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Himachal Pradesh High Court · body

2014 DIGILAW 1035 (HP)

Bhim Sen v. State of H. P.

2014-08-04

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment Rajiv Sharma, J. This appeal is directed against the judgment rendered in Sessions Trial No. 49 of 2012 by the learned Sessions Judge, Kullu on 2.4.2013, whereby the appellants-accused (hereinafter referred to as accused) who were charged with and tried for offences under Sections 302, 323 and 341 read with Section 34 IPC and each of the convict have been sentenced to undergo life imprisonment and to pay a fine of Rs. 1000/- and in default to undergo simple imprisonment for six months for the commission of offence punishable under Section 302 read with Section 34 IPC. Each of the convict has been further sentenced to undergo simple imprisonment for six months and to a pay fine of Rs. 500/- each and in default to undergo simple imprisonment for 10 days for the commission of offence punishable under Section 323 read with Section 34 IPC. 2. The case of the prosecution in nut shell is that PW 7 Sanjay Sain, was running a Dhaba at Bashing and accused with Sanjay Kumar, Amar Singh, children in conflict with law, and deceased Yashpal Soni were working in a Dhaba. PW-7 Sanjay Sain gave a bottle of country liquor to these persons to celebrate his birthday. Deceased Yashpal Soni was Head Cook in the Dhaba and in the absence of PW-7 Sanjay Sain, he used to run the Dhaba. The accused and deceased were provided accommodation in the ground floor of the Dhaba. On 20.4.2012, PW-5 ASI Ghambhir Chand, HHC Ram Saran and HHG Narender were on routine patrolling duty at about 1:10 am in the vehicle bearing registration No. HP 34-0049 as per Rapat Ext. PW-3/C. When they reached near Gammon bridge, they noticed that accused persons, alongwith children in conflict with law, were giving beatings to deceased Yashpal Soni. Thereafter, police party brought injured Yashpal Soni and accused persons to the police station and Yashpal Soni was shifted to RH, Kullu. PW-9 Dr. Mahesh Kumar examined the injured Yashpal Soni and certified that he was not fit to make statement. The accused were also medically examined. FIR was registered on the statement Ext. PW- 5/A. Deceased Yashpal Soni succumbed to the injuries. The I.O on 20.4.2012, visited the spot and prepared spot maps Ext. PW- 12/B and Ext. PW-12/C. The case property was sent to RFSL, Gutkar for chemical examination and reports of FSL Ext. PW-2/E and Ext. The accused were also medically examined. FIR was registered on the statement Ext. PW- 5/A. Deceased Yashpal Soni succumbed to the injuries. The I.O on 20.4.2012, visited the spot and prepared spot maps Ext. PW- 12/B and Ext. PW-12/C. The case property was sent to RFSL, Gutkar for chemical examination and reports of FSL Ext. PW-2/E and Ext. PW-2/F were obtained. The investigation was completed and challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 12 witnesses to prove its case. The accused persons were also examined under Section 313 Cr.P.C., to which they took the defences of simpliciter denial and false implication. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. Hence, the present appeal. 4. Mr. Bhupinder Ahuja, learned legal aid counsel appearing for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. M.A. Khan, learned Additional Advocate General, has supported the judgment of the learned Sessions Judge dated 2.4.2013. 5. PW-1 Dr. Rajender Kohli, MO R.H. Kullu, deposed that he examined the accused persons. He issued MLC Ext. PW-1/B qua Bhim Sen Gautam and Ext. PW-1/C qua accused Hira Lal Paswan. There were no sign of external and internal injuries. In his cross-examination, he deposed that accused persons were brought before him at 5:05 pm and they had not consumed alcohol at the time of examination. 6. PW-2 Dr. Ashish M.O. RH, Kullu, deposed that application Ext. PW-2/A was received by him along with the inquest report Ext. PW-2/B & Ext. PW-2/C. Thereafter Medical Board was constituted to conduct the post mortem of deceased Yashpal Soni and issued report Ext. PW-2/D. The body was identified by Han Raj Soni and Om Prakash Soni. The body was examined on 21.4.2012. According to his opinion, the deceased died due to hemorrhagic shock and asphyxia sustained due to spleen rupture and multiple rib fractures along with lacerations of bilateral lungs leading to bleeding in pleural cavities. The post mortem report was written by Dr. Rajesh Bodh and he was well conversant with his handwriting. The injuries mentioned in the MLC were sufficient to cause death in ordinary course. According to him, the injuries were caused by the blunt weapon. 