Mam Chand vs State of Himachal Pradesh

Sanjay Karol, J.—Assailing the judgment dated 8.8.2008/12.8.2008, passed by learned Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions Trial No. 02-ST/7 of 2008, titled as State of H.P. vs. Mam Chand, whereby accused stands convicted and sentenced to undergo rigorous imprisonment for life and pay fine of Rs. 5,000/- in relation to an offence punishable under the provisions of Section 302 of the Indian Penal Code and in default thereof further undergo rigorous imprisonment for a period of six months, he has filed the present appeal under the provisions of Section 374 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 8.8.2007 complainant Kumari Anita Devi (PW-1) saw accused Mam Chand give beatings with kick and fist blows to deceased Surat Ram. She got frightened, cried for help and called her maternal grand parents Jeet Ram (PW-2) and Soma Devi (not examined in Court). She saw Surat Ram bleeding. Her oral intervention only evoked abuses from the accused. When her grand parents arrived on the spot, accused Mam Chand ran away. On account of beatings given by the accused, Surat Ram died. The matter was immediately reported to Rama Nand (PW-3), Up-pradhan of village Miana. Jeet Ram and Rama Nand went to the house of the deceased and informed the ladies about the incident. Rama Nand telephonically reported the matter to HC-Om Prakash (PW-6) at Police Post Sangrah, who alongwith ASI-Chanan Singh (PW-12) proceeded for the spot. The S.H.O. of Police Station Renukaji arrived on the spot in the morning of 9.8.2007 and recorded statement of Anita Devi (Ext. PW-1/A) on the basis of which F.I.R. No. 63 of 2007 (Ext. PW-4/A), dated 9.8.2007 was registered against the accused at Police Station Renukaji, Distt. Sirmaur, under the provisions of Section 302 of the Indian Penal Code. On the spot, Investigating Officer prepared inquest report (Ext. PW-13/E) and sent the dead body for post mortem through HC-Om Parkash (PW-6) which was got conducted at the Referral Hospital, Dadahu from Dr. Pramesh Dogra (PW-9) and report (Ext. PW9/B) obtained. On the spot, Investigating Officer took into possession playing cards and plastic bottle of liquor alongwith two steel glasses vide recovery memos Ext. PW-2/C and PW-2/G, respectively. Blood stained clothes of the accused, were also recovered vide memo (Ext. PW-2/H). Recovered articles were sealed and deposited with Const. Babla Mohammad (PW-5) and MHC-Surender Singh (PW-8). Report of State Forensic Science Laboratory Junga (Ext. PY) authored by Dr. Gian Thakur (PW-14) was taken on record by the police. Investigation revealed complicity of the accused in the alleged crime. Hence, challan was presented in the Court for trial.

Accused was charged for having committed an offence punishable under the provisions of Section 302 of the Indian Penal Code to which he did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined as many as fifteen witnesses and statement of the accused u/s 313 Cr. P.C. was also recorded, in which he took up the following defence:

I am innocent. In fact, PW Jeet Ram called me at about 3 P.M. on that day and I saw both of them playing cards and having drinks inside the kitchen and PW Jeet Ram asked me to bring a bottle of liquor from village Rajana. I went to Rajana and on my way, I met one Som Parkash and Guman Singh. I could not find any liquor in village Rajana so I came back and found that deceased Surat Ram was bleeding from his nose. On my inquiry, I was told by PW Jeet Ram that deceased was abusing him while they were playing cads and that he had some scuffle with him. PW Jeet Ram asked me to carry deceased Surat Ram outside the kitchen so that he could gain consciousness. Firstly I refused to oblige him, but at his insistence we both carried deceased Surat Ram outside the kitchen, where, while standing up deceased had also a fall. I was in good terms with deceased Surat Ram.

In defence he examined only Guman Singh (DW-1).

Appreciating the testimonies of prosecution witness, trial Court convicted the accused of the charged offence. Hence, the present appeal.

We have extensively heard learned counsel appearing on both sides and perused the record.

Assailing the judgment Mr. Ajay Sharma, learned counsel for the appellant has argued that (i) The defence of the accused stands probablized through the testimony of not only defence but also prosecution witnesses; (ii) There is material contradiction in the testimonies of PW-1, PW-2 and PW-13 with regard to the time of recording of statement of PW-1 and the manner in which PW-1 called PW-2; (iii) There was no motive for the accused to have killed the deceased; and (iv) Trial Court found the investigation to be faulty hence accused was entitled for benefit of doubt.

On the other hand, Mr. Ashok Chaudhary, learned Addl. Advocate General has supported the judgment for the reasons set out therein.

Having minutely examined the testimonies of Kumari Anita Devi (PW-1) and Jeet Ram (PW-2), we find that except for minor variations, and not contradictions, these witnesses have materially supported the prosecution case and corroborated testimonies of each other. According to PW-1, on 8.8.2007 at about 4 p.m., she had gone to throw cow dung in her fields which is adjacent to the house of deceased Surat Ram. At that time she saw the accused give beatings with fist blows to Surat Ram. She got frightened and "called" her maternal grand parents Jeet Ram and Soma Devi who arrived on the spot. She saw Surat Ram bleeding from his nose. Her oral intervention only evoked abuses from the accused. However, on arrival of her grandparents accused Mam Chand ran away from the spot. Her grand parents found Surat Ram not to respond to their queries. Police arrived on the spot and recorded her statement.

