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Himachal Pradesh High Court · body

2012 DIGILAW 602 (HP)

Vinod Kumar v. State of Himachal Pradesh

2012-09-19

R.B.MISRA, SANJAY KAROL

body2012
JUDGMENT R.B. Misra, J. The present appeal has been preferred by the convict / appellant against the impugned judgment dated 21.2.2007, passed by the learned Additional Sessions Judge, Solan, District Solan, H.P., in Sessions Trial No.23/-NL/7 of 2005, for the offence under Section 302 of the Indian Penal Code, in reference to F.I.R. No.26 of 2005, dated 24.2.2005, whereby learned Additional Sessions Judge has convicted and sentenced the accused to undergo rigorous imprisonment for life and to pay a fine of `10,000/- and in default of payment of fine, to undergo further imprisonment for a period of one year. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case. Smt.Amrita Devi (PW-9) and her husband Patras Topno (PW-10), while working with a contractor, namely, Surinder Kumar (PW-11), were residing in the building of Surinder Kumar. Deceased Osgar Bagey, who was uncle of Patras Topno (PW-10), also used to reside in the building of Surinder Kumar (PW-11). Accused Vinod Kumar had also been residing in the same building owned by PW-11. On 23.2.2005, while accused, along with deceased Osgar Bagey, Lalu and Sudama, was taking liquor in his room. While they were taking liquor, some quarrel was taken place between the accused and the deceased and PW-10 intervened and separated them by taking the deceased to his room and bolted the door of his room from outside, however, deceased started raising hue and cry to open the door at which door was opened by PW-9. To bring out the minor son of deceased from inside the room, the deceased also came out of the room and even on asking by PW-9, the deceased went to the room of the accused to beg apology from him and asked PW-9 to go to her room and take rest. PW-9 came to her room and the moment deceased went to the room of the accused, he was assaulted by blow of griddle (Tawa) by the accused and on hearing the noise, PW-9 went to the room of the accused and noticed that the door was partly opened and when PW-9 reached in the verandah of the room of the accused then the accused shut the door from inside. PW-9, however, apprised her husband about the incident and when both Amrita Devi (PW-9) and her husband Patras Topno (PW-10) went to the room of the accused, they observed that the accused was present in his room and the deceased was lying on the floor with injuries on his head and back and blood was scattered in the room, thereafter the accused ran away from his room along with griddle (Tawa). 3. Thereafter, PW-10 approached his uncle Joseph Bagey Vikram (PW-12) to apprise him about the incident and also informed Balak Ram (PW-13) and thereafter also PW-11 was informed and all of them noticed that the deceased was lying dead on the floor of the room with injuries on his head and back and the accused was not present in his room. PW-11 Surinder Kumar gave a telephonic information to the police about the incident and Constable Ashok Kumar recorded Rapat in daily diary Ext.PC. Bhisham Thakur (PW-17) thereafter rushed to the spot. Statement of PW-9 was recorded under Section 154 Cr.P.C. (Ext.PF) and in that reference Rukka Ext.PW-17/A was prepared and F.I.R. Ext.PG was registered by Yusuf Ali (PW-8) who made endorsement Ext.PH on the Rukka. Investigation was conducted by PW-17 by preparing spot map Ext.PW-17/B and further detailed inquiry was conducted. Inquest report Ext.PW-17/F was also prepared and post mortem examination of the body of the deceased was conducted by Dr.A.K.Tiwari (PW-1). In his opinion, the death was due to fracture of skull bone and hemorrhage. The blood sample of the deceased was also taken along with his viscera and sample of hairs of the deceased was also preserved and handed over to police for chemical examination. During investigation, the accused disclosed on 27.2.2005 in police custody, vide disclosure statement Ext.PW-10/A, in the presence of PW-10 and PW-11 and in pursuance of such disclosure statement, the weapon of offence i.e. griddle was recovered from the bushes at village Billanwali. Pieces of glass, bottle cork and griddle were taken in possession and after investigation, the accused was charged for the aforesaid offence. 