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Himachal Pradesh High Court · body

2013 DIGILAW 888 (HP)

Bal Dev Singh v. State of Himachal Pradesh

2013-10-17

RAJIV SHARMA, SANJAY KAROL

body2013
JUDGMENT Rajiv Sharma, Judge This appeal is directed against the judgment dated 1.4.2008 rendered by Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala rendered in RBT S.C. No. 44-K/VII/07 whereby appellant, who was charged with and tried for offence punishable under section 302 of the Indian Penal Code has been convicted and sentenced to undergo life imprisonment and to pay a fine of Rs. 25,000/-. In default of payment of fine, he has been further ordered to undergo imprisonment for one year. 2. Case of the prosecution, in a nutshell, is that appellant used to visit the shop of one Ram Singh at village Kothian Jalot. He was selling Beedis, cigarettes, match box etc. Appellant used to buy Beedis, cigarettes and match box from Ram Singh and not to pay. On demand of price, appellant used to threaten Ram Singh to kill him. On 25.4.2007, Ram Singh was at his shop. Shop was adjoining to the school. Appellant picked up cigarette packet and a match box and when the money was demanded, he picked up a Darat from the shop of Ram Singh and gave blow on his neck. The neck was almost severed. Only small portion of neck remained uncut. Deceased fell down. This occurrence was witnessed by two small children, who were returning from the school. Appellant after throwing the Darat ran away from the spot. Some ladies were grazing animals at some distance. He asked for water from them. Water was provided to him. They noticed blood on the hands of appellant. One of the ladies inquired if he had cut a goat, but he replied in negative. He left the spot. Ladies after hearing the cries went to the shop of Ram Singh. He was found dead. The matter was reported to the police. The Police reached the spot and investigation was carried out. Darat was taken into possession. Post-mortem was conducted. Inquest report was prepared. After completing all the formalities, challan was put up in the Court. 3. Prosecution examined number of witnesses to prove the case against appellant. Appellant was also examined under section 313 of the Code of Criminal Procedure. He pleaded his innocence. The Additional Sessions Judge, Fast Track Court convicted the appellant, as noticed above, on 1.4.2008. Hence, the present appeal. 4. Mr. Aman Sood has vehemently argued that prosecution has failed to prove its case. 5. Mr. Appellant was also examined under section 313 of the Code of Criminal Procedure. He pleaded his innocence. The Additional Sessions Judge, Fast Track Court convicted the appellant, as noticed above, on 1.4.2008. Hence, the present appeal. 4. Mr. Aman Sood has vehemently argued that prosecution has failed to prove its case. 5. Mr. Shrawan Dogra, learned Advocate General has supported the judgment dated 1.4.2008. 6. We have heard the learned counsel for the parties and have perused the record carefully. 7. PW-1 Pritam is son of deceased Ram Singh. He has deposed that his father used to sit in the shop. Appellant used to take Beedis and cigarettes from the shop and not to pay the price. Whenever his father used to ask for money, he used to threaten him. He used to carry Beedis and cigarettes forcibly. On 25.4.2007, he had gone to village Jhamer. At 1.45 P.M., he was told by his brother Sanjay telephonically to come home urgently. He found the neck of his father chopped from back side and only small portion was intact. Large number of people had gathered there. His father was lying dead in the courtyard. Bhamri and Kamla Devi were present on the spot. They were grazing animals. He was told that Baldev had come to them and asked for water from them. He was also told that hands of appellant were stained with blood. Ladies heard noise from the side of the shop. They heard that neck of Ram Singh has been cut. They went to the spot. He made report to the police vide Ex.PW-1/A. According to him, inquest paper Ex.PW-1/B and Ex.PW-1/C were prepared. He affixed his thumb mark on the papers. Darat was identified from him by the police on 25.4.2007. He has identified Darat Ex.P-2. According to him, at the time of taking Darat into possession, it was stained with blood. Darat was taken into possession vide seizure memo Ex.PW-1/D. Khakha of the Darat was also prepared. In his cross-examination, he has deposed that primary school is adjoining to their shop. Every thing was visible from the school inside their shop. He has denied the suggestion that he has handed over the Darat after taking it out from the shop. He volunteered that appellant after killing his father, had left the Darat on the spot. 8. In his cross-examination, he has deposed that primary school is adjoining to their shop. Every thing was visible from the