Jagdish Chand vs State of H.P.

Bhawani Singh, J.—The accused has challenged the judgment of Additional Sessions Judge (II), Kangra in Sessions Case No. 16 of 1987, decided on 13-10-1987. He has been convicted for an offence u/s 307, Indian Penal Code and sentenced to rigorous imprisonment for a period of two years and also to pay fine of Rs. 500/-.

The prosecution case is that the accused worked at the shop of complainant Prem Singh (PW-4) for some time and thereafter he had been relieved by the complainant about 15 days before the occurrence. The complainant, a registered medical practitioner, had opened a chemist shop at Narwana Bazar and he used to return to his village Tangroti after closing the shop in the evening. He used to provide school fee and uniform etc. to the accused on account of latter''s poverty, but it was also stopped.

On 1-9-1985, the accused approached the complainant at his shop and asked him to visit the ailing daughter of Rattan Chand of Nalleh Balleh. Since it was raining at that time, both-complainant and the accused-started as soon as the rain slowed. On the way, the accused told the complainant that there was, in fact, no question of visiting the house of Rattan Chand, since it was just an excuse to procure the drawing note book from the sister of the complainant. On the way, they met Chandu Ram (PW-8) and Sukhia and before reaching his house, the complainant started easing himself in his land at a distance about 300 yards from his house. In about four/five minutes, the accused came there and started giving blows on the head of the complainant with a Drat (Ext. M-l). The complainant tried to ward off the blows and save himself by both of his hands. As a result of these blows, the complainant sustained number of injuries on his head and hands. He also became unconscious for a while and as soon as he gained consciousness, he went to his house. This occurrence was narrated to Barfi Ram (PW-5), father of the complainant. The shirt (Ext. M-2) and the trousers (Ext. M-3), which complainant was using at the time of incident, became stained with blood and they were got changed by his father Barfi Ram (PW-5). He was taken to District Hospital, Dharamshala immediately by a truck and during this time he was noticed by A.S.I. Balwant Singh (PW-12), Police Station, Hamirpur, who went to the District Hospital, Dharamshala and inquired from the doctor concerned about the fitness of the complainant to make a statement by moving application (Ext. P-18). However, the doctor stated that the complainant was not fit to make statement and on 2-9-1985, when the doctor declared him fit to make a statement, it was recorded (Ext. P-9), it was sent to Police Station, Dharamshala and a case was registered vide First Information Report Ext. P-17.

During the course of investigation, site plan (Ext. P-19) was prepared, Chappal (Ext. M-6 and Ext. M-7), which were lying on the spot, were also taken into possession vide memo. (Ext. P-l 1). The hairs alongwith portion of skin were taken from the spot in a container (Ext. P-8) vide recovery memo. (Ext. P-l2). As a result of disclosure statement in the presence of Om Prakash (PW-6) and Hari Ram, blood stained clothes (Ext. M-4 and Ext. M-5) and Drat (Ext. M-l) were recovered from the upper storey of the house of the accused, and were taken into possession vide recovery memo. (Ext. P-14). Sketch (Ext.P-20) in respect of Drat was also prepared. The clothes (Ext. M-2) and Ext. M-3) of the complainant were also taken into possession from Barfi Ram (PW-5). They were packed in separate parcels. After completing the investigation, the challan u/s 307, Indian Penal code was moved for the trial of the accused.

In his examination u/s 313, Code of Criminal Procedure the accused has admitted that he had gone to the shop of the complainant on the material date at about 8.00 P.M. He has also admitted that he was accompanying the complainant to his house on that day in the evening. He has denied that he had told the complainant to visit the ailing daughter of Rattan Chand or that he had asked the complainant about the drawing note book from his sister. Similarly, he has denied having given any blow to the complainant and causing of injuries. He has owned shirt (Ext. M-4) and trousers (Ext. M-5). Relating to blood stains on these clothes, he has stated that it may be due to the reason that the Police kept his clothes along with the blood stained clothes of the complainant, therefore, they may have become blood-stained. No other defence was led by the accused.

The trial ended in the aforesaid conviction and sentence of the accused, therefore, the present appeal has been filed in this Court. The sole question for determination in this case is whether the prosecution has been able to substantiate the charge against the accused? In order to examine this question, the evidence has been carefully reviewed, so that no injustice is meted out to the accused.

