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2015 DIGILAW 1181 (HP)

Deep Kumar @ Deepu v. State of Himachal Pradesh

2015-08-28

RAJIV SHARMA, SURESHWAR THAKUR

body2015
Judgment : Rajiv Sharma, Judge This appeal is instituted against Judgment dated 2.4.2014 rendered by learned Additional Sessions Judge-III, Kangra at Dharamshala in Session Case No. 53-D/VII/12 (Session Trial No. 1/14), whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Sections 452, 342, 302 read with Section 34 IPC, has been convicted and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.2,000/- for the commission of offence under Section 452 IPC and in default of payment of fine, to further undergo simple imprisonment for 6 months; to undergo rigorous imprisonment for one year for offence under Section 342 IPC; to undergo rigorous imprisonment for life and fine of Rs.5,000/- for offence under Section 302 IPC, in default of payment of fine, to further undergo simple imprisonment for one year. 2. Case of the prosecution, in a nutshell, is that in the year 2012 deceased Om Parkash was working as a labourer with contractor Neeraj Sharma and was residing in the house of said Neeraj Sharma at village Lunta. On 15.2.2012 he had gone to the house of one Rattan Chand. Deceased Om Parkash had told Rattan Chand that the present accused used to pick up quarrel with him. On 23.2.2012, Rattan Chand received information that Om Parkash was killed inside his room. The matter was reported to the police. His statement was recorded by police under Section 154 CrPC. FIR was registered. Police investigated the matter. During Investigation it was found that in the evening of 21.2.2012, at about 3-4 pm, accused Deep Kumar @ Deepu and Bhota had gone inside the room of Om Prakash and confined him inside the room. They had given beatings to the deceased. Deceased had suffered injuries on his head and other parts of body due to blows given by the accused with Danda, who was also seen with the Danda by the witnesses. One Jaspal had witnessed the occurrence alongwith other labourers. Investigation was complete and the challan was put up in the Court, after completing all the codal formalities. 3. Prosecution has examined as many as 22 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He denied the case of prosecution. Trial Court convicted and sentenced the accused as noticed herein above. Hence, this appeal. 4. Mr. 3. Prosecution has examined as many as 22 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He denied the case of prosecution. Trial Court convicted and sentenced the accused as noticed herein above. Hence, this appeal. 4. Mr. Vinay Thakur, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Ramesh Thakur, Assistant Advocate General, has supported the judgment of conviction. 6. We have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-1 Rattan Chand testified that Om Parkash alias Phimu was his relative (Sala). Om Parkash had come to his house and stayed there for a week. He told him that accused Deep Kumar and Bhota used to pick quarrel with him on trivial issues. He had gone to village Lunta where he was working with Neeraj Sharma. On 22 or 23, he received a telephonic communication from Laxmi Devi that Om Parkash has died. He alongwith his wife and sons Bhindu Pal and Surinder Kumar reached Lunta at 8.30 am and found dead body of Om Parkash. He came to know that Om Parkash was killed by accused Deep Kumar and Bhota. Quarrel had taken place regarding mobile phone. Police recorded statement of Rattan Chand under Section 154 CrPC vide Ext. PW- 1/A. Police took into possession gunny bag which was blood stained. One blood stained blanket was lying on the cot. Blood stains were taken in a paper which was put in match box. Blood stained gunny bag was and blanket were sealed with seal ‘M’, six each. Seizure memo Ext. PW-1/B was prepared. 8. PW-2 Janam Singh deposed that he alongwith other labourers used to reside in the house of Neeraj Sharma at village Lunta. Om Parkash was employed with contractor Neeraj Sharma. On 21.2.2012 Deep Kumar and Bhota went inside the room of deceased at about 3.00 pm. He identified the accused in the Court. Om Parkash was inside his room at that time. He heard the noise from outside and he went to the room of Om Parkash, which was bolted from inside. He saw Deep Kumar and Bhota coming out of the room. Accused threatened not to tell the incident to anybody. He went inside the room. Om Parkash was inside his room at that time. He heard the noise from outside and he went to the room of Om Parkash, which was bolted from inside. He saw Deep Kumar and Bhota coming out of the room. Accused threatened not to tell the incident to anybody. He went inside the room. Om Parkash had suffered injuries on his head and blood was oozing out of the wound. Sohan Lal, Chaman Lal and Beli Ram also witnessed the occurrence. Chaman Lal had made telephone