school inside their shop. He has denied the suggestion that he has handed over the Darat after taking it out from the shop. He volunteered that appellant after killing his father, had left the Darat on the spot. 8. PW-2 Tek Chand has deposed that he was Pradhan of Gram Panchayat Varana. He was informed by Dalip that appellant Baldev Singh has killed Ram Singh. He immediately informed the police. Large number of people had gathered on the spot. Neck of Ram Singh was chopped. Bhamari and Kamla revealed that appellant had come to them and asked for water. His hands were stained with blood. He after taking water ran away. Site plan Ex.PW-2/A was prepared by the police. Inquest papers Ex.PW-1/B and Ex.PW-1/C were also prepared. Pritam affixed his thumb impression and Sanjay also put his signature. Dead body was taken for post-mortem. Darat was taken into possession by the police from the door of the shop of deceased. It was identified by Prittam. He has identified Darat Ex.P-2. Appellant handed over his shirt and pajama Ex.P-4 and Ex.P-5 to the police. 9. PW-3 Kamla is the most material witness. According to her, on 25.4.2007, she was grazing animals alongwith Bhamari Devi. At about 1.30 P.M., appellant came from the side of the shop. He asked for water from her. Appellant took water with his hands which were stained with blood. Blood was also spilled over his clothes. She asked the appellant whether he has chopped a goat. He said no and thereafter left the place. Noise was heard from the direction of the shop of Ram Singh that Ram Singh, who was also known as Baba, has been murdered. She went to the spot alongwith Bhamari and found Ram Singh lying in the courtyard. People had assembled there. In her cross-examination, she has deposed that Ram Singh was not her relative. However, he belongs to her village. She was having good relations with him. She was grazing animals at the distance of about 40 meters. The place was on low gradient and it took about 15 minutes to reach. The shop was not visible from that place. She has admitted that school was nearby the shop and people used to sit there. She was having good relations with him. She was grazing animals at the distance of about 40 meters. The place was on low gradient and it took about 15 minutes to reach. The shop was not visible from that place. She has admitted that school was nearby the shop and people used to sit there. She has denied the suggestion that there was water tank in the school or a tap near the spot. According to her, appellant’s shirt and pajama Ex.P-4 and P-5 were stained with blood. 10. PW-4 Prinka alias Anita is a child witness. According to her on 25.4.2007, she was coming from the school accompanied by Sachin. When they reached near the shop of Baba alias Ram Singh, Baba was smoking ‘chilam’. Appellant came there and gave blow of Darat. She identified the appellant in the Court. The blow was given on the neck. She was terrified and cried and went to her house. Blow was given with Darat Ex.P-2. Darat was stained with blood. Appellant after throwing the Darat on the door step left downward. In her cross-examination, she has deposed that the shop of deceased was adjoining to the school. On closing of the school, 10-12 children used to go together. She has denied that there were seven teachers in their school. According to her, there were only two teachers. She volunteered that Darat blow was given to the deceased by the appellant who was present in the Court. Thereafter she left for her house. 11. PW-5 Gopal Dass Sharma has taken the photographs of the dead body and spot. 12. PW-6 Iqbal Singh has issued the jamabandi for the year 1998-99 Ex.PW-6/A and spot map Ex.PW-6/B. 13. PW-7 Mahesh Chand has deposed that on 29.4.2007 MHC Joginder Singh handed over six parcels which were duly sealed with seal ‘DR’ and ‘DHD’ to be handed over to Forensic Science Laboratory, Junga vide RC No. 106/2007. He deposited the same on 30.4.2007 at Forensic Science Laboratory, Junga. 14. PW-8 Joginder Singh has deposed hat he had sent all the parcels through Mahesh Chand alongwith duly sealed envelop to Director Forensic Science Laboratory, Junga. 15. PW-10 has proved copy of Rapat Ex.PW-10/A. 16. PW-11 Dr. Vivek Sood has testified that the cause of death was due to neurogenic shock. All the injuries were ante-mortem in nature. 14. PW-8 Joginder Singh has deposed hat he had sent all the parcels through Mahesh Chand alongwith duly sealed envelop to Director Forensic Science Laboratory, Junga. 15. PW-10 has proved copy of Rapat Ex.PW-10/A. 16. PW-11 Dr. Vivek Sood has testified that the cause of death was due to neurogenic shock. All the injuries were ante-mortem in nature. Time between injury and death was instantaneous and between death and post-mortem was more than 12 to less than 24 hours. According to him, injuries on the person of deceased could be possible with Darat Ex.P-2. He has denied the suggestion that with single blow, injury on the person of deceased was not possible. 