7. Statements of PW-3 MHC Ram Krishan and PW-4 Ses Ram, are formal in nature. 8. The post mortem report was written by Dr. Rajesh Bodh and he was well conversant with his handwriting. The injuries mentioned in the MLC were sufficient to cause death in ordinary course. According to him, the injuries were caused by the blunt weapon. 7. Statements of PW-3 MHC Ram Krishan and PW-4 Ses Ram, are formal in nature. 8. The most material witnesses are PW-5, SI Ghambhir Chand, I.O. and PW-6 HHC Ram Saran. 9. PW-5 SI Ghambhir Chand, testified that at about 1:10 AM, when he was present 100 meter ahead of Gammon bridge towards Manali side, they noticed in the head light of the vehicle that four persons had waylaid a naked person on the road and were giving beatings. They were also dragging the naked person on the road. They stopped the vehicle and accused persons were directed not to give beatings and name and addresses of the persons were ascertained. All the four accused alongwith the injured persons were brought to the Police Station. The injured person was taken to Regional Hospital, Kullu for treatment and accused persons were taken to the police station. During investigation, the accused persons disclosed that they along with Yashpal Soni were working in a Dhaba (hotel) of Sanjay Sain at Bashing. The accused persons disclosed that Yashpal Soni claimed himself to be the head cook in the dhaba and used to give them beatings and further disclosed that Yashpal Soni had given them beatings during day time on that day. His statement was recorded under Section 154 Cr.P.C. by the I.O., on which basis, FIR was recorded. In his cross examination, he admitted that it has not come in his statement that the accused persons were noticed in the headlight of vehicle giving beatings to late Yashpal Soni. Volunteered that this fact has come in his supplementary statement dated 20.4.2012. According to him, the deceased was badly injured and blood was profusely coming out of the injuries, hence he was kept in the vehicle. He also admitted in his cross-examination that Sanjay Sain was known to him since he was running dhaba. He admitted that Dev Dham Restaurant-cum- Guest House is also located near the Dhaba of Sanjay Sain. The distance between Vashnumata Temple and dhaba of Sanjay Sain is approximately 300 meters. The distance between spot and dhaba is approximately 400-500 meters. He also admitted in his cross-examination that Sanjay Sain was known to him since he was running dhaba. He admitted that Dev Dham Restaurant-cum- Guest House is also located near the Dhaba of Sanjay Sain. The distance between Vashnumata Temple and dhaba of Sanjay Sain is approximately 300 meters. The distance between spot and dhaba is approximately 400-500 meters. The distance between spot and Vashnumata temple is approximately 200 meters. He also admitted that tourists and Poojaris remain present in Vashnumata temple during day and night. He also admitted that in the month of April, so many tourists visit Manali via NH-21 by vehicle and further said that all the accused persons had disclosed the name of the deceased on the spot. 10. PW-6 HHC Ram Saran, has corroborated the statement of PW-5 SI Ghambhir Chand. In his cross-examination, he has disclosed to the I.O. that accused persons were noticed with the help of headlight. The witness was confronted with his statement Mark-A, wherein, it has not been recorded so. He also admitted in his cross-examination that so many tourists stay in Vashnu Mata Temple and Poojari is always present in the temple and many people visit Manali in the month of April. Volunteered that during the night time, the traffic is not so frequent. Sanjay Sain is the owner of Dhaba. 11. PW-7 Sanjay Sain, deposed that Bhim Sen, Sanjay Kumar, Hira Lal, Amar Singh and Yashpal Soni were working in his Dhaba. He had handed over a bottle of country liquor to the aforesaid persons on his birthday for celebration. In his absence, Yashpal Soni used to supervise his Dhaba. He stated that his employees were residing in the ground floor in one room and were having good relations. They have never raised any complaint with each other. Deceased Yashpal Soni had never any altercation with accused persons. No employee complained against Yashpal Soni to him. He was declared hostile and cross-examined by learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he denied the suggestion that he had stated to the police that accused persons along with Sanjay and Amar Singh had enmity with the deceased Yashpal Soni, who was claiming himself as head cook. According to him, portion A to A of statement was not recorded correctly. In his cross-examination by the learned Public Prosecutor, he denied the suggestion that he had stated to the police that accused persons along with Sanjay and Amar Singh had enmity with the deceased Yashpal Soni, who was claiming himself as head cook. According to him, portion A to A of statement was not recorded correctly. He also admitted that the dinner having rice, puri and vegetable was sent to the accused and deceased. He denied the suggestion that he had stated to the police that accused persons alongwith child in conflict with law have given beatings to deceased Yaspal Soni since he used to harass the accused persons for not performing their duties properly. He further stated that his statement from portion B to B was not correctly recorded. 12. Statement of PW-8 is formal in nature. 13. PW-9 Dr. Mahesh Kapoor, M.O. Regional Hospital Kullu, deposed that on 20.4.2012, at 1:30 AM, he had medically examined one person named Soni brought by the police to the hospital and had issued MLC Ext. PW-9/A. On examination, he observed as follows: (i) The patient when brought was in naked condition. He was unconscious and had labored breathing. He was not fit to make any statement. Bilateral pulils were pin point. Clinical impression was head injury and C.T. Scan was advised. (ii) Pulse was not recordable. B.P. was not recordable. Clinical impression was shock. (iii) There was oedema and redness around left eye and opinion from Eye Surgeon was advised. (iv) There were multiple abrasions over chest with sub cutanous emphysema with bonny crepitus and flail chest. X-ray was advised along with surgical opinion. (v) There was bleeding from peri-anal region. A surgical opinion was advised. (vi) There were multiple bluish red contusions all over the body. X-ray of upper lower limb was advised. (vii) There was contused lacerated wound over left cheek with active bleeding. X-ray of maxilla was advised.” According to him, the probable duration of injuries was within three hours. The injuries were caused with blunt weapon. The injuries found on the person of deceased could be caused with merciless beatings by so many persons with fist blows and by dragging him on hard stony surface. The injuries sustained by deceased were sufficient to cause death in ordinary course. He also examined the accused persons and issued MLCs Ext. PW-9/D and Ext. The injuries found on the person of deceased could be caused with merciless beatings by so many persons with fist blows and by dragging him on hard stony surface. The injuries sustained by deceased were sufficient to cause death in ordinary course. He also examined the accused persons and issued MLCs Ext. PW-9/D and Ext. PW-9/E, of accused Bhim Sen and Hira Lal Paswan, respectively. According to him, Bhim Sain had consumed alcohol and was smelling of alcohol from breath, but was not intoxicated. Similarly, Hira Lal Paswan was smelling of alcohol from breath, but was not intoxicated. In his cross-examination, he had deposed that he examined deceased Soni and according to him, he had not consumed any alcohol. According to him, in case more than 150 ml alcohol is found in the blood, the patient can be said to be intoxicated. On a Court question, PW-9 Dr. Mahesh Kapoor deposed that he could not say whether deceased Yashpal Soni had consumed alcohol. Had he found the consumption of alcohol, he would have mentioned the same in the MLC. 14. Statements of PW10 Sher Singh, SHO PS Kullu and PW-11 Constable Povinder Thakur, are formal in nature. 