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2004 DIGILAW 346 (HP)

BALIA @ BILLU v. STATE OF H. P.

2004-12-23

DEEPAK GUPTA, LOKESHWAR SINGH PANTA

body2004
JUDGMENT Lokeshwar Singh Panta, J.: Appellant Balia @ Billu (hereinafter referred to "the accused") faced trial for the commission of offence punishable under Section 307 and Section 506 of the Indian Penal Code, 1860 (for short "the I.P.C). The learned Sessions Judge, Chamba Division, Chamba found the accused to be guilty under Section 307 I.P.C. He was sentenced to undergo simple imprisonment for ten years and to pay fine of Rs. 10,000/-, in default of payment of fine to undergo simple imprisonment for one year, while he was acquitted under Section 506 I.P.C. 2. The prosecution version as unfolded during the trial may briefly be stated thus: 3. Sat Pal (PW-1) started his agriculture pursuits with his father Amar Singh (PW-2) in village Garola, District Chamba. On 13.4.1997 at about 2.30 p.m. he alongwith his friends, namely, Rakesh Kumar (PW-5), Angrej Singh. Inder, one Sat Pal, Kamal and Raj Kumar (PW-6) assembled in the premises of Kali Mata Mandir in the village to form boys playing club. It was at about 3 p.m. when accused came there and shouted that who is the Pradhan of the club. He used filthy language against the accused. PW-1 asked the accused as to why he was using uncalled for language and the accused struck a blow of knife on the left side of the chest of PW-1. The injured fell down on the ground with bleeding injury. He asked his friends to call his father PW-2 at the scene of occurrence. The injured was removed to Garola Hospital by PW-2 and Jai Singh PW-4 uncle of the injured. Dr. Pramod Kumar (PW-8), Medical Officer, C.H.C. Gardola examined the injured in the Hospital and noticing the grievous injuries on the person of the injured, Dr. Parmod Kumar referred him to District Hospital, Chamba for surgical expert opinion from District Hospital. PW-1 was then referred to Indira Gandhi Medical College and Hospital, Shimla where he was admitted on 15.4.1997 by Dr. V. Behal (PW-12) and was later on discharged on 25.7.1997. On the date of occurrence, a message was received by Pratap Singh (PW-9) S.I., Addl. SHO, Police Station, Tissa, District Chamba that PW-1 was brought to District Hospital, Chamba in a injured condition. PW-9 went to District Hospital, Chamba and moved an application (Ext. V. Behal (PW-12) and was later on discharged on 25.7.1997. On the date of occurrence, a message was received by Pratap Singh (PW-9) S.I., Addl. SHO, Police Station, Tissa, District Chamba that PW-1 was brought to District Hospital, Chamba in a injured condition. PW-9 went to District Hospital, Chamba and moved an application (Ext. PH) to find out from the doctor as to whether the injured was in fit state of mind to make statement. Dr. D.P. Dogra (PW-7) made endorsement (Ext. PH/1) on the application certifying that the injured was in if state of mind to make the statement. PW-9 then recorded statement (Ext. PA) of PW-1 under Section 154 Cr.P.C. and sent the same to Police Station, Bharmour for formal registration of the First Information Report. On receipt of rukka (Ext. PA), M.H.C. Sat Pal (PW-10) recorded F.I.R. (Ext. PK) on 14.4.1997 in the Police Station. 4. The investigation of the case was conducted by Sub Inspector Krishan Chand (PW-13), SHO, Police Station, Bharmour. On 22.4.1997, PW-13 prepared site plan (Ext. PQ) of the spot. Shirt (Ext. P-1) of the injured stained with blood was handed over to the Investigating Officer by PW-4 in the presence of Subhash Kumar (PW-3), Pradhan, Gram Panchayat, Garola and PW-6 which was seized in a parcel sealed with impression T. The seal after use was given to PW-3, Knife (Ext. P-2) the weapon of offence was recovered at the instance of the accused in the presence of PW-3 and one Amlu Devi which was identified by PW-6 to be the same weapon which was used by the accused inflicting injuries on the person of PW-1. Recovery memo (Ext. PC) of the knife was signed by the accused and the recovery witness. The Medico Legal Certificate (Ext. PJ) prepared by PW-8 Dr. Pramod Kumar was obtained during the investigation. The final opinion of Dr. V. Behal (Ext. PN) and discharge slip of the injured (Ext. PM) were collected and the statements of the witnesses were recorded by the Investigating Officer. 5. On completion of the investigation, the accused was sent up for trial. He pleaded not guilty to the charged and claimed trial. In order to prove its case, the prosecution examined as many as thirteen witnesses. The accused in his statement recorded under Section 313 Cr.P.C. pleaded false implication and claimed to be innocent. 