext.PW1/A on the basis of which FIR Ext.PW 6/A was recorded at Police Station Nirmand and the investigation by SI Prem Singh (PW8) followed. 3. Injured PW1 and Sarvdayal were medically examined by Dr.Diwan Sirkeck (PW10) on 20.10.1996 and he issued MLC Ext.PW 10/B in respect of the medical examination of PW1 and MLC Ext.PW 10/C in the respect of medical examination of Sarvdayal. Vide MLC Ext.PW 10/B an incised wound on the left side of the abdomen and an abrasion in the mid-apigastrian were found on the person of PW1 having been caused with sharp-edged weapon within less than 12 hours of the medical examination at 11 a.m. An incised wound was grievous and dangerous to life. As per MLC Ext.PW 10/C one incised wound having been caused with sharp-edged weapon within less than 12 hours of the medical examination of Sarvdayal at 12.30 p.m. on 12.10.1996 was also found above his left knee joint. 4. During the investigation wearing apparels of PW1 i.e. a blood stained shirt and Salwar were taken in possession vide Memo Ext.PW1/B and a blood stained Salwar of Poonam Devi (PW2) was also taken into possession vide Memo Ext.PW 2/A. The Pyjama which Sarvdayal was wearing at the time of the occurrence was also taken in possession vide memo Ext. PW 4/A. The Investigating Officer (PW8) also prepared the spot map Ext. PW 4/A. The Investigating Officer (PW8) also prepared the spot map Ext. PW 8/A. The aforesaid wearing apparels token into possession were sent for chemical analysis to the State Forensic Science Laboratory and as per the report received from the said Laboratory human blood was found on the apparels but blood group could not be ascertained. 5. On completion of the investigation SHO Police Station Nirmand submitted a charge-sheet against the accused who came to be tried by the learned Sessions Judge Kinnaur at Rampur on a charge under Sections 307,457 and 324, IPC. 6. To prove the charge-against the accused prosecution examined 10 witnesses. Statement of the accused was recorded u/s 313, Cr.P.C. wherein he denied the prosecution case as a whole and claimed to be innocent having been implicated in a false case by the interested witnesses examined by the prosecution. The Accused led defence and examined Jagat Ram (DW1). 7. On consideration of the evidence on record the learned Trial Judge held the accused guilty and convicted and sentenced him as aforesaid. Hence, the aggrieved accused preferred the present appeal. 8. I 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. 9. It may be pointed out at the very outset that to prove the occurrence, the prosecution has examined three eye-witnesses, namely Maheshwari Devi, the Victim (PW1), her cousin Poonam Devi (PW2) and Lajwanti (PW5) another cousin of PW1. 10. It is admitted by PW2 that her family members do not have cordial relations with the accused since many years. PW5 has also admitted that there is enmity between her family members and the family members of the accused and also between the father of PW1 and the accused. In view of the relationship between injured, PW1 and the other two eye-witnesses and there being admittedly enmity between the members of the family and father of the injured with the family of the accused and the accused, these witnesses cannot be termed as independent witnesses but evidently are interested witnesses. 11. No doubt evidence of a witness cannot be discredited simply for the reason that he is a victim in the case or is related to or interested in the victim/complainant or is inimical towards the accused. 11. No doubt evidence of a witness cannot be discredited simply for the reason that he is a victim in the case or is related to or interested in the victim/complainant or is inimical towards the accused. However, as a rule of prudence evidence of such witnesses must be read with care and caution and if found confidence inspiring, trustworthy and finds corroboration from some other independent evidence on material particular, a conviction can be based on such evidence. However, in case on scrutiny of the evidence of an interested witness, keeping in view the probability and the attendant circumstances, the evidence is found unnatural, improbable and non-confidence inspiring, no conviction can be based on such evidence. While appreciating evidence of interested witnesses, the attendant circumstances must always be kept in view as a human being may lie but not the circumstances. 12. In the case in hand no doubt PW1, by and large, supports the prosecution version and PW2 and PW3 tend to corroborate her version but the attendant circumstances render statements of these witnesses untrustworthy and incapable of inspiring confidence. It is case of the prosecution that PW1 along with PW2 and PW3 and Sarvdayal were sleeping in a room in the middle storey of the house of Khelu Ram uncle of PW1 and father of PW2, as the parents of PW1 and Punam Devi had gone to a different village to attend to their agricultural work and were to stay there for the night. They had instructed PW1 to take care of Sarvdayal and Poonam Devi (PW2). In the incident apart from PW1 said Sarvdayal is also stated to have sustained the injuries. However, he has not been produced and examined though at the time of recording of evidence, as per the facts stated in the charge-sheet by the prosecution, he must be around 11 years of age. However, his non-production may not be taken so seriously because at the relevant time be was a child of about four years. 