Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1296 (HP)

Lakhwinder Singh alias Lakha v. State of H. P.

2014-09-18

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Rajiv Sharma, J. This appeal is instituted against the judgment dated 30.6.2010 of the learned Sessions Judge, Una, H.P., rendered in Sessions Trial No. 2 of 2010, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence under Section 302 IPC, was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine, the accused was sentenced to undergo simple imprisonment for two years. 2. The case of the prosecution, in a nut shell, is that on 2.8.2009 at ‘Tibbia Wali Gali’ abutting the house of the accused person was being repaired. Sh Rakesh Kumar Up Pradhan had been supervising the work. The muster roll Ext. PW-5/C had been issued for the purpose of the Block. PW-1 Santosh Kumari, PW-2 Sharda Rani, PW-3 Baksho Devi, PW-4 Suresh Kumari and one Sh. Som Nath, amongst others, had been working for the repair work. PW-7, Suresh Kumar was directed to provide sand, stones and grit for the repair work. At about 4-4:15 PM, PW-1 to PW-4 as also Som Nath and Shashi had been taking rest. They had been sitting close to the boundary wall of the house of the accused person. PW-7, Suresh Kumar had taken trolley of the stones and grit for the work in question. It was a rainy season. The tractor-trolley was stuck up at some distance from PW-1 to PW-4. PW-7, Suresh Kumar had sent for the work force and male members had gone to extricate the tractor-trolley. PW-7, Suresh Kumar switched on the engine of the tractor. The accused person armed with scythe (darat) Ext. P-6, reached the back side of Som Nath and inflicted multiple blows with darat Ext. P-6, on the neck and right side of the face of Som Nath. Sh. Som Nath cried for life but the men at work due to tractor noise could not hear him. The workmen got terrified. Som Nath fell down. The accused escaped from the spot and went towards the Swan river. PW-7, Suresh Kumar immediately contacted PW-5, Bishan Dass and the police through his mobile phone. PW-5, Bishan Dass directed Up Pradhan to rush the work site. PW-5 had also left for the work site. PW-9, Gian Chand reached the spot. The deceased was taken to District Hospital. The accused escaped from the spot and went towards the Swan river. PW-7, Suresh Kumar immediately contacted PW-5, Bishan Dass and the police through his mobile phone. PW-5, Bishan Dass directed Up Pradhan to rush the work site. PW-5 had also left for the work site. PW-9, Gian Chand reached the spot. The deceased was taken to District Hospital. Medical Officer examined Som Nath at 5:25 PM and found him unfit to make statement. Som Nath was referred to P.G.I., Chandigarh. He succumbed to injuries on 3.8.2009 at 6:45 AM. The post mortem was conducted by PW-14 Dr. Dalbir Singh. The post mortem report is Ext. PW-14/A. The weapon of offence i.e. darat was recovered. The statement of PW-1, Santosh Kumari was recorded under Section 154 Cr.P.C. i.e. Ext. PW-1/A. FIR Ext. PW-19/A was registered. The accused was arrested on 4.8.2009 at 7:15 AM. The police investigated the matter and challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 19 witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded. The accused has denied the case of the prosecution in toto. According to him, he was innocent and falsely implicated in the present case. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. 4. Mr. Lakshay Thakur, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Ramesh Thakur, Asstt. Advocate General, has supported the judgment of the learned Sessions Judge, Una, H.P., dated 30.6.2010. 5. We have heard learned counsel for both the sides and gone through the material available on record very carefully. 6. PW-1, Santosh Kumari deposed that on 2.8.2009, they had undertaken NREGA work in ‘Tibia Wali Gali’ in the area of Uppar Badehra. At about 4:15 PM, the ladies were resting by sitting on the ground. Som Nath and Shashi were sitting close to the wall. Accused suddenly appeared before Som Nath. He was holding some instrument at the back side. He gave blow on the person of Som Nath. He fell down. They had seen accused person giving blow on the person of Som Nath. Accused managed to run away. Suresh Kumar, driver of the tractor had informed the Pradhan. Her statement was recorded under Section 154 Cr.P.C. vide Ext. He was holding some instrument at the back side. He gave blow on the person of Som Nath. He fell down. They had seen accused person