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2009 DIGILAW 750 (HP)

STATE OF H. P. v. KASTURI LAL

2009-09-01

SURINDER SINGH, SURJIT SINGH

body2009
JUDGMENT Surjit Singh, J (Oral):-State has appealed against the judgment, dated 7th November, 1994, of learned Sessions Court, Kangra at Dharamshala, whereby respondent Ravinder Kumar and deceased respondent Kasturi Lal, who were charged with and tried for offence, under Section 302, read with Section 34 of the Indian Penal Code, have been acquitted. 2. Case of the prosecution is like this. Deceased Jigri Ram was having litigation with respondent Revinder Kumar’s wife, who was deceased’s sister. The case was going on, in a Civil Court, at Dharamshala. On 15th December, 1993, the case was decided against Jigri Ram Whether reporters of the local papers may be allowed to see the judgment? and in favour of the respondent’s wife. After the decision of the case, when deceased Jigri Ram went towards Kachehari Bus Adda to board a bus for his village, the respondent and his deceased accomplice, who were sitting in a Dhaba nearby, called him. Deceased Jigri Ram went to them. The respondent asked the deceased whether he planned to file appeal in the High Court against the decision of the Civil Court of Dharamshala. Deceased answered in the affirmative. The respondent and his accomplice are then alleged to have threatened the deceased that he will have to face the consequences, in case he appealed to the High Court. That led to an altercation between the deceased and the respondent and his accomplice. The respondent and his accomplice are alleged to have then assaulted the deceased and when the latter ran towards the store, on the back side of the Dhaba, the respondent and his accomplice followed him and pushed him down a window in the back room, as a result of which he sustained a number of injuries. The time was around 2.30 or 3 p.m. He went to the Hospital for medical aid. 3. Police was informed by the doctor, who attended upon the deceased. Soon PW-9 ASI Rajiv Attri, from Police Station, Dharamshala, reached the Hospital. He made an application Ex. PG to the doctor to ascertain if Jigri Ram was fit to make a statement. The doctor certified on Ex. PG, vide certificate Ex. PG/I, that Jigri Ram was fit to make a statement. Thereafter, PW-9 ASI Rajiv Attri recorded statement Ex. PH of Jigri Ram. He made an application Ex. PG to the doctor to ascertain if Jigri Ram was fit to make a statement. The doctor certified on Ex. PG, vide certificate Ex. PG/I, that Jigri Ram was fit to make a statement. Thereafter, PW-9 ASI Rajiv Attri recorded statement Ex. PH of Jigri Ram. As per this statement, deceased was first assaulted by the respondent and his accomplice in the Dhaba and when he ran towards the room situated on the back side of the Dhaba, he was chased by the respondent and his accomplice and pushed down through a window in the said room. This statement was recorded at 6.30 p.m. It was sent to the Police Station for the formal registration of the case. Case was registered vide FIR Ex. PH/J. Next day, around 6 a.m., Jigri Ram died at the Hospital. 4. Inquest was conducted by PW-10 Pritam Singh, SHO, Police Station Dharamshala. Inquest report is Ex. PL. Postmortem was conducted by PW-1 Dr. D.P. Swami. Eleven injuries were found on the dead body, which are as follows: “1.Black eye. Right side, slightly only. 2. Contusion, 1 x 1 cm on the mid and slightly right side of the chest, reddish brown. 3. Scretch abrasion on the neck left side, just below the margin of left jaw, bone mid portion, reddish brown. 4. Scretch abrasion just below (inferior) to the side of the left jaw bone, mid portion on the neck. Reddish brown. 5. Lacerated wound 2.c cm long on the left fore-head (Stitching with dressing) reddish colour, transcerly placed. 6. Lacerated wound 1 cm long, Reddish on the mid fore-head. 7. Lacerated wound approximately 2 cm just below the chin 2 cm long, transversely. 8. Fracture of right side 4th, 5th ribs, mid clevicular region, accompanied by coagulated blood in surround, reddish. 9. Grazed abrasion and contusion, generalized on the both scrotum, reddish. 10. Grazed abrasion on the left ankle outer side reddish, 1 x 1 cm. 11. Lacerated wound on the side of right leg just below right knee, reddish brown.” 5. The doctor opined that the time lag between the infliction of the injuries and the death was 12 to 24 hours and time that elapsed between the death and the postmortem was 6 to 12 hours. Postmortem was conducted on 16th December, 1993, at 3.35 p.m. 6. The doctor opined that the time lag between the infliction of the injuries and the death was 12 to 24 hours and time that elapsed between the death and the postmortem was 6 to 12 hours. Postmortem was conducted on 16th December, 1993, at 3.35 p.m. 6. When deceased went to the Hospital on 15th December, 1993, his medico legal examination was conducted by PW-2 Dr. D.N. Chadda, who noticed the following injuries: 1. CLW chin 2.5 cm x 0.5 cm. 2. CLW at the angle of mandible 1cmx1.5 cm. 3. CLW fore-head 2.5 cm x 0.5 cm. 4. Tenderness around the Dorsal vertiverya 8 & 9. 5. Per abdomen, Tenderness and baurding (internal injury). 6. Defused swelling and tenderness scrotum. 7. Tenderness right side chest. 7. Prosecution tried to prove the charge by means of dying declaration Ex. PH and also by leading direct evidence, in the form of testimony of PW-3 Mohinder Raj, PW-5 Kripal Singh and PW-6 Harbans Singh. Prosecution also examined a witness, namely PW-4 Deep Raj, to whom the deceased allegedly disclosed that he had been beaten up by the respondent and his accomplice at a Dhaba in Kachehari Bus Adda. Respondent and his accomplice did not raise any specific plea. They, however, denied that they were involved in the commission of the crime. They stated that they had been falsely implicated, because of the civil litigation, which had been going on between respondent’s wife and the deceased. 8. Learned trial Court did not believe the prosecution version and acquitted the respondent and his accomplice. 9. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent and gone through the record. 10. Learned trial Court has not believed the dying declaration, Ex. PH, recorded by PW-9 ASI Rajiv Attri, holding that when the doctor was there, in the Hospital, it should have been got recorded from him. Learned trial Court has also observed that no sincere effort was made to call any Magistrate to record the dying declaration. 11. We do not agree with the reasoning given by the learned trial Court. The deceased was not having any apparent serious injury, when his statement Ex. PH was recorded. Neither the deceased was apprehending that the injuries were going to prove fatal nor did PW-9 ASI Rajiv Attri had any apprehension of that kind. 11. We do not agree with the reasoning given by the learned trial Court. The deceased was not having any apparent serious injury, when his statement Ex. PH was recorded. Neither the deceased was apprehending that the injuries were going to prove fatal nor did PW-9 ASI Rajiv Attri had any apprehension of that kind. Statement of the deceased was recorded in a routine manner, for registering the case. Otherwise also, it is not the requirement of law that whenever a Police Officer intends to record statement of an injured person, having serious injuries on his person, likely to prove fatal, he should try to get the statement recorded from a Magistrate or a doctor. 12. In the present case, statement was recorded by PW-9 ASI Rajiv Attri in the presence of PW-2 Dr. D.N. Chadda. Not only that the statement Ex. PH is attested by PW-2 Dr. D.N. Chadda, but the latter very categorically testified that he was present when the statement was made by the deceased and recorded by PW-9 ASI Rajiv Attri. The witness was cross-examined, at length, on this aspect of his statement, by the defence, but nothing could be elicited, suggesting that the witness was not present when the statement was recorded or that the record of statement Ex. PH had not been correctly prepared by PW-9 ASI Rajiv Attri. 13. However, it appears that the deceased did not narrate the incident truly. Incident had taken place at 2.30 or 3 p.m. Deceased’s statement was recorded at 6.30 p.m., or say, about four hours after the occurrence. Police had reached the Hospital at 5.10 p.m., as is clear from the medico legal report Ex. PE, wherein it is recorded that the deceased had been brought to the Hospital at 5.10 p.m., by a Constable, named Budhi Singh. PW-9 ASI Rajiv Attri says that Constable Budhi Singh accompanied him to the Hospital. There is a delay of about one hour in recording the statement of the deceased, even after the arrival of the police at the Hospital. Total delay in making statement Ex. PH by the deceased to the police is 3½ hours to 4 hours. As already noticed, deceased was not apprehending that he was likely to die of the injuries. There is a delay of about one hour in recording the statement of the deceased, even after the arrival of the police at the Hospital. Total delay in making statement Ex. PH by the deceased to the police is 3½ hours to 4 hours. As already noticed, deceased was not apprehending that he was likely to die of the injuries. Therefore, the solemnity, which normally attaches to a dying declaration, in the case of a person, who apprehends or has the feeling that he would be dying of the injuries, does not attach to Ex. PH, to the extent that the statement may be taken to be a gospel truth. It appears that the deceased exaggerated and embellished the true version. The reason was obvious, because he was not on good terms with the respondent, on account of his civil litigation with respondent’s wife, who is the sister of the deceased. 14. Why do we believe that statement Ex. PH is exaggerated and embellished is the fact that the eye witnesses, examined by the prosecution, do not corroborate the version recorded in Ex. PH in full. Eye-witnesses, namely PW-3 Mohinder Raj and PW-5 Kripal Singh, even though declared hostile by the prosecution, very categorically stated, before being cross-examined by the prosecution, that an altercation had taken place between the deceased on one side and the respondent and his accomplice on the other, in a Dhaba near Kachehari Bus Adda and that in the course of that scuffle the deceased was given some blows. In Ex. PH also it is recorded that the deceased was initially assaulted inside the Dhaba and given beating. However, the above named two eyewitnesses do not corroborate the version given by the deceased in Ex. PH, with regard to his having been pushed down, through a window in the room located behind the Dhaba. According to them, the deceased, with a view to escaping the fury of the respondent and his accomplice, ran into the back room of the Dhaba and fell through the window. They do not say that the respondent and his accomplice followed him to the said room behind the Dhabaor pushed him down. One of them, namely PW-3 Mohinder Raj, went to the extent of saying that the respondent and his accomplice were standing with him, when the deceased fell through the window of the back room. 15. They do not say that the respondent and his accomplice followed him to the said room behind the Dhabaor pushed him down. One of them, namely PW-3 Mohinder Raj, went to the extent of saying that the respondent and his accomplice were standing with him, when the deceased fell through the window of the back room. 15. Testimony of PW-3 Mohinder Raj and PW-5 Kripal Singh, and statement Ex. PH made by the deceased, conclusively proved that the deceased was beaten up by the respondent and his accomplice inside the Dhaba. The deceased had eleven injuries on his person. Out of them, per testimony of PW-1 Dr. D.P. Swami, who conducted the postmortem examination, six injuries, figuring at serial Nos.2, 3, 4, 8, 9 & 10, in the postmortem report Ex. PB, could have been caused only by kick blows and not as a result of fall. Injuries No.2, 3, 4, 9 and 10, according to this witness, were simple, while injury No.8, which was in the nature of fracture of two ribs, was grievous. There is no direct evidence that any blow was given by the respondent. So, these injuries cannot be attributed to the respondent and his deceased accomplice. The doctor has stated that the rest of the injuries could have been caused by means of fist blows. Eye-witnesses have testified that the deceased was given blows by the respondent and his accomplice. Statement Ex.PH, to the extent it has been held to be believable, also shows that the respondent and his accomplice had given beating to the deceased in the Dhaba. Neither the eye-witnesses, named above, say that any forceful blow was given by the respondent or his accomplice nor does the deceased himself say so in Ex. PH. 16. Under the aforesaid circumstances, we hold the respondent guilty of offence of voluntarily causing hurts to deceased Jigri Ram. His act is punishable under Section 323, read with Section 34 of the Indian Penal Code, because his accomplice joined hands with him, in causing the hurts and the facts and the circumstances of the case suggest that the two had common intention to give beating to the deceased. Accordingly, the appeal is accepted. Judgment of the trial Court acquitting the respondent is set aside and he is convicted of the offence, under Section 323, read with Section 34 of the Indian Penal Code. Accordingly, the appeal is accepted. Judgment of the trial Court acquitting the respondent is set aside and he is convicted of the offence, under Section 323, read with Section 34 of the Indian Penal Code. He be produced in person, for being heard on the question of quantum of sentence, on 19th October, 2009.