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2012 DIGILAW 235 (HP)

STATE OF HIMACHAL PRADESH v. MOTI RAM @ MAGHU

2012-04-30

DEEPAK GUPTA, V.K.AHUJA

body2012
JUDGMENT : Deepak Gupta, J. 1. This appeal by the State is directed against the judgment dated 3.4.2003 delivered by the learned Sessions Judge, Kullu in Sessions trial No. 96 of 2002, whereby he acquitted the accused of having wrongly confined and murdered Atma Ram and also causing hurt to Ruhni Ram and threatening to do away with his life. The police swung into action on the complaint made by PW-1 Ruhni Ram with the police on the basis of which FIR Ex. PW-1/A was recorded at Police Station, Kullu on 25.2.2002 at 8.45 p.m. According to the complaint of Sh. Ruhni Ram, at that time Fagli Mela to honour the Devta was going on in their village. On 24.2.2002 to celebrate the Fagli fair, Ruhni Ram went to meet his relative Chande Ram in village Pawnag. There he went to the house of Sh. Kalu Ram. In the house of Sh. Kalu Ram, Atma Ram (deceased) and Moti Ram (accused) were also present as guests. At about 7-8 p.m., Atma Ram gave some money to Moti Ram and asked him to bring a Khaddu(Goat) on the same day. Moti Ram took the money and went away. 2. Thereafter, on 24.2.2002 Moti Ram did not come back to the house of Kalu Ram and the complainant Ruhni Ram and Atma Ram spent the night in the house of Kalu Ram. In the morning of 25.2.2002 at about 10/11 a.m. Atma Ram went to the house of Moti Ram to get his money back. After some time Ruhni Ram also followed Moti Ram and then he heard the cries of Atma Ram from the house of Moti Ram. Ruhni Ram then went to the upper story of the house of Moti Ram and noticed that Moti Ram had confined Atma Ram inside the room and was beating him. Ruhni Ram then shouted at Moti Ram as to why he was beating Atma Ram. Suddenly, Moti Ram came out of the room and attacked Ruhni Ram with a wooden stick (danda) which he was carrying in his hand and caused an injury above the right eye on the eyebrow. Moti Ram also threatened Ruhni Ram and told him to leave his house otherwise he would kill him. He then ran away and raised an alarm. Thereafter, Moti Ram released Atma Ram from the room. Moti Ram also threatened Ruhni Ram and told him to leave his house otherwise he would kill him. He then ran away and raised an alarm. Thereafter, Moti Ram released Atma Ram from the room. Atma Ram came staggering towards the house of Kalu Ram and in the meanwhile Kalu Ram met him on the way and took hold of Atma Ram and on the asking of Atma Ram he only stated that he had been beaten up by Moti Ram. Thereafter, Atma Ram fell unconscious. They called Bhag Chand son of Atma Ram and then took Atma Ram to the Zonal Hospital at Kullu where he unfortunately expired. 3. During the course of investigation the police went to the house of accused Moti Ram on 26.2.2002. The house was found locked. Tikmi Devi, niece of accused Moti Ram was called, and in her presence the lock was broken. Thereafter blood spots were found in the room and the wooden planks of the house. One cap was found lying under the staircase. Photographs were clicked and thereafter the blood stained earth was taken into possession and similarly four pieces of blood stained wood were also taken into possession with the help of Kulhari (axe). A blood stained cap was also taken into possession. The Danda which was used in the occurrence was also taken into possession. The recovery memos are witnessed by Ruhni Ram and Kalu Ram. After recovery, these items were sent to Forensic Science Laboratory. Photographs were also taken at the spot. Thereafter, the accused was charged with having committed the offences aforesaid. He pleaded not guilty and claimed trial. After trial, he stands acquitted and hence, the present appeal by the State. 4. We have heard Sh. Rajesh Mandhotra, learned Deputy Advocate General on behalf of State and Sh. Ajay Chandel learned counsel for the respondent. It is contended by the learned Deputy Advocate General that the Judgment of learned trial Court is totally incorrect. He submits that the charge against the accused stood fully proved. At this stage, we would like to point out that learned trial Court acquitted the accused on the following grounds:- (i) That there was no enmity between the deceased and the accused and therefore no motive/mens rea can be attributed for the commission of offence. He submits that the charge against the accused stood fully proved. At this stage, we would like to point out that learned trial Court acquitted the accused on the following grounds:- (i) That there was no enmity between the deceased and the accused and therefore no motive/mens rea can be attributed for the commission of offence. (ii) That there is no direct evidence qua the alleged beating to the deceased by the accused. (iii) That the house of the accused was made of stones and since the deceased was in a drunken condition he could have received injuries by fall. (iv) The learned Judge found that the deceased at the relevant time, was drunk and the possibility of receiving injury by fall cannot be ruled out. (v) The learned Judge also disbelieved the statement of PW-1 Ruhni Ram on the ground that whereas in the initial statement the witness had stated that he had received an injury on the right eye brow while appearing in Court he stated that the injury was caused on the left eyebrow. (vi) The learned trial Court also found that whereas according to PW-1 Ruhni Ram deceased Atma Ram went to the house of accused at about 10/11 a.m., according to Kalu Ram Atma Ram went to the house of accused on 25.2.2002 at about 7/8 a.m. 5. The learned Deputy Advocate General states that though, the last contradiction is there on the record the other conclusions drawn by the learned trial Court are not at all correct. 