5. On completion of the investigation, the accused was sent up for trial. He pleaded not guilty to the charged and claimed trial. In order to prove its case, the prosecution examined as many as thirteen witnesses. The accused in his statement recorded under Section 313 Cr.P.C. pleaded false implication and claimed to be innocent. No evidence however, was led in defence by him. 6. The trial Court found the evidence of PW-1 injured, PW-2 father of the injured, PW-3 Pradhan of Gram Panchayat, PW-4 uncle of the injured, PW-5, PW-6 and medical evidence reliable and cogent. Placing reliance on their evidence, the trial Court found the accused guilty under Section 307 I.P.C. He, therefore, vide judgment and order dated 19 9 2002 convicted and sentenced the accused as aforesaid. 7 Feeling aggrieved by the conviction and sentence imposed upon the accused, he has preferred this appeal from Model Central. This Court appointed Mr. M.L. Chauhan, Advocate as Legal Aid Counsel on behalf of the accused. 8. This Court appointed Mr. M. L. Chauhan, Advocate as Legal Aid Counsel on behalf of the accused. 9. In support of the appeal, Mr. Chauhan, learned Counsel for the accused submitted that the trial Court has not analyzed the evidence in proper perspective. The evidence of PW-1 and other witnesses relied upon by the learned trial Court was not believable and reliable. The prosecution has not proved that the knife allegedly recovered at the instance of the accused was the weapon of offence used by the accused as it did not contain blood stains nor the same was sent for Chemical Analyst for comparison of the blood. He also contended that the shirt of the victim produced by PW-4 to the Investigating Officer and the Muffler used for covering the wound of the injured were sent not to the Chemical Analyst to find out blood group thereon. Lastly, the learned Counsel contended that no reliance can be placed on the testimony of the injured witness as there are contradictions, improvements and embellishment in the testimony of the victim, his father and uncle which would go to show that the accused has been falsely implicated in the presence case. 10. Lastly, the learned Counsel contended that no reliance can be placed on the testimony of the injured witness as there are contradictions, improvements and embellishment in the testimony of the victim, his father and uncle which would go to show that the accused has been falsely implicated in the presence case. 10. In response, the learned Additional Advocate General for the State supported the judgment of the learned trial Court and further submitted that in view of the analysis made and nature of the injuries found to have been inflicted by the accused, no interference is called for in the judgment and order of the learned trial Court. 11. In order to appreciate the rival contentions of the learned Counsel, we have re-appraised and re-assessed the evidence appearing on record, PW-1 injured has narrated the factual scenario in his deposition before the court. He stated that on the day of occurrence i.e. 13.4.1997 at about 2.30 p.m. he along PW-5 Rakesh Kumar, PW-6 Raj Kumar, Angrej Singh, Inder, Sat Pal and Kamal assembled in the premises of Kali Mata Mandir to take the decision of forming a playing club. The accused at about 3 p.m. came there and abused him in filthy language. He was asked not to use uncalled for language, but the accused suddenly inflicted a blow of knife (Ext P-2) on the left side of his chest. Blood started oozing out of the wound His father PW-2 was called who alongwith his uncle PW-4 took him to Hospital, Garola where the doctor given him first aid. He was referred to District Hospital, Chamba where his statement (Ext PA) under Section 154 Cr.P.C. was recorded by Station House Officer He identified his blood stained shirt (Ext. P-1) which was handed over to the Police by PW-4. A suggestion of the defence that he sustained injury on his person due to fall on the Trishul kept in the Mandir and broken slates lying on the ground, is categorically denied by him. 12. PW-2 deposed that on the day of occurrence he was present in his house as it was a Baishakhi day. At about 3 p.m. PW-6 came to his house and informed him that accused had given a blow of knife to his son. 12. PW-2 deposed that on the day of occurrence he was present in his house as it was a Baishakhi day. At about 3 p.m. PW-6 came to his house and informed him that accused had given a blow of knife to his son. He along with his brother PW-4 immediately rushed to the scene of the occurrence and found his son lying on the