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2015 DIGILAW 1334 (HP)

Rajender Kumar v. State of Himachal Pradesh

2015-09-21

P.S.RANA, RAJIV SHARMA

body2015
JUDGMENT RAJIV SHARMA, J. 1. Since both the appeals arise out of common judgment, same were taken-up together and are being disposed of by a common judgment. 2. These appeals are instituted against Judgment dated 13.1.2015/Order dated 15.1.2015 rendered by learned Additional Sessions Judge-II, Kangra at Dharamshala, District Kangra, Himachal Pradesh in Session Case No. 15-G/VII/13/12, whereby appellants-accused (hereinafter referred to as accused for convenience sake), who were charged with and tried for offence under Sections 302, 452, 323, 504 and 506 read with Section 34 of the Indian Penal Code, have been convicted and sentenced to undergo rigorous imprisonment for life and fine of Rs. 10,000/- each for commission of offence under Section 302 IPC and, in default of payment of fine, to further undergo rigorous imprisonment for one year. Accused have further been sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- each for the commission of offence under Section 452 IPC and, in default of payment of fine, to further undergo rigorous imprisonment for three months. For commission of offence under Section 504 IPC, accused have been sentenced to undergo rigorous imprisonment for three months and under Section 506 IPC, to undergo rigorous imprisonment for six months. 3. Case of the prosecution, in a nutshell, is that on 31.12.2011, Sumna Devi and her husband Vijay Kumar (deceased) were sitting in their shop at Chamba Pattan. At about 8.15 pm, accused came to the shop of Vijay Kumar and asked to allow them to take liquor in the shop. Vijay Kumar declined the request of the accused. They went away and came back on scooter carrying Dandas in their hands and trespassed into the shop of Vijay Kumar. Accused persons abused complainant and Vijay Kumar and when Vijay Kumar resisted, they started giving beatings to him with Dandas. Vijay Kumar suffered injuries on his head. Complainant raised alarm. Brothers of deceased namely Raj Kumar and Sudesh Kumar, and sister-in-law of the deceased namely Raksha Devi came to the spot. Vijay Kumar was shifted to civil hospital Dehra and was referred to RPMC Tanda, from where he was further referred to PGI Chandigarh, where Vijay Kumar succumbed to his injuries. Recoveries were made including the weapons of offence Ext. P1 and Ext. P3 on the basis of disclosure statements of the accused. Post-mortem was conducted on the body of deceased. Vijay Kumar was shifted to civil hospital Dehra and was referred to RPMC Tanda, from where he was further referred to PGI Chandigarh, where Vijay Kumar succumbed to his injuries. Recoveries were made including the weapons of offence Ext. P1 and Ext. P3 on the basis of disclosure statements of the accused. Post-mortem was conducted on the body of deceased. Investigation was completed. After completing all the codal formalities, challan was put up in the Court. 4. Prosecution has examined as many as 21 witnesses to prove its case against the accused. Accused were also examined under Section 313 Cr. P.C. According to them, they were falsely implicated. They were convicted and sentenced as noticed herein above. Hence, this appeal. 5. Mr. Vinay Thakur, Advocate, has argued that the prosecution has failed to prove its case against the accused. 6. Mr. P.M. Negi, Deputy Advocate General has supported the judgment of conviction. 7. We have heard the learned counsel for the parties and also gone through the record carefully. 8. PW-1 Sudesh Kumar deposed that on 31.12.2011 at about 8.15 pm, he was at his house. He heard some noise from the shop of Vijay Kumar. Vijay Kumar was his younger brother. He reached the shop and saw accused Gurdeep and Rajender alias Sunil administering beatings to Vijay Kumar. Accused Gurdeep was having a Danda in his hand and Rajender Kumar alias Sunil had an angle iron in his hand. Wife of Vijay Kumar, Sumna Devi, Ramesh, Naresh and his wife Raksha Devi came to the spot. Vijay Kumar suffered injuries on his head. Vijay Kumar fell down due to the blows given by the accused with Danda and Ghota. Accused fled away. Deceased was taken to Hospital at Dehra and from there he was referred to RPMC Tanda. He was thereafter taken to PGI Chandigarh. Police visited the spot. Gurdeep gave disclosure statement Ext. PW-1/A that he could get Ghota (Danda) recovered from the shop. Accused got recovered Ghota (Danda) (Ext. P1) vide Ext. PW-1/B. Similarly, Rajender Kumar gave his disclosure statement Ext. PW-1/D that he could get angle iron recovered from the shop and thereafter, angle iron was got recovered, which is Ext. P3. 9. PW-2 Sumna Devi is the wife of the deceased Vijay Kumar. According to her, on 31.12.2011, at about 8.15 pm, she alongwith her husband was in the shop. PW-1/B. Similarly, Rajender Kumar gave his disclosure statement Ext. PW-1/D that he could get angle iron recovered from the shop and thereafter, angle iron was got recovered, which is Ext. P3. 