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Himachal Pradesh High Court · body

2014 DIGILAW 1095 (HP)

Om Parkash v. State of H. P.

2014-08-20

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Justice Rajiv Sharma, J. This appeal is instituted against the judgment rendered by the learned Addl. Sessions Judge(I), Kangra at Dharamshala, dated 14.10.2008 and consequent order dated 30.10.2008, in Sessions Case No. 2-J of 2008, whereby the appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offences under Sections 380, 454 and 302 IPC, has been convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 20,000/- under Section 302 IPC. He was acquitted for want of evidence for commission of offence punishable under Section 380 and 454 IPC. 2. The case of the prosecution, in a nut shell, is that complainant Jyoti Devi (PW-1) and her mother Giano Devi had gone for work in the fields of Narender Thakur, resident of Village Mohtali. They returned to their house at about 6:30 PM. They found the lock and bolt of their door broken. When they entered the room they found the lock of their steel box broken from which cash amounting to Rs. 1,000/- and some ornaments were found missing. The accused came there in a drunken condition at about 7:30 PM and Smt. Giano Devi mother of the complainant asked the accused as to where he had kept her ornaments and cash amounting to Rs. 1000/-. The accused became furious and started hurling filthy abuses. He picked up a brick and gave its blow on the head of Giano Devi above the eye. She fell down and became un-conscious. The complainant raised hue and cry on which Vikram Singh, Moti Ram and Raj Kumari came on the spot. They had taken Giano Devi injured to the hospital and got her admitted in Tilak Hospital, Pathankot for treatment. The accused while running from the spot after hitting Giano Devi with a brick was hit by the complainant with a stone which caused injury to him in his head. Thereafter, the complainant went to Tilak hospital, Pathankot with her cousin and at that time her mother was still un-conscious and was not in a position to talk. She disclosed that her mother had been hit by the accused with a brick. The matter was brought to the notice of the police and rapat No. 21 was entered in roznamcha register on 19.7.2007 at about 1:30 AM vide memo Ext. She disclosed that her mother had been hit by the accused with a brick. The matter was brought to the notice of the police and rapat No. 21 was entered in roznamcha register on 19.7.2007 at about 1:30 AM vide memo Ext. PW-10/A. The police also recorded the statement of complainant Jyoti Devi Ext. PW-1/A and sent it to the police station. Thereafter, police moved an application Ext. PW-2/A before the Doctor of Tilak Hospital, Pathankot to ascertain whether Smt. Giano Devi was in a position to give statement or not. The doctor gave his opinion vide Ext. PW-2/A and declared that Smt. Giano Devi was unfit to make statement. Thereafter, Smt. Giano Devi was shifted to Civil Hospital, Pathankot, where she was admitted at about 7:10 AM on 19.7.2007. She died at 10:30 AM. This fact was brought by the Medical Officer, to the notice of SHO Indora, vide writing Ext. PW-15/A. The police also went to Civil Hospital, Pathankot and inspected the dead body and took its photographs. The application was also moved for conducting the post mortem on the dead body and weapon from the spot i.e. brick Ext. P-1 was recovered. The accused was arrested. He was medically examined. His shirt Ext. P-9 was produced by his wife Neeta Devi before the police which was sealed. The matter was investigated and thereafter the challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 16 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty and examined one witness in support of his defence. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. Hence, the present appeal. 4. Ms. Bhavna Dutta, Advocate, appearing for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Parmod Thakur, learned Addl. Advocate General, has supported the judgment of the learned Addl. Sessions Judge, dated 14/30.10.2008. 5. We have heard learned counsel for the parties and gone through the records of the case carefully. 