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Himachal Pradesh High Court · body

2014 DIGILAW 1504 (HP)

Hans Raj v. State of H. P.

2014-10-22

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Rajiv Sharma, J. This appeal is instituted against the judgment dated 29.11.2010 and consequent order dated 30.11.2010, of the learned Addl. Sessions Judge (I), Kangra at Dharamshala, rendered in Sessions Case No. 7-P/2009, 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 with rigorous imprisonment for life and to pay fine of Rs. 20,000/- and in default of payment of fine, the accused was sentenced to undergo further simple imprisonment for six months. 2. The case of the prosecution, in a nut shell, is that on 18.11.2008, at around 4:00 PM, at Village Punder Dakrair, Seema Devi alongwith Anju Devi and Kirna Devi were sitting in ‘varandah’ and peeling the ‘PAITHA’. The father-in-law of PW-2 Seema, namely Parkash Chand went to bring sheep which were grazing near the cow shed. When PW-2 Anju Devi and PW-6 Seema Devi heard three sounds of danda blows given to their father-in-law Parkash Chand, they screamed. PW-1 Kamla Devi, PW-2 Anju Devi and PW-6 Seema Devi, later saw the accused armed with Danda and Darat. He was running towards his house. PW-1 Kamla Devi, PW-2 Anju Devi and PW-6 Seema Devi went to the spot and found that Parkash Chand was sitting in the field with his hands on his head and there were deep wounds on his head. He was lifted by PW-2 and PW-6 and brought to the Verandah of their house. Thereafter PW-6 Seema Devi went to the clinic of Navjiwan Sharma (PW-7), the Pradhan of the Gram Panchayat. He was informed about the incident. PW-7 further informed the police. Rapat Ext. PW-11/A was entered at Police Post Bhawarna. The accused had allegedly assaulted Parkash Chand since he used to object to the beatings given by the accused to his wife. The accused has also picked up a quarrel with his wife who was working in the fields before assaulting deceased Prakash Chand. The spot was visited by the police. The police forcibly entered the room of the accused. The accused was taken to Police Post Bhawarna. The spot was photographed. The inquest reports Ext. PW-18/C and Ext. PW-18/D were prepared. The I.O. also took into possession the blood stained leaf Ext. P-4 and pair of chappal Ext. P-5 of the deceased. Darat Ext. P-1 and Danda of ‘Banna’ Ext. The police forcibly entered the room of the accused. The accused was taken to Police Post Bhawarna. The spot was photographed. The inquest reports Ext. PW-18/C and Ext. PW-18/D were prepared. The I.O. also took into possession the blood stained leaf Ext. P-4 and pair of chappal Ext. P-5 of the deceased. Darat Ext. P-1 and Danda of ‘Banna’ Ext. P-2 were recovered from the room of the accused. The shirt of the accused Ext. P-3 was also taken into possession. The I.O. prepared the spot map. The port mortem of the dead body was got conducted by ASI Braham Dass (PW-9). Dr. S.K.Sud PW-12 of C.H. Palampur conducted the post mortem. According to PW-12 Dr. S.K.Sud, the cause of death was severe injury to vital organ i.e. brain, leading to shock and death. The injuries were sufficient in the ordinary course of events to cause death. The doctor also sealed the clothes of the deceased and handed over to ASI PW-9 Braham Dass. He deposited the same with MC Trilok Raj (PW-11). The same were sent to FSL. The matter was investigated and challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 18 witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded. The accused has denied the case of the prosecution. 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. Praneet Gupta, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. M.A.Khan, learned Addl. Advocate General, has supported the judgment of the learned Addl. Sessions Judge, (I), Kangra at Dharamshala, H.P., dated 29.11.2010 and consequent order dated 30.11.2010. 5. We have heard learned counsel for both the sides and gone through the material available on record carefully. 6. PW-1 Kamla Devi testified that she returned back to home at about 4:00 PM. When she reached home, she found her daughter-in-law Seema Devi and Anju alongwith Kirna Devi crushing ‘Paitha’. Her husband was in the ground floor. He asked her to give him jacket. She threw the same from the upper storey. After wearing the jacket, he went towards the cow shed to bring sheep which were grazing in the nearby fields. When she reached home, she found her daughter-in-law Seema Devi and Anju alongwith Kirna Devi crushing ‘Paitha’. Her husband was in the ground floor. He asked her to give him jacket. She threw the same from the upper storey. After wearing the jacket, he went towards the cow shed to bring sheep which were grazing in the nearby fields. After some time, she heard three sounds of beating with danda. She came down alongwith her daughter-in-law and Kirna and saw from the Verandah accused running towards his house. He was armed with Danda and Darat. She went to the fields. She saw her husband sitting and putting his face in his hands. The blood was also oozing from his head. Her daughter-in-law lifted her husband to Verandah. Her younger daughter-in-law went to the house of Surinder Pal, Pradhan Punder. After some time, her