The most important witness in this case is the complainant Prem Singh (PW-4). He states that he is carrying on a chemist shop at Narwana Bazar, Yol. On 1-9-1985, at about 8 P.M. when he was present in his shop, the accused came there. He asked him that Nemo Devi, daughter of Rattan Chand of village Nalley Bailey was ill, therefore, she was to be examined. He closed his shop and accompanied the accused to this village. On the way, the accused told him that it was a false excuse, since he only wanted to take the drawing note book of his sister. On the way they met Chandu (PW-8) and then Sukhia. A little before reaching his house, he started easing himself in his land. In about four-five minutes, the accused started giving him blows on his head with Drat (Ext. M-l). He tried to save himself by keeping his both hands on his head. He was given many blows and he became unconscious. As a result, he sustained number of injuries on his head and hands. He became a little conscious, and came to his house. The shirt and trousers, he was putting on at that time, became stained with blood that was coming out of the injuries. At home, his father got his clothes changed and he was brought to District Hospital, Dharamshala, where he was medically examined and admitted as an in-door patient. Then, on 16-9-1985, he was referred to Post Graduate Institute, Chandigarh for further treatment, where he remained for about a month. The middle finger of his left hand was amputed at P.G.I., Chandigarh, since it had developed gangrin. The Police recorded his statement (Ext. P-9) on 2-9-1985 and he signed it. The accused used to visit his shop before the occurrence. He was providing the accused school fee and uniform. Before fifteen days of the occurrence, he had asked the accused not to visit his shop, because he had employed one Kartar Chand in his place. So, he used to visit his shop, although, he was not working at his shop.

During cross-examination, he admits that he alongwith others had complained to the Board of School Education, Dharamshala that Harbans Lal and one Om Raj were responsible for the leakage of March, 1989 Matric Examination Papers. They were arrested in connection with this case and were being tried in the Court of Chief Judicial Magistrate, Dharamshala. However, he has denied the suggestion that he was being threatened by Harbans Lal and Om Raj after their release on bail.

He states that he was going with the accused towards Chamunda Dad main road and they took a diversion from the road near Sood''s sawing machine for going to his house, since the accused could also reach his house by that way. The accused did not take the diversion towards his house and went on coming with the complainant, because he had to collect the drawing note book from his sister. The period was dark, but there was some moon-light, and the clouds were there in the sky. The accused assaulted him from front side. From the place of occurrence, he went to his house where he told his father that he was assaulted by the accused. He admits that the accused used to go to his shop quite frequently and used to accompany him on his way back home, but used to take diversion to his house from the road. He denies that the accused had gone up to his house on that day because it had become dark. He has denied the suggestion that the injuries were caused to him by some-one else and the accused has been falsely implicated. He has also denied that he could not identify the accused due to darkness. He has asserted that he could identify the accused quite properly becuase he had accopanied him from the shop. According to him, the accused may have caused the hurt to him because he had refused to provide fee and uniform etc. to the accused and had asked him not to visit his shop, since he had suspicion of pilferage in his shop at the hands of the accused.

Barfi Ram (PW-5) is father of the complainant. He also knows the accused. He states that on 1-9-1985 at about 9.00 A.M., the complainant came to his house. He was badly injured and had injuries on his head and hands. His clothes were stained with blood. He got his clothes changed and called the village people. The complainant was not fully conscious and on his asking, the complainant informed him that he was assaulted by the accused. He sent the complainant to. District Hospital, Dharamshala along with the villagers. He handed over the shirt (Ext. M-2) and trousers (Ext. M-3) to the Police. In his cross-examination, he has denied having any knowledge about the threats extended to the complainant by Harbans Lal and Om Raj.

Om Parkash (PW-6) was also joined by the Police in the investigation of this case. According to him, the Police took the Chappals (Ext. M-6 and Ext. M-7) from the scene of occurrence through memo. (Ext. P-ll) in the presence of Hari Ram. The Police also took one packet of hair from the spot and were packed in a container through memo. (Ext. P-12). He also states that the accused made a disclosure statement to the Police that he had kept a Drat, Shirt and trousers inside his house and could get the same recovered. This disclosure statement was recorded (Ext. P-13) which is signed by him. Thereafter, the accused took the police party to his house and got recovered the Drat (Ext. M-l), Shirt (Ext. M-4) and trousers (Ext. M-5) from the upper storey of his house where the same were lying concealed. They were packed in two parcels and were seized through memo. (Ext. P-14) signed by him as a witness.

Chandu Ram (PW-8) supports the version of the complainant by stating that on 1-9-1985, the complainant and the accused met him near the saw mill of Naresh Sood. The complainant demanded torch from him on the ground that he was going to see patient at the house of one Rattan Chand. He supplied the torch and thereafter the complainant and the accused left towards their houses. He also knows the accused.

Dr. Kartar Singh (PW-2) is the Medical Officer. He states that on 1-9-1985, while posted as Senior Medical Officer at District Hospital, Dharamshala, he examined the compainant at 9.30 P.M. who was brought by ASI. Balwan Singh. His observation are as follows:

There were four lacerated wounds on the left fore arm. Their size was found l1/2"-3" length and 1/4" 11/2" in width. These were skin deep. Fresh blood was oozing from the wound.

There were three sharp edged wound on the left fore arm. The margins were sharp and well defined. They vary from l1/2" to 21/4" in length and 1/6" in width. They were skin deep.

The left middle finger was badly lacerated and hanging at the meta carpophalyngeal joint.

There was one wound on the palm left hand 21/2" in length and l/4th" in width. It was marging into would No. 3

There was one wound on the left parietal region. It was about 21/2" x 2" in size and bone underneath was visible. Fresh blood was oozing from the wound.

There was one lacerated wound at the root of the nose extending on both sides irregular in shape and skin deep.