6. PW-1 Jyoti Devi has testified that she alongwith her mother had gone to the fields of Narender Thakur. They came back at 6:30 PM. When they came back, they found the lock and bolt of the door broken. They entered into the room. 6. PW-1 Jyoti Devi has testified that she alongwith her mother had gone to the fields of Narender Thakur. They came back at 6:30 PM. When they came back, they found the lock and bolt of the door broken. They entered into the room. The lock of the steel box was also broken and Rs. 1000/- was missing alongwith the ornaments. At 7:30 PM, her Uncle-accused Om Parkash alias Bagga came there in a drunken condition. Her mother asked him as to where he had kept her ornaments and the amount of Rs. 1000/-. He started hurling filthy abuses to her mother. Thereafter her uncle picked up a brick and gave its blow on the head of her mother on left side above the eye. Her mother fell down and became un-conscious. She raised hue and cry. The villagers, namely, Vikram Singh, Bholi and Raj Kumari came on the spot and took her mother to the hospital. The accused fled from the spot. She went to the hospital with Tarsem after some time. She deposed that the accused had quarreled with them on 17.7.2007. She remained in the hospital with her mother. Police recorded her statement on 19.7.2007 vide Ext. PW-1/A at 4:00 AM. They took her mother to Government hospital at 6:00 AM. She narrated the incident to Vikram Singh and Tarsem Singh in the hospital. Her mother died at about 10:30 AM in the hospital. The post mortem was conducted. The police has taken photographs of the brick. The brick was having BBC mark on it. The brick is Ext. P-1. She saw accused hitting her mother with brick. The blood started oozing from the wound and then she also hurled stone on the accused which struck the accused on his head. Blood started oozing out from his head. In her cross-examination, she testified that the fourth brother of her father and accused is Thuhru Ram. He was residing at a distance of 5/6 kms. She also admitted that Tarseem is son of Thuhru Ram. His mother Bholi Devi is also a witness in this case. Her sister Reena Devi was not at the house at the time of incident. She had not disclosed to Raj Kumari, Bholi and Vikram Singh in her house about the hitting of her mother by the accused with a brick. Volunteered that she had disclosed these things in the hospital. Her sister Reena Devi was not at the house at the time of incident. She had not disclosed to Raj Kumari, Bholi and Vikram Singh in her house about the hitting of her mother by the accused with a brick. Volunteered that she had disclosed these things in the hospital. She had not shown the brick to Raj Kumari, Bholi Devi and Vikram Singh with which the accused had hit her mother. She has not informed the police till recording of her statement Ext. PW1/A about the occurrence because the private hospital authorities would not have treated her mother. 7. PW-2 Dr. Tilak Raj, deposed that on 18.7.2007 at about 8:30 PM patient Smt. Giano Devi was brought to their hospital. She was in un-conscious state having suffered head injury with alleged history of a fall from roof top. There was lacerated wound bleeding profusely on left tempo parietal area measuring 3 x 5 cm. The wound was stitched. C.T. Scan was also got done. The police was informed when it was narrated by her daughter that the injury had been caused after she was hit by her relative. The police visited the hospital at 3:15 AM on 19.7.2007. He recognized brick Ext. P-1. According to him, the injury on the person of deceased Giano Devi could be caused by hitting this brick against her head. She was accompanied by some elderly lady who disclosed the history of the patient to him at the time of her admission in the hospital. 8. PW-3 Vikram Singh, deposed that on 18.7.2007 at about 7:30 PM he was offering prayers in his house. He heard some cries. He went towards the house of Jyoti Devi. Jyoti Devi was weeping. Jyoti Devi had asked him to bring doctor. He went to bring the doctor. He contacted Dr. Baldev of Mohtali and told him about some patient to be visited by him on which he replied to come within half an hour. He came back to the house of Jyoti Devi. By that time, Giano Devi had been made to sit in the vehicle. She was bleeding. Bholi Devi and Raj Kumari were also sitting in the vehicle. He also accompanied them and took Giano Devi in that vehicle to Tilak Hospital, Pathankot. Thereafter, Tarsem and Jyoti also came to the hospital. He came back to the house of Jyoti Devi. By that time, Giano Devi had been made to sit in the vehicle. She was bleeding. Bholi Devi and Raj Kumari were also sitting in the vehicle. He also accompanied them and took Giano Devi in that vehicle to Tilak Hospital, Pathankot. Thereafter, Tarsem and Jyoti also came to the hospital. Jyoti then told in the hospital that her Uncle Om Parkash had given a brick blow to her mother during quarrel in the house. She also told him that her mother had fallen down due to this brick hit by the accused. Giano Devi was shifted to Government Hospital at about 6:30 AM on 19.7.2007. Giano Devi died on 19.7.2007 at about 10:30 AM. In his cross-examination, he deposed that he had not asked Jyoti Devi why she was weeping. He also did not inquire from Raj Kumari and Bholi Devi who were sitting in the car alongwith Giano Devi as to how the incident had taken place. 