4. In order to prove its case, prosecution examined as many as 17 witnesses, whereas, the accused / respondent through his statement under Section 313 Cr.P.C., had denied the case of the prosecution. Arguments under Section 232 Cr.P.C. were heard. 4. In order to prove its case, prosecution examined as many as 17 witnesses, whereas, the accused / respondent through his statement under Section 313 Cr.P.C., had denied the case of the prosecution. Arguments under Section 232 Cr.P.C. were heard. In his defence, the accused revealed that Surinder Kuamr (PW-11) was inimical to him regarding money transaction and he has been implicated falsely by PW-11 and on his instigation the other witnesses have deposed against him. 5. It has been argued on behalf of the accused / convict / appellant that statement of PW-9 and PW-10, the alleged eye-witnesses of the occurrence, is not inspiring confidence as they being related with the deceased, moreso, they have made substantial improvements in their statements. The other eye-witnesses of the occurrence, namely, Sudama and Lalu, who were allegedly taking liquor with the accused prior to the occurrence, were not examined and no motive of crime was established by the prosecution and the prosecution story is full of infirmities. 6. We notice that the witnesses are consistent and their evidences cannot be discarded simply on the ground that they are interested and related witnesses as in view of the decisions of Hon’ble Supreme Court in State of Maharashtra versus Tulsiram Bhanudas Kamble, AIR 2007 SC 3042 , Sudershan Reddy versus State of A.P., AIR 2006 SC 2616, Amzad Ali versus State of Assam, (2003) SCC 270 and Sucha Singh versus State of Punjab, (2003) 7 SCC 643 , the testimonies of witness in criminal trial cannot be discarded merely because the witnesses are relatives or family members of the victim. Minor contradictions or inconsistencies, as noted above, shall be irrelevant as the minor contradictions do not go to the root of the case in view of the decision of Hon’ble Supreme Court in State of Madhya Pradesh versus Ramesh & Another, (2011) 4 SCC 786 , Waman & Others versus State of Maharashtra, (2011) 7 SCC 295 . Minor contradictions or inconsistencies, as noted above, shall be irrelevant as the minor contradictions do not go to the root of the case in view of the decision of Hon’ble Supreme Court in State of Madhya Pradesh versus Ramesh & Another, (2011) 4 SCC 786 , Waman & Others versus State of Maharashtra, (2011) 7 SCC 295 . The Hon’ble Supreme Court has also observed in State of U.P. versus Naresh & Others, (2011) 4 SCC 324 that minor discrepancies are bound to occur due to normal errors of observation, errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and trivial matters which do not affect core of prosecution case, should not be made a ground for rejecting the evidence in its entirety. 7. On the basis of statement of PW-9, made under Section 154 Cr.P.C. (Ext.PF), it appears that on 23.2.2005, PW-9 along with her husband, was sleeping in her room and at about 11:45 PM, they heard noise from the room of the accused and when both PW-9 went to the room of the accused, they observed that the accused was beating deceased Osgar Bagey with griddle (Tawa) and when PW-9 enquired from the accused as to why he was beating the deceased then the accused pushed PW-9 and shut the door of his room and PW-9 then went to her room and informed her husband at which both of them went to room of the accused and observed that accused running away from the room with griddle (Tawa) and when they entered in the room, the deceased was lying on the floor with the injuries on his head and back from which blood was oozing out and by that time the deceased had died. Thereafter, they tried to contact Surinder Kumar (PW-11) telephonically but at that time STD booths were closed and then from the shop of Shyam Lal they informed PW-11. PW-9 as such has supported the prosecution case fully being the eye-witness along with PW-10. 8. As per testimony of PW-9, accused and deceased were taking liquor in the room of the accused along with Sudama and Lalu and thereafter some quarrel took place between the deceased and accused and PW-10 intervened in the quarrel and both the eye-witnesses i.e. PW-9 and PW-10 have witnessed the occurrence. 