ground in injured condition in the premises of Kali Mata Mandir. Blood was oozing out profusely from the wound on the left side of the chest of his son. He lifted and removed his son to C.H.C. Garola along with PW-4 where Medical Officer gave first aid to him and then referred him to District Hospital, Chamba where he remained admitted for one day and one right. His son was then referred to Indira Gandhi Medical College and Hospital, Shimla. Shirt (Ext. P-1) socked with blood which his son was wearing at the time of the occurrence, was removed from his body and handed over to PW-4. His son remained admitted in Indira Gandhi Medical College and Hospital, Shimla for about 3-4 months. A suggestion of the defence that the witness had not gone to the place of occurrence is emphatically denied by him. Both the injured and the accused are known to PW-3, Pradhan of Gram Panchayat, Garola. On 13.4.1997 he came to know that the accused had given a blow of knife on the chest of PW-1 Sat Pal. On 22.4.1997 in his presence PW-4 produced one shirt (Ext. P-1) stained with blood containing two cuts with sharp edged weapon to the Investigating Officer which was sealed in a parcel with seal impression T. He identified his signature on seizure memo (Ext. PE). It is in his evidence that on 26.4.1997 the accused produced knife (Ext. P-2) (earlier marked as mark-l) to the Investigating Officer which was said having been hidden under the wooden box in the second floor of his house. The Investigating Officer prepared seizure memo (Ext. PC) in his presence and signed by him. It has come in his cross-examination that the accused, his wife, children and accuseds brother are all living in the same room from which the accused produced the knife. The Investigating Officer prepared seizure memo (Ext. PC) in his presence and signed by him. It has come in his cross-examination that the accused, his wife, children and accuseds brother are all living in the same room from which the accused produced the knife. A suggestion of the defence that the witness has deposed falsely against the accused as the accused and his family members had supported Pawan Kumar who contested election against him for the post of Pradhan, is emphatically denied by him. 13. PW-4 has corroborated the version of his brother PW-2. He deposed that he along with his brother PW-2 reached at the scene of occurrence they found PW-1 Sat Pal lying on the ground with some injury. They made inquiry from Sat Pal who told that the accused struck knife blow on his chest. They took the injured to the hospital. He produced one shirt (Ext. P-1) of the injured on 22.4.1997 to the Police. A suggestion of the defence that shirt (Ext. P-1) was not produced by him and a false case has been lodged against the accused is denied by him. PW-5 and PW-6 are both friends of the accused and injured Sat Pal. They have corroborated the testimony of PW-1 that on the day of occurrence they assembled in the premises of Kali Mata Mandir at Garola and decided to form a playing club. The accused came there at about 2.30 or 3 p.m. in a drunken condition. The accused commanded that if PW-1 Sat Pal who to be associated in the formation of a playing club, then he would not join the club. The accused was told by all the boys present on the spot that in case the accused did not went to join the club he may do so. The accused and PW-1 then started quarreling with each other but despite the intervention of the other boys, they did not stop their quarrel. All other boys then walked away from the place in protest. They deposed that hardly they could cover a small distance, they heard the shouts of PW-1 that the accused had given him a knife blow. They saw the accused running away from the place of occurrence. They all came to the place of occurrence and noticed blood injury on the left side of the chest of PW-1. They deposed that hardly they could cover a small distance, they heard the shouts of PW-1 that the accused had given him a knife blow. They saw the accused running away from the place of occurrence. They all came to the place of occurrence and noticed blood injury on the left side of the chest of PW-1. The boys tied a muffler around the chest of PW-1 to stop blood coming from the wound. They asked PW-6 to inform the father of PW-1 about the occurrence. PW-3 father and PW-4 uncle of PW-1 immediately reached at the spot. In their presence, PW-1 told his father and uncle that it was the accused who struck a knife blow to him. The injured was taken to the hospital. Both these witnesses accompanied the injured upto District Hospital Chamba. PW-5 was declared hostile by the