9. PW-2 Sumna Devi is the wife of the deceased Vijay Kumar. According to her, on 31.12.2011, at about 8.15 pm, she alongwith her husband was in the shop. Accused came at the spot and they told her husband to permit them to sit in the shop. Her husband refused. Accused persons went away and came back to the shop on a scooter. Accused Gurdeep was having a Ghota (used for preparing sweets) and accused Sunil was carrying an angle iron. Accused started beating her husband with Ghota and angle iron. She identified the Ghota Ext. P1 and angle iron, Ext. P3. She requested the accused persons not to give beatings to her husband. However, they did not listen to her. She raised alarm. Her brother-in-law, Sudesh and Raksha Devi came to the spot. Naresh and Ramesh also witnessed the occurrence. Her husband suffered injury on the head. Blood was oozing out. He was taken to hospital at Dehra. Police came to the spot. Her statement was recorded under Section 154 Cr. P.C. vide Ext. PW-2/A. She also handed over the cap to the police. She also handed over torn and blood stained shirt of Vijay Kumar on 4.1.2012. In her cross-examination, she deposed that when accused started giving beatings to the deceased, she raised alarm and then Sudesh Kumar and Raksha Devi came to the spot. 10. PW-3 Naresh Kumar deposed that on 31.12.2011, at about 8.15 pm, he was present with Ramesh Kumar near the liquor vend. He saw accused Gurdeep Singh carrying a Danda in his hand and another accused carrying angle iron. Accused gave beatings to the deceased. Wife of deceased Sumna Devi, his brother Sudesh and sister-in-law Raksha came to the spot. 11. PW-4 Raksha Devi heard some noise from the shop of Vijay Kumar. She alongwith her husband rushed to the shop. Naresh and Ramesh were present at the spot. Accused persons were giving beatings to Vijay Kumar and dragging him towards road. One accused was carrying Ghota and another accused was carrying angle iron. Vijay fell down. They tried to rescue Vijay Kumar. Accused ran away from the spot. She alongwith her husband rushed to the shop. Naresh and Ramesh were present at the spot. Accused persons were giving beatings to Vijay Kumar and dragging him towards road. One accused was carrying Ghota and another accused was carrying angle iron. Vijay fell down. They tried to rescue Vijay Kumar. Accused ran away from the spot. Vijay Kumar was taken to Hospital at Dehra from where he was referred to RPMC Tanda and further to PGI. Vijay Kumar died on 1.1.2012. 12. PW-7 Sanjeev Kumar deposed that on 6.1.2012, accused Gurdeep came with the police to the shop. Sudesh and Naresh were also accompanying him with police. Accused got Ghota from the shop and handed over to the police, which was taken into possession by the police. 13. PW-8 Dr. Anil Kumar Kaushal issued MLC Ext. PW- 8/B. he noticed following injuries on the body of deceased:- (1) Haematoma over the scalp extending from left eye-brow to the parietal region and there is lacerated wound irregular in size 2 cm bleeding present. (2) Bleeding from both nostrils. Bleeding from mouth observed. The patient was not opening the mouth. B.P. 100/80 mm/hg. The patient was advised x-ray of skull AP and lateral view. The patient was also advised C.T. Scan. 14. PW-13 Dr. Murli G. has conducted the post-mortem. He issued MLC Ext. PW-13/A. Cause of death in his opinion was cranio cerebral damage consequent to blunt trauma in head. All the injuries were ante-mortem in nature and caused by blunt weapon. The probable time that elapsed between the injury and death was about 1-2 days and time between death and postmortem was 15 hours. He noticed following external and internal injuries on the body of deceased: “External Injuries (1) Both black eyes. (2) Stitched lacerated wound 3.8 x 2 cm x bone deep present over the middle of the parietal region, 13 cm above the upper attachment of left ear and 11 cm above the nasion, surrounded by reddish scabbed abrasion. (3) Reddish scabbed abrasion 1cm x 0.8 cm present 3 cm above medial end of left eye-brow. (4) Bluish contusion 13 x 12 cm over the back of the left flank of the abdomen, 9 cm behind and 3 cm above the left anterior superior illac spine and 7 cm to the left of midline over the back. (3) Reddish scabbed abrasion 1cm x 0.8 cm present 3 cm above medial end of left eye-brow. (4) Bluish contusion 13 x 12 cm over the back of the left flank of the abdomen, 9 cm behind and 3 cm above the left anterior superior illac spine and 7 cm to the left of midline over the back. (5) Multiple linear bluish contusions over the left gluteal region in an area of 12 x 9 cm, the contusions being separate by distances varying from 1.8 cm to 2.2 cm. Internal Injuries Subaponeurotic hemorrhage present over both the fronto-parietal regions. An oval linear fracture underlying the injury No.2 with a linear fracture originating from bregma and running downwards and to the left radiating into the floor o the left anterior cranial fossa. A linear fracture over the right fronto-parietal bone ending at the outer right frontal margin of he oval fracture. A thin layer of extradural hemorrhage underneath the sagital suture (13 cm x 3 cm x 0.2 mm). A thick layer of subdural hematoma over the left cerebral hemisphere (base convexities). A thin layer of sub arachnoid hemorrhage over the left crerebral hemisphere. Brain was congested and edematous, sulci effaced, gyri flattened tonsils and unci grooved. Contusion of the basal surface of left temporal lob present. 