9. PW-4 Dr. Dalip Singh has conducted post mortem examination. He issued post mortem report Ext. PW-4/A. According to his opinion, the cause of death was injury on the vital organ, which was sufficient to cause death in the ordinary course of nature. Injuries were ante mortem. 10. PW-5 Surinder Singh deposed that he came to know about the death of his sister on 19.7.2007. He went to government hospital Pathankot. On 20.7.2007, he alongwith Mahinder Lal and Jyoti Devi remained associated with the police for investigation. She had also shown the brick which was lying at the spot in the lane near the house of Giano Devi. Brick Ext. P-1 was sealed on cloth parcel with five seals of seal impression ‘U’. It was recovered vide seizure memo Ext. PW-1/B. 11. PW-6 Bholi Devi deposed that on 18.7.2007, she had gone to the market of Mohtali. She heard noise in the bazaar. She came towards her old house. When she reached, many people had assembled there. Raj Kumari had also reached there. Jyoti Devi was also present and weeping. Giano Devi was lying in an injured condition. Due to the serious situation, she did not inquire about the occurrence. On telephonic message, one vehicle had been requisitioned and on arrival of the vehicle She, Raj Kumari and Vikram took Giano Devi in that vehicle to Tilak Hospital at Pathankot. Jyoti Devi was also present and weeping. Giano Devi was lying in an injured condition. Due to the serious situation, she did not inquire about the occurrence. On telephonic message, one vehicle had been requisitioned and on arrival of the vehicle She, Raj Kumari and Vikram took Giano Devi in that vehicle to Tilak Hospital at Pathankot. When they had taken Giano Devi in the vehicle her condition was critical. They got Giano Devi admitted in the hospital. At that time, she had told the hospital authorities that Giano Devi had fallen so that her treatment could be started and she could be saved. If she would have told the truth to the hospital authorities, then the doctors would have refused to treat her. They had not taken Giano Devi to the government hospital at the first instance because they would have delayed her treatment due to legal complications. Thereafter, Jyoti Devi came to the Tilak Hospital with Tarseem at about 9:00 PM. She told them in the hospital that the accused Om Parkash had given a blow of brick to her mother, as a result of which, she had sustained the injury. Later in the morning at about 6:00 AM, they had shifted Giano Devi to Civil Hospital, Pathankot. 12. Statements of PW-7 Jaspal Dass and PW-8 Sandeep Sharma, are formal in nature. 13. PW-9 Tarseem Lal, deposed that he was working as mason. On 18.7.2007, he had gone for a work to Pathankot. He reached back at Mohtali from Pathankot at about 8:00 PM. He met Jyoti Devi. She was weeping. She told him that the accused had given a brick blow to her mother. He inquired from Jyoti Devi about the accused. She told him that he had run away from the spot. He also inquired from Jyoti as to where was her mother. She told that she has been taken for treatment to Pathankot. Joyti had requested him to take her to her mother. He telephonically informed that his aunt Giano Devi had been admitted in Tilak Hospital. He alongwith Jyoti reached Tilak Hospital at about 8:30 -8:45 PM. She was not in a position to talk. In the morning on the next day at about 6:30 AM, they had taken Giano Devi to Civil Hospital for treatment. She died there at about 10:30 AM. He alongwith Jyoti reached Tilak Hospital at about 8:30 -8:45 PM. She was not in a position to talk. In the morning on the next day at about 6:30 AM, they had taken Giano Devi to Civil Hospital for treatment. She died there at about 10:30 AM. He admitted in his cross-examination that PW-6 Bholi Devi is his mother. 14. Statements of PW-10 Const. Shashi Kumar and PW11 HC Rajinder Singh are formal in nature. 