There were three incised wound on the right frontal and parict temporal region. Margins were well defined. The size varied from 2" to 3" in length and 1/3" to 1/2 inch in width. Profuse bleeding from the wounds.

There was one incised wound on the lateral aspect of right middle finger extending from the terminal phalynx to the inner border of hand. The skin attached at the terminal end only and flap was hanging. Fresh blood was oozing.

One small scratch was over the right fore arm.

X-ray skull and X-ray of left hand was advised.

According to X-ray report No. 2932-34, it showed fracture of left middle finger and fracture of skull bone.

The nature of the injuries was grievous caused by shaip and blunt weapon both. Ex. P-4 is the medicolegal certificate issued by me in respect of the examination of Prem Singh, which is in my hand and bears my signatures.

Injury No. 2, 5, 7, 8 and 9 as given is Ex. P-4 can possibly be caused with sharp side of drat Ex. M-l. Injury No. 1 can possibly be caused with the blunt side and handle of drat Ex. M-l. Injury No. 3 can possibly be caused by the blunt side of the Drat Ex. M-l. Injury No. 3 and 4 could be caused by the blunt side of Ex. M-l. Injury No. 6 can be also caused by the blunt side of Drat Ex. M-l. Injury No. 10 is a scratch injury which could be caused during scuffle. Report of X-ray examination Ex. P-5 has been prepared by me after examining the X-ray plates Ex. P-6, Ex. P-7 and Ex. P-8. X-ray examination was also conducted at District Hospital, Dharamshala.

As per my opinion, injury No. 1 to 10 found on the person of Prem Singh were collectively sufficient to cause the death of Prem Singh in the ordinary course of nature. Injury No. 5, 7 and 8 were also individually sufficient to cause the death of Prem Singh in the ordinary course of nature.

In his cross-examination, he states that injuries No. 5,7 and 8 were individually sufficient for causing the death in the ordinary course of nature, because they were located on the head which is vital portion.

Similarly, Dr. T.D. Sharma (PW-1) has also given medico legal certificate (Ext. P-2) and in his opinion (Ext. P-3), the injuries found on the person of the complainant, collectively and especially injuries No. 5, 7 and 8 inflicted on the head, could have caused death of Prem Singh in ordinary course of nature.

Then, ASI, Balwan Singh (PW-12) has given account of the incident right from the beginning till the completion of investigation. He has denied in his cross-examination that the Drat (Ext. M-l) was lying on the spot and was not recovered at the instance of the accused. Similarly, he has denied that the articles were not sealed in the parcel on the spot and that no recovery memo was prepared at the spot and the entire process of sealing and preparation of memos, took place at the Police Post, Yol. He has also denied that the complainant had not named the accused as his assailant and that the accused was laminated simply because he was accompanying the complainant at the material time.

From the perusal of the evidence in this case, it is quite clear that it was the accused, who is the actual assailant of the complainant. There is no doubt about his identity. He has been clearly identified by the complainant and there can be no doubt on this ground, since he was very well known to the complainant and he accompanied the complainant on this day at that particular time. His village is also towards the same side, though, the bifurcation starts before the house of the complainant. But on this day, he was going to the house of the complainant to fetch some drawing note book of complainant''s sister. Although, the id. Sessions Judge has not placed much reliance on the motive part of the case holding it of trivial nature, however, in my considered opinion, motive, how so ever trivial it may be, is there in the present case. The complainant had been helping the accused by giving him fee and books etc. He had been employed at the shop as well, but his services were dispensed with so also the facilities which were being extended. This was a motive which appears to be responsible for the assault in question, since the accused may have been entertaining grievance on account of this act of the complainant. Futher, on the question of recovery of Drat (Ext. M-l), there is sufficient evidence to indicate that it was recovered along with the clothes from the upper storey of the house of the accused as a sequal to his disclosure statement. The conclusion of the id. Sessions Judge that it was not possible for any one to have taken the incriminating articles to his house and kept there, is not sound. The behaviour of the accused is some-times strange to the extent that it cannot be answered by reason, since the parties knew each other very well, the accused may not have thought fit to leave the weapon at the place of occurrence. More over, he may not have liked to lose the Drat (Ext. M-l), since it is frequently needed for domestic purposes. These aspects of the prosecution case have been established quite satisfactorily by the witnesses produced to substantiate the same and there is no reason why they should be disbelieved. More over, there is no weakness which is reasonably deducible from their statements.

The prosecution has been able to substantiate the charge against the accused beyond any reasonable doubt and the conclusion of the trial Court as to the commission of crime by the accused is correct.

The result of the aforesaid examination is that there is no merit in this appeal and the same is accordingly dismissed. However, looking to the fact that the accused is of young age and there is no past conviction in his career and he having suffered the pangs of this case right from 1-9-1985 till date, the sentence of rigorous imprisonment is reduced from two years to one year. But, his release on Probation of Offenders Act, 1958 is not desirable looking to the circumstances and the manner he assaulted the complainant which could cause his death in ordinary course but for the timely medical aid the complainant got at the hospitals.