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2024 DIGILAW 245 (JK)

Parshotam Singh v. State of J. & K.

2024-05-14

RAJNESH OSWAL

body2024
JUDGMENT : 1. The instant appeal is directed against the judgment of conviction dated 27.03.2008 passed by the court of learned Principal Sessions Judge, Udhampur (hereinafter to be referred as ‘the trial court’) by virtue of which the appellant has been convicted for the commission of offences under Sections 451 and 323 RPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 2,000/- for commission of offence under Section 451 RPC and imprisonment for a period of one year for commission of offence under Section 323 RPC. In default of payment of fine, the appellant has been ordered to undergo further one month’s imprisonment. 2. The appellant has assailed the judgment dated 27.03.2008 on the ground that the learned trial court has not appreciated the evidence in its right perspective and that the Investigation Officer who had conducted the investigation was not examined as a witness to explain the contradictions in the prosecution evidence and site plan of the place of occurrence was also not proved. 3. Mr. A.S. Khera, learned counsel for the appellant submits that the falsity of the prosecution case is established by the judgment itself as the appellant was acquitted of the charge for commission of offence under Section 304 RPC and was convicted only for commission of offences under Sections 451 and 323 RPC. He has further argued that the learned trial court has not appreciated the evidence in its right perspective, as such, has erroneously convicted the appellant. He has further argued that the appellant is a poor man and sole bread earner of his family comprising of his mother, wife and son, as such, lenient view may be taken. 4. Per Contra, Mr. Dewakar Sharma, learned counsel for the respondents has vehemently argued that the prosecution had proved its case beyond reasonable doubt and that is why the learned trial court has convicted the appellant in the manner mentioned above. He has further argued that the material witnesses were examined by the prosecution and one of the Investigating Officers, who had conducted the investigation initially, was examined by the prosecution, as such, non examination of the second Investigating Officer would not make any difference so far as the case of the appellant is concerned. 5. Heard learned counsel for the parties and perused the record. 6. 5. Heard learned counsel for the parties and perused the record. 6. The brief facts necessary for the disposal of the present appeal are that on 11.08.2003 at about 13.30 hours, IHC-Kewal Krishan arrived at the Police Station after recording the statement of Prayanka Gupta, who was admitted in Ramnagar Hospital. In her statement she had deposed that on 06.08.2003 at about 10.00 P.M., she had slept along with other family members in the room and her father was sleeping all alone in the courtyard on the cot. The appellant came there and asked her father as to why the electricity was off. Her father told him that the light might be off from the electric pole and asked him to contact the lineman. The appellant attacked her father with fists and kicks. After hearing the noise, she along with her mother came out in the courtyard and tried to save her father. The appellant also assaulted her with kicks and fists. Some people also came on spot and intervened and saved her and her father from the clutches of the appellant. Because of the assault by the appellant, there was pain in her chest, neck and legs. Her father had made a report on 07.08.2003 with the Panchayat and she continued to obtain treatment from Doctor of Dispensary at Sunetar. 7. On the basis of statement of Prayanka Gupta (deceased), FIR bearing No. 72/2003 was registered for commission of offences under Sections 451 and 323 RPC. The injured was referred to District Hospital, Udhampur for better treatment, from where she was further referred to GMC, Jammu on 12.08.2003, where she came to demise after few hours on account of internal injuries suffered by her. Thereafter, she was brought back to Ramnagar Hospital, where post mortem was conducted on 13.08.2003. After demise of Prayanka Gupta, offence under Section 304 RPC was added. During the investigation, the Investigating Officer found that 10 to 12 years ago, father of the deceased and his brother Makhan Lal had purchased some piece of land from father of the accused and there was a dispute between the father of the deceased and the appellant regarding that land. During the investigation, the Investigating Officer found that 10 to 12 years ago, father of the deceased and his brother Makhan Lal had purchased some piece of land from father of the accused and there was a dispute