husband died. Her husband was beaten by the accused because he used to object the beatings given by the accused to his wife. The accused had stopped talking with her husband near about four-five months. The wife of the accused was working in the nearby field. The accused had also picked up a quarrel with his wife before the incident. The police visited the spot. Her statement under Section 154 Cr.P.C. was registered vide statement Ext. PW-1/A. The accused had bolted the door from inside. The police had broken the door. The darat was kept above the Almirah and Danda was kept on the floor. When the police visited the house of the accused, wife of the accused alongwith Ruko Devi were also present. Darat and Danda were put in separate parcels and seals were affixed upon them. These were taken into possession by the police vide memo Ext. PW-1/B. She identified the danda Ext. P-1 and darat Ext. P-2. In her cross-examination, she admitted that no quarrel had taken place between her husband and the accused. Volunteered that, prior to this incident, no such fighting had taken place. She was not aware about the cause of beatings given to the wife by the accused. The matter was never reported by her husband that accused used to beat his wife. Her husband used to advise the accused not to beat his wife. She has not seen the accused beating her husband. She was not aware about the cause of beatings given to the wife by the accused. The matter was never reported by her husband that accused used to beat his wife. Her husband used to advise the accused not to beat his wife. She has not seen the accused beating her husband. Volunteered that she heard the sound of beatings given by danda but her daughter-in-law had seen him beating the deceased with danda. 7. PW-2 Anju Devi, is the daughter-in-law of the deceased. According to her, she heard three sounds of the danda blows. She saw the accused giving danda blows to her father-inlaw. PW-6, Seema screamed. They all went down. The accused was carrying darat and danda in his hands. He was running towards his house. Her father-in-law was sitting. He had put his head in his hands. The blood was oozing from the head and there was a deep wound. She alongwith Seema Devi lifted him to the Verandah. Then Seema went to the house of Pardhan in order to inform him about the incident. After some time, her father-in-law died. The police visited the spot. In her cross-examination, she admitted that no quarrel had taken place between her father-in-law and the accused. She did not know that any complaint was lodged by the wife of the accused against the accused regarding beating. She also admitted that when the incident took place, her face was towards the wall side. After hearing the sound of one blow given with danda, they saw towards that place and found that the accused had given two more blows. There are only two houses at the spot. 8. PW-3 Ram Parkash, deposed that he was associated by the police on 18.11.2008 when police came on the spot. The police took photographs of the spot and blood was found on the leaves. One of the said leaves was put in a parcel and sealed with seal “D”. This was taken into possession vide memo Ext. PW-3/A. One pair of Chappal Ext. P-5 was taken into possession vide memo Ext. PW-3/B. 9. PW-4 Ashwani Kumar, deposed that MHC handed over six parcels and one sample seal to him. He deposited the same at FSL Junga on 10.12.2008. As long as the case property remained in his possession, it was not tampered with. PW-3/A. One pair of Chappal Ext. P-5 was taken into possession vide memo Ext. PW-3/B. 9. PW-4 Ashwani Kumar, deposed that MHC handed over six parcels and one sample seal to him. He deposited the same at FSL Junga on 10.12.2008. As long as the case property remained in his possession, it was not tampered with. On 18.11.2008, he also went with SHO Baldev, ASI Brahm Dass and HC Gian Chand to Dakrair Punder. The accused was found inside the room and he had bolted the room from inside. The accused did not open the door. They forcibly entered into the room after breaking the door. He and Gian Chand caught the accused after entering the room. He was taken to the Police Chowki. Danda was in the Almirah. Volunteered that danda was kept above the Almirah. Danda and Darat were sealed in the parcels. 10. PW-5 HC Gian Chand, deposed that he remained posted as I.O. in Police Post Bhawarna. On 18.11.2008, he alongwith SI Baldev Singh, ASI Brahm Dass, HHC Ashwani Kumar, HHG Ravinder, HHC Madan Kumar reached the spot at about 4:30 PM. The accused had locked himself inside the room. He was asked to open the door but he threatened to commit suicide. The door was broken with the help of the hammer. The accused was arrested. The stains of blood were found on the shirt of the accused. The shirt was the same which he wore at the time of incident. 