Mohