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2005 DIGILAW 66 (HP)

GURNAM SINGH v. STATE OF H. P.

2005-03-24

K.C.SOOD, LOKESHWAR SINGH PANTA

body2005
JUDGMENT Lokeshwar Singh Panta, J.—Appellant Gurnam Singh (hereinafter referred to as the accused) faced trial in Sessions Trial No.22 of 2001 for the alleged commission of offence punishable under Sections 302 and 325 of the Indian Penal Code, 1860 ( for short I.P. Code)- The learned Sessions Judge, Chamba Division Chamba found the accused to be guilty for the murder of Manav Sharma and convicted him under Section 302 I.P. Code. He has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000/- and in default of payment of fine to undergo simple imprisonment for one year. For the offence under Section 325 I.P. Code the accused has been acquitted. 2. The prosecution version as unfolded during the trial may briefly be stated thus:— 3. PW-1 Des Raj was working as Chowkidar in a hotel namely Teach Channel Dalhousie District Chamba. One Manav Sharma was a cook in the said hotel who was residing alongwith his wife Smt. Malika in the Hotel. The said Manav Sharma and his wife belong to State of Tamilnadu. PW-3 Kanwar Bhalla was the Manager, PW-5 Prince was the Security guard of the hotel and one Madusudan was the driver of PW-3. In March 2001 PW-3 was getting the building work of the hotel executed. One Naresh Dhaka came to the hotel in January 2001 from Delhi proclaiming that he was appointed Manager of the hotel by Smt. Usha Malik. He stayed in the hotel for few days and thereafter left for Delhi. Again, he came back after about 20-22 days and started living in the hotel. On 7.3.2001 four more persons came to the hotel and again two more persons namely Munesh and Hardev also visited the hotel on 15.3.2001 accompanied by two other persons. All the above said persons stayed in the hotel. On the same day four or five more persons including the accused were also brought to the hotel by Hardev Singh. All of them stayed in Hut No. 4 on 15.3.2001 and 16.3.2001. They broke open the lock of other rooms of the hotel and started living therein without permission of the owner or the Manager of the hotel. They also forcibly locked the rooms of the hotel and residential house of the PW-3 Kanwar Bhalla who was not present in the hotel at the relevant time. They broke open the lock of other rooms of the hotel and started living therein without permission of the owner or the Manager of the hotel. They also forcibly locked the rooms of the hotel and residential house of the PW-3 Kanwar Bhalla who was not present in the hotel at the relevant time. Hardev Singh produced one letter Ext.P-1 allegedly written by Smt. Usha Malik authorizing the above said persons to stay in the hotel in Hut No. 4. When those persons forcibly occupied the other rooms of the hotel, PW-1 lodged a complaint with the local police. The police came to the hotel and pacified both the parties to settle their dispute till PW-3 and other partners would join together and till then no body should quarrel with each other. 4. PW-2 Rajinder Rana, his driver PW-6 Desh Raj and PW-4 Parkash Chand Carpenter took their dinner on 16.3.2001 in the kitchen of the hotel and then went to the quarter of PW-1. After some time PW-5 came and told PW-1 that the persons who had stayed in the hotel were quarrelling with PW-2 on the second floor of the Hotel, PW-1 immediately rushed to the spot and noticed that those persons were giving beatings to PW-2. When PW-1 tried to rescue PW-2, they started beating him as well. On hearing the noise, PW-7 Smt. Veena Devi wife of PW-1 came on the scene of occurrence and on her arrival, the assailants fled from there. In the meantime, PW-1 heard that Manav Sharma had been killed and he immediately went down stairs and noticed Manav lying on the ground floor with stab injury on his body. The blood was oozing from the wounds, nostrils /and mouth of Manav which was scattered over the floor. PW-1 found Manav dead. He immediately informed the police telephonically about the murder of Manav. PW-20 Kishan Chand Inspector/SHO, Police Station^ Dalhousie along with ASI Ramesh Kumar, PW-19 ASI Amar Singh and other police constables reached at the hotel. PW-20 recorded the statement Ext.PA of PW-1 under Section 154 of the Cr.P.C. On the basis of the said statement FIR Ext. PAB came to be registered in Police Station, Dalhousie by PW-16 HC Kuldip Raj PW-20 inspected the spot and prepared site-plan Ext. PAC. PW-20 recorded the statement Ext.PA of PW-1 under Section 154 of the Cr.P.C. On the basis of the said statement FIR Ext. PAB came to be registered in Police Station, Dalhousie by PW-16 HC Kuldip Raj PW-20 inspected the spot and prepared site-plan Ext. PAC. Photographs Ext.P-15 to Ext.P-19 of the dead body of Manav were taken by PW-21 constable Deep Raj at the scene of the occurrence. Blood stains lying on the spot were also taken into possession. Two Dandas Ext.P-6, Ext.P-7, two whipers Ext.P-8, Ext.P-9 and two iron rods Ext.P-10 and Ext.P-11 lying at the scene of occurrence were taken into possession and sealed in a separate parcel by the Investigating Officer in the presence of PW-2 and one Naresh Kumar vide recovery memo Ext.PF. On the same day the accused was arrested. His blood stained clothes Kurta (shirt) Ext.P-3, Pajama Ext.P-4 were taken into possession sealed in a parcel Ext.PX. Father of the accused was also informed about his arrest. Inquest reports Ext.PX and Ext.PX/1 of the dead body of deceased Manav Sharma were prepared at the spot. The dead body of the deceased was sent to civil hospital, Dalhousie for post mortem. The sealed parcel of the weapons collected at the spot and the sealed parcel containing the clothes of the accused along with specimen of seal were deposited with PW-16 HC Kuldip Raj who kept all the articles in Police Malkhana in safe custody On 25.3.2001, PW-16 handed over three sealed parcels to PW-18 constable Budhi Singh along with specimen seal for taking the articles to the office of Chemical Examiner FSL Junga. On 26.3.2001 all the sealed parcels and specimen seal were received by the Scientific Officer. FSL Junga, District Shimla. In report of the Scientific Officer Ext.PAE the human blood of Group B was found on sample blood of deceased Manav, blood lifted from place of occurrence and on Trousers and Shirt of the accused. The Investigating Officer also took into possession clothes of Munesh Kumar, Hardev and Rakesh Kumar in three separate settled parcels vide recovery memo Ext.PG. 5. On 20.3.2001 when the accused was in police custody, he disclosed to the Investigating Officer that he had thrown the weapon of offence i.e. screw driver in the bushes of the adjoining jungle of the hotel. 5. On 20.3.2001 when the accused was in police custody, he disclosed to the Investigating Officer that he had thrown the weapon of offence i.e. screw driver in the bushes of the adjoining jungle of the hotel. On search made by the Investigating Officer in the presence of PWs 1 and 2, a screw driver lying in the bushes indicated by the accused was traced out. The weapon of offence was taken into possession vide seizure memo Ext.PB, copy of Jamabandi Ext.PR, Aks Tatima Ext.PS and Field book Ext.PT of the hotel were also collected from Tehsildar. Dalhousie. Copies of the documents produced by PW-3 Kanwar Bhalla were also taken into possession mark Exts. PK, PK/1 to PK/3. PW-4 Parkash Chand had also sustained injuries in incident. He was got medically examined. The Investigating Officer collected his MLC Ext. PL, X-ray form Ext.PL/1 and X-ray films Ext.PL/2 ( four in Nos.) On his retirement. PW-20 handed over the case file to his successor on 31.3.2001. 6. PW-23 Khub Ram Inspector took up the further investigation of the case. He, on 4.6.2001 filed an application Ext.PZ before the Medical Officer, Civil Hospital, Dalhousie for seeking opinion of the doctor whether the injuries found on the dead body of Manav Sharma could be inflicted with screw driver and if so, could the death have occurred due to those injuries or not? The Medical Officer, Civil Hospital, Dalhousie submitted report Ext.PAA to PW-3. On receipt of the report of the Doctor Ext. PAA and Chemical Examiners report Ext.PAE, PW-23 submitted the charge sheet against the accused before the Court. 7. The learned Sessions Judge framed two heads of charges against the accused under Section 302 IP Code for committing murder of Manav Sharma and under Section 325 IP Code for causing voluntarily grievous hurt on the person of PW-4 Parkash Chand. The accused pleaded not guilty to the charges and claimed trial. 8. In order to bring home the accusation, 23 witnesses were examined by the prosecution. The accused in his statement under Section 313 Cr.P.C. simply denied the case of the prosecution and alleged to have been falsely implicated. He pleaded that he is an agriculturist and labourer and blood might have come on his clothes while working in the fields or somewhere else. The accused in his statement under Section 313 Cr.P.C. simply denied the case of the prosecution and alleged to have been falsely implicated. He pleaded that he is an agriculturist and labourer and blood might have come on his clothes while working in the fields or somewhere else. In answer to question No. 37 his plea was as under:— "I am innocent and have been falsdy implicated in the case. In the case, the police had arrested 5-6 other persons who were influential and moneymen. The police let them off and false case has been foisted upon me". He, however, did not lead any defence evidence. 9. The trial Court found the oral evidence of PW-1 Desh Raj complainant, PW-2 Rajinder Rana, PW-3 Kanwar Bhalla, PW-4 Parkash Chand injured, PW-5 Prince, PW-6 Desh Raj driver, PW-7 Smt.Veena Devi wife of complainant, PW-8 Ravi Kumar ( child eye witness), PW- 15 Dr. Manju Mittal , PW-22 Dr.V.K. Pathak, Radiologist and the evidence of formal police officials namely PW-13 constable Budhi Singh, PW-14 constable Chaman Singh, PW-16 HC Kuldip Raj, PW-17 HC Rakesh Kumar, PW-18 constable Budhi Singh, PW-19 ASI Amar Singh, PW-20 Inspector Kishan Chand the Investigating Officer, PW-21 Deep Raj and PW-23 Inspector Khub Ram corroborated by other documentary evidence cogent and reliable against the accused. Placing reliance on their evidence, trial Court found the accused guilty of the commission of offence punishable under Section 302 IP Code committing the murder of Manav Sharma but found that the prosecution has not established the charge under Section 325 IP Code against the accused for causing grievous injuries to PW-4 Parkash Chand and accordingly directed his acquittal. He, therefore, vide judgment and order dated 11.10.2002 convicted and sentenced the accused as aforesaid. 