giving blow on the person of Som Nath. Accused managed to run away. Suresh Kumar, driver of the tractor had informed the Pradhan. Her statement was recorded under Section 154 Cr.P.C. vide Ext. PW-1/A. The police recovered from the site scarf (piece of cloth) and chappal of Som Nath vide recovery memo Ext. PW-1/B and PW-1/C, respectively. In her cross-examination, she admitted that the accused person did not have any dispute with the deceased. She also admitted that the boundary of holding, if any, of Som Nath did not touch the holding of the accused and his father. The men had been trying to extricate the tractor at a distance of about 20 feet from Som Nath and when alarm was raised the accused had managed to escape and hence, none could chase him. 7. PW-2, Sharda Rani, deposed that she alongwith PW-1 Santosh Kumari and three other ladies were resting close to the wall of the accused person. Som Nath and Shashi were sitting at some distance from them. The accused suddenly came there. He was carrying a weapon at the back and had inflicted blows on the person of Som Nath. Som Nath became un-conscious and blood started oozing out from the injuries. The matter was reported to Bishan Dass, Pradhan. In her cross-examination, she admitted that the accused and his father were not carrying on any dispute of any kind with the deceased. She had seen the accused person when he had been near the deceased and had been holding a weapon at the back and thereafter had caused injuries to the deceased with darat. They raised alarm but due to the noise of the running of the tractor, nobody could hear them. However, men had rushed to chase the accused. But, the accused managed to escape. 8. PW-3, Baksho Devi deposed that the accused had inflicted a darat blow on the person of Som Nath. He suffered injuries and blood started oozing out. He turned un-conscious and accused managed to escape. In her cross-examination, she deposed that one woman had tried to apprehend the accused but the accused raised darat and as such the woman ran away. PW-3, Baksho Devi deposed that the accused had inflicted a darat blow on the person of Som Nath. He suffered injuries and blood started oozing out. He turned un-conscious and accused managed to escape. In her cross-examination, she deposed that one woman had tried to apprehend the accused but the accused raised darat and as such the woman ran away. She also deposed that her buffalo had touched against the wire of the accused. The accused was in possession of darat. He threatened to chop off the horn of her buffalo. She was slapped 3-4 times and pushed down. 9. PW-4, Suresh Kumari also deposed that the accused had inflicted one blow of darat on the person of Som Nath. He inflicted 2-3 blows on the person of Som Nath. She tried to save him but to no avail. The accused managed to escape. They had raised hue and cry but none had taken note of them. The Pradhan was informed. She also admitted in her cross-examination that the accused did not have any dispute of any kind with the deceased. 10. PW-5, Bishan Dass was the Pradhan of Gram Panchayat Badehra w.e.f. January, 2006. On 2.8.2009 at 4:00 PM, he was present in the Panchayat Ghar. Sh. Rakesh Kumar, Up Pradhan was also present with him. He received telephonic call on his mobile phone from some unknown source informing him that a murder has taken place of a labourer in the ‘Tibia Bali Gali’. He deputed Up Pradhan to rush to the work site and he followed him. When he reached the work site i.e. ‘Tibia Wali Gali’, he found that Som Nath had suffered injuries and was being lifted in a vehicle. He was taken to the District Hospital. Scarf and chappal of the deceased were taken into possession. In his cross-examination, he admitted that he has not prepared the muster roll Ext. PW-5/C. It was also not prepared in his presence. He did not know who had carried out the entries in the muster roll. He could not say if PW-1 to PW-4 had actually worked on 2.8.2009 or not. He also admitted that all the entries in the muster roll were in one pen and by one person. He also admitted that as per muster roll Sharda Devi had not been on work w.e.f. 3.8.2009 to 11.8.2009. 11. He could not say if PW-1 to PW-4 had actually worked on 2.8.2009 or not. He also admitted that all the entries in the muster roll were in one pen and by one person. He also admitted that as per muster roll Sharda Devi had not been on work w.e.f. 3.8.2009 to 11.8.2009. 