Halku Ram vs State of H.P.

Bhawani Singh, J.—Accused, Haiku Ram, has preferred this appeal against his conviction by the Sessions Judge, Mandi, in Sessions Trial No. 18 of 1987 decided on 1-8-1988. The accused has been convicted u/s 304 Part-II, Indian Penal Code, and sentenced to rigorous imprisonment for five years and a fine of rupees 5000/- which, on realization, has been ordered to be paid to the family of the deceased.

Facts, briefly, are that on the occasion of the marriage of Ramesh Kumar S/o Basanta, resident of village Pandlahi, people from the area had been invited to participate in the ''feast'' on 27-4-1987. On this occasion, Gaddi, Luder Dass, Mohan Singh and Krishan Dutt had also come in addition to Jatinder, Govind, Khem Singh, Lekh Ram and the deceased Kali Dass. The accused was also there in the feast along with men of his village. The deceased was the uncle of Gaddi Ram (PW-3), Luder Dutt (PW-4) and Mohan Singh (PW-5). Due to the death of their Uncle Parma Nand, Rudder Dutt, Jatinder and Mohan Singh had clean-shaven their heads. There were the guests from the side of the Bride also on this occasion. They started teasing these people by saying ''Rodda'' ''Rodda''. This behavior was objected but the guests did not keep quiet and there was altercation between these two groups for some time which led to a scuffle. During this time, the deceased came there and tried to pacify both these groups. The accused, who was armed with a piece of fire-wood, inflicted a blow on the head of the deceased from behind. The deceased fell down and blood started oozing profusely. The accused ran away from that place along with the weapon of offence. The deceased was removed to his house in village Sashti to a distance of little more than half a k.m. from this village. Dr. Rajinder Singh (PW-1) was called from village Urla, who gave First Aid by way of injection and advised the injured to be taken to hospital. Accordingly, the deceased was brought to District Hospital, Mandi, where he died on 28-4-1987 at 7.00 A.M.

The matter was reported to the Police by Gaddi (PW-3), recorded in Daily Diary No. 18 on 28-4-1987 at 10.30 A.M. by M.H.C. Lal Singh (PW-12) copy of which is Ext. PW 12/A and, on this basis, First Information Report, copy of which is Ext. PW 14/A, was recorded. The Investigating Officer Karnail Singh A.S.I. (PW 13) visited the Hospital, prepared the Inquest Report (Ext. PW 13/A), got autopsy conducted by Dr. Ramesh Chand Thakur (PW 17) on 29-4-1987. The observations of the Doctor are as under:

(i) The dead body was of a stout person whose corneas was hazy and had showed presence of cadaveric spasim;

(ii) Besides, he was having lacerated would 6cm X 3cm x 2cm,. on the head on its vertex towards left of mid line. The margins were irregular and fresh and contained clotted blood. He also found that the blood had oozed out of scalp and face;

(iii) There was haemotoma covering almost whole of the frontal scalp, both temporal and parietal subcutaneous tissues;

(iv) There was a fracture of skull, linear type extending from left parietal prominence to the right fronto-parietal suture penning it out to the sagittal suture back-wards to the temporal bone down up to the left mastoid and to the left side of frontal bone;

(v) There was an extra dural haemotoma on left parietal frontal temporal area;

(vi) There was a laceration of left parietal and frontal lobe. There were multiple hemorrhagic areas on the right temporal lobe area. The left lateral ventricle was full of blood.

According to the Doctor, the deceased died of shock as a result of injury 10 me Drain and failure of vital centers, These injuries, found on the head of the deceased, were sufficient to cause the death. The injury was possible by piece of fire-wood (Ex. P-l).

The matter was also investigated by Chain Singh, Station House Officer, Police Station Jogindernagar who also visited the spot and prepared the site plan (Ext. PW-16/A). He took into possession blood stained earth with stalks of wheat etc. by seizure memo Exhibit PB, besides sample of earth from a near-by place. He also took into possession blood stained shirt of the accused (Ext. P-4) vide seizure Memo (Ext. PC) in the presence of witnesses. On the arrest of the accused and in pursuance of his statement, piece of fire-wood (Ex. P-1) was also recovered at the instance of the accused concealed by him near the house of Govind and Kangnu Ram by the side of path in the bushes in village Pandlahi. Recovery Memo (Ext. PA) has been signed by marginal witnesses.

The accused was charged for commission of the offence u/s 302 of the Indian Penal Code to which he pleaded not guilty and claimed trial. His examination u/s 313 of the Code of Criminal Procedure and defense that can be inferred from the trend of cross-examination of the witnesses in the case appears to be that the case against him is false and that he was not present at the scene of occurrence at that time since he had gone to his house to look-after his wife who was not in good state of health. He has examined two witnesses, namely, Ghabaria and Dr. H.K. Sharma, Medical Officer In charge, Civil Hospital, Jogindernagar in defense. The trial ended in the aforesaid conviction and sentence of the accused.