15. PW-12 SI Om Chand, deposed that on 20.4.2012, he was officiating as SHO Kullu. He received a telephonic call from Regional Hospital, Kullu that a person has been brought to the hospital with the history of beatings. He thereafter alongwith Const. Chaman Lal reached the Regional Hospital, Kullu, where he met SI Ghambhir Chand along with other police officials who were on city patrolling duty. He recorded the statement of SI Ghambhir Chand Ext. PW-5/A under Section 154 Cr.P.C, on the basis of which FIR Ext. PW-12/A was registered by ASI Bala Ram. Thereafter, he prepared inquest reports and moved application to the Hospital Authorities for post mortem of deceased Yashpal Soni. He investigated the spot and prepared spot maps Ext. PW-12/B and Ext. PW-12/C. Thereafter he prepared memos Ext. PW-7/A to Ext. PW-7/C in the presence of witnesses. The case property was taken into possession and deposited with MHC. The photographs and CD were also got prepared. Supplementary statement of SI Ghambhir Chand was also recorded. In his cross-examination, he admitted that the accused persons were got medically examined twice. The clothes of accused persons were taken into possession when they were arrested. The case property was taken into possession and deposited with MHC. The photographs and CD were also got prepared. Supplementary statement of SI Ghambhir Chand was also recorded. In his cross-examination, he admitted that the accused persons were got medically examined twice. The clothes of accused persons were taken into possession when they were arrested. He tried to locate the clothes of Yashpal Soni, since he was found in a naked condition, however, they could not trace the same. He admitted in his cross-examination that Kullu-Manali road is very busy road and there is frequent vehicular traffic on this road during day and night time. 16. According to the contents of Ruka, the accused were giving beatings to a person, who was naked with kicks and fists. The accused were also dragging the deceased on the road. They were stopped and their antecedents were verified. Rukka was recorded on the basis of statement made by PW-5 SI Ghambhir Chand. PW-5 SI Ghambhir Chand, in his testimony before the Court has testified that when they went 100 meters ahead to Gammon bridge towards Manali side, they witnessed in the head light of the vehicle that four persons had waylaid a naked person on the road and were giving beatings. They were also dragging naked person on the road. Similarly, PW-6 HHC Ram Saran has also deposed that when they had gone 100 meter ahead to Gammon bridge towards Manali side, in the headlight of vehicle, they noticed that four persons were giving beatings to a naked person lying on the road. However, in Ruka there is no mentioning that accused were seen giving beatings to the deceased in the headlight of the vehicle. PW-5 Ghambhir Chand had deposed that his supplementary statement was recorded and he has stated so in his supplementary statement that they had seen the accused giving beatings to the deceased in a headlight of vehicle. PW-5 and PW-6 have categorically admitted that tourists and Pujari remain present in Mata Vaishnu Devi temple during day and night and in the month of April, many tourists visit Manali via NH-21 by vehicle, however, prosecution has not examined any independent witness, though available. PW-12 SI Om Chand, has also admitted in his cross-examination that Kullu-Manali road was very busy and there was frequent vehicular traffic during day and night time. 17. The owner of the Dhaba is PW-7 Sh. PW-12 SI Om Chand, has also admitted in his cross-examination that Kullu-Manali road was very busy and there was frequent vehicular traffic during day and night time. 17. The owner of the Dhaba is PW-7 Sh. Sanjay Sain. According to him, he had given a bottle of country liquor to the accused and deceased on 19.4.2012 as he was celebrating his birthday on 19.4.2012. The accused were initially medically examined by PW-9 Dr. Mahesh Kapoor. He has issued MLC Ext. PW-9/D and Ext. PW-9/E. According to him, patients were smelling of alcohol but they were not intoxicated. He has also examined deceased Yashpal Soni but according to him, he had not consumed alcohol. He also deposed in his cross-examination that in case more than 150 ml. alcohol is found in the blood of a patient, the patient can be said to be intoxicated. PW-1 Dr. Rajinder Kohli has also examined the accused. He has issued the MLCs Ext. PW-1/B and Ext. PW-1/C. According to him, the accused persons had not consumed alcohol at the time of examination. There is variance in the two MLCs, one issued by PW-1 Dr. Rajinder Kohli and another issued by PW-9 Dr. Mahesh Kapoor. According to PW-9 Dr. Mahesh Kapoor, accused were smelling of alcohol but according to PW-1 Dr. Rajinder Kohli, they were not smelling of alcohol. PW-9 Dr. Mahesh Kapoor has categorically deposed in his cross-examination that deceased Yashpal Soni had not consumed any alcohol and that when he examined deceased Yashpal Soni, he had not consumed any alcohol. 