13. On the relevant day, i.e. 19.10.1996, PW1 was not sleeping in her own house but in the house of her uncle Khelu Ram. Though as per the cross-examination of PW3 she was sleeping in his house as he has denied the suggestion that on the relevant day PW1 was not sleeping in his house. 13. On the relevant day, i.e. 19.10.1996, PW1 was not sleeping in her own house but in the house of her uncle Khelu Ram. Though as per the cross-examination of PW3 she was sleeping in his house as he has denied the suggestion that on the relevant day PW1 was not sleeping in his house. The important question, thus, is as to how the accused came to know that PW1, who was not in her own house, was sleeping in the house of Khelu Ram or PW-3, as the case may be. Unless the accused knew as to where PW1 was sleeping at the relevant time, it was not possible for him to land in the room where she was sleeping. There is no explanation whatsoever even to remotely suggest that the accused had prior knowledge of PW1 sleeping in the house under reference and for want of such explanation doubt is created about the trustworthiness of the statements of the above witnesses. 14. The next question which arises for determination is as to how the accused entered the room in which PW1, PW2, PW5 and Sarvdayal were sleeping. It is a admitted case of the prosecution that the house in which PW1 and others were sleeping is a three-storeyed house and PW1 and others were sleeping in a room in the middle storey. According to the version contained in the FIR accused entered the house through a window in the third storey of the house and then entered into the room in the middle storey where PW1 and others were sleeping and the same was the route adopted by the accused to bolt away from the place of occurrence. PW1 in her examination-in-chief has not stated anything whatsoever as to how the accused entered into the room and when and how he bolted away from the room. However, in the cross-examination she has stated that the said house is 25 feet in height and access to two rooms is available through two doors and there is no alternative mode to enter the house. It was in her cross-examination that she volunteered that the accused came in the room through a window in the third storey of the building. However, she could not state the size of the window and denied that its size is one foot. It was in her cross-examination that she volunteered that the accused came in the room through a window in the third storey of the building. However, she could not state the size of the window and denied that its size is one foot. She has further stated in her cross-examination that the roof of the building is covered with slates and there is no other house near the said house. The question, therefore, arises as to how the accused reached the window of the third storey or whether, in fact, there were window in the third storey capable of being opened from outside to force entry into the third story and whether there was any other mode of affecting entry from the room in the third storey into the room in the middle storey where PW1 was sleeping. There is no answers to these question in the statement of PW1. According to PW2, the accused entered in the room where they were sleeping from the roof of the house and he left the room through the roof of the house. In the cross-examination this witness has stated that there is no way to enter the house in question through the roof. She has further stated that there were four windows in the upper storey, two windows in the middle storey and one window in the ground floor and such windows were of small size of one foot and were having panes fixed thereto. Moreover, the windows have wooden planks also and were fitted with bolts from inside. The witness has further stated that the accused removed one slate to enter in the room. Thus, the statement of this witness about the manner in which the accused allegedly entered into the room is absolutely contradictory of the statement of PW1. 15. PW5 in her examination-in-chief has not stated as to how the accused had entered the room but according to her accused left the room through its window and then stated that he left the room from the upper storey of the building. In the cross-examination she volunteered to be stated that she had told the police of officials that the accused came in the room from the roof of the house and went outside through the window. Her such statement does not find mention in her statement Ext.PW 5/A made to the police with which she was confronted. In the cross-examination she volunteered to be stated that she had told the police of officials that the accused came in the room from the roof of the house and went outside through the window. Her such statement does not find mention in her statement Ext.PW 5/A made to the police with which she was confronted. She further goes on the state that the house was slate-roofed having height of 25-30 feet and a ventilators in the upper storey of the house is at a height of about 20 feet and there are only ventilators in the house and there are no windows and panes are fixed to the ventilators and have inner bolts. She admits that there is no approach from outside to enter into the room. As is evident from the evidence, the statement of this witness is partially contradictory of the statement of PW1 and partially contradictory of the statement of PW2 and these statements are incapable to being reconciled to find out as to how the accused entered the room in the middle story of the house when admittedly he did not enter the room through the door. 16. During investigation a rough site plan Ext.PW 8/A of the place of occurrence has been prepared by the Investigating