10 Feeling aggrieved by the conviction and sentence imposed upon the accused, he preferred this appeal. 11. In support of the appeal, the learned Counsel for the accused submitted that the eye-witness PW-8 Ravi Kumar (child) was introduced by the police at the behest of the real culprits who were quite influential and rich to save themselves and they have falsely implicated the accused, who is a poor person, and the statement of PW-8, is untruthful and contradictory to other evidence on record and as such no reliance can be placed on his testimony more so when no Test Identification Parade was held by the police. He also submitted that the injuries attributed to the accused by PW-8 and found on arm and leg of the accused were all simple in nature as opined by the Doctor and as far as the injury on the chest of the deceased was concerned. Doctor has not opined that the said injury coupled with injuries on arm and leg were sufficient in the ordinary course of nature to cause the death of the deceased. Even otherwise, the injury on the left chest could be caused due to piercing of bone of rib, and it has been admitted by Doctor PW-15 that three ribs of the chest of the deceased were found fractured and injury on pleurae of left lung could be caused due to fracture of ribs and fracture of ribs could not be attributed to the accused because three ribs could not be fractured by screw driver with 3.5 inches long nail and as per the version of the Doctor the fracture of ribs could be caused due to fall and in the alternative the accused at the most can be convicted for the commission of offence punishable under Section 325 IP Code and his conviction under Section 302 IP Code imposed upon by learned trial Court is absolutely unsustainable. 12. In response, the learned Additional Advocate General for the State supported the judgment qf learned trial Court and further submitted that in view of the analysis of the evidence made by learned trial Court and the nature of the injuries proved to have been inflicted on the body of the deceased, no interference is called for by this Court in the judgment of the learned trial Court. 13. In order to consider the rival contentions raised by learned Counsel for the parties, we will briefly refer to the evidence appearing on record. 14. PW-1 Desh Raj complainant has supported his version made by him in statement Ext.PA recorded under Section 154 Cr.P.C. He has stated that he was working as Chowkidar in a Hotel namely "Peach Channel" for the last three years. Deceased Manav Sharma was working as a cook in the Hotel. The deceased and his wife Smt Malika belong to State of Tamil Nadu and were residing with him in the hotel. PW-3 was the Manager and PW-5 was the Security Guard of the Hotel. PW-3 was also Director of one group of the Hotel. Deceased Manav Sharma was working as a cook in the Hotel. The deceased and his wife Smt Malika belong to State of Tamil Nadu and were residing with him in the hotel. PW-3 was the Manager and PW-5 was the Security Guard of the Hotel. PW-3 was also Director of one group of the Hotel. In the month of March, 2001 some construction of the Hotel was being executed under the supervision of PW-3. One Naresh Dhaka proclaimed himself to be newly appointed Manager of t^ie Hotel by Smt. Usha Malik, Director of the second group of the Hotel came and stayed in the Hotel in January, 2001. After staying for few days he went back to Delhi and again returned after about 20-22 days. On 7.3.2001 four persons were brought to the Hotel by Hardev Singh. Hardev Simgh left the Hotel and thereafter he along with Munesh and two other persons came on 15.3.2001 and all of them stayed in the Hotel. On the same day, four or five more persons including the accused were also brought by Hardev Singh to the Hotel. They stayed in Hut No. 4, but on 16.3.2001, they broke open the locks of other rooms of the Hotel and started living therein without any permission of the Manager or Director. They also forcibly locked the rooms of the residential house of PW-3 who at the relevant time was not in his house. Hardev Singh produced one letter allegedly written by Smt Usha Malik, Director of another group of Hotel authorizing the above said persons to stay in the Hotel in Hut No. 4 . He informed the local police when those persons forcibly occupied other rooms of the Hotel. The police came on the spot and asked those persons not to create any disturbance in the Hotel and advised them that when PW-3 and other Directors of the Hotel would meet together, the matter would be settled at that time. On the day of incident PW-3, his driver PW-6 and carpenter PW-4 