18. We have gone through the FSL report Ext.PW- 2F. The blood sample of deceased was also taken. According to this report, traces of ethyl alcohol were detected in the contents of the parcels P/1, P/2, P/4 and P/6 but the same could not be detected in the contents of the parcels P/3 and P/5. The quantity of ethyl alcohol in the contents of parcel P/4 (Blood) is 278.28 mg%. This quantity was very excessive. According to PW-9 Dr. Mahesh Kapoor, in case more than 150 ml alcohol is found in the blood, the patient can be said to be intoxicated. The post mortem report is Ext. PW-2/D. According to this report, the injuries were caused by blunt weapon. This quantity was very excessive. According to PW-9 Dr. Mahesh Kapoor, in case more than 150 ml alcohol is found in the blood, the patient can be said to be intoxicated. The post mortem report is Ext. PW-2/D. According to this report, the injuries were caused by blunt weapon. The time lapsed between the injury and death was few minutes to few hours and also death and post mortem was more than 12 hours but less than 48 hours. It is evident from the post mortem report Ext. PW-2/D and MLC Ext. PW-9/A that the deceased had received multiple injuries. According to PW-9 Dr. Mahesh Kapoor, injuries sustained by deceased were sufficient to cause death in ordinary course. PW-7 Sanjay Sain has given bottle of country liquor to the accused persons and deceased, as noticed hereinabove. It has also come on the record that they had consumed liquor. The quantity of ethyl alcohol in the blood of deceased was 278.28 mg%. The accused were though smelling of alcohol, but were not intoxicated as per the statement of PW-9 Dr. Mahesh Kapoor. According to PW-5 SI Ghambhir Chand and PW-6 HHC Ram Saran, the deceased used to treat himself as head cook and used to give beatings to the accused persons. They were given beatings by the deceased on that date also. Though, as per PW-7 Sanjay Sain, the relations between the deceased and accused were cordial but he has resiled from his earlier statement recorded under Section 161 Cr.P.C., more particularly, portion A to A and B to B of the statement. However, the fact of the matter is that the fight has taken place between the accused persons and the deceased. The deceased was definitely intoxicated. PW-5 SI Ghambhir Chand and PW-6 HHC Ram Saran have seen them giving beatings to the deceased. Few injuries received by the deceased were due to the beatings given by the accused persons and some injuries could be by way of fall since the deceased had consumed alcohol and the quantity of ethyl alcohol in his blood sample was 278.28 mg%. He was bound to stumble. The accused persons might be carrying grudge against the deceased for his alleged high-handedness towards them. The accused were employed in a dhaba. He was bound to stumble. The accused persons might be carrying grudge against the deceased for his alleged high-handedness towards them. The accused were employed in a dhaba. The accused are young persons aged 19 years, respectively at the time of recording of their statement under Section 313 Cr.P.C. They only wanted to teach a lesson to the deceased. They had no intention to kill the deceased. The accused have not used any weapon. They have given beatings to the deceased only with kicks and fist blows. However, they had a knowledge that hitting the vital organs of a person with kicks and fist blows could result in the death. Thus, accused persons are liable to be convicted under Section 304 Part II of the Indian Penal Code instead of Section 302 Indian Penal Code. 19. Since the accused have already been convicted under Section 302 IPC read with Section 34 IPC, they were not required to be separately convicted and sentenced under Section 323 IPC. 20. Accordingly, the appeal is partly allowed. The accused are acquitted of the charge framed under Section 302 read with Section 34 IPC and are convicted under Section 304 Part II of Indian Penal Code. The accused be heard on quantum of sentence. They be produced in the Court on 11.8.2014.