Shri M.G. Chitkara, ld. counsel for the accused, has assailed the judgment of the trial court. It was contended that on the basis of weak, faulty and contradictory evidence of the prosecution, the case has not been established against the accused and the conviction of the accused, in these circumstances, is thoroughly unsustainable and the judgment deserves to be set-aside and accused acquitted of the charge. Let the evidence in the case be examined to see whether those submissions of the ld. counsel for the accused are correct.

Rajinder Singh (PW 1) is a registered medical practitioner at Urla. According to him, two boys from village Sashti came to him and told him that Kali Dass (deceased) had been given blow on his head by someone and that he should provide treatment to him. He went there and found that blood was oozing from the head-injury. He gave him injection for controlling the blood and the family members were advised to take the injured to the hospital. He did not know the names of those boys who had come to him.

It is clear from the statement of this witness that two boys had been sent to call him. They came to him at 7.30 P.M. on 27-4-1987 but they did not tell this witness the name of the assailant. This means, by this time, it was not known as to who had given the blow on the head of the deceased, otherwise, these boys would have known it and giving of the name of the accused to this witness was not difficult. This kind of version falsifies the veracity of the statement of other witnesses being discussed hereafter. Gaddi Ram (PW 3) states that the deceased was his uncle. He says that the guests from the side of the girl started teasing them by saying Rodda Rodda. On this, quarrel took place between the two parties followed by scuffle. The deceased came there to pacify the parties. The accused came there and gave a blow of wood on the head of the deceased from behind. By that blow, the deceased fell down there and blood started oozing from the injury. He was taken to his house and a Doctor from Urla was sent for. The deceased was shifted to District Hospital Mandi by the night bus where he died the next morning. He went to the Police Station Mandi and lodged the report. He lodged a report in detail giving the above facts. Luder Dutt and Lekh Ram had accompanied him to the Police station during this time. The accused had produced the piece of wood (Ext. P 1) before the Police from the bushes near-by.

In cross-examination, he states that first there was jolk between the parties which was followed by altercation and then there was scuffle and grappling between the parties. About 100 to 150 persons had collected there at that time. He also states that he could not say which of the persons in that crowed was carrying which of the articles. None of the persons carrying sticks in their hands came in my neither presence nor Ghaharia (DW-1) received injuries in his presence. Again he says that there must be 200 to 300 persons in the marriage at the house of Basanta that day. He did not remember as to who had gone to bring the Doctor and he could not say if Jatinder, Luder and Mohan had gone to bring him. He could not remember as to when piece of fire-wood (Ext. PI) was produced by the accused. It was, perhaps, recovered third or fourth day. He admits that pieces of fire-wood like Ext. P 1 were lying there in abundance for preparing the food. He also admits that from the place of recovery of Ext. Pl, there is a path adjoining the houses of Govind, Sohan Singh and Kangru Ram. This witness is a relation of the deceased. It is very difficult to believe his version of the case that he could see the accused giving blows to the deceased only but could not recognize any-one else in the crowd that had collected there. He also could not see which person was carrying which article. Further, he states that he had given a detailed account of the incident while recording the First Information Report which included the giving of blow by the accused to the deceased but the names of the persons who called the Doctor have not even been mentioned. The conclusion is clear that this witness is not at all telling the truth. He did not know the name of the assailant; otherwise, he could have straightaway mentioned his name to others present there. Therefore, his narration of the incident cannot be believed. The Trial Judge has also formed adverse opinion as to his demeanour during the recording of his statement in the Court. Ludar Dutt (PW 4) is again a relation of the deceased. According to him also, there was altercation between the two groups and during this time, the accused gave a blow with Ex. Pl on the head of the deceased. He also does not give the names of the boys who had been sent to call the Doctor. He is one of the persons who had gone to the Police station to record the report. He contradicts Gaddi Ram (PW 3) when he says that no scuffle had taken place between the parties and no heated arguments were there. He also states that he did not know the accused previously and saw him on this occasion for the first time. Similar is his version about Ghabaria (DW 1). According to him also, 100 to 150 persons had collected there. He also admits that shouts of Bachao Bachao were being made there in that crowd. He also denies having any knowledge about the injury received by Ghabaria. He admits that all of them including the deceased were in the crowd and in that crowd, it was not known as to what was being done by an individual person. He admits that the accused had no enmity with the deceased or his family members and that the persons in the marriage party had taken liquor. Finally, he states that he did not remember if Mohan, Jatinder had gone to call the Doctor but some members from the family had gone to call and bring him. Again, this witness is also a relation. His statement shows that there was not only altercation but also inter-se fight between the two groups as a result of which shouts of Bachao Bachao were being made. It was not a small issue. Both the parties were fighting with each other and it was not possible to know the exact role of the participants. In such a situation, naming the accused and assigning him the role of hitting the deceased with Ext.P.l. is absolutely wrong and it appears that he has been named intentionally and unjustifiably. This statement also shows that the names of persons who were sent to call the Doctor have not been disclosed. The object appears to be that these persons did not at all tell the Doctor about the name of the accused but they have appeared as witnesses in the case. Although they have not been specifically identified, however, they are some of the eye witnesses who have been produced by the prosecution in this case, otherwise, it is but natural that these were relations and in case the accused was the assailant, his name could be very easily stated to Rajinder Singh (PW 1). So these persons who have been put up as eye witnesses by the prosecution are not really the eye witnesses to the occurrence. Mohan Singh (PW 5) is also a relation of the deceased. According to him, there was scuffle, shrieks and cries. He has contradicted other witnesses by saying that there were only about 50 persons at the place of occurrence. He has named the accused by saying that after giving the blow, he ran away. They did not try to catch him. Lekh Ram (PW 6) is also a relation of the deceased. He is a recovery witness like Devi Singh (PW 7) and Shreedhar (PW 8).