17. PW-12 Surinder Sharma has investigated the matter. He was posted as Station House Officer, Police Station, Kangra. According to him, on 25.4.2007, a telephonic information was received at about 2.15 P.M. from M.C.P. Nagrota Bagwan. He proceeded to the spot alongwith other police officials after recording report Ex.PW-9/A. Statement of Pritam Chand under section 154 of the Code of Criminal Procedure was recorded vide Ex.PW-1/A. Rukka was sent through constable Supinder Singh to Police Station, Kangra. FIR Ex.PW-12/B was registered at Police Station, Kangra. Photographs of the dead body were taken. Inquest papers Ex.PW-1/B and Ex.PW-1/C were prepared on the spot. According to him, Darat was lying on the door step of the shop of deceased. It was identified by Pritam Chand. Darat was blood stained. It was taken into possession vide memo Ex.PW-1/B. Appellant’s blood stained shirt and trousers Ex.P-4 and Ex.P-5 were taken into possession. Personal search of the appellant was carried out. One cigarette packet containing nine cigarettes and match box were recovered. Statements of witnesses were recorded. Revenue papers were also obtained. Post-mortem report Ex.PW-12/D was obtained. He prepared the challan. In his cross-examination, he has deposed that accused used to take cigarettes forcible without making payment as per the version of the sons of deceased. 18. What emerges from the facts enumerated hereinabove is that appellant was seen giving Darat blow to deceased Ram Singh by PW-4 Prinka. According to her, when she was coming from school in the company of Sachin and when reached near the shop of Baba, appellant came there and gave blow of Darat on the neck of Ram Singh. She has identified the appellant in the Court. According to her, when she was coming from school in the company of Sachin and when reached near the shop of Baba, appellant came there and gave blow of Darat on the neck of Ram Singh. She has identified the appellant in the Court. Though Prinka is a child witness but the learned Additional District Judge has recorded satisfaction about the understanding of the child witness after putting her four questions. Appellant after giving Darat blow on the neck of deceased Ram Singh asked for water from PW-3 Kamla Devi. Kamla Devi has deposed that appellant asked for water from her. His hands were stained with blood. She asked the appellant if he has chopped a goat. Appellant did not answer and left the place. It has come in the evidence that she was grazing animals 40 meters away from the shop of deceased Ram Singh. She after giving water to appellant reached the shop. She noticed that the neck of Ram Singh was severed. Darat was taken into possession. It was lying on the door of shop of Ram Singh. It was identified by PW-1 Pritam Singh son of deceased Ram Singh. Blood stained clothes of appellant were also taken into possession. According to PW-11 Dr. Vivek Sood, deceased died due to neurongenic shock. Time between injury and death was instantaneous and between death and post-mortem was more than 12 hours to less than 24 hours. According to him, injury on the person of deceased was possible with Darat Ex.P-2. It has come in the statement of PW-1 Pritam that appellant used to take Beedis and cigarettes forcibly from the shop of Ram Singh without paying the money. Appellant used to threaten if he was asked to pay. It has also come on record that Darat Ex.P-2 was stained with blood. The shop was adjacent to the school. Statements of PW-3 Kamla Devi and PW-4 Prinka inspire confidence and are trustworthy. They have no inimical relation with appellant. The prosecution has proved the case against the appellant to the hilt. 19. Their Lordships of the Hon’ble Supreme Court in Suryanarayana vs State of Karnataka, (2001) 9 SCC 129 have held that testimony of child witness should not be rejected only on the ground of the witness being of tender age. They have no inimical relation with appellant. The prosecution has proved the case against the appellant to the hilt. 19. Their Lordships of the Hon’ble Supreme Court in Suryanarayana vs State of Karnataka, (2001) 9 SCC 129 have held that testimony of child witness should not be rejected only on the ground of the witness being of tender age. Their Lordships have further held that court may seek corroboration of such testimony not as a rule but way of caution. 