prosecution. In cross-examination by learned Public Prosecutor he admitted that the occurrence took place on a plain ground and there was no stones or Trishuls there. In cross-examination of the defence, he admitted that Trishuls are kept in the Kali Mata Mandir but no slates were lying in the premises of the temple. Further suggestion of the defence that the witness was falsely deposing against the accused is denied by him PW6 further stated that shirt (Ext. P-1) of PW1 was produced by PW4 to the police which the injured was wearing at the time of incident. He identified knife (Ext. P-2) produced by accused to the police at the house of Pardhan of the village. In the cross-examination of learned Public Prosecutor after declaring him hostile, he denied the suggestion that at the time of recovery of knife (Ext. P-2) he identified to be the weapon of offence used by the accused causing injury on the person of the injured. He admitted when the injured shouted that a knife blow has been given to him, the accused immediately has run away from the scene of occurrence. A suggestion of the defence that he was not present at the place of occurrence and has made false statement against the accused is emphatically denied by him. 14. PW-7 Dr. D.P. Dogra, Medical Superintendent, Zonal Hospital, Chamba made endorsement (Ext. PH/1) that the injured was in a fit state of mind to make the statement. PW Dr. Parmod Kumar, Medical Officer, C.H.C. Garola issued M.L.C. (Ext. PJ). 14. PW-7 Dr. D.P. Dogra, Medical Superintendent, Zonal Hospital, Chamba made endorsement (Ext. PH/1) that the injured was in a fit state of mind to make the statement. PW Dr. Parmod Kumar, Medical Officer, C.H.C. Garola issued M.L.C. (Ext. PJ). He found sharp cut of 1"x1" on the back lateral to mid auxiliary line on the left side of the injured bleeding profusely when the injured was taken to him for medical treatment on 13.4.1997. He referred the injured to District Hospital, Chamba for surgical expert opinion as the nature of the injury found by him on the person of PW-1 was grievous caused with sharp edged weapon. Dr. Parmod Kumar stated that he had no proper instrument to take measurement of the depth of the injury. As per his opinion the said injury was possible with knife (Ext. P-2). He admitted in the cross-examination that the breadth of knife (Ext. P-2) was approximately less than one inch. Head Constable Jatinder Kumar (PW-11) recorded the statement of Dr. Behal on 24.5.1997 to get his opinion in regard to the nature of injury inflicted on the chest of PW-1. Dr. Behal was working as Professor and Head of the Department of Cardiothoracic surgery in Indira Gandhi Medical College, Shimla. PW- 1 was admitted by him on 15.4.1997 in the hospital. Dr. Behal treated and operated upon him. He prepared the case summary (Ext. PN) of PW-1, Dr. Behal noted as many as six injuries in the case summary (Ext. PN) having been found on the person of PW-1 injured. In the opinion of Dr. Behal, the injures sustained by PW-1 were dangerous to his life and were sufficient to cause his death in the ordinary course of nature. In cross-examination, Dr. Behal opined that the injury found on the person of PW-1 could not be self inflicted. Dr. Behal deposed before the court that there was only wound on the body of PW-1 was discharged from the hospital on 25.7.1997. 15. It is not in dispute that knife (Ext. P-2) and shirt of PW-1 (Ext. P-1) were not sent for chemical examination by the Investigating Officer to ascertain and compare the blood group. The evidence of PW-1 injured is corroborated by PW-2, PW-3, PW-4, PW-5, PW-6 and medical evidence of PW-7, PW-8 and PW-12. 15. It is not in dispute that knife (Ext. P-2) and shirt of PW-1 (Ext. P-1) were not sent for chemical examination by the Investigating Officer to ascertain and compare the blood group. The evidence of PW-1 injured is corroborated by PW-2, PW-3, PW-4, PW-5, PW-6 and medical evidence of PW-7, PW-8 and PW-12. PW-1 has proved in his deposition that the accused inflicted stab injury on his left side of the chest with knife. His evidence is wholly reliable, cogent and trustworthy. The evidence of other witnesses corroborating the testimony of PW-1 inspires confidence. There is nothing on record to disbelieve and discard their testimony. There is no explanation as to why the accused should be falsely implicated by the witnesses in the present case. The contention of the learned Counsel for the accused that no reliance should placed on the ocular testimony of the witnesses cannot be accepted. On behalf of the accused much reliance was sought to be laid on the observation of their