took their dinner in the kitchen of the Hotel and thereafter went to his quarter. After some time PW-5 came to him and disclosed that the persons who had unauthorisedly stayed in the Hotel were quarreling with PW-2 on second floor of the Hotel. He rushed to the spot and noticed those persons giving heatings to PW-2. After some time PW-5 came to him and disclosed that the persons who had unauthorisedly stayed in the Hotel were quarreling with PW-2 on second floor of the Hotel. He rushed to the spot and noticed those persons giving heatings to PW-2. He made an attempt to rescue PW-2 but they had assaulted him as well. In the meantime, his wife PW-7 came there and on her arrival those persons ran away. All the persons had come to the Hotel for taking forcible possession. On hearing noise that Manav Sharma had been killed, he went down stairs and noticed the deceased lying on the ground floor of the Hotel in a pool of blood with stab injury on his body The blood was oozing from the wounds, nostrils and mouth of the deceased. He telephonically informed the police about the murder of the deceased. His statement Ext PA was recorded by the police. During the investigation the accused told the Investigating Officer that he could get recovered, the weapon of offence i.e. screw driver from the Zhikar jungle adjoining to the Hotel. In his presence the police recovered screw driver Ext.P-2 which was identified by the accused. The weapon of offence was taken into possession vide seizure memo Ext.PB which was signed by him and PW-2. The accused also appended his signature on the recovery memo. He has shown his ignorance in the cross-examination that Smt. Usha Malik was the Managing Director of the Hotel whereas PW-3 was only its Director. He admitted the suggestion of the defence that screw driver Ext.P-2 was lying open on the ground when it was recovered by the police after about 3-4 days of the occurrence. 15. PW-2 States that "Peach Channel" Dalhousie Resorts Pvt Ltd. had been constructed on the land of one Shri Satpal Sharma resident of Ghalungra, Tehsil Jaswan, District Kangra who had given him Special Power of Attorney to look after the land. PW-3 Kamal alias Kanwar Bhalla one of the Director of the Hotel had engaged him to look after the construction work of the Hotel/Resort. He was living in the Resort when on 16.3.2001 at about 10/10.30 p.m. Munesh, Naresh alongwith Security Incharge and 8/9 more persons came to the Hotel for taking forcible possession thereof. All of them started replacing the locks of the rooms of the Hotel by breaking open the old locks affixed by him. He was living in the Resort when on 16.3.2001 at about 10/10.30 p.m. Munesh, Naresh alongwith Security Incharge and 8/9 more persons came to the Hotel for taking forcible possession thereof. All of them started replacing the locks of the rooms of the Hotel by breaking open the old locks affixed by him. Those persons proclaimed that they had been deputed by one Usha Malik for taking the possession of the Hotel forcibly. He contacted PW-3 on telephone at his residence at Delhi but the latter was not found available there as he had gone abroad. PW-3 later on contacted him on telephone at his residence and informed him that he should not himself take any action against these strangers but should report the matter to the police. He went to Police Station, Dalhousie and informed the Dy. Superintendent of Police. Police visited the Hotel and restored the possession of all the rooms to him which were unauthorizedly occupied by the strangers. Munesh sought some time from the police to get the matter settled with Smt. Usha Malik on telephone at Delhi. But no settlement was effected till the evening nor telephone talk was held with Smt. Usha Malik. He corroborated the testimony of PW-1 that at about 10 p.m. he along with his driver PW-6 and Carpenter PW-4 took dinner in the kitchen of the Hotel and thereafter went to the quarter of PW-1. When he was going to the quarter of PW-1, Munesh was standing on the 3rd floor of the Hotel and called him. He went there. Munesh was accompanied by Hardev Security Guard, Naresh Dhaka and one Rakesh and they suddenly started quarrelling with him and slapped him. PW-1 and his wife PW-7 came there to rescue him from them but in the meantime, he heard crises of some person that Manav Cook had been murdered. Munesh, Rakesh Hardev, Naresh Dhaka and other strangers immediately fled away from the Hotel. He went down stairs and noticed dead body of Manav with stab injuries on his abdomen lying on the floor. Blood was oozing from the wound, mouth and nostrils etc. of the deceased which was scattered on the ground floor. At that time PW-8 Ravi Kumar came there and informed him that the deceased had been murdered by the accused with screw driver. Blood was oozing from the wound, mouth and nostrils etc. of the deceased which was scattered on the ground floor. At that time PW-8 Ravi Kumar came there and informed him that the deceased had been murdered by the accused with screw driver. He went in search of Munesh, Hardev, Naresh Dhaka, Rakesh and other strangers who stayed in the hotel