between the father of the deceased and the appellant regarding that land. After conclusion of the investigation, charge-sheet for commission of offences under Section 304, 451 and 323 RPC was laid before the court of JMIC, Ramnagar on 29.09.2003 which was committed to the court of learned Principal Sessions Judge i.e. the trial court on 29.09.2003. The charge was framed against the appellant for the commission of offences under Sections 304, 451 and 323 RPC by virtue of order dated 24.11.2003. As the appellant did not plead guilty to the charge, the prosecution was directed to lead evidence. The prosecution had cited as many as 20 witnesses, out of which, only 14 witnesses were examined. After closure of the prosecution evidence, the statement of the appellant was recorded and he was directed to lead evidence in defence, but he did not opt to do so., as such, his right to lead evidence was closed. The learned trial court after hearing the parties convicted the appellant for commission of offences under Sections 451 and 323 RPC, however, acquitted him of the charge for commission of offence under Section 304 RPC. 8. In order to appreciate as to whether the learned trial court has rightly appreciated the evidence or not, this Court deems it appropriate to have a brief resume of the relevant portion of the evidence led by the prosecution. 9. PW Bishan Dass (Father of the Deceased): He stated that he had no enmity with the appellant. On 06.08.2003 at about 10.30 P.M. while he was sleeping on the cot and his other family members were sleeping inside the home, the appellant came there and asked him as to why he had switched off his light. He expressed ignorance and advised him to contact the lineman. He further stated that the appellant caught hold of him by his shirt. When he raised hue and cry, his wife, his daughter (now deceased) and other people came on spot. He expressed ignorance and advised him to contact the lineman. He further stated that the appellant caught hold of him by his shirt. When he raised hue and cry, his wife, his daughter (now deceased) and other people came on spot. The appellant caught hold of deceased Prayanka from her hair and pressed her on ground and assaulted her with fists and kicks, as a result of which, the deceased rolled down 5 to 6 feet and struck against a stone. The appellant was caught and detained in a room. Neighbours who arrived on spot advised to let off the appellant and take legal action against him. When the accused was brought out from the room, he threatened to kill him and his family members. He further stated that he took the deceased inside the room and got her admitted in the hospital next day. He lodged complaint with Panchayat next day, whereupon, Sarpanch along with Numberdar came to his house and enquired from the deceased about the incident, who narrated the occurrence to them. The appellant was summoned, but he did not join the Panchayat. On 11.08.2003, the deceased was shifted to Ramnagar. The Doctor on duty informed the Police on telephone. The Policeman came there and recorded the statement of the deceased. From Ramnagar hospital, the deceased was shifted to District Hospital, Udhampur wherefrom she was further referred to Jammu. They reached Jammu at noon. She remained under treatment for one and a half hour and thereafter expired. He further stated that the deceased was complaining pain in her chest. He proved all the seizure memos which were signed by him including Panchayatnama, affidavit and agreement. During cross-examination, he stated that neither his clothes were torn nor he received any injury. First of all his wife came out of the house and he was not aware of the injuries sustained by her. PWs Chain Singh, Yousaf Masi and one other person came on spot. He did not lodge any report with the Police. His son came on spot after hearing the noise who, was also beaten by the appellant. The stone was a big rock on which the deceased had fallen. The deceased had no external injury. She might have suffered internal injuries. As per him, his daughter died due to injuries suffered by her on her chest. 10. His son came on spot after hearing the noise who, was also beaten by the appellant. The stone was a big rock on which the deceased had fallen. The deceased had no external injury. She might have suffered internal injuries. As per him, his daughter died due to injuries suffered by her on her chest. 