11. PW-6 Seema Devi, deposed that on 18.11.2008, she alongwith Anju Devi and Kirna Devi were peeling the ‘Paitha’ in the verandah on the upper storey. Her mother-in-law had gone to Bazar. She returned back at about 4:30 PM. Her father-in-law after wearing the jacket went to bring sheep near the cow shed. She heard sound of danda blow and then they saw towards the spot from where the sound came. The accused was giving danda blows on the head of her father-in-law. She screamed. When she reached in the Courtyard, the accused rushed towards his house. The accused was carrying danda in one hand and darat in the other. When they reached at the spot, her father-in-law had kept his face in his hands. The blood was oozing out from the head. She informed the Pardhan. The Pardhan informed the police. The police visited the spot. The spot was investigated. The accused was carrying danda in one hand and darat in the other. When they reached at the spot, her father-in-law had kept his face in his hands. The blood was oozing out from the head. She informed the Pardhan. The Pardhan informed the police. The police visited the spot. The spot was investigated. The accused also identified the place where the danda and darat were kept and memo to that effect Ext. PW-6/B was prepared. It was signed by her. The accused had grudge against her father-in-law because latter used to advise him not to beat his wife. On the date of the incident, the accused quarreled with his wife just before the occurrence. 12. PW-7 Navjivan Sharma, deposed that on 18.11.2008 at about 4:30 PM, Seema Devi daughter-in-law of the deceased Parkash Chand came to his clinic. She was weeping. He enquired as to why she was weeping. She told that Hans Raj had given danda blows to her father-in-law. He informed the police. 13. PW-8 Surjeet Singh, has taken the photographs. 14. PW-9 ASI Brahm Dass, deposed that he was posted as I.O. in Police Station Bhawarna. On 18.11.2008, he alongwith SHO Gian Chand, MHC Madan, HHG Ravinder Singh and HHC Ashwani Kumar went to Village Decrehar. They reached there at about 6:00 PM. The accused had locked himself inside the room. The door was broken. The accused was caught by them. The spot was inspected. The post mortem of the deceased was got conducted by him. 15. PW-10 HHC Madan Singh, deposed that the statement of Kamla Devi was recorded under Section 154 Cr.P.C vide memo Ext. PW-1/A, on the basis of which FIR was registered. 16. PW-11 HHC Trilok Raj, deposed that on 18.11.2008, a telephonic information was received from Pardhan Gram Panchayat Malnoo to the effect that Parkash Chand was beaten up by the accused. He made entry Ext. PW-11/A. At about 6:10 PM, HHC Gian Chand and HHC Ashwani Kumar went to the Police Chowki alongwith the accused. He was handed over to him for safe custody. At 11:00 PM, on the same day, S.I. Baldev Singh handed over four pulindas sealed with seal “D” alongwith sample seal. On 19.11.2008, S.I. Baldev Singh handed over one pulinda which was sealed with five seals of impression “T” alongwith sample seal. He was handed over to him for safe custody. At 11:00 PM, on the same day, S.I. Baldev Singh handed over four pulindas sealed with seal “D” alongwith sample seal. On 19.11.2008, S.I. Baldev Singh handed over one pulinda which was sealed with five seals of impression “T” alongwith sample seal. He handed over all the pulindas except that of chappal to HHC Ashwani Kumar for depositing the same at FSL, Junga. 17. PW-12 Dr. S.K.Sud, has conducted the post mortem on the body of the deceased. He issued post mortem report Ext. PW-12/A. In his opinion, the cause of death was severe injury to vital organ i.e. brain, leading to shock and death. The injuries were ante mortem in nature. According to him, the injuries could be caused with danda Ext. P-1, if struck with force. The injuries were sufficient to cause the death in the ordinary course of events. 18. Statements of PW-13 Ramesh Chand, PW-14 HHC Om Parkash and PW-15 Inspector Sohan Lal Thakur, are formal in nature. 19. PW-16 Rukko Devi, deposed that she was associated by the police alongwith Ram Parkash. In her presence photographs of the spot were taken. The place was identified by Kamla Devi. Blood stained leaf was found lying on the spot. It was sealed and three impressions of seal D were affixed on it. Memo Ext. PW-3/A was prepared. The police took into possession darat and danda vide memo Ext. PW-1/B. The chappal is Ext. P-5. They went to the house of accused Hans Raj. The wife of Ram Parkash and Hans Raj were also present. Darat and danda were taken into possession in separate pulindas. There were blood stains on the danda. 20. PW-17 Ramesh Chand, is a formal witness. 21. PW-18 SI Baldev Singh, deposed that on the basis of information received from the Pardhan Navjiwan Sharma, rapat Ext. PW-11/A was registered. He found the accused inside the house. The door was broken. He recorded statement Ext. PW-1/A under Section 154 Cr.P.C. of Kamla Devi. It was sent to the Police Station. FIR Ext. PW-18/B was registered. He prepared inquest reports vide memo Ext. PW-18/C and PW-18/D. He got the photographs of the spot. Danda and darat were recovered. These were taken into possession vide memo Ext. PW-3/B. He prepared the site plan Ext. PW-18/G. The blood stained leaf was recovered and taken into possession vide memo Ext. FIR Ext. PW-18/B was registered. He prepared inquest reports vide memo Ext. PW-18/C and PW-18/D. He got the photographs of the spot. Danda and darat were recovered. These were taken into possession vide memo Ext. PW-3/B. He prepared the site plan Ext. PW-18/G. The blood stained leaf was recovered and taken into possession vide memo Ext. PW-3/A. The shirt is Ext. P-3. In his cross-examination, he deposed that he reached the spot at about 4:30 PM. Later said that at 4:45 PM. The dead body was kept in the verandah by his relatives. 