unauthorizedly, but by that time they had run away from there. PW-4 was also given beatings by the accused who sustained blood injuries on his head. PW-4 was taken to Civil Hospital, Dalhousie for treatment. He joined the investigation of the case. In his presence the accused produced his blood stained clothes i.e. Kurta P-3 and Pajama Ext.P-4 to the police which were taken into possession vide seizure memo Ext.PE duly signed by him. The police took into possession two pieces of Dandas, two pieces of wipers and two pieces of iron rods from the spot. He identified the Dandas, wipers, and iron rods in the Court. He also identified screw driver Ext.P-2 which was recovered at the instance of the accused from Zhikar jungle near the Hotel building. He stated that after post-mortem the dead body of Manav Sharma was handed over to him because the deceased belonged to State of Tamil Nadu. In his cross-examination he has named Dr. Kanwar Bhalla (PW-3), Smt. Usha Malik, Satpal Sharma and Sekha Malik to be the Directors of the Hotel. It has come in his cross-examination that PWs 1 and 7 were present at the spot when PW-8 told him that the accused had murdered the deceased but such statement was not recorded by the police in his statement Ext.DA under Section 161 Cr.P.C. He also stated that he had seen the accused for the first time one day before the murder of Manav. The accused met him at the Hotel when he was brought there. The screw driver Ext.P-2 was produced by the accused which was lying under a tree. A suggestion of the defence that PW-8 had not told him that it was the accused who murdered the deceased was categorically denied by him. 16. PW-3 stated that he was Director of the Hotel which was constructed under his supervision. He engaged services of PW-2 as contractor and supplier. A suggestion of the defence that PW-8 had not told him that it was the accused who murdered the deceased was categorically denied by him. 16. PW-3 stated that he was Director of the Hotel which was constructed under his supervision. He engaged services of PW-2 as contractor and supplier. PW-1 was the Chowkidar of the Hotel whereas the deceased was employed as a cook who was residing with his wife in the premises of the Hotel. He stated that on 16.3.2001 when he was in Sharjahan, he gave telephonic call to the Hotel and learnt that his Hotel had been occupied by some strangers. He contacted PW-2 who informed that his Hotel had been forcibly occupied by some strangers who proclaimed having been sent by Smt. Usha Malik, one of the Director of me Hotel from Delhi. He advised PW-2 not to quarrel with those strangers and the matter should be reported to the police. On the evening of 17.3.2001 he along with the wife of the deceased who was looking after his children at his residence at Delhi came to Dalhousie. He went to the police station and enquired about the action being taken by the police in the matter reported to them by the staff of the Hotel. He produced memorandum of Articles of Association Ext.PK.Ext.PK/1 and Ext.PK/2 to the police to prove his status as one of the promote Director of the Hotel. He also stated that during the pendency, of this case, the work of the Hotel was being looked after by Smt. Usha Malik one of the Director and all the persons including the above named witnesses who were working under him has been retrenched/removed from their services by her. In cross-examination he stated that he was having 103 equity shares in "Hotel Peach Channel" and he has invested six lacs rupees from his personal joint account in the Hotel which is a Pvt. Ltd. Company. He admitted the suggestion that after Memorandum of Understanding was entered into between him and Smt. Usha Malik, he had withdrawn the civil suit filed by him against her. 17. PW-4 has corroborated the entire version of PWs 1, 2 and 3. He admitted the suggestion that after Memorandum of Understanding was entered into between him and Smt. Usha Malik, he had withdrawn the civil suit filed by him against her. 17. PW-4 has corroborated the entire version of PWs 1, 2 and 3. It is his version that when he tried to save PW-2 from the clutches of strangers who were staying in the Hotel on the day of occurrence, one person wearing night Kurta and Pajama gave Danda blow on his head. Blood started oozing out from the wounds. He put his hand on his head when second blow of Danda was struck on his hand resulting fracture/dislocation of the bone of his hand. He became unconscious after sustaining injuries. He could not recognize the assailants, but he has identified the Kurtha Ext. P-3 and Pajama Ext.P-4 worn by that person who struck Danda blows on his head and hand. 18. PW-5 has corroborated the testimony of PWs 1, 2 and 4 in its entirety. He deposed that PW-8 raised hue and cries and loudly said that Manav had been murdered by a person having bear with screw driver. He immediately went down stairs and noticed the dead body of the deceased lying on the ground floor of the Hotel and blood was oozing out from the wounds, mouth and nostrils of the deceased. He went in search of the strangers who were unauthorizedly staying in the Hotel but failed to trace out them. The accused was also staying in the Hotel on 16.3.2001. In cross-examination, he admitted that the electricity light of the Hotel/ Resort was on when PW-8 shouted from the ground floor of the Hotel that the deceased had been killed. He denied the suggestion of the defence that he was deposing against the accused at the instance> of PW-3 being his employee as Security Guard. 