8. As per testimony of PW-9, accused and deceased were taking liquor in the room of the accused along with Sudama and Lalu and thereafter some quarrel took place between the deceased and accused and PW-10 intervened in the quarrel and both the eye-witnesses i.e. PW-9 and PW-10 have witnessed the occurrence. PW-9 also corroborated her version in cross-examination and no cross-examination has been made on behalf of the accused regarding the fact that she was living in the same building along with her husband (PW-10) where the accused and the deceased had been residing. There is also no evidence of the accused on record to the contrary. PW-9 has denied that no beatings were given by the accused to deceased. She has also denied that nothing was audible from her room and as per statement of PW-9 made in cross-examination that window of her room opened towards the room of the accused. PW-9 has also denied the suggestion that since the deceased was real uncle of her husband, therefore, due to sympathy with the deceased she has falsely deposed against the accused in the Court. There is nothing in the cross-examination of PW-9 to infer that she was having any previous enmity with the accused or she has got some motive to falsely implicate the accused in the present case. We also take note of the fact that PW-9 has also not made any substantial improvement in her statement as narration made by her is consistent throughout. However, minor improvements will not discredit the testimony of PW-9 as she was the first eye witness of the incident, as such, in the name of improvement the testimony of PW-9 cannot be disbelieved. 9. The testimony of PW-9 also finds corroboration from the statement of PW-10 i.e. the husband of PW-9 as PW-10 has also witnessed the occurrence along with PW-9 and has reiterated the same version coherently as has been narrated by PW-9. PW-9 and PW-10 both went to contact PW-11 on telephone but at that time no STD booths were opened and thereafter PW-11 was informed telephonically from the shop of scrap dealer. PW-9 when came to the spot, she noticed the deceased lying dead on the floor. PW-10 has also reiterated his version in cross-examination what has been stated by him in his examination-in-chief. PW-9 when came to the spot, she noticed the deceased lying dead on the floor. PW-10 has also reiterated his version in cross-examination what has been stated by him in his examination-in-chief. Minor improvements, emanating from the testimony of PW-10 can also not make the prosecution case doubtful when both the witnesses (PW-9 and PW-10) have corroborated each other and have supported the prosecution case fully. It is admitted case of the accused that both PW-9 and PW-10 were residing in the same building where he used to reside, therefore, PW-9 and PW-10 can safely be held to be natural witnesses of the occurrence and nothing contrary is emanating from their testimony. No plea on behalf of the defence was put to both PW-9 and PW-10 that at the instance of PW-11 Surinder Kumar who was having enmity with the accused in respect of money transaction and on instigation of PW-11, PW-9 and PW-10 have falsely implicated the accused. The statements of PW-9 and PW-10 also find corroboration from the testimony of PW-11, PW-12 and PW-13. 10. Joseph Bagey (PW-12) was told by PW-10 that on the night intervening 23/24.2.2005, at about 12:30 AM the accused had beaten the deceased to death. Balak Ram (PW-13) was also apprised at 1:00 AM in the same night by PW-10 accompanied by one Vikram that a quarrel had been taken place between accused and deceased and blood was oozing out from the head of the deceased and PW-11 was also apprised and after arrival of PW-11in the residence of PW-13, they went to the room of the accused where the deceased was found dead and the accused was not present in his room and thereafter PW-11 intimated Police Post, Baddi telephonically and subsequently police came to the spot. PW-11, PW-12 and PW-13 can not be said to have any motive for falsely deposing against the accused. There is nothing on record by which it could be said that these prosecution witnesses had endeavoured to implicate the convict – appellant out of enmity and biasness. 11. PW-11, PW-12 and PW-13 can not be said to have any motive for falsely deposing against the accused. There is nothing on record by which it could be said that these prosecution witnesses had endeavoured to implicate the convict – appellant out of enmity and biasness. 