15. PW-12 HC Raj Kumar deposed that on 19.7.2007 information was received in Police Post Damtal at about 1:30 AM from Police Post Dhangu Peer from HC Hari Chand. This information was about the beating of Giano Devi and her having been admitted in Tilak Hospital in an unconscious condition. The rapat was entered and registered vide Ext. PW-10/A. He had gone to Tilak Hospital, Pathankot with Const. Parveen Kumar on motorcycle. He moved application Ext. PW-2/A before the doctor to know whether Giano Devi was in fit condition to record her statement. He also recorded statement of Jyoti Devi vide Ext. PW1/A. He made endorsement and the same was sent for registration of FIR through Constable Parveen Kumar. 16. PW-13 SI Mahender Singh was Addl. SHO Indora during the year 2007. On 3.10.2007, 9.10.2007 and 11.10.2007, he had recorded statements of Yash Pal, Tilak Raj, Bholi Devi and Rajender. In his cross-examination, he deposed that the statement of Bholi Devi has been recorded in the 10th month for the reason as she was not available before this date. 17. PW-14 Inspector Ambia Ram deposed that at about 6:30 AM on 19.7.2007 MC PP Damtal had telephonically informed Police Station Indora about some snatching case at Damtal bazaar. After this he recorded this in rapat No. 30 on 19.7.2007 in rapat roznamcha register vide Ext. PW-14/A. Thereafter, at about 11:15 AM on the same day a telephonic message was again received from P.P. Dhangupeer in PP Damtal, when he was investigating rapat No. 30. According to this information Giano Devi injured who was admitted in hospital had died. He alongwith HC Govind Ram went to Civil Hospital Pathankot where Giano Devi was admitted. He prepared inquest papers. He moved an application for getting the post mortem conducted on the body. He went to the house of the accused on 19.7.2007. His wife Neeta Devi had produced shirt of the accused. It was having blood stains. He alongwith HC Govind Ram went to Civil Hospital Pathankot where Giano Devi was admitted. He prepared inquest papers. He moved an application for getting the post mortem conducted on the body. He went to the house of the accused on 19.7.2007. His wife Neeta Devi had produced shirt of the accused. It was having blood stains. Shirt is Ext. P-8. It was taken into possession vide memo Ext. PW-14/D. He prepared the site plan after visiting the spot on 20.7.2007. He took into possession the brick produced by Jyoti Devi in the presence of Surinder Singh and Mahinder Singh. The broken locks and two empty plastic containers were also taken into possession. He has admitted in his cross-examination that on the basis of the statement of Jyoti Devi Ext. PW-1/A, case was registered under Section 454, 380 and 323 IPC. This case was registered by HC Raj Kumar. 18. PW-15 Dr. Ashok Kumar Sharma deposed that he was posted as MO Govt. Hospital Pathankot. Giano Devi was brought to his hospital. She was admitted in serious condition at about 7:30 AM on 19.7.2007. 19. PW-16 Dr. Swati Saha Roy deposed that she examined the accused. She issued MLC Ext. PW-16/A. She noticed lacerated wound on right side of scalp. The blood had dried up. The hair were smeared with blood. There were bruises underneath both the eyes. 20. According to PW-1 at about 7:30 PM her uncle had come in drunken condition. Her mother had asked him where were the ornaments and sum of Rs. 1000/-. Accused hurled abuses on her mother. He picked up a brick and gave blow on the head of her mother. She became un-conscious. She raised hue and cry. Vikram Singh, Bholi Devi and Raj Kumari reached the spot and took her mother to the hospital. She has admitted in her cross-examination, as noticed by us, that she has not disclosed to Raj Kumri, Bholi and Vikram Singh in her house that the accused has hit her mother with brick. Her first reaction would have been to tell the persons who had reached on the spot i.e. Vikram Singh, Bholi and Raj Kumari that her mother had been hit on the head by the accused with brick. Her explanation is that she has not informed the police till the recording of the statement Ext. Her first reaction would have been to tell the persons who had reached on the spot i.e. Vikram Singh, Bholi and Raj Kumari that her mother had been hit on the head by the accused with brick. Her explanation is that she has not informed the police till the recording of the statement Ext. PW-1/A by 4:00 AM, because the private hospital authorities would not have treated her mother. PW-3 Vikram Singh also deposed that he reached the spot and saw PW-1 Jyoti Devi weeping. He took her to the hospital