19. PW-6 driver of PW-2 also corroborated the version of the above said witnesses. He also testified that PW-8 loudly said that the deceased had been murdered by the accused. He also noticed the dead body of the deceased lying in the verandah of the ground floor of the Hotel. But, later on this witness resiled from the earlier statement and was declared hostile. He also testified that PW-8 loudly said that the deceased had been murdered by the accused. He also noticed the dead body of the deceased lying in the verandah of the ground floor of the Hotel. But, later on this witness resiled from the earlier statement and was declared hostile. In the cross-examination conducted by the learned Public Prosecutor, he stated that the accused was not wearing Kurta and Pajama nor he had committed the murder of the deceased. In the cross-examination of the defence, he admitted that he had stated to the police in his statement that PW-8 told the witnesses that the deceased had been murdered by a beared person who was wearing Kurta and Pajama. 20. PW-7 is the wife of PW-1. On the day of occurrence she was sleeping in the quarter of her husband along with her son PW-8. At about 10.30 p.m. she heard noise coming from the third floor of the Hotel building. She rushed towards that side and noticed that her husband and PW-2 were made to lay on the ground floor of the Hotel by three persons namely Munesh, Hardev and one more person whose name she could not remember but who was having beard. Her son PW-8 followed her. He by raising loud voice said "MAMMI MAMMI MANAV KA KHOON HO GAYAHAI" told her that Manav had been killed by a person having beared and wearing night suit with a screw driver. She immediately went down stairs and noticed Manav lying dead in the ground floor of the Hotel with injuries on his chin, chest, legs and abdomen parts. Blood was oozing from the wounds and mouth of the deceased which was scattered over the floor. In the cross-examination, she stated that the person having beard was wearing grey colour night suit. 21. PW-8 Ravi Kumar, aged about 12 years is the eye-witness of the occurrence. At the time of occurrence, he was studying in 7th standard in G.H. School, Dalhousie. He deposed that it was 16th of the month of 2001 he took dinner alongwith his mother and went to sleep in the quarter allotted to his father PW-1. At about 10/10.30 p.m. he and his mother heard noise from the third floor of the Hotel building. His mother ^rushed to that side and he too followed her. He deposed that it was 16th of the month of 2001 he took dinner alongwith his mother and went to sleep in the quarter allotted to his father PW-1. At about 10/10.30 p.m. he and his mother heard noise from the third floor of the Hotel building. His mother ^rushed to that side and he too followed her. When he was going upstairs, he saw on the first floor that one person having beard and was wearing Kurta and Pajama was causing injuries to Manav with screw driver. Blood started oozing out from the wounds of Manav Bhai. He immediately went to the third flow of the Hotel where his mother was present. He told his parents thai Manav had been killed with screw driver. He identified the accused in the Court to be assailant. However, he could not give the name of the accused. He identified Kurta Ext.P-3 and Pajama Ext.P-4 which the accused was wearing at the time of inflicting injuries to Manav. He clearly stated that it was the accused who gave screw driver blows on the chest, abdomen and below the chin part of the body of Manav. He also identified screw driver Ext.P-2 to be the weapon of offence being used by the accused. This witness was cross-examined at length and in spite there of he has described in detail the scenario implicating the accused to be author of the crime, In cross-examination, he stated that when he was coming from the school during day time on the day of occorrence, he saw the accused wearing the same Kurta Pajama sitting in the Hotel with five other persons who were wearing T-shirt and trousers. He thereafter for 2-3 days saw the accused in the custody of the police. A suggestion of the defence that since he had seen the accused in police custody, therefore that was the only reason that he has recognized the accused in the Court, was categorically denied by him. Further suggestion no blow was given in his presence by the accused on the body of the deceased, was also categorically denied by him. 22. PW-9 Pa wan Kumar at the instance of the Investigating Officer has prepared the scaled map Ext.PO of the place where the dead body of the deceased Manav was lying. 