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2016 DIGILAW 1963 (HP)

State of Himachal Pradesh v. Ranjan Lama

2016-09-14

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted at the instance of the State against the judgment dated 13.5.2013, rendered by the learned Addl. Sessions Judge-III, Kangra at Dharamshala, H.P. in Sessions Case No. 63-P/VII-2010, whereby the respondents-accused (hereinafter referred to as the accused), who were charged with and tried for offences punishable under Sections 304 and 506 IPC read with Section 34 IPC have been acquitted. 2. The case of the prosecution, in a nut shell, is that in the month of September, 2009, complainant Prabha Devi Lama along with her husband Sanjeev Kumar was residing in the house of one Jagat Ram at place Ghuggar near SSB Chowk, Palampur. One Dhan Bahadur, Uncle of Sanjeev Kumar was also residing with them. On 15.9.2009, Sanjeev Kumar was taking liquor in his rented house and the complainant was packing the luggage as she was supposed to go to her village in West Bengal. In the meantime, accused Ranjan Lama came there from his house at Bindraban and started taking liquor with Sanjeev Kumar. After some time, a quarrel took place between the accused Ranjan Lama and Sanjeev Kumar. Accused Ranjan Lama threatened Sanjeev Kumar to do away with his life. Sanjeev Kumar slapped accused Ranjan Lama at the spot and sent him back to his house. At about 10:00 PM, both the accused persons came to the house of the complainant. Sanjeev Kumar opened the door and accused Punam Lama started quarrelling with him. The accused Ranjan Lama came there all of a sudden and picked up Sanjeev Kumar and threw him down from the upper floor. Sanjeev Kumar fell on the road due to which he suffered injuries on his person. On making noise, Kalpana, her husband Kumar Nishant, Raju, Devan etc. came to the spot, who took Sanjeev Kumar to CHC Palampur from where he was referred to Dr. R.P.G.M.C., Tanda. He was further referred to PGI Chandigarh from Dr. R.P.G.M.C., Tanda and on the way Sanjeev Kumar succumbed to injuries. The matter was reported to the police and FIR was registered. The matter was investigated and on completion of the investigation, challan was put up before the Court. 3. The prosecution, in order to prove its case has examined as many as 16 witnesses. The statements of the accused were also recorded under Section 313 Cr.P.C. According to them, they were falsely implicated. The matter was investigated and on completion of the investigation, challan was put up before the Court. 3. The prosecution, in order to prove its case has examined as many as 16 witnesses. The statements of the accused were also recorded under Section 313 Cr.P.C. According to them, they were falsely implicated. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Vivek Singh Attri, Dy. Advocate General, appearing on behalf of the State, has vehemently argued that the prosecution has proved the case against the accused under Sections 304 and 506 IPC read with Section 34 IPC. On the other hand, Mr. Rajesh Mandhotra, Advocate has supported the judgment of the learned trial Court dated 13.5.2013. 5. We have heard learned counsel appearing for the State and gone through the judgment and records of the case carefully. 6. PW-1 Kumar Rahi testified that he did not remember the date and year of occurrence. However, in the evening time, Punam his sister-in-law came to his room. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that when he reached just outside the quarter of Sanjeev then Ranjan threw Sanjeev Kumar who first struck on the roof and then fell on the road. 7. PW-2 Dr. Jai Des Rana testified that on 15.9.2009 he was on night duty when injured, namely, Sanjeev was brought to the hospital with head injury. He inquired from the attendants about the cause of injury and they disclosed that the injury was sustained by fall. He gave first aid treatment and referred the patient to Dr. R.P.G.M.C., Tanda for further management and treatment. He proved copy of OPD register vide Ext. PW-10/A. In his cross-examination, he admitted that amongst the attendants, wife of the patient was with them. The patient appeared to be under the influence of liquor as he was smelling of alcohol. The injury was possible by way of fall. He has also conducted the post mortem examination. According to him, the death was due to injuries sustained in brain leading to cardio-respiratory arrest and death. He issued PMR Ext. PW-2/B. According to him, the probable duration between injuries and death was within 24 hours and between death and post mortem was 12 to 36 hours. 8. PW-3 Dr. He has also conducted the post mortem examination. According to him, the death was due to injuries sustained in brain leading to cardio-respiratory arrest and death. He issued PMR Ext. PW-2/B. According to him, the probable duration between injuries and death was within 24 hours and between death and post mortem was 12 to 36 hours. 