6. Sh. Ajay Chandel, learned counsel for the accused urged that there is no motive or mens rea and supported the reasoning of the trial Court. He also raised the following points: (i) That when Ruhni Ram raised a hue and cry, the accused would have beaten him, as he had threatened to do. (ii) Admittedly all the people were drinking and it is not clear what happened during the period when Atma Ram came to the house of the accused Moti Ram till Ruhni Ram came there. (iii) He also submits that since the distance between the two houses is only ten meters, there is no explanation given by Pw-1 and PW-2 as to why they waited for half hour for the deceased before coming to the house of accused. (iii) He also submits that since the distance between the two houses is only ten meters, there is no explanation given by Pw-1 and PW-2 as to why they waited for half hour for the deceased before coming to the house of accused. (iv) According to learned Defence counsel, there is another contradiction between statements of PW-1 and PW-2 in as much as PW-2 does not state that Ruhni Ram was with Atma Ram when he was coming towards his house. (v) He submits that other co-villagers have not been examined and therefore the defence version that the deceased fell from the roof of the house or the stair while chasing the accused is probable version and should be believed. 7. To appreciate these arguments it would be necessary to refer to the relevant evidence. The statement of Ruhni Ram is similar to what he had stated in his statement under 154 Cr.P.C. According to him, on 25.2.2002 at about 10/11 a.m. Atma Ram went to the house of the accused to get back the money which he had given to Moti Ram for purchase of the goat. When Atma Ram did not return for some time, he went to the house of the accused and found that the accused had bolted the room and he heard cries of Atma Ram. When Ruhni Ram asked why beating was being given to Atma Ram then accused gave a blow of danda on his left eyebrow and threatened Ruhni Ram that in case he entered the room he would kill him. Thereafter, Ruhni Ram raised an alarm and on hearing the same, the accused released Atma Ram. Atma Ram told Ruhni Ram that he was beaten up by the accused. Blood was coming out from the body of Atma Ram. Thereafter, Kalu Ram took Atma Ram to his house. 8. In cross examination this witness has stated that he cannot say that how much money was given by Atma Ram to Moti Ram. He admits that house of the accused is double storied and courtyard and boundary of the house of the accused is made of stones. The staircase which leads to the upper storey is made of stone. There is no fencing around the staircase but there are some planks. On the upper story there is verandah which is 5-6 feet wide. He admits that house of the accused is double storied and courtyard and boundary of the house of the accused is made of stones. The staircase which leads to the upper storey is made of stone. There is no fencing around the staircase but there are some planks. On the upper story there is verandah which is 5-6 feet wide. He further states that he had told the police that the accused had threatened him that in case he entered the room, he would be killed. The learned trial Court found that this is not recorded in the FIR (Ex. PW-1/A). It may be true that any such threat may not be recorded in the earlier statement in these exact terms, but in the FIR it is clearly stated that the accused threatened to kill Ruhni Ram in case he did not go away from his house. The defence taken by the accused is that Ruhni Ram and deceased Atma Ram under the influence of liquor went to the house of accused Moti Ram and started beating Moti Ram. On raising hue and cry by the accused both Ruhni Ram and deceased Atma Ram fell down from the roof of the house and sustained injuries. 9. PW-2 Kalu Ram has supported the prosecution version. However, according to him, on 25.2.2002 at about7/8 a.m. deceased Atma Ram had gone to the house of accused to demand the payment of money given by him to Moti Ram for purchase of a goat. When Atma Ram did not return for about 30-60 minutes, then Ruhni Ram went to the house of accused and heard cries from the house of accused and he also ran towards the house of the accused and on the way met Atma Ram who was in an injured condition. Atma Ram informed him that the accused Moti Ram had beaten him. Thereafter he was taken into hospital. 