11. Dr.A.K.Tiwari (PW-1) had conducted post mortem examination on the person of the deceased on 24.2.2005 and has noted as follows:- “A thin built person lying on post mortem table with both upper and lower limb straight, neck tilted right side, mouth and eyes were partially open with blood stain over the face back of the neck chest, back of the chest were present. Blood stains also on ear orifices nose mouth and the skin, hairs of the scalp. There was a 2 inches long lacerated wound on left parietal region of the scalp. There were six numbers of bruises in straight line laterally curved on his back of the chest wall on both sides and on the left shoulder posteriorily. A small piece of glass was found in shoulder injury. There was fracture of skull bone. Membranes were ruptured with heamatoma and clotted blood present. There was bruise on the back of the chest walls. There was fracture of left temporal bone of the skull. There were six numbers of bruise on the back of the chest and lacerated injury over the scalp left side on parietal region of the scalp. Viscera was taken, seen and handed over to police for chemical examination in seal parcel.” As per opinion PW-1, the death of deceased was due to fracture of skull bone and hemorrhage and accordingly he issued post mortem report. PW-1 has also reiterated his version in his cross-examination also. The opinion of medical expert (PW-1) is also supported by the ocular narration of fact by PW-9 and PW-10. No doubt, PW-1, in his cross-examination, has admitted that all the injuries, shown in the post mortem report of the deceased, can be caused by fall from under construction building top but we take note of the fact that there is nothing on record to substantiate such aspect that the deceased had died as a result of fall. No doubt, PW-1, in his cross-examination, has admitted that all the injuries, shown in the post mortem report of the deceased, can be caused by fall from under construction building top but we take note of the fact that there is nothing on record to substantiate such aspect that the deceased had died as a result of fall. No such suggestion has been put to PW-9 and PW-10 on behalf of the accused but on the other hand the suggestion has been put to PW-10 on behalf of the accused that the deceased fell on the welding machine which was inside the room of the accused while he was intoxicated and he suffered head injury and other injuries by fall on the said welding machine which suggestion, however, had been denied by PW-10. Such suggestion put to PW-10 was contrary to the suggestion put to PW-1 that the injuries sustained by the deceased which proved fatal were the result of fall from the under construction building top. Ocular version of the occurrence, as narrated by PW-9 and PW-10, corresponds to the medical evidence of PW-1 and from such aspect also, the prosecution version is strengthened. As per prosecution, griddle (Tawa) Ext.P-6 was recovered under Section 27 of the Evidence Act in reference to disclosure statement Ext.PW-10/A in the presence of Surinder Kumar and Patras Topno regarding concealment of the weapon of offence in the bushes at village Billanwali and in consequence of such disclosure statement the accused got recovered weapon of offence i.e. griddle (Tawa) vide memo Ext.PW-10/C after sketch of the same was prepared which is Ext.PW-10/B and blood stains and hair which were stuck in the griddle (Tawa) were separated and put in a separate parcel and the same were also seized vide Memo Ext.PW-10/C and seal impression was taken separately which is Ext.PW-17/H and site plan of recovery Ext.PW-17/J was prepared. 12. 12. The statement of Bhisham Thakur (PW-17) is fully corroborated by PW-10 and PW-11, that the accused while in police custody, gave disclosure statement regarding concealment of the weapon of offence and in pursuance of such disclosure statement the accused got recovered the weapon of offence upon which hairs and blood stains were found stuck which were separated and put in a different parcel and all the articles were seized vide memo Ext.PW-10/C. The statements made in cross-examination of PW-10 and PW-11 reveal that these witnesses have not been cross examined on behalf of the accused regarding the recovery of regarding the recovery of the blood stains from the place of occurrence along with the pieces of glass, bottle cork and wick vide memo Ext.PW-10/D and Ext.PW-10/E respectively after proper sealing as no suggestion to the contrary has been put to these witnesses on behalf of the accused. Thus, the statements of the aforesaid witnesses on this aspect can be safely held to have gone unchallenged as well as unrebutted. As such, it is established on record that the blood lying at the spot was collected along with pieces of glass, bottle cork and wick which were duly sealed. PW-1 was not cross-examined on behalf of the accused regarding preservation of sample of blood and hairs of deceased which were handed over to the police in a sealed envelope means that the taking of sample of blood and hair of the deceased has not been challenged or disputed by the accused. 