22. PW-1 Kamla Devi, has not seen the accused giving beatings to her husband. She has only heard three sounds of danda blows. Thereafter, she went down with her daughter-in-law. PW-1 Kamla Devi also saw the accused running with danda and darat. She has deposed in her cross-examination that she has not seen the accused beating her husband. She has admitted that no quarrel had taken place between her husband and the accused. PW-2 Anju Devi, deposed that she heard three sounds of danda blows and when she saw, the accused was giving the blows with danda to her father-in-law and PW-6 Seema Devi screamed. She had seen the accused running with danda and darat. In her cross-examination, PW-2 Anju Devi admitted that when the incident took place, her face was towards the wall side. In her cross-examination, she also admitted that no quarrel had taken place between her father-in-law and the accused. She did not know the reason of giving beatings by accused to his wife. She did not know that any complaint was lodged against the accused by his wife or not. PW-6 Seema Devi, has deposed that she heard the sound of danda blow. She saw towards the spot from where sound came. She saw the accused giving danda blows on the head of her father-in-law. She informed the Pradhan PW-7 Navjiwan Sharma. According to her, the accused had grudge against her father-in-law because latter used to advise him not to beat his wife. 23. The cause of death, as per PW-12 Dr. S.K.Sud was severe injury on the vital organ i.e. brain leading to shock and death. The injuries were ante mortem. These were sufficient to cause death in the ordinary course of events. The injury could be inflicted with Ext. P-1 danda, if struck with force. 23. The cause of death, as per PW-12 Dr. S.K.Sud was severe injury on the vital organ i.e. brain leading to shock and death. The injuries were ante mortem. These were sufficient to cause death in the ordinary course of events. The injury could be inflicted with Ext. P-1 danda, if struck with force. According to the prosecution case, the accused was seen running away with danda and darat in his hands. He has locked himself inside the room. He refused to open the door. The door was opened and accused was taken by the police after arrest. 24. It is duly established from the statements of PW-1 Kamla Devi, PW-2 Anju Devi and PW-6 Seema Devi that the accused had given danda blows on the head of the deceased. It is in conformity with the post mortem report Ext. PW-12/A. The motive attributed for beating the deceased is that he used to stop the accused from beating his wife. PW-1 Kamla Devi has admitted in her cross-examination that no quarrel had taken place between her husband and the accused and volunteered that prior to this incident, no such fighting had taken place. She was not even aware of the fact that the accused used to beat his wife. The matter was never reported by her husband with the police that the accused used to beat his wife. 25. There are only two houses in the vicinity of the house of the deceased. In case, the accused had been beating his wife, all of them would have known this incident. PW-2 Anju Devi did not know the reason of beating the wife by the accused. She did not know that complaint was ever lodged by the deceased regarding the beating. According to her, no quarrel has taken place between her father-in-law and the accused. PW-6 Seema Devi, as noticed by us hereinabove, has deposed that the accused had grudge against her father-in-law because he used to ask the accused not to beat his wife. 26. The prosecution has not led any cogent evidence that the accused used to beat his wife. The motive attributed to the accused for giving beatings to the deceased is not convincing. However, on the basis of the evidence produced on record, it can not be gathered that the accused had intention to kill the accused. 26. The prosecution has not led any cogent evidence that the accused used to beat his wife. The motive attributed to the accused for giving beatings to the deceased is not convincing. However, on the basis of the evidence produced on record, it can not be gathered that the accused had intention to kill the accused. He was carrying darat and danda, as per the statements of PW-1 Kamla Devi, PW-2 Anju Devi, in his hands. If he had the intention to kill the deceased, he would have given fatal blows on the body of the deceased with darat. The darat is a very dangerous weapon, vis-à-vis danda. However, the fact of the matter is that the accused had the knowledge that the danda blows given on the vital organs of the deceased would result in his death. Consequently, the prosecution has failed to prove the charge under Section 302 IPC against the accused. The charge has been proved against the accused under Section 304 Part II IPC. 27. Accordingly, the appeal is partly allowed. The judgment of conviction under Section 302 IPC is set aside. The accused is convicted under Section 304 Part II of the Indian Penal Code. He be produced before this Court on 30.10.2014 for hearing on the quantum of sentence.