10. These are the two main witnesses and before going into other circumstantial evidence, the statement of these two witnesses has to be discussed to come to the conclusion as to whether the occurrence had taken place in the manner stated by these witnesses. Some facts are not disputed. It is not disputed that Ruhni Ram (PW-1), PW-2 Kalu Ram, deceased Atma Ram and Moti Ram had consumed liquor in the house of Kalu Ram on the evening of 24.2.2002. Some facts are not disputed. It is not disputed that Ruhni Ram (PW-1), PW-2 Kalu Ram, deceased Atma Ram and Moti Ram had consumed liquor in the house of Kalu Ram on the evening of 24.2.2002. It is also not disputed that deceased Atma Ram and Ruhni Ram were present at the house of the accused the next morning on 25.2.2002. It is not disputed that the deceased had also taken liquor. However, the question is how intoxicated he was. It is also not seriously disputed that Atma Ram had given some money to Moti Ram to buy a Goat (Khaddu) which is normally sacrificed in such Melas. 11. The injuries on the person of Ruhni Ram and Atma Ram are not denied. The explanation given by the accused is that when these two persons tried to beat accused Moti Ram, he raised an alarm, Moti Ram tried to escape and Ruhni Ram and Atma Ram tried to chase him and during this chase both of them fell down and sustained injuries. We are of the view that this story is totally unbelievable. There is no injury on the person of the accused. It further cannot be believed that both the persons would fall down and sustain injuries. The defence set up is, therefore, not plausible. 12. Coming to the points which weighed with the learned trial Court, we may deal with the first point that there was no enmity between the accused and the deceased. It may be true that there was no enmity between them but it is also apparent and stands proved on record that Atma Ram had given money to Moti Ram to bring a goat and when Moti Ram did not return with the goat Atma Ram went to confront him and get his money back. This by itself could have been the cause of conflict. 13. The learned trial Court held that there is no direct evidence qua the alleged beating to the deceased by the accused. It may be true that Ruhni Ram did not see Atma Ram being beaten up by the accused, since this activity happened inside a room. He, however, heard the cries of Atma Ram and shouted as to why Atma Ram was being beaten and then he was also attacked by the accused. This is sufficient evidence in this regard and no other evidence is required. He, however, heard the cries of Atma Ram and shouted as to why Atma Ram was being beaten and then he was also attacked by the accused. This is sufficient evidence in this regard and no other evidence is required. The injuries on the person of Ruhni Ram and Atma Ram are not self inflicted injuries and we are not inclined to accept the explanation of the accused that these injuries were sustained in a fall. 14. The finding of learned Trial Court that the accused was drunk and could have received injuries in a fall are also wrong. As per the report of F.S.L the level of alcohol found in the blood of the deceased was 128.9 miligram. As per HWV "COX's Medical Jurisprudence and Toxicology" when the concentration of alcohol in blood is 50 to 140 mg per 100 ml., a person is dry and decent and fit to drive. The majority may be gay, vivacious and talkative but this does not in any manner indicate that the person is drunk. As per the LYON?S Medical Jurisprudence for India, blood level of 128.9 mg. per 100 C.C is considered to be sobriety in 50% subjects and even in the other 50% it cannot be termed to be drunkenness. Therefore, the finding that the deceased was drunk and probability of receiving injuries by a fall appears to be incorrect. The learned Trial Court did not take into consideration the categorical statement of Doctor that Alcohal level 128.9 mg was not sufficient to make a person drunk. 15. The learned trial Court disbelieved the statement of star witness PW-1 Ruhni Ram on the ground that initially he had stated that he had received the injury on the right eyebrow but while appearing in Court he had stated that he got the injury on the left eye brow. We must appreciate that the witnesses in this case belong to a remote area and they are not well versed in Hindi. They speak in a local dialect. We must appreciate that the witnesses in this case belong to a remote area and they are not well versed in Hindi. They speak in a local dialect. We also find in the original Hindi record that there is a cutting and it is not very clear that whether the word used is "Dai" or "Bai." Be that as it may, the issue was that Ruhni Ram alleged that he had received an injury on the eye brow when he was hit by wooden danda by the accused and there is no inconsistency on this point. A mistake in expressing the word left or right cannot be a ground to disbelieve his statement. As far as this discrepancy in the timing given by Atma Ram and Ruhni Ram is concerned, there is no doubt that such discrepancy is not of such nature as to be fatal to the prosecution case. 16. The first argument of Sh. Ajay Chandel, Advocate is that as per PW-1 Ruhni Ram the accused threatened to kill him, if he did not leave his house. According to learned defence counsel when Ruhni Ram had raised a hue and cry and if such threaten had been given, the accused would have beaten Ruhni Ram. We find no merit in this submission because the conduct of a person cannot be predicted with a level of certainty. We must also keep in view the fact that Ruhni Ram had already been hit by the accused and therefore, there was no need to hit him again. 