According to the Doctor, blood would have oozed from the injury instantaneously but it is not necessary that it may have stained the weapon of offence. According to him, the injury could be caused in case the assailant was standing at a higher place as compared to the victim or the victim was sitting and the assailant standing. This has not been stated by any of the witnesses. According to Ghabaria (DW 1), who had also gone to attend the function, the accused had returned by 11.00 A.M. when he was told by Devi of his village that the wife of the accused had fallen from a tree. According to him, the quarrel was going on between the younger generations. Eight persons, including the deceased, came there with the Lath is and he also received one blow on his head. About 200 to 250 peoples collected there and he did not see the accused there at that time nor he had come back again. The police got him medically examined after a week which fact is corroborated/supported by Dr. H.K. Sharma (DW 2).

It appears quite clear from the evidence extracted above that the accused could not be the assailant in this case. He had left the scene of occurrence by 11.00 A.M. as stated by Ghabaria (DW 1), naturally so, since his wife was ill. Further, he could not be the assailant since there was no reason for him to inflict blow to the deceased. Their inter-se relations were not bad. There was no motive to do so. He was one of the guests invited on the occasion. There is no evidence to show that he was siding with the guests from the side of the girl. Rather, he had nothing to do with them since he had been invited in his own capacity. It was a big gathering. There was altercation and the participants grappled with each other. They cried for help also. In such a situation, it was not possible to know the exact role of the participants. It appears quite clear that the accused was picked up at a later stage on mistaken assumption, otherwise, his name could have been stated to Rajinder Singh (PW 1) and to the Police while the report was recorded at the instance of Gaddi Ram (PW 3) and others.

The recovery of the Danda Ext. P-1 is not in accordance with the tenor and spirit of Section 27 of the Evidence Act. Firstly, it appears to be the result of constant subjugation of the accused to interrogation and, secondly, it was recovered from an open place easily accessible to all, thirdly, it should have blood stains but there were no such stains thereon that is why it was not sent for examination of the stains and, fourthly, it cannot be believed that the accused would retain it after committing the offence in case the prosecution story that he committed the crime, is believed. Finding of certain stains on the cloths of the accused cannot be due to his involvement in the incident since it was not possible to have blood stains on the cloths because he may be standing at some distance away from the deceased and it was not possible to receive the stains without touching the deceased. Further, he could not have retained these cloths in the same form in case he had participated in the commission of the crime. The accused is stated to be an agriculturist. In such cases, normally, cloths are not washed regularly and same cloths are used for number of days and availability of blood stains is there on their cloths for variety of reasons.

It is not understood why the prosecution has associated only the relation witnesses in this case. Evidence in this case points out that large number of people had collected on this occasion. There was no difficulty in associating independent witnesses in this case. It appears that in order to succeed in proving this kind of version, only the relation witnesses were considered apt to stand by the prosecution. This kind of approach has created doubt as to the whole occurrence and, more particularly, the participation by the accused. It is hazardous to sustain the conviction and to punish the accused in these circumstances and on this kind of evidence. Perusal of the trial court judgment discloses that the matter has not been approached properly and legally. Wrong inferences have been drawn while appreciating the version of various witnesses in the case.

The result of the aforesaid discussion is that there is merit in this appeal and the same is allowed. The conviction and sentence of the accused is set-aside and he is acquitted of the charge. Bail Bonds and Surety Bonds, if any executed by the accused, are hereby cancelled.