10. PW Asha Rani (mother of the deceased): She stated that on 06.08.2003 he husband was sleeping in the courtyard. At about 10.30 P.M. when the appellant came on spot and assaulted her husband, she was sleeping with other family members inside the house. The appellant enquired of her husband as to why the electric supply to his house was off, regarding which he expressed ignorance and rather advised him to enquire from the lineman. When the appellant started beating her husband he raised hue and cry. She along with her daughter came on the spot and rescued her husband. The accused openly threatened her that he would not let them to remain there. The appellant caught her from her hair, whereupon her daughter raised noise, who was hit on chest and pushed on the stone, as a result of which she became unconscious. Next day, the deceased was taken to nearby dispensary, where she remained under treatment for 2 to 3 days and thereafter she was taken to Ramnagar Hospital, wherefrom she was referred to District Hospital, Udhampur and then to Jammu where she remained under treatment for 3 days and ultimately died. During cross-examination, she stated that she reached on spot and witnessed that the appellant was holding her husband from his throat. Neither she nor her husband received any injury. The deceased also did not receive any physical injury. After assault of the deceased, the appellant was detained inside a room. The people who reached on spot including Chain Singh, Vicky and Somi opened the door. When the accused came out, he openly threatened to eliminate her and her family. 11. PW Dalbir Singh was declared hostile. Though he turned hostile, but he stated that he had seen the accused in the shop of the complainant at about 10.30 P.M. when the children of the complainant had raised hue and cry. 12. PW Chain Singh was declared hostile. 11. PW Dalbir Singh was declared hostile. Though he turned hostile, but he stated that he had seen the accused in the shop of the complainant at about 10.30 P.M. when the children of the complainant had raised hue and cry. 12. PW Chain Singh was declared hostile. However, he deposed that after hearing the noise coming from the house of the complainant, he went there and saw the accused sitting on the cot of the complainant. 13. PW Madan Lal is a witness in respect of seizure of revenue record (EXPW4) from the Patwari. 14. PW Varinder Kumar (Patwari) proved the site plan (EXPWVK). He also proved the Khasra Girdawari (EXPW-VK1) and the report (EXPW-VK2). 15. PW Som Raj (Sarpanch): He stated that on 07.09.2023, father of the deceased came to him and informed him that his daughter was assaulted by the accused, whereupon he asked Numberdar to visit the spot. He, himself also visited the spot on 10.08.2003 and 5 to 7 persons were called. The appellant was also summoned, who was not present in his house. Panchayatnama was prepared after the spot inspection. He proved the same (EXPW SR). After the death of the deceased, the Police visited the village and he presented the Panchayatnama. He also proved the seizure memo of the Panchayatnama (EXPW SR/1). During cross-examination, he stated that the Panchayatnama was prepared on the dictation of the father of the deceased and he was not aware about the cause of death of the deceased. 16. PW Girdhari Lal (Naib-Sarpanch) stated that on 10.08.2003 father of the deceased came to him and requested him to visit the place of occurrence. After conducting the spot inspection, he enquired about the occurrence from the complainant, his wife and the deceased. The deceased told him that in the night the accused came to her house and started beating her father. She came to save her father, but the accused pushed her and she rolled 2 ½ feet down from veranda and received injury in her back. He proved the contents of the Panchayatnama (EXPW SR). During cross-examination, he stated that Panchayatnama was written on 10.08.2003 at 7.30 P.M. in present of four persons. He further stated that whatever was told by the complainant, his wife and the deceased was mentioned in the Panchayatnama. He proved the contents of the Panchayatnama (EXPW SR). During cross-examination, he stated that Panchayatnama was written on 10.08.2003 at 7.30 P.M. in present of four persons. He further stated that whatever was told by the complainant, his wife and the deceased was mentioned in the Panchayatnama. The mother of the deceased had told him that when the accused was trying to run away, he collided against her which fact was disclosed by her and this fact was recorded by him in the Panchayatnama. He further stated that mother of the deceased told him that when the deceased fell down, she received injuries. He further stated that the first nine lines of the Panchayatnama were written by him on the dictation of complainant and the sentences No. 9 to 18 were written on the dictation of mother of the deceased and rest of the sentences were written on the instance of the deceased. The deceased was in good health condition when the Panchayatnama was written and there was no bandage on any part of the body of the deceased. 