23. Further suggestion no blow was given in his presence by the accused on the body of the deceased, was also categorically denied by him. 22. PW-9 Pa wan Kumar at the instance of the Investigating Officer has prepared the scaled map Ext.PO of the place where the dead body of the deceased Manav was lying. 23. PW-10 Parveen Kumar who at the relevant time was posted as Patwari in Patwar Circle, Dalhousie demarcated the land of the Hotel as ordered by the Tehsildar, Dalhousie and supplied certified copies of Jamabandi. Ext.PR, Akas Tatima Ext.PS and Field book Ext.PT to the police. 24. PW-11 Dr. Balbir Kumar, Senior Medical Officer, Civil Hospital, Dalhousie medically examined the accused on 19.3.2001. He found no injury on his person who was complaining of low back pain. 25. PW-15. Dr. Manju Mittal was posted as Senior Medical Officer Incharge, Civil Hospital, Dalhousie. She examined PW-4 injured on 17.3.2001 at the instance of the police. She found two simple injuries and one fractured head fifth metatarsal of right hand of the injured to be grievous nature. The probable duration of the injuries was to be within six hours inflicted with blunt weapon. She issued MLC Ext. PL. On 17.3.2001 Dr. Manju Mittal conducted the post-mortem on the dead body of Manav Sharma and found the following injuries : Cranium and Spinal Card : Scaly. Skull and bettebrac: Fracture of right parietal bone. Fracture of occiprital bone right side. Membrances-Br∈ spinal cord. Corresponding meninges were torned and blood clot was in the brain. THORAX 1. Walls, ribs and cattiages: Multiple abrasions and small wounds left side of Chest, fracture of 4th, 5th and 6th ribs left side. 2. Pleurae : Pleurae of left lung was torned". 26. In the opinion of the Doctor, cause of death was neurogenic shock and hammerohage shock due to multiple injuries. Dr. Manju issued MLC Ext. PY after conducting the post-mortem. The time lapsed between death and injuries could not be ascertained but the time lapsed between death and post-mortem was within 24 hours. On 4.6.2001 the S.H.O. Police Station, Dalhousie made application Ext. PZ to her seeking opinion. In her opinion Ext.PAA Dr. Manju opined that the injuries found on the body of Manav Sharma deceased could be sufficient for causing his death of deceased. In her opinion the punctured and hole like could be caused with screw driver Ext.P-2. On 4.6.2001 the S.H.O. Police Station, Dalhousie made application Ext. PZ to her seeking opinion. In her opinion Ext.PAA Dr. Manju opined that the injuries found on the body of Manav Sharma deceased could be sufficient for causing his death of deceased. In her opinion the punctured and hole like could be caused with screw driver Ext.P-2. She also stated that all the fractures on the dead body of Manav Sharma could be caused if he was thrown from the height on a hard surface and the fractures were also independently sufficient to cause the death of Manav Sharma. In the cross-examination by the defence, she stated that fracture of skull could be caused by a screw driver like Ext P-2 and the pleurae injury could be caused due to the fracture of ribs. In re-examination of the learned Public Prosecutor, Dr. Manju admitted that sealed packet Ext.P-21 was the same in which the blood sample of the deceased was sealed by her after post mortem examination on 17.3.2001. 27. All other witnesses are the police officials including PW-20 the Investigating Officer and we do not think it necessary to narrate their version. PW-22 Dr. V.K. Pathak Radiologist took the X-ray of the injuries sustained by PW-4 Parkash Chand. 28. The main criticism of the learned Counsel for the accused against PW-8 Ravi Kumar a child witness is that his presence at the scene of occurrence is doubtful because it is his evidence that he informed every person who was present at the scene of occurrence including his father PW-1 about the murder of the deceased but PW-1 had not mentioned the said fact in his statement Ext. PA recorded under Section 154 Cr.P.C. Further learned Counsel contended that in Examination-in-chief PW-8 stated that injuries were inflicted on the person of the deceased on the first floor of the Hotel whereas in his cross-examination he has stated that the injuries were inflicted on the second floor and as this was a vital contradiction in his evidence which shows the presence of PW-8 doubtful and therefore no reliance can be placed on his evidence having seen the occurrence as the eye-witness. 29. 