Lordships, in State of U.P. v. Arun Kumar Gupta, 2003(2) Supreme Court Cases 202 to contend that the omission on the part of the prosecution to send the blood stained earth noticed at the place of occurrence, blood stained knife (Ext. P-2) and blood stained shirt (Ext. P-1) to Chemical Examiner for ascertaining the blood group is a circumstance which creates reasonable doubt as to the genuineness of the prosecution case in regard to the recovery of such material. One can have possibly no quarrel with the established proposition of law but the Investigating Officer in this case departed from the procedure for reason best known to him. The ratio of the judgment in State of U.P. v. Arun Kumar Gupta (supra), however, turned on its exceptional and peculiar circumstances. There it was expressly found that the blood stained knife and blood stained earth recovered by the Investigating Officer were not sent to the Serologist. In the present case, there is no evidence that the knife (Ext. P-2) produced by the accused was blood stained nor the Investigating Officer had recovered blood stained earth from the place of occurrence. Failure of the Investigating Officer to conduct the investigation properly cannot be a sufficient circumstance tenable the court to wholly reject the prosecution version if on other material circumstances the case is fully proved. P-2) produced by the accused was blood stained nor the Investigating Officer had recovered blood stained earth from the place of occurrence. Failure of the Investigating Officer to conduct the investigation properly cannot be a sufficient circumstance tenable the court to wholly reject the prosecution version if on other material circumstances the case is fully proved. In the teeth of the reliable, cogent and convincing evidence as discussed above, we have found the testimony of PW-1 injured and other witnesses confidence inspiring leaving no doubt in our mind that the accused inflicted knife blow on the left side chest of PW-1 causing grievous injury to him. PW-5 and PW-6 who are the friends of PW-1 and accused were present at the scene of occurrence. The evidence of both these witnesses is consistent that the accused started quarreling with PW-1 but in spite of their efforts they did not stop quarreling with each other. They started walking towards their houses, but hardly could they cover a distance of about 15 to 20 feet when they heard a cry of PW-1 shouting that the accused had inflicted a knife blow on him. Both these witnesses had seen PW-1 lying on the ground in injured condition. It is in their evidence that the accused immediately had run away from the scene of the occurrence. We find no material contradictions in the evidence of the witnesses to hold that the accused has been falsely implicated in the present case by or at the instance of the interested witnesses. The contentions of the learned Counsel for the accused do not merit acceptance. 16. The question then is under which provision of the I.P.C. the accused should be punished. For applicability of Section 307 I.P.C, the material relied upon by the prosecution in support of such charge must show that the accused has committed the act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder. As noticed above in the present case only one knife injury was inflicted by the accused on the person of the injured. The prosecution has not explained as to how the injured received five more injuries on his person as recorded by Dr. Behal in his case summary (Ext. PN). Dr. Behal found 1 cm. As noticed above in the present case only one knife injury was inflicted by the accused on the person of the injured. The prosecution has not explained as to how the injured received five more injuries on his person as recorded by Dr. Behal in his case summary (Ext. PN). Dr. Behal found 1 cm. stab injury in fundus of stomach whereas the stab injury said to have been caused by the accused to the injured was germinating into chest cavity as noticed by Dr. Behal. 17. Having considered all the relevant facts we are satisfied that the accused is guilty of the offence punishable under Section 324 I.P.C. We, therefore, set aside his conviction under Section 307 I.P.C. and instead convict him under Section 324 I.P.C. and sentence him to three years rigorous imprisonment and to pay a fine of Rs. 1,000/-. In default of payment of fine, the accused shall suffer simple imprisonment for one month. 18. In the circumstances this appeal is partly allowed to the extent indicated above. 19. We place on record our appreciation for the valuable assistance rendered to us by Mr. M.L. Chauhan, Amicus Curiae.