11. PW-6, Sher Singh deposed that he was working in L.N.T in Ludhiana in the year, 2009. He received telephonic call from the wife of Som Nath that Som Nath had been killed. On receipt of this information, he rushed to Una. In his presence nobody had made any statement against the accused. He was declared hostile. In his cross-examination by the learned Public Prosecutor, he deposed that in his presence on 6.8.2009, during interrogation in the Police Station, the accused informed the police that he had thrown the darat in Swan river and could get the same recovered. The accused had stated that he had murdered Som Nath with the darat. The accused stated before the police that the darat was lying in the bushes on the bank of river Swan near Tobba. The police has recorded the statement of the accused when he alongwith Hans Raj were present. He alongwith Hans Raj signed the statement. Parmodh also signed the statement. In his cross-examination on behalf of the accused, he admitted that the accused had not got recovered anything in his presence. He also admitted that the police has taken into possession the darat alongwith Parmodh. He also admitted that Parmodh had got the darat recovered. 12. PW-7, Suresh Kumar deposed that he had loaded the tractor-trolley with stones and bajri. It was a rainy season. The tractor got struck up. He requested the workmen to unload his trolley. He was busy in unloading the trolley. He heard noise of ‘mar dia mar dia’. He did not take much note of it. The accused had inflicted blow on the person of Som Nath and managed to escape. The accused had produced his shirt and trouser before the police. The police had taken into possession these items vide recovery memo Ext. PW-7/A. The police sealed the clothes. In his cross-examination, he admitted that the supply made by him to the Panchayat was recorded daily in a book. The accused had produced his shirt and trouser before the police. The police had taken into possession these items vide recovery memo Ext. PW-7/A. The police sealed the clothes. In his cross-examination, he admitted that the supply made by him to the Panchayat was recorded daily in a book. He has not produced the record dated 2.8.2009 of supply of sand and bajri to the Gram Panchayat before the police. He had seen the accused causing injury to Som Nath. Som Nath had fallen down. He denied that on 6.8.2009 the police had informed him that darat is to be recovered from the bushes, on the bank of river Swan. Volunteered that, the police stated that the darat was to be searched from those bushes. He also denied the suggestion that the police had set out from the Police Station and had reached the site of recovery and asked the accused person to pick up the darat. Volunteered that, the police had taken considerable time and had been carrying on search for quite some time. He admitted that thereafter the accused was directed to take out the darat from the bushes. He did not know if the police had already recovered darat on 2.8.2009. He admitted in his cross-examination that the accused person was a gentleman and has no enmity with the deceased. He had been grazing buffaloes in the ‘khad’. 13. PW-8, Santosh Kumar deposed the manner in which the police has deposited with him the clothes, blood collected and one pair of chappal. On 6.8.2009, Gian Chand A.S.I. had deposited one darat duly sealed in a packet with him. One sealed packet contained clothes and another contained blood sample of the deceased. He had sent the case property except Chappal to the Chemical Examiner, Junga vide RC No. 209/2009 on 17.8.2009 vide memo Ext. PW-8/A. 14. Statements of PW-9 HC Ashok Kumar, PW-10 Constable Gurmail Singh, PW-11 Constable Sanjeev Kumar and PW-12 HC Rakesh Kumar are formal in nature. 15. PW-13 S.H.O. Shakti Singh deposed that he arrested the accused vide memo Ext. PW-13/A. He sent him for medical examination. 16. PW-14, Dr. Dalbir Singh has conducted the autopsy on the dead body of the deceased Som Nath. 15. PW-13 S.H.O. Shakti Singh deposed that he arrested the accused vide memo Ext. PW-13/A. He sent him for medical examination. 16. PW-14, Dr. Dalbir Singh has conducted the autopsy on the dead body of the deceased Som Nath. According to him, the cause of death was oedema of brain due to subarachnoid hemorrhage and injury to spinal cord as a result of injury No. 6, which was ante mortem in nature and could be caused by sharp edged weapon. The probable time that elapsed between injury and death was within 24 hours and between death and post mortem was 31 hours and 15 minutes. 