17. PW Joseph Masi has turned hostile. However, he stated that when he heard noise, he went to shop of the complainant where he saw the accused. 18. PW Parma Nand (Numberdar) stated that on 07.08.2003 at about 7.30 P.M. Bishan Dass came to him and told him that the accused had come to his house and quarrelled with him. He requested him to settle the dispute, whereupon a meeting of the respectable villages was convened in the evening in the house of the complainant. The accused was also summoned in the meeting, but he did not come. Second meeting was conducted on 10.08.2003 but no decision could be taken because the deceased was ill. He stated that the deceased had told him that on 06.08.2003 during the night hours, the appellant came to her house and started quarrelling with her father. In the process, the deceased was knocked and fell down from veranda and received injuries. The deceased also told him that when the accused was running away, she suddenly came before him and received a push and she fell down the veranda. He was declared hostile and was cross-examined but the learned PP could not extract any incriminating material from him during cross examination. 19. PW Mohd. The deceased also told him that when the accused was running away, she suddenly came before him and received a push and she fell down the veranda. He was declared hostile and was cross-examined but the learned PP could not extract any incriminating material from him during cross examination. 19. PW Mohd. Farooq (Assistant Surgeon SDH Ramnagar) stated that he conducted the post mortem of the deceased on 13.08.2003. According to him the deceased had died due to cardio respiratory arrest and time of death was within 24 hours from the time of autopsy. He further stated that he had also examined the deceased on 11.08.2003 at SDH and certified her to be fit to give statement. He proved the certificate (EXPW FM/1). During cross-examination, he stated that the deceased had no external injury at all and during post-mortem, no internal injury was seen. She might have died due to septicaemia, due to infection caused by some disease. He further stated that since no injury was seen on the body of the deceased so it cannot be said that the deceased died due to fall from height on rough surface. 20. PW Balwant Singh stated that the deceased was not known to him. He was declared hostile. He was cross-examined but the learned PP could not extract any incriminating material from him during cross examination. 21. PW Tilak Raj Sharma (Medical Officer) stated that on 08.08.2003 the deceased was brought for treatment as she was having pain in her chest. After examining her he found that the deceased was not suffering from fever or infection. He prescribed some medicines, whereupon the deceased was taken back and was brought again next morning but there was no improvement in the condition of the deceased. He further stated that the deceased had not told him the cause of pain but was complaining about pain only. He prescribed some medicines and advised the mother of the deceased to take the deceased to Ramnagar or Udhampur. He denied that part of his statement recorded under Section 161 Cr. P.C. wherein the deceased had narrated him the events of occurrence. He was declared hostile and was cross-examined by the learned PP, but the learned PP could not extract any incriminating material from him during cross examination. 22. He denied that part of his statement recorded under Section 161 Cr. P.C. wherein the deceased had narrated him the events of occurrence. He was declared hostile and was cross-examined by the learned PP, but the learned PP could not extract any incriminating material from him during cross examination. 22. PW HC-Kewal Krishan (Investigating Officer) stated that on 11.08.2003 he received telephonic call from Ramnagar Hospital about the presence of deceased in the injured condition, whereupon he went to the hospital and met the medical officer, who told him that the deceased was fit to make statement. After obtaining certificate from the medical officer that she was fit to make statement, her statement was recorded. He further stated that the deceased died on 12.08.2003 in Jammu Hospital, whereupon he seized the dead body and clothes. During investigation he found that the accused had committed an offence punishable under Section 304 RPC. Thereafter, the investigation was handed over to SHO. During cross-examination, he stated that he recorded the statements of only two witnesses, who were present at the time when the dead body was taken into possession and her garments were seized. This is whole of the evidence led by prosecution. 