Officer (PW8). A scrutiny of Ext. PW 8/A reveals that the room in the third storey is tin-sheeted roof and it was through its window that the accused entered into the house by removing the windowpane and after entering this room he entered the room in the second storey where PW1 and others were sleeping and this room in the middle storey has a slate-roofed Verandah. In case the accused forced the entry by removing the slate as stated by PW2 he will not land in the room of the upper storey but in the Verandah. However, the site plan shows that the accused entered through a window by removing the windowpane. The removed windowpane has not been taken into possession. There is no explanation as to how the accused made his entry into the room in the middle storey from the room in the third storey. The site plan also does not indicate nor is so stated by the witnesses as to how the accused approached the entry point 'C of Ext. There is no explanation as to how the accused made his entry into the room in the middle storey from the room in the third storey. The site plan also does not indicate nor is so stated by the witnesses as to how the accused approached the entry point 'C of Ext. PW 8/A. There is nothing in the evidence to show that adjacent or close to point 'C' there is any other house or a raised placed equivalent to its height enabling reaching at 'C'. It is not the case of the prosecution that the windows or ventilators in the rooms were not bolted at the relevant time from inside. There is no evidence that the panes fixed to windows ventilators, as the case may be, were found broken or removed or the bolts of the windows ventilators were found broken or unbolted. It is also not the case of the prosecution that any slate from the roof of the house was found removed. Thus there is no cogent and reliable evidence on record to show as to how the accused entered into the room where PW1 and others were sleeping at the relevant time. 17. The next question which arises for determination is as to how accused was identified as the assailant by the eye-witnesses. It is admitted case that there was pitch dark in the room where the eye-witnesses were sleeping. Their common case is that they identified the accused in the light of the torch which the accused was carrying with him. This version regarding identifying the accused by the eye-witnesses is not only suspicious, as will be discussed a little later but also raises certain other questions. Primarily in case the eye-witnesses had noticed that some one is entering the room, may be through the roof or the widow, it is not understandable as to why they did not raise the alarm at that time. Secondly, the reason given by PW1 for there being pitch dark in the room is that the bulb was not in order and the light was disconnected by the accused. It is not the case of the prosecution at any stage before this version is given by PW1 for the first time in the Court. It is admitted case of PW1 that she had not seen the accused disconnecting the light. It is not the case of the prosecution at any stage before this version is given by PW1 for the first time in the Court. It is admitted case of PW1 that she had not seen the accused disconnecting the light. It is implicit in this version of PW1 that she is capable of coining a version favourable to her and no implicit reliance can be laid on the testimony of a witness having such tendencies. 18. The version regarding identifying the accused by the eye-witnesses in the torch light is also not reliable. It is not the case that any of the witnesses was having the torch and flashed it at the fact of the accused. On the contrary, according to the prosecution the torch was in possession of the accused and evidently the accused will not show his face when intending to commit a serious offence like attempt to murder. In this regard, statement of PW1 is that she identified the accused by way of torch light. She has not explained as to how the face of the accused came in light in the process. According to PW2 Poonam Devi, the accused came in the room and switched on the torch. Evidently if he did so, it was to see the conditions of the room and not to show his face. This witness also does not state as to how she identified the accused. PW5 has not stated at all as to how she identified the accused. Thus, none of the eye-witnesses have stated to satisfactorily explain their having identified the accused. PW2 has not stated at all that on the night of the occurrence PW5 had also slept with them or was present at the time of the incident. This omission amounts to contradiction and raises serious doubt about the presence of PW5 at the scene of the alleged occurrence. 19. It was contended by the learned Deputy Advocate General that the eye-witnesses and the accused are residents of the same village Urtu, therefore, the identification of the accused by the eye-witnesses cannot be doubted. No doubt, as per the initial version as contained in Ext.PW 1/A and the consequential FIR Ext.PW 6/A all the eye-witnesses including the injured and the accused are residents of village Urtu and the house of the father of PW 1 and her uncle Khelu Ram are in the close vicinity. No doubt, as per the initial version as contained in Ext.PW 1/A and the consequential FIR Ext.PW 6/A all the eye-witnesses including the injured and the accused are residents of village Urtu and the house of the father of PW 1 and her uncle Khelu Ram are in the close vicinity. The said two houses are shown in the near vicinity even in the site plan Ext.PW 8/E, and Urtu is stated at a distance of about