Alleged contradiction in the testimonies of PW-1 and PW-2 is the manner in which PW-1 called PW-2. Having minutely examined the statements, we find none to be there. PW-1 does not state that she orally called her grand parents. She states that she "called" and "on my call" her grand parents came. PW-2 states that "Anita came to us in our Dogri". Though Anita (PW-1) specifically does not state this fact that she had gone to the Dogri to call her grand parents but then it cannot be inferred that she had not gone to the Dogri to call her grand parents.

PW-2 categorically states that he found that there was some warmth in the body of the deceased but it appeared to him that deceased had died. He informed the up-pradhan Rama Nand (PW-3) who in turn informed the police.

Testimony of these witnesses, to our mind totally inspires confidence and in no manner shaken. They are clear, consistent and cogent. We find that Anita (PW-1), though a villager, has withstood the test of cross examination by the accused. She admits that there was no dispute between the accused and the deceased. But then absence of motive cannot be a ground to disbelieve the otherwise inspiring testimony of an eye-witness. [See: Subal Ghorai and Others Vs. State of West Bengal, ]

We may now examine the second contradiction pointed out by the learned counsel for the appellant. Noticeably in her examination in chief, complainant (PW-1) states that "Police arrived at the spot on the next morning and recorded my statement u/s 154 Cr. P.C. which is Ext. PW1/A which bears my signature". In her examination in chief she does not state the time and the place when her statement (Ext. PW-1/A) was recorded by the police. In cross examination she states that her statement was recorded by the police on 8.8.2007. We find the date on the statement (Ext. PW-1/A) is 9.8.2007. But this variation pales into significance in view of testimony of HC-Om Parkash (PW-6) who categorically states that on the direction of the S.H.O. Police Station Renukaji, they reached the spot same day i.e. 8.8.2007. Noticeably, even PW-2, records presence of police on the spot on 8.8.2007. Police had come to guard the dead-body on the asking of the S.H.O. Noticeably, incident took place in a remote village and the concerned Investigating Officer could not have reached the spot in the middle of night. In view of these attending circumstances it cannot be said that contradiction is material, shaking the foundation of the prosecution case, rendering it to be false or doubtful. The contradiction is not about the occurrence of crime or the same being witnessed by Anita (PW-1), on which count, we find testimonies of all the witnesses to be absolutely inspiring in confidence, worthy of credence and not to be contradicted in any manner.

In any event we find version of PW-1 and PW-2 to be materially corroborated by Sh. Rama Nand (PW-3) with regard to the place and the manner in which crime stood committed.

When one examines the testimony of Dr. Pramesh Dogra (PW-9), who conducted the post mortem and issued Post Mortem Report (Ext. PW-9/B) after taking into account report of the State Forensic Science Laboratory (Ext. PX), we find that accused had died on account of hemorrhagic shock (injury to nose due to blunt force impact). Thus version of PW-1 is also corroborated by medical evidence.

Investigating Officer, SI-Manish Chauhan (PW-13) collected empty bottle of liquor and glasses, adjoining to the place where beatings were given by the accused to the deceased. Apart from observations made by the trial Court in paragraph - 27 of the judgment, we find faulty investigation on the part of police not to be a reason sufficient enough to acquit the accused, in the teeth of otherwise convincing ocular evidence. Significantly, it is not a case of circumstantial evidence. There is an eye witness whose testimony, as we have already observed, is absolutely inspiring in confidence.

When we come to the defence taken by the accused, we find the same not to have been probablized by any of the witnesses including the defence witness. In fact, we find the same to have been falsified by Guman Singh (DW-1). Though in examination in chief, he states that while he and Som Parkash were sitting at a place known as Tawana, accused who had gone to fetch liquor met them, but however, in cross examination he categorically denies such fact. We also checked up the hindi version of his testimony so as to ascertain whether the word "incorrect" in his cross examination part was wrongly typed out or not. But we find it not to be so. That apart, the witness states that accused had gone home from Tawana which stands belied by the admission made by the accused in his statement u/s 313 Cr. P.C. to the effect that he returned to the spot of crime. Home of the accused is not at the place of occurrence of crime.

Evidence with regard to the caste of the accused and the deceased cannot be said to have probablized the defence of the accused in any manner. Submission that accused stands falsely implicated for this reason, in our considered view, is extremely preposterous and fallacious. It is not the case of accused that because of caste factor he stands falsely implicated in the alleged crime. Jeet Ram (PW-2) categorically denies such suggestion put to him by the accused and we do not find his testimony to be shaky/un-inspiring in confidence, rendering the defence of the accused to have been probablized in any manner.

Apart from oral version of PW-1, we find that there is another very strong circumstance of involvement of the accused in the crime. From the hands of the deceased, hair belonging to the accused were recovered. This stands evidently proved and established through the report of State FSL Junga (Ext. PY). According to Mr. Ajay Sharma, learned counsel for the appellant, correctness of the report itself is in doubt, in view of contradictions with regard to the number of seals affixed by the police on the samples. We do not find any favour with such submission. Insofar as sample containing hair band is concerned, there is no variation. In any event, there is overwhelming evidence on record proving the guilt of the accused.

From the material placed on record, it stands established by the prosecution, by leading clear, cogent, convincing and reliable piece of evidence, beyond reasonable doubt, that accused committed murder of deceased Surat Ram.

For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and complete appreciation of the material so placed on record by the parties. Findings cannot be said to be erroneous in any manner. Hence, the appeal is dismissed.

Records of the Court below be immediately sent back.