23. A perusal of the charge-sheet reveals that PW Bishan Dass, PW Asha Rani, PW Chain Singh, PW Joseph Masi and PW Dalbir Singh have been cited as eye witnesses. Out of these eye witnesses, PW Bishan Dass and PW Asha Rani are parents of the deceased, whereas other witnesses are independent witnesses. A perusal of the statement of Bishan Dass and Mst. Asha Rani clearly reveals that the appellant on 06.08.2003 at about 10.00 P.M. entered into the courtyard of Bishan Dass and asked him as to why he switched off his electricity. It is also proved from the statement made by these two witnesses that the appellant assaulted PW Bishan Dass and his wife PW Asha Rani and his daughter Prayanka Gupta who subsequently expired. Though, the other witnesses namely PW Dalbir Singh, PW Chain Singh and PW Joseph Masi have turned hostile, but a perusal of their statements would reveal that all of them saw the appellant inside the premises of the PW Bishan Dass in the night, as PW Dalbir Singh has stated that on the day of occurrence he had seen the accused at 10.30 P.M. in the shop of complainant. Likewise PW Chain Singh has stated that after hearing the noise which was coming from the house of the complainant at about 10.00 P.M. he went there and saw the accused sitting on the cot of the complainant. PW Joseph Masi has stated that he heard noise and went to shop of the complainant where he was the accused. 24. It is settled law that the evidence of the hostile witnesses cannot be automatically rejected and if their evidence is corroborated by the other evidence, then their evidence can be relied upon for convicting the accused. PWs Dalbir Singh, Chain Singh and Joseph Masi have established the presence of the appellant in the premises of PW Bishan Dass at night. Once the presence of the appellant in the house/shop of the complainant stands established even by the hostile witnesses, then the evidence led by the prosecution in the form of evidence of PW Bishan Dass and PW Asha Rani cannot be brushed aside despite, they being the related and interested witnesses. 25. Equally true is that there is no medical evidence on record in respect of any injury received by PW Bishan Dass and PW Asha Rani which is substantiated by the PW Asha Rani in her cross-examination, where she had deposed that neither she nor her husband received any injury. In fact, the prosecution case rests upon the assault committed by the appellant on Prayanka Gupta (now deceased), who as per the prosecution was pushed due to which she fell on a stone and suffered injuries. PW Mohd. Farooq (Assistant Surgeon SDH Ramnagar) who conducted post mortem on the body the deceased has categorically stated that there was neither any external injury nor internal injury on the body of the deceased and the victim might have died because of septicaemia, due to infection caused by some disease. Be that as it may, presence of absence of any injury on the body of the victim is not a sine qua non for convicting the accused for commission of offence under Section 323 RPC. 26. From the evidence brought on record, the prosecution has successfully proved that the appellant trespassed in the premises of the PW Bishan Dass at about 10.30 P.M. assaulted him, his wife and his daughter, as such, this Court does not find any infirmity in respect of the conviction recorded by the learned trial court. 26. From the evidence brought on record, the prosecution has successfully proved that the appellant trespassed in the premises of the PW Bishan Dass at about 10.30 P.M. assaulted him, his wife and his daughter, as such, this Court does not find any infirmity in respect of the conviction recorded by the learned trial court. However, this Court finds that the sentence awarded to the appellant by the learned trial court is on the higher side. 27. The appellant was taken into custody on 14.09.2003 and was enlarged on bail on 17.10.2003 by the learned trial court and bail bonds were furnished by the appellant on 18.10.2003. After conviction by the learned trial court, the appellant was taken in to custody on 27.03.2008 and released on bail on 29.04.2008. Thus the appellant has remained in custody for more than two months. The appellant is not having criminal antecedents and in fact, is a first time offender. The occurrence is of the year 2003 and there is no evidence on record that any visible external injury was received by any of the surviving persons or the deceased at the hands of the appellant, as such, maintaining the sentence as awarded by the learned trial court would be harsh. 28. Accordingly, while maintaining the judgment of conviction dated 27.03.2008 passed by the learned trial court, the sentence awarded to the appellant by the learned trial court is modified and the appellant is sentenced to imprisonment for the period, he has already remained in custody. 29. Disposed of. 30. Record of the trial court be sent back forthwith.