13. Statement of Inder Lal (PW-5) is also corroborated by the statement of Constable Subhash Chand (PW-3) who has stated that MHC Police Station, Barotiwala handed over 11 sealed parcels containing seal impressions ‘A’, ‘J’ and ‘T’ and also seal impression of CHC Nalagarh along with specimen seal impression vide RC No.71/05. Reports of FSL Junga (Ext.PW-17/K and Ext.PW-17/L) reveal that these parcels, received in FSL Junga for chemical analysis, were found duly sealed and intact and there was no possibility of tampering. The perusal of report of Chemical Examiner (Ext.PW-17/L) reveals that the traces of alcohol were found in the blood and viscera of the deceased which thereby corroborates the version of PW-9 and PW-10 that the deceased along with the accused were taking liquor in the room of the accused at the time of occurrence. The perusal of report of Chemical Examiner (Ext.PW-17/L) reveals that the traces of alcohol were found in the blood and viscera of the deceased which thereby corroborates the version of PW-9 and PW-10 that the deceased along with the accused were taking liquor in the room of the accused at the time of occurrence. Ext.PW-17/K reveals that the blood lifted from the spot along with pieces of glass, bottle cork, griddle (Tawa) and sample of hair of the deceased were containing human blood of Group-B establishing that the griddle (Tawa) i.e. weapon of offence, recovered at the instance of the accused, was stained with blood of the deceased and even hair on the said griddle (Tawa) which were separated were also found be of human hair and were matching with the sample of hair of the deceased. Therefore, it is proved that the griddle (Tawa) Ext.P-6 was used as a weapon of offence by the accused for assaulting the deceased. 14. On scrutiny of prosecution witnesses, it is established that PW-9 and PW-10 were not inimical and they were not having ill motive to depose against the accused in order to falsely implicate him and by non examination of Lalu and Sudama by the prosecution can not make the prosecution case fatal and discredit the version of the prosecution. In our considered view, the accused was having intention / knowledge that the beatings of the deceased with griddle (Tawa) Ext.P-6 and inflicting blows of griddle (Tawa) upon the head of the deceased was likely to cause death of the deceased. It can safely be presumed from the fact that the accused has inflicted blow of griddle (Tawa) upon the head of the deceased with such a force that it has resulted into fracture of skull bone, is a vital part of the body for giving blow of griddle (Tawa) upon the head of the deceased, the accused can be safely held to be having knowledge that such blow on the head of the deceased was likely to result into some fatal injury to the deceased. Therefore, in our considered view the accused was having not only the intention but was having knowledge also that such injury would prove fatal to the deceased (Osgar Bagey). Therefore, in our considered view the accused was having not only the intention but was having knowledge also that such injury would prove fatal to the deceased (Osgar Bagey). In our considered view, learned Additional Sessions Judge has correctly arrived at the finding and has held accused guilty of offence punishable under Section 302 of the Indian Penal Code and in the totality of facts and circumstances has also imposed sentence of life imprisonment with fine. In the facts and circumstances, the impugned judgment dated 21.2.2007, passed by the learned Additional Sessions Judge, Solan, District Solan, H.P., in Sessions Trial No.23/-NL/7 of 2005, for the offence under Section 302 of the Indian Penal Code, in reference to F.I.R. No.26 of 2005, dated 24.2.2005, does not require any interference, as such, the appeal, being without any merit, is accordingly dismissed.