8. PW-3 Dr. Harshvardhan Singh testified that on 16.9.2009 Sanjeev Kumar injured was referred from CHC Palampur to Dr. R.P.G.M.C., Tanda for further treatment and management. He treated Sanjeev Kumar and advised C.T. Scan of head and also referred the injured to Surgery Department. He proved prescription slip Ext. PW- 3/A and C.T. Scan form Ext. PW-3/B. 9. PW-4 Jagat Ram testified that he had two houses, one at Neugal road and another at SSB Chowk. Sanjeev Kumar along with his wife and Uncle used to reside as tenants in his house situated at SSB Chowk. In the ground floor of the house, he had rented one shop to Prabha Devi, wife of Sanjeev Kumar. On 15.9.2009 at about 10:15 PM, Prabha came to him and told that Puman and her son present in the Court have thrown her husband from first floor to ground floor and there were minimum chances of his survival. He reached the spot and saw blood stains near the drain. However, Sanjeev was already shifted from the spot to room. Then he went to the room where Sanjeev Kumar was lying. He saw blood oozing out from his mouth and ear but he was unable to talk. Thereafter, Sanjeev Kumar was shifted to hospital. On the next day at about 11:00-11:30 AM, he came to know through telephone that Sanjeev Kumar died near Una while he was on way to PGI. He remained associated in the investigation of the case. The police took OPD slip Ext. PW-3/A, CT Scan report form Ext. PW-3/B, C.T. Scan film Ext. PW-4/A vide memo Ext. Pw-4/B. In his cross-examination, he testified that on that very night, he had not made any report about the alleged incident to anyone, including Panchayat and Police. He denied the suggestion that he was not informed by Prabha Devi that Punam and her son threw Sanjeev Kumar down from upper floor of the house. 10. PW-5 Amar Tamang testified that he belongs to Darjelling. Accused and deceased were known to him. He denied the suggestion that he was not informed by Prabha Devi that Punam and her son threw Sanjeev Kumar down from upper floor of the house. 10. PW-5 Amar Tamang testified that he belongs to Darjelling. Accused and deceased were known to him. He came to know on 16.9.2009 at 4:00 PM that Sanjeev Kumar fell down and was being taken to Dr. R.P.G.M.C., Tanda for treatment. From Tanda, he was referred to PGI Chandigarh and he was accompanying him along with others to PGI. When they reached near Una, Sanjeev Kumar died. They brought him back to Palampur and Prabha Devi lodged report with the police. He did not know that how Sanjeev Kumar fell down nor he was told by anyone in this regard. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he admitted that he had conversation with Prabha wife of Sanjeev at the spot and on way to hospital i.e. Palampur and PGI Chandigarh. He denied the suggestion that Prabha told him that both accused picked up quarrel with Sanjeev and that accused Ranjan Lama threw him down from upper floor. He admitted that he had relations with the accused. 11. PW-6 Vishal Rai testified that he belongs to Darjelling. On 15.9.2009 at 10:00 PM, his brother Naveen was in their room when sister of Punam Lama came to their room and told that Sanjeev had fallen and he is to be taken to hospital. He along with Naveen went to the room of Sanjeev Kumar and took him to hospital, Palampur from where he was referred to Tanda and from Tanda to PGI Chandigarh. He did not know how Sanjeev Kumar received injuries. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he denied the suggestion that on 15.9.2009 at 10:00 PM Punam Lama told him that her son Ranjan Lama had quarreled with Sanjeev and Sanjeev had fallen down. He denied the suggestion that Sanjeev died due to injuries sustained by him as he was thrown by accused Ranjan Lama. He admitted that accused were known to him. 12. PW-7 Sukhdev testified that he was residing in the house of Jagat Ram. Deceased Sanjeev also used to reside along with wife and Uncle in the same house adjacent to his room. He admitted that accused were known to him. 12. PW-7 Sukhdev testified that he was residing in the house of Jagat Ram. Deceased Sanjeev also used to reside along with wife and Uncle in the same house adjacent to his room. On 16.9.2009, Sanjeev Kumar was to go to Darjelling and for that purpose he had purchased railway ticket on 15.9.2009. He was also with him at that time. On 15.9.2009, Sanjeev Kumar was packing his luggage. When he was sleeping at 10:30 PM, he heard noise and in the meantime, Jagat Ram came to him and he saw Sanjeev Kumar fallen down. He was taken to hospital. He was told by wife of Sanjeev Kumar that he was thrown down by accused. Sanjeev Kumar died on way to PGI near Una on 16.9.2009. He admitted in his cross-examination that neither on 15.9.2009 nor on 16.9.2009, he reported the matter to the police. 