20. In the instant case, statement of PW-4 Prinka has been fully supported by PW-3 Kamla Devi. 21. Their Lordships of the Hon’ble Supreme Court in State of Uttar Pradesh vs Krishna Master, (2010) 12 SCC 324 have reiterated that a child of tender age would be incapable of nurturing grudge against accused. Their Leaderships have further held that a child witness of tender age is always receptive to abnormal events which take place in its life and would never forget those events for the rest of his life. Their Lordships have held as under: 36. The abovestated reasons are the only grounds on which testimony of witness Madan Lal is disbelieved by the High Court. This Court fails to understand as to on what principle and on which experience in real life, the High Court made a sweeping observation that it is inconceivable that a child of Madan Lal's understanding would be able to recapitulate facts in his memory witnessed by him long ago. There is no principle of law known to this Court that it is inconceivable that a child of tender age would not be able to recapitulate facts in his memory witnessed by him long ago. This witness has claimed on oath before the Court that he had seen five members of his family being ruthlessly killed by the respondents by firing gun shots. When a child of tender age witnesses gruesome murder of his father, mother, brothers etc. he is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time, notwithstanding the gap of about ten years between the incident and recording of his evidence. 37. he is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time, notwithstanding the gap of about ten years between the incident and recording of his evidence. 37. This Court is of the firm opinion that it would be doing injustice to a child witness possessing sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in its life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future. Therefore, the spacious ground on which the reliable testimony of PW2, Madan Lal 2 came to be disbelieved can hardly be affirmed by this Court. 45. Further, at the time of incident, PW2, Madan Lal was of tender age and, therefore, incapable of nurturing any grudge against any of the respondents. No evidence could be produced nor any suggestion was made to witness Madan Lal during his cross-examination that something serious had happened between the date of incident and recording of evidence of witness Madan Lal in court, between Madan Lal and the respondents that Madan Lal was out to implicate the respondents falsely in such a serious case. 22. In the instant case, there is ample evidence on record that appellant used to take Beedis, cigarettes, match box etc. from the shop of Ram Singh but never made any payment and when Ram Singh used to ask for money, he used to threaten him. He has killed Ram Singh without any provocation. 23. Their Lordships of the Hon’ble Supreme Court in a recent judgment in Shivasharanappa and others vs State of Karnataka, (2013) 5 SCC 705 have held that court can rely upon testimony of a child witness and it can form basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Their Lordships have further held that corroboration is not a must to record a conviction, but as a rule of prudence, it is desirable to seek corroboration from other reliable evidence placed on record. Their Lordships have held as under: “15. Their Lordships have further held that corroboration is not a must to record a conviction, but as a rule of prudence, it is desirable to seek corroboration from other reliable evidence placed on record. Their Lordships have held as under: “15. In Dattu Ramrao Sakhare and others v. State of Maharashtra [ (1997) 5 SCC 341 ], while dealing with the reliability of witness who was ten years old, this Court opined that a child witness, if found competent to depose to the facts and reliable, such evidence could form the basis of conviction. The evidence of a child witness and the credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. Thereafter, the Court proceeded to lay down that there is no rule or practice that in every case the evidence of such a witness should be corroborated before a conviction can be allowed to stand but, as a rule of prudence, the court always finds it desirable to seek the corroboration to such evidence from other dependable evidence on record. 16. In Panchhi and others v. State of U.P.[ (1998) 7 SCC 177 ], it has been held thus: - “Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law (vide Prakash v. State of M.P.[ (1992) 4 SCC 225 ], Baby Kandayanathil v. State of Kerala[1993 Supp (3) SCC 667], Raja Ram Yadav v. State of Bihar[ (1996) 9 SCC 287 ] and Dattu Ramrao Sakhare v. State of Maharashtra (supra).” Similar view has been expressed in State of U.P. v. Ashok Dixit and another[ (2000) 3 SCC 70 ]. 17. Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. 17. Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, applies to a child witness who is competent and whose version is reliable.” 24. Consequently, in view of the analysis and discussions made hereinabove, there is no merit in the appeal and the same is dismissed, so also the pending application(s), if any.