alongwith Bholi Devi and Raj Kumari. Intriguingly, PW-3 Vikram Singh has not asked Jyoti Devi why she was weeping. He also did not inquire from Raj Kumari and Bholi Devi as to why she was weeping. PW-6 Bholi Devi also reached the spot on 18.7.2007. She alongwith Raj Kumari and Vikram took Giano Devi in vehicle to Tilak Hospital, Pathankot. She testified that they got Giano Devi admitted in the hospital. At that time, she had told Tilak Hospital authorities that Giano Devi had fallen so that her treatment could be started and could be saved and if she had told the truth to the doctors of the hospital, they would have refused to treat her. They were bound to disclose the truth to the hospital authorities. The statement of Bholi Devi (PW-6) under Section 161 Cr.P.C. was recorded on 11.10.2007. The incident has taken place on 18.7.2007. The statement under Section 161 Cr.P.C. has to be recorded immediately after the incident has taken place. The explanation given by the PW-13 S.I. Mahinder Singh for recording the statement of PW-6 Bholi Devi belatedly cannot be accepted. According to PW-13 Mahender Singh, PW-6 Bholi Devi was not available before the SHO till the 10th month and only thereafter, he had instructed him to record her statement. PW-6 Bholi Devi was in the hospital and she is closely related to the deceased. Her statement could be immediately recorded under Section 161 Cr.P.C. It is not understandable as to why Jyoti Devi has not accompanied her mother to the hospital. She had reached the hospital later on with PW-9 Tarsem Lal. PW-9 Tarsem Lal is also closely related to the deceased. According to PW-9 Tarsem Lal, Jyoti Devi had told him that accused had hit her mother with the brick. She had reached the hospital later on with PW-9 Tarsem Lal. PW-9 Tarsem Lal is also closely related to the deceased. According to PW-9 Tarsem Lal, Jyoti Devi had told him that accused had hit her mother with the brick. If she had told PW-9 Tarsem Lal the manner in which the incident had happened, she would have also disclosed it to PW-3 Vikram Singh and PW-6 Bholi Devi. 21. DW-1 Smt. Raj Kumari deposed that she was sitting in her house. Jyoti, daughter of Giano Devi, came to her house. Jyoti Devi told her that her mother had fallen from the roof top of the house. She was lying in the lane. She requested her to shift her mother to the hospital for treatment, upon which, she alongwith Balbir, Jyoti and Veena took Giano Devi to the hospital in a van. In the hospital also, Jyoti told the doctor that her mother had fallen from a roof top. She denied the suggestion in her cross-examination by the learned Public Prosecutor, that in her presence Jyoti Devi had told the doctor that her mother was struck with brick by the accused. 22. Now, as far as other two witnesses Bholi Devi and Vikram Singh, who had taken deceased Giano Devi to the hospital are concerned, they were never told by Jyoti Devi that her mother had been hit by accused with the brick. Even, PW-1 Jyoti Devi has deposed that she has not told Raj Kumari, Bholi and Vikram at her house before shifting the patient to the hospital that her mother was hit by the accused with brick. The statement of PW-1 Jyoti Devi was recorded under Section 154 Cr.P.C. vide memo Ext. PW-1/A. She has not stated that PW-3 Vikram, PW-6 Bholi Devi and DW-1 Raj Kumari had taken her mother to the hospital. It is only stated in her statement that she alongwith co-villagers had taken her mother to the hospital. In Ext. PW-2/C, it is specifically stated that Giano Devi was admitted with head injury caused by alleged fall from roof top. We after appreciating the evidence, are of the considered opinion that the prosecution has failed to prove the case against the accused beyond reasonable doubt. 23. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 14.10.2008 and consequent order dated 30.10.2008, rendered by the learned Addl. We after appreciating the evidence, are of the considered opinion that the prosecution has failed to prove the case against the accused beyond reasonable doubt. 23. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 14.10.2008 and consequent order dated 30.10.2008, rendered by the learned Addl. Sessions Judge(I), Kangra at Dharamshala, in Sessions case No. 2-J/08 is set aside. The accused is acquitted of the charge framed under Section 302 IPC, by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 24. The Registry is directed to prepare the release warrants of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.