17. PW-15, Dr. O.P. Ramdev, has examined the deceased on 2.8.2009 at 5:25 PM. He noticed the following injuries on the body : “ 1. Incised wound 6” x 3” x 3” on right side of neck just below right angle of mandible extending to back of neck. Muscle deep. Advised, X-ray cervical spine and lateral view. 2. Incised wound 4” x 4” over right ramus of mandible on face. Margins sharp and regular. 3. Incised wound size 2” x ½” on right side of neck. Skin deep. Patient referred to PGI, Chandigarh for management. The nature of injury No. 1 was dangerous to life. Injuries No. 2 & 3 were simple. All the injuries had been caused with sharp edged weapon, within probable duration of 6 hours. He issued MLR Ext. PW-15/B. 18. PW-16, Bishnu Dutt deposed that he was Secretary, Gram Panchayat Badhera. He was informed telephonically of the incident by Suresh Kumar. He informed Bishan Dass Pradhan and Rakesh Kumar, Up Pradhan. In his cross-examination, he admitted that he has not brought the muster roll or copy thereof w.e.f. 16.6.2009. He has not brought the original, copy whereof was Ext. PW-5/C. He did not carry out the entries of attendance of labourers in the muster roll. 19. PW-17, Surinder Kumar is a formal witness. 20. PW-18, Hans Raj, deposed that the accused had made disclosure statement that darat with which he had committed the crime, after the crime, had been thrown by him in Sarkanda in Swan river and he could get the same recovered. The statement of the accused was reduced into writing. It was signed by him and the accused, vide memo Ext. PW-6/A. 21. The statement of the accused was reduced into writing. It was signed by him and the accused, vide memo Ext. PW-6/A. 21. PW-19, Gian Chand deposed that he received the information to the effect that one person had been murdered in the area of Village Badhera. He alongwith his men rushed to the site. The statement of PW-1 was recorded vide memo Ext. PW-1/A. He has carried out the spot inspection. He took into possession Ext. P-2 pair of chappal vide recovery memo Ext. PW-1/B. He also took into possession blood from the site of the crime vide recovery memo Ext. PW-5/A. One blood stained scarf was also recovered vide recovery memo Ext. PW-1/C. He also filled inquest forms. He got conducted the post mortem on the dead body of the deceased Som Nath. The photographs of the dead body were also taken. The accused made disclosure statement, on the basis of which, darat was recovered in the presence of Hans Raj, Rajinder and Sher Singh. Darat, Ext. P-6 was recovered vide recovery memo Ext. PW-7/B. He also prepared the sketch map of darat Ext. P-6. In his cross-examination, he admitted that when the police party reached Badhera, the name of the murderer was known to everybody including the S.H.O. and the police officials. The house of the accused person was near the site of the crime and he has indicated the same in rough sketch map. The house of the accused is at a distance of 5-7 yards from the place of murder. He has not raided the house of the accused person. The father of the accused was present near the site of the crime when he reached the spot. The accused was interrogated by the police. He disclosed him that he rubbed darat Ext. P-6 with sand and also washed the same. Some traces of mud were found on the darat. 22. PW-1 Santosh Kumari, PW-2 Sharda Rani, PW-3 Baksho Devi, PW-4 Suresh Kumari, witnesses have seen the accused inflicting darat blow on the person of Som Nath. They were present on the spot since they were engaged for undertaking NREGA work. The accused, according to these witnesses, has managed to ran away with darat. He ran towards the khud. According to these witnesses, the accused has appeared on the scene all of a sudden and after giving blows on the person of deceased ran away. 23. They were present on the spot since they were engaged for undertaking NREGA work. The accused, according to these witnesses, has managed to ran away with darat. He ran towards the khud. According to these witnesses, the accused has appeared on the scene all of a sudden and after giving blows on the person of deceased ran away. 23. PW-1, Santosh Kumari has categorically admitted in her cross-examination that the accused person did not carry any personal or individual dispute of any kind with the deceased. She also deposed that the boundary of the land of Som Nath did not touch the holding of the accused person and his father. PW-2 Sharda Rani, also deposed that the accused person and his father were not having any dispute of any kind with the