29. It is by now well settled that the evidence of a child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction thereon. In the present case, learned trial Judge has elaborately analysed the evidence of PW-8 the eye- witness (child witness). There is no reason as to why he would falsely implicate the accused. Nothing has been brought on record to show that he or his father PW-1 or mother PW-7 and any other relevant witness whose evidence has been discussed hereinabove had any animosity so far as the accused is concerned. Further, the trial Court on careful examination was satisfied about the childs capacity to understand and to give rational answer. That being the position, it cannot be said that PW-8 had no maturity to understand the import of the question put or to give rational answers. This witness was cross-examined at length and inspite thereof he had described in detail the scenario implicating the accused to be the author of the crime. The mere fact that the child has stated in Examination-in-chief that the injuries were inflicted on the body of the deceased on first floor whereas in cross-examination he stated that the injuries were inflicted on second floor of the Hotel, is no reason to jump to a conclusion that it amounted to tutoring or implicating the accused in a false case what was not otherwise what he saw. The evidence of PW-8 has credibility which reveals a truthful approach and his evidence has the ring of truth. There are no exaggerations and he has stuck to his statement made during investigation in all material particulars. That being so, the trial Court was justified in placing implicit reliance on his testimony. In addition, the evidence of other material witnesses and recovery of screw driver Ext. P-2, medical evidence provide additional support to the prosecution version. Dr. Manju Mittal has no doubt said in the cross-examination that the injuries on the skull part of the body of the deceased could have been caused by a fall on hard surface and fracture of skull could not be caused by a screw driver. P-2, medical evidence provide additional support to the prosecution version. Dr. Manju Mittal has no doubt said in the cross-examination that the injuries on the skull part of the body of the deceased could have been caused by a fall on hard surface and fracture of skull could not be caused by a screw driver. Ext.P-2, but it is also her opinion that the fracture found of 4th, 5th and 7th ribs of left side of the deceased were also independently sufficient to cause the death of Manav Sharma. She also said that the cause of death was neurogenic shock and hammerohage shock due to multiple injuries and head injury and the injuries found on the person of the deceased were sufficient for causing his death. In the teeth of the eye-witness amount of PW-8, corroborated by medical evidence and other oral version of the other witnesses, we are of the opinion that the accused had the intention to inflict such bodily injuries on the person of the deceased which were found sufficient by the Doctor to cause his death in the ordinary course of nature. 30. On reappraisal and scrutiny of the entire evidence on record as discussed above, we do not find any good ground or sound reason to differ with the findings recorded and conclusion arrived at by the learned trial Court holding the accused guilty of the crime. PW-1, PW-2, PW-4, PW-5, PW-6, PW-7 and PW-8 all have identified the accused to be the author of crime who was wearing Kurta Ext. P-3 and Pajama Ext.P-4 on the day of occurrence which were blood stained. Report Ext. PAE of Scientific Officer reveals that human blood of Group B of deceased Manav was found on Pajama Ext. 4 and Kurta Ext.3 of the accused. This report provides an additional support to the version of the prosecution witnesses that it was the accused and none else who inflicted grievous injuries on the person of the deceased with screw driver ExtP-2, resulting in his death and blood of the wounds of the deceased struck on the clothes of the accused. The plea of the accused in answer to question No. 29 of statement recorded under Section 313 Cr.P.C. was that as he is an agriculturist and labourer and blood might have come on his Kurta Ext.P-3 and Pajama Ext.P-4 is not plausible and acceptable. The plea of the accused in answer to question No. 29 of statement recorded under Section 313 Cr.P.C. was that as he is an agriculturist and labourer and blood might have come on his Kurta Ext.P-3 and Pajama Ext.P-4 is not plausible and acceptable. He has not given sufficient explanation in support of his plea as to when and how his clothes were stained with human blood of Group-B. 31. The ratio of the judgments relied upon by the accused in State of Himachal Pradesh v. Lekh Ram, (2000) SCC (Cri.) 152; State (Delhi Administration) v. V.C. Shukla, AIR (1980) SC 1382 and State of Maharashtra v. Sukhdeo Singh, AIR (1992) SC 2l00, on the question that the identification of the accused by the witnesses for the first time in the Court without being tested by a prior test identification parade was valueless is of no help and assistance to the accused, in the facts and circumstances of the present case. As noticed above, the accused is identified by the witnesses before and after the commission of the crime and thereafter in the Court during trial. In that view of the matter, the trial Court has rightly held the accused guilty of the offence punishable under Section 302 IP Code. 32. In the result, for the above stated reasons, we, uphold the conviction and substantive sentence imposed upon the accused by the trial Court. However, the imposition of fine of Rs. 20,000/- upon the accused by the trial Court is reduced to Rs. 5,000/- and in default thereof, he shall undergo further simple imprisonment for six months. The appeal is accordingly partly allowed to the extent indicated above. Appeal partly allowed.