13. PW-14 Dr. Sumeet Sood, testified that on 15.9.2009 when injured Sanjeev Kumar was brought to the hospital, at that time, he was on duty and Dr. Jaidesh Rana was on duty. 14. PW-15 Prabha Tamang is the eye witness to the incident. According to her, she along with her husband late Sanjeev Kumar was residing at Bindravan, Palampur. On 15.9.2009 at 9:30 PM accused Ranjan Lama, cousin brother of her husband came to their house and demanded Rs. 2000/- from her husband. Her husband and accused Ranjan Lama took liquor together in their room. An altercation ensued between her husband and accused Ranjan Lama regarding the money. Her husband told him that he would give the amount on the next day but accused Ranjan Lama insisted that the amount be given on that day only. She was packing her luggage on that day as on the next day they were to leave for their home town. Her husband slapped Ranjan Lama. She called Dhan Bahadur who was in another room who took accused Ranjan Lama away and while going away accused Ranjan Lama threatened her husband to do away with his life. After some time accused Ranjan Lama brought his mother Punam Lama with him and knocked their door. Her husband opened the door. Arguments started between her husband and accused Punam Lama. After some time accused Ranjan Lama brought his mother Punam Lama with him and knocked their door. Her husband opened the door. Arguments started between her husband and accused Punam Lama. Accused Ranjan Lama all of a sudden appeared and lifted her husband from his legs and threw him down first on roof and from there her husband fell on the road. Her husband sustained injuries on head, ear, shoulder and other parts of the body. Blood was oozing out from the wounds. The accused fled away from the spot. On making noise, Naveen, Vishal, Nishant and Jagat Ram etc. came at the spot and her husband was taken to CHC Palampur, from where he was referred to Tanda and from Tanda to PGI Chandigarh. He died on the way at Una. She lodged FIR Ext. PW-13/A with the police on 16.9.2009. In her cross-examination, she deposed that on asking of doctor in Civil Hospital, she told the doctor that her husband received injuries due to fall from the roof. She denied the suggestion that after the death of Sanjeev Kumar, she in connivance with Dhan Bahadur made a false story in order to implicate the accused persons in this case. 15. PW-16 Jagdish Chand stated that on 16.9.2009 after the registration of FIR Ext. PW-13/A, the case file was handed over to him for investigation. Inquest papers Ext. PW-16/A and PW-16/B were prepared. The post mortem was got conducted. The spot map Ext. PW-16/C was prepared. He also took the photographs of the spot. The blood stained soil was taken from the spot from three different places and the same were put in three different boxes. A blood stained Baniyan (inner) over which “Amul Gold” was written was also taken into possession. In his cross-examination, he admitted that it was written in the OPD slip Ext. PW-3/A that the smell of alcohol was present in the mouth of the deceased. 16. PW-15 Prabha Tamang is the only eye witness to the incident. According to her, on 15.9.2009 at 9:30 PM accused Ranjan Lama, cousin brother of her husband, came to their house and demanded Rs. 2000/- from her husband. Her husband and accused Ranjan Lama took liquor together in their room. An altercation ensued between her husband and accused Ranjan Lama regarding the money. Her husband slapped Ranjan Lama. According to her, on 15.9.2009 at 9:30 PM accused Ranjan Lama, cousin brother of her husband, came to their house and demanded Rs. 2000/- from her husband. Her husband and accused Ranjan Lama took liquor together in their room. An altercation ensued between her husband and accused Ranjan Lama regarding the money. Her husband slapped Ranjan Lama. After some time accused Ranjan Lama brought his mother Punam Lama with him and knocked their door. Her husband opened the door. Arguments started between her husband and accused Punam Lama. Accused Ranjan Lama all of a sudden appeared and lifted her husband from his legs and threw him down first on the roof and from there her husband fell on the road. Her husband sustained injuries on head, ear, shoulder and other parts of the body. Her husband was taken to CHC Palampur, from where he was referred to Tanda and from Tanda to PGI Chandigarh. He died on the way to PGI Chandigarh at Una. She lodged FIR Ext. PW-13/A with the police on 16.9.2009. 