17. The second submission of Sh. Ajay Chandel, Advocate is that nobody knew what happened when Atma Ram gone to the house of accused Moti Ram. That may be true but there is no reason to disbelieve the version of eye witness Ruhni Ram that when he reached the house of accused Moti Ram, he heard the cries of Atma Ram and then questioned the accused as to why he was beating Atma Ram. Thereafter accused gave a blow to Ruhni Ram also. 18. The contention that there is no explanation given by PW-1 and PW-2 as to why they waited for half an hour before coming to the house of accused, has also no merit. It is nobodies case that Moti Ram and Atma Ram were inimical to each other. They had been drinking together on the previous night. 18. The contention that there is no explanation given by PW-1 and PW-2 as to why they waited for half an hour before coming to the house of accused, has also no merit. It is nobodies case that Moti Ram and Atma Ram were inimical to each other. They had been drinking together on the previous night. It is normal human conduct to wait for some time. When a person goes to some other person?s house, he may be expected to stay for sometime there. There is nothing unusual in waiting for half an hour. 19. The contention of Sh. Ajay Chandel, Advocate that there is a contradiction in the statements of PW-1 and PW-2 as according to PW-2 when Atma Ram came towards his house, there is no mention of Ruhni Ram is not correct. This amounts to hair splitting. If the statement of PW-1 is read as a whole, it is apparent that he talks about Ruhni Ram going to the house of Moti Ram and thereafter the villagers assemble and Atma Ram was taken to village Bhutti. The mere non-mentioning of the name of Ruhni Ram at that stage does not mean that Ruhni Ram was not present since according to this witness ?when he heard the cries from the house of accused he also ran towards the house of accused?. In fact there was no suggestion put to this witness that Ruhni Ram was not present. 20. No benefit can be drawn because of non-examination of other co-villagers because the two main witnesses i.e. PW-1 Ruhni Ram and PW-2 Kalu Ram have been examined. The other villagers could have only talked about Atma Ram being taken to the Hospital and nothing else. As stated earlier, there is no dispute with regard to the fact that Atma Ram had sustained injuries and was taken to the Hospital. 21. We have already given detailed reasons for coming to the conclusion that the story set up by the defence that both persons i.e Atma Ram and Ruhni Ram suffered injury on account of fall does not appear to be correct. 22. We are of the considered view that in this case the prosecution has proved beyond reasonable doubt that Atma Ram suffered injuries at the hands of accused Moti Ram and injury was also caused to Ruhni Ram by the accused Moti Ram. 23. 22. We are of the considered view that in this case the prosecution has proved beyond reasonable doubt that Atma Ram suffered injuries at the hands of accused Moti Ram and injury was also caused to Ruhni Ram by the accused Moti Ram. 23. The next question that arises is whether Moti Ram caused this injury with intention or knowledge that the injuries would lead to the death of Atma Ram. As per PW-4 Dr. Yashpal the following injures were found in his person:- 1. A lacerated wound 2"x1/4" in left frontal area, bone deep, clotted blood as present in between wound margins. 2. A lacerated wound 2"x1/4" in left parietal area, bone deep, clotted blood was present in between wound margins and adjoining hair. 24. Further more according to this witness X-Ray of the skull of the injured was taken on 26.2.2002 which shows fracture of frontal and parietal bone of the left side. Thus, there are only two injuries found on the person of deceased and combined effect of these injuries caused death of the accused. There was fracture of bones in both of the areas of the head. This witness also states that injuries of Atma Ram can be possible if he fell from the height of 10- 15 feet on a stony surface. If Atma Ram had fallen from 10-15 feet on a stony surface from the Balcony the stone would have been splattered with blood. The accused gave two blows on the head of Atma Ram with Danda Ex. P-1. The intention of the accused/respondent may not have been to cause the death of deceased Atma Ram and it cannot also be said that he had intention of causing bodily injury that would cause death. In our opinion because of the fact that there are two injuries on the head, the accused must be aware that bodily injury on the head is likely to cause death. Therefore, he is found guilty for commission of offence u/s 304 Part 2 of IPC and since he has used Danda to cause simple injury to Ruhni Ram, he is held guilty for commission of offence u/s 324 of IPC and he is acquitted of the other charges. Therefore, he is found guilty for commission of offence u/s 304 Part 2 of IPC and since he has used Danda to cause simple injury to Ruhni Ram, he is held guilty for commission of offence u/s 324 of IPC and he is acquitted of the other charges. In view of the above discussion, the appeal is allowed, the judgment of learned trial Court is set aside and the accused is convicted for having committed offences punishable under Sections 304 part 2 of I.P.C and 324 of I.P.C. Now the case be put up for hearing the accused on quantum of Sentence. The bail bonds of the accused are cancelled and he is directed to be produced before this Court on the next date. The Registry to take necessary follow up action. List on 28.5.2012.