half a furlong on the upper side of these houses. Had this version been consistent and uncontroverted, it could be assumed that being residing in the same village the accused could have been identified by the eye-witnesses. However, the version on oath as given by none other than the injured herself fully contradicts the initial version about the villages to which the accused and the eye-witnesses belong and the situation of the house of the father of PW1 and that of Khelu Ram, her uncle. In her evidence, PW1 has stated that house of her uncle Khelu Ram is in Nauni Wheel. Accused is a resident of village Odi which is at a distance of 2 kms. from the house of her father. This evidence of PW1 makes it clear that the eye-witnesses and the accused are not residents of the same village Urtu but are residents of the same village Urtu but are residents of different village Urtu but are residents of different villages and the houses in question i.e. house of the father of PW1 where she took her evening meals with Sarvdayal and Poonam Devi and the house of her uncle where they went to sleep are at a distance of about 2 kms. The occurrence is stated to be of the month of October when at 7 p.m. it will be dark. PW1 along with her companions went to her uncle's house at 7 p.m. Why she travelled to the house of her uncle for the purpose of mere sleeping along with two children in the dark and why in the initial version the two houses are stated to be in the close vicinity is another aspect of the matter which the learned Deputy Advocate General is not in a position to satisfactorily explain. Thus, at the stage of evidence what has been stated by PW1 tends to change the place of occurrence itself adding to the doubts about the prosecution version. 20. The statement, Ext.PW 1/A of PW1 according to the prosecution, was recorded on 20.10.1996 at 11.30 a.m. PW8, the Investigating Officer in the case, in his cross- examination stated that he did not obtain certificate from the Medical Officer to the effect that the injured was in a position to give her statement. He, however, claims that he had obtained oral permission from PW10, the Medical Officer. PW10, however, has not stated about such permission having been taken from him for recording the statement of the injured by the Investigating Officer. 21. The evidence of the material witnesses, on the other hand, reveals that after sustaining the injuries PW1 had become unconscious and - regained consciousness after a couple of days. According to PW1 she became unconscious when accused inflicted knife injury on her and remained unconscious continuously for four days and was not in a position to speak continuously for four days. She further states that when she was unconscious she was not aware as to where she had been brought and such things came to her notice when she regained consciousness. This version of PW1 finds support from the statement of her uncle Deva Ram (PW3) who has stated that PW1 was unconscious when she was brought to Nirmand and she remained unconscious for three days. If so, there is no explanation as to how and under what circumstances her statement Ext.PW 1/A, on basis of which formal FIR is based, was recorded whereas per own admission corroborated by her uncle (PW3) she was unconscious. Thus, it is improbable that Ext.PW 1/A contains the version given by the injured. 22. Yet another suspicious circumstances rendering the prosecution version suspicious emerges on the basis of the medical evidence. It is the version of the prosecution that the accused initially gave two blows on the neck of PW1 then gagged her mouth and gave a Chhura blow on her abdomen and when he was giving the second blow she attempted to save herself and, thus, the blow hit Sarvdayal and thereafter the accused ran away. It is the version of the prosecution that the accused initially gave two blows on the neck of PW1 then gagged her mouth and gave a Chhura blow on her abdomen and when he was giving the second blow she attempted to save herself and, thus, the blow hit Sarvdayal and thereafter the accused ran away. PW 1, PW2 and PW5 by and large support this version according to which one sharp edged weapon was used by the accused as a weapon of offence. However, as per the medical opinion given by PW10 injuries found on the person of PW1 and Sarvdayal were caused with two different weapons. This medical opinion belies the version of the eye-witnesses about the causing of the injuries by the accused to Maheshwari Devi and Sarvdayal with the same weapon. Furthermore, as per the medical opinion, there was no sign of any external injury over the neck of PW1, whereas according to the eyewitnesses the accused gagged the mouth and pressed her throat and inflicted injuries on her neck also. Thus the evidence of the eye-witnesses is contradicted by the medical evidence and is thus rendered unreliable. 23. In the totality of the circumstances, as stated hereinabove, the version of the prosecution is of highly doubtful nature and the evidence of the eye-witnesses who are interested witnesses is not confidence inspiring and reliable. Therefore, the accused could not have been convicted on the basis of the evidence on record. Therefore, his conviction and sentence are liable to be set aside. 24. As a result, this appeal is allowed. The impugned conviction and sentence are set aside and the accused is acquitted of the charge against him. The accused is presently in jail undergoing the terms of imprisonment awarded to him by the Trial Court. He be set at liberty forthwith. Fine, if recovered, be refunded to him.