call to nephew of deceased Om Parkash regarding the incident but he did not come till evening. They told about the incident on the same day to Shastri Ji and Neeraj Sharma On 22.2.2012 contractor Neeraj Sharma asked for well being of Om Parkash and he was told that Om Parkash was serious. On 22.2.2012, he came to know that Om Parkash had died. Contractor Neeraj Sharma was telephonically informed and Beli Ram informed the police through telephone. Police came to the spot on 23.2.2012. Police recovered one Thali, Katori, pair of shoes, one glass, two pieces of brick etc. Accused had made disclosure statement Ext. PW-2/C. After 4-5 days, on the basis of statement, recovery of Danda was made from the bushes at the instance of the accused. Ext. PW-2/D was prepared to this effect. In his cross-examination, he admitted that deceased was not taken to hospital from 21.2.2012 till his death. 9. PW-3 Ramesh Kumar deposed that Neeraj Sharma had employed Chaman Lal, Hari Pal and 5-7 other persons of District Chamba. They used to reside in the house of Contractor Neeraj Sharma at village Lunta. Om Parkash alias Phimu was employed by Neeraj Sharma as Chowkidar. Chaman Lal disclosed that two persons entered the room of Om Parkash and gave beatings to him due to which he sustained injuries. He informed Neeraj Sharma about the incident. 10. PW-4 Mamta Devi deposed that Om Parkash was lying dead on the cot in his room. Police recorded statement of Rattan Chand. Police took photographs. She also saw injuries on the body of deceased. It was apparent that he was beaten up. On the same day, police has taken into possession gunny bag which was blood stained. 11. PW-5 Chaman Singh deposed that Om Parkash alias Phimu was residing in the same house in separate room. He was employed as a Chowkidar. Police took photographs. She also saw injuries on the body of deceased. It was apparent that he was beaten up. On the same day, police has taken into possession gunny bag which was blood stained. 11. PW-5 Chaman Singh deposed that Om Parkash alias Phimu was residing in the same house in separate room. He was employed as a Chowkidar. On 21.2.2012 at around 3.00 pm, they came from work. Deep Kumar and Bhota came there and were abusing and asked for Phimu. He told Phimu was sleeping inside his room. They went inside the room and closed the door. He identified the accused Deep Kumar in the Court. Deep Kumar was carrying danda and Bhota was not having anything with him. He heard cries of Phimu from his room. He sent other persons to the room of Phimu but it was bolted from inside. Jaspal told him that Phimu was being beaten inside the room. Accused came out the room and told them that they had not seen anything at the spot. They threatened them not to disclose the occurrence to any person. The condition of Phimu was serious. Blood was oozing out from nose, eyes and face of Phimu. He went to the house of Shastri and narrated the whole incident to him. After about 5-6 days, in his presence, accused made a disclosure statement before the police that he had kept Danda in the bushes and he could get recovered the same. Statement was recorded vide Ext. PW-2/C. Danda was recovered from Deep Kumar, which was kept in the bushes at village Lunta. Recovery memo was prepared to this extent. He denied the suggestion, in his cross-examination, that the deceased has received injuries on his person due to fall. He died due to negligence of contractor for not providing timely medical aid to him. 12. PW-6 Jaspal Singh deposed that on 21.2.2012 at about 3.00 pm, he was in his room. In the room of Phimu quarrel started between deceased and accused persons. Accused Deep Kumar gave blow of Danda to Phimu and Bhota gave fist blows. He saw occurrence from his window of the room of Phimu. Thereafter Deep Kumar and Bhota went away from the spot. They threatened not to narrate the incident to anybody. Phimu suffered injuries on his face. Chaman told occurrence to Neeraj Sharma Contractor. Accused Deep Kumar gave blow of Danda to Phimu and Bhota gave fist blows. He saw occurrence from his window of the room of Phimu. Thereafter Deep Kumar and Bhota went away from the spot. They threatened not to narrate the incident to anybody. Phimu suffered injuries on his face. Chaman told occurrence to Neeraj Sharma Contractor. Neeraj Sharma sent two persons for taking Phimu to hospital but he did not go to the hospital. Condition of Phimu was not well on 22.2.2012 and, on 23.2.2012 in the morning they found Phimu dead in his room. In his cross-examination, he has deposed that he has not disclosed about alleged incident to contractor and Pradhan as well as Police as the incident had not taken place in his presence. To a court question put to him, he admitted that he has not seen the occurrence from the window. 