15. PW-19 Kuldeep Kumar has made entry in the malkhana register of the case property handed over to him. 16. PW-20 Dr. Barun Kumar deposed that deceased was admitted with history of head injury with left sided frontotemporo-parietal acute subdural haemorrhage with midline shift with mass effect. The deceased also had left sided frontal contusion with frontal bone fracture and pneumocephalus. This injury was dangerous to life due to raised cranial pressure. He proved summary Ext. PW-20/A. 17. PW-21 Shankar Singh is the Investigating Officer. Blood stained shirt of Vijay Kumar was handed over to him by Sumna Devi on 4.1.2012. Cap was also handed over. Disclosure statements of both the accused were recorded, on the basis of which Ghota (danda) was got recovered. 18. Case of the prosecution in a nutshell, is that accused visited the shop of Vijay Kumar. They have sought his permission to sit in his shop for drinking. Deceased refused. Thereafter, accused went away. They came back on a scooter. Accused Gurdeep was carrying Ghota (danda) in his hand and Rajender Kumar alias Sunil was carrying an angle iron. 18. Case of the prosecution in a nutshell, is that accused visited the shop of Vijay Kumar. They have sought his permission to sit in his shop for drinking. Deceased refused. Thereafter, accused went away. They came back on a scooter. Accused Gurdeep was carrying Ghota (danda) in his hand and Rajender Kumar alias Sunil was carrying an angle iron. They started beating deceased. PW-2 Sumna Devi raised alarm. Brother of deceased Sudesh Kumar and his wife PW-4 Raksha Devi came on the spot. PW-1 Sudesh Kumar and PW-2 Sumna Devi, PW-3 Naresh Kumar and PW-4 Raksha Devi have seen the accused giving beatings to the deceased with the help of Ghota (Danda) and angle iron. Vijay Kumar fell down. He was taken to hospital at Dehra and from there he was referred to RPMC Tanda. He was finally referred to PGI, where he succumbed to injuries on 1.1.2012. Danda and iron angle were got recovered on the basis of disclosure statements Ext. PW-1/A and Ext. PW-1/D. PW-8 Dr. Anil Kaushal has proved MLC Ext. PW-8/B. PW-20 Dr. Barun Kumar has proved case summary Ext. PW-20/A. According to him, injuries received by deceased were dangerous to life because of raised intra-cranial pressure. PW-13 Dr. Mulri G. has conducted post-mortem examination. He has given description of external injuries noticed by him. According to him, cause of death was cranio cerebral damage and blunt trauma to head. Injuries received by deceased were ante mortem, probable time that elapsed between injury and death was 1-2 days and time between death and post-mortem was 15 hours. 19. Mr. Vinay Thakur, Advocate has vehemently argued that there are material contradictions regarding the manner in which injuries were inflicted upon the deceased by the accused. Perusal of statements as discussed herein above has proved the case beyond reasonable doubt against accused. Contradictions in the statements of PW-1 Sudesh Kumar, PW-2 Sumna Devi, PW-3 Naresh Kumar and PW-4 Raksha Devi are minor in nature. Mr. Vinay Thakur, Advocate, has also argued that names of accused were not mentioned at the first opportunity. Fact of the matter is that PW-2 Sumna Devi has given names of the accused while recording her statement under Section 154 Cr. P.C. on 31.12.2011. There is no variance in the statement recorded under Section 154 Cr. P.C. Ext. PW-2/B and her statement recorded while appearing as PW-2 in the Court. Mr. Fact of the matter is that PW-2 Sumna Devi has given names of the accused while recording her statement under Section 154 Cr. P.C. on 31.12.2011. There is no variance in the statement recorded under Section 154 Cr. P.C. Ext. PW-2/B and her statement recorded while appearing as PW-2 in the Court. Mr. Vinay Thakur has further drawn the attention of the Court to the Ext. PW-18/E, whereby no blood was found on the weapon’s base (Ghota) and iron piece. Merely the fact that no blood was found on these exhibits, will not, in any manner, dilute the case of the prosecution, in view of the overwhelming evidence regarding the manner in which accused have given beatings to the deceased. Prosecution has proved the case against accused to the hilt. There is no previous enmity between deceased and accused so the version of all the material witnesses PW-1, PW-2, PW-3 and PW-4 is natural, trustworthy and inspires confidence. 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.