17. PW-2 Dr. Jai Des Rana has stated that on 15.9.2009 he was on night duty when injured, namely, Sanjeev was brought to the hospital with head injury. He inquired from the attendants about the cause of injury and they disclosed that the injury was sustained by fall. He has also conducted the post mortem examination. According to him, the death was due to injuries sustained in brain leading to cardiorespiratory arrest and death. He issued PMR Ext. PW-2/B. According to him, the probable duration between injuries and death was within 24 hours and between death and post mortem was 12 to 36 hours. PW-4 Jagat Ram was the landlord of the deceased. According to him, the wife of deceased came to him and told that Puman and her son present in the Court has thrown her husband from first floor to ground floor and there were minimum chances of his survival. He reached the spot and saw blood stains near the drain. He went to the room where Sanjeev Kumar was lying. He saw blood oozing out from his mouth and ear but he was unable to talk. Thereafter, Sanjeev Kumar was shifted to hospital. 18. PW-5 Amar Tamang and PW-6 Vishal Rai have not supported the case of the prosecution. They were declared hostile and cross-examined by the learned Public Prosecutor. He went to the room where Sanjeev Kumar was lying. He saw blood oozing out from his mouth and ear but he was unable to talk. Thereafter, Sanjeev Kumar was shifted to hospital. 18. PW-5 Amar Tamang and PW-6 Vishal Rai have not supported the case of the prosecution. They were declared hostile and cross-examined by the learned Public Prosecutor. In their cross- examination, they have admitted that they were related to the accused. PW-7 Sukhdev has deposed that he was the neighbourer of deceased Sanjeev Kumar. In the evening on 15.9.2009, Sanjeev Kumar was packing his luggage. He heard noise at 10:30 PM. Jagat Ram came to him and he saw Sanjeev Kumar fallen down. He was taken to hospital. He was told by wife of Sanjeev Kumar that he was thrown down by accused. 19. PW-4 Jagat Ram and PW-7 Sukhdev have admitted that they did not lodge report with the police. Admittedly, FIR was lodged on 16.9.2009. There is no undue delay in lodging the FIR. The first instinct of the wife was to save her husband. Her husband was thrown from the first floor. He received multiple injuries. Sanjeev Kumar (deceased) was taken to hospital, Palampur from where he was referred to Tanda and from Tanda to PGI Chandigarh. He died near Una on way to PGI, Chandigarh. The incident has taken place on 15.9.2009 and FIR has been registered on 16.9.2009. Although FIR should be registered with promptitude, however, in the instant case, the delay in lodging the FIR has been duly explained. 20. The learned trial Court has not correctly appreciated the statement of eye witness to the incident PW-15 Prabha Tamang. She is the wife of deceased and she was the sole eye witness, as discussed hereinabove. She had raised alarm and thereafter, PW-4 Jagat Ram and PW-7 Sukhdev reached the spot. Sanjeev Kumar was shifted to the hospital. Dhan Bahadur was though cited as a witness but his whereabouts were not known and it is in these circumstances, his statement could not be recorded. The learned trial Court has given undue importance that Dhan Bahadur was not examined by the prosecution. PW-15 Prabha Tamang seems to be simpleton lady and she has told the doctor that her husband has fallen. 21. Mr. Vivek Singh Attri, learned Dy. Advocate General for the State has drawn the attention of the Court to Ext. The learned trial Court has given undue importance that Dhan Bahadur was not examined by the prosecution. PW-15 Prabha Tamang seems to be simpleton lady and she has told the doctor that her husband has fallen. 21. Mr. Vivek Singh Attri, learned Dy. Advocate General for the State has drawn the attention of the Court to Ext. PA, report of the FSL. It is evident from the contents whereof that no ethyl alcohol was detected in the blood of deceased Sanjeev Kumar. Thus, possibility of his falling accidently from roof is ruled out. 22. It has also come in the statement of PW-15 Prabha Tamang that accused Ranjan Lama has threatened her husband with dire consequences to do away with his life, while leaving the house. The prosecution has duly proved that accused Ranjan Lama has thrown the deceased from the first floor resulting in his death. He knew the consequences that if Sanjeev Kumar was thrown from the first floor, he was bound to receive life threatening injuries resulting in his death. Thus, the prosecution has proved the case against accused Ranjan Lama under Sections 304-II and 506-II IPC and has failed to prove the case against accused Punam Lama. 23. Accordingly, the appeal is partly allowed. Accused Ranjan Lama is convicted under Section 304-II IPC and Section 506-II IPC whereas accused Punam Lama is acquitted of the offences under Section 304-II IPC and Section 506-II IPC. Accused Ranjan Lama be heard on the quantum of sentence on 22.9.2016.