deceased. PW-3 Baksho Devi, has admitted in her cross-examination that a quarrel had taken place between her and the accused. She was slapped by the accused 3-4 times and laid her on the ground. PW-4, Suresh Kumari has admitted in her cross-examination that the accused person did not have any dispute of any kind with the deceased. PW-7, Suresh Kumar has testified in his cross-examination that the accused was a gentleman. He had been grazing buffaloes in the ‘khud’. The prosecution has also not attributed any motive as to why the accused has inflicted blow on the person of deceased Som Nath. There was no dispute between the deceased and the accused. PW-7, Suresh Kumar has gone to the extent by saying that the accused was a gentleman. He has categorically deposed that the accused person was not carrying any enmity with Som Nath. The recovery of darat Ext. P-6 has been effected. There were no traces of blood on Ext. P-6 darat. However, according to the statement of PW-19 A.S.I. Gian Chand, the accused told him that he has rubbed all the blood from the darat and has washed it. The scarf and chappal of the accused were taken into possession vide Ext. P-1 and P-2. The clothes of the accused were also taken into possession. According to PW-15 Dr. O.P. Ramdev, the patient was referred to P.G.I. Chandigarh for management. The nature of injury No. 1 was dangerous to life. Injuries No. 2 & 3 were simple. The injuries were caused with sharp edged weapon with probable duration of 6 hours. P-1 and P-2. The clothes of the accused were also taken into possession. According to PW-15 Dr. O.P. Ramdev, the patient was referred to P.G.I. Chandigarh for management. The nature of injury No. 1 was dangerous to life. Injuries No. 2 & 3 were simple. The injuries were caused with sharp edged weapon with probable duration of 6 hours. The cause of death as per PW-14 Dr. Dalbir Singh, was oedema of brain due to subarachnoid hemorrhage and injury to spinal cord as a result of injury No. 6, which was ante mortem in nature. According to him, the injuries could be caused by weapon of offence i.e. ‘darat’. The deceased had died on 3.8.2009, due to the injuries received by him on 2.8.2009. 24. PW-1, Santosh Kumari has deposed that the men were trying to extricate the tractor at a distance of about 20 feet from Som Nath and when alarm was raised the accused person had managed to escape and hence none had chased him. PW-2, Sharda Rani deposed that they had raised an alarm but due to noise of the running of the tractor, nobody had heard them and accused managed to run away. PW-3, Baksho Devi has given a new version in her statement. According to her, one woman had tried to apprehend the accused. However, the accused had raised darat and as such the woman had to run away. Neither PW-1, Santosh Kumari nor PW-2, Sharda Rani had deposed that the woman had tried to apprehend the accused. PW-4, Suresh Kumari had deposed that immediately after the occurrence, they were under the shock and were not able to make statement before the police. She had stated before the police that she had raised hue and cry. She informed the police that she tried to save Som Nath. (Confronted with statement under Section 161 Cr.P.C. where it is not so recorded). She has also not stated before the police that the tractor was being run and lot of noise was generated and nothing was audible. Motive and the opportunity to commit the crime, is essential ingredient in all the criminal cases. In the instant case, as noticed hereinabove, no motive has been attributed by the prosecution to the accused. However, the fact of the matter is that the accused has inflicted injuries on the person of deceased with sharp edged weapon i.e. Ext. P-6. Motive and the opportunity to commit the crime, is essential ingredient in all the criminal cases. In the instant case, as noticed hereinabove, no motive has been attributed by the prosecution to the accused. However, the fact of the matter is that the accused has inflicted injuries on the person of deceased with sharp edged weapon i.e. Ext. P-6. We are of the considered opinion that the accused though had no intention to kill the deceased but definitely, he had the knowledge that the injuries inflicted on the vital organs of the deceased could result in his death. 25. Accordingly, the appeal is partly allowed. The conviction under Section 302 IPC is set aside. The accused is convicted under Section 304 Part II of the Indian Penal Code. He shall be heard on the quantum of sentence on 26.9.2014.