13. PW-7 Vimla Devi, PW-8 Lakshmi, PW-9 Surender Kumar, PW-10 Roop Lal, PW-11 Bachitar Singh, PW-12 Sanjeev Kumar, PW-13 HC Sant Ram, PW-14 Lokender Singh, PW-15 Suram Singh and PW-16 HC Vikas Arora, are all formal witnesses. 14. PW-17 Dr. Angdui Dorje has conducted post mortem examination on the body of deceased Om Parkash. He noticed that there was bleeding from right nasal oris, bruise bilateral eyes and over right leg above knee joint measuring 2 x 3 cm. There was haematoma in frontal aspect of skull with fracture bilateral temporal region of linear type, fracture cranial spine No. 3 and 4 that is of post mortem type. According to Ext. PW-17/C, cause of death was due to poly-trauma. He has explained the cuttings made in the Ext. PW-17/C. He has admitted in his cross-examination that initially probable duration between death and post-mortem was written as more than 24 hours, however, he has corrected it. Similarly, he has admitted that earlier he has written probable time between injury and death as less than 12 hours. It was written hurriedly but, later, it was corrected as more than 32 hours. He had initialed the cuttings. 15. PW-18 Ramesh Kumar, PW-19 S.L. Krishan Chand and PW-20 Dr. Tilak Bhagra are formal witnesses. 16. PW-21 Neeraj Sharma deposed that he used to reside at village Sidhpur. He used to be present at site at Lunta during day time. It was written hurriedly but, later, it was corrected as more than 32 hours. He had initialed the cuttings. 15. PW-18 Ramesh Kumar, PW-19 S.L. Krishan Chand and PW-20 Dr. Tilak Bhagra are formal witnesses. 16. PW-21 Neeraj Sharma deposed that he used to reside at village Sidhpur. He used to be present at site at Lunta during day time. On 21.2.2012 at about 7.30 pm, he was returning from Kangra when one person made a telephone call to him and informed that Phimu sustained the injuries and he had to shift to hospital. Deceased had told Manoj and Jitender that he had sustained injuries due to fall and thereafter he made a telephonic conversation with deceased Om Parkash alias Phimu. He was under the influence of liquor and he told him on telephone that he has sustained injuries due to fall. He was declared hostile and was cross-examined by the learned Public Prosecutor. In his cross- examination, he has admitted that he purchased land from the deceased. He also admitted that he has not gone to the spot till 23.2.2012 and he also admitted that he has not provided medicines to the deceased. He also did not inform the police about the occurrence. He also admitted that he did not reach the spot after the death of Om Parkash. Police told that Om Parkash was murdered. People at the spot were also telling police this fact. 17. PW-22 SI Mukesh Kumar visited the spot on 23.2.2012. He recorded statement of Rattan Chand under Section 154 CrPC vide Ext. PW-1/A. FIR Ext. PW-19/A was registered. Post-mortem of body was got conducted. Case property was taken into possession. Site map was also prepared. Danda was recovered. 18. It is duly established from the statement of PW-2 Janam Singh, PW-5 Chaman Singh and PW-6 Jaspal Singh that accused Deep Kumar and Bhota had given beatings to the deceased with Danda. PW-2 Janam Singh has seen Bhota and Deep Kumar going inside the room on 21.2.2012. He has seen them coming out from room. PW-5 has also seen accused going inside room. Room was bolted from inside. Deep Kumar was carrying Danda in his hand and Bhota was not having anything. Incident was also seen by PW-6 from the window. He has seen accused giving beatings to Phimu with Danda. Deep Kumar has given beatings to the deceased with Danda. PW-5 has also seen accused going inside room. Room was bolted from inside. Deep Kumar was carrying Danda in his hand and Bhota was not having anything. Incident was also seen by PW-6 from the window. He has seen accused giving beatings to Phimu with Danda. Deep Kumar has given beatings to the deceased with Danda. Bhota had given beatings to deceased with fist blows. Statement of PW-21 Neeraj Sharma was declared hostile but he has admitted in his cross-examination by the learned Public Prosecutor. He has not visited the spot till 23.2.2012. He was told by the police that Phimu was murdered. People at the spot were also telling the police this fact. Recovery of Danda has been made on the basis of disclosure statement made by accused vide Ext. PW-2/C. Danda was recovered from bushes. Deceased had died due to poly-trauma as per Ext. PW-17/C. Corrections made by PW-17 Dr. Angdui Dorje have been duly and properly explained. Though PW-21 has deposed that Om Parkash was drunk but no poison/ alcohol was detected in the report of the RFSL Dharamshala, Ext. PN. 19. Prosecution has duly proved charges against the accused. There is no occasion for us to interfere with well reasoned judgment of the trial Court. 20. In view of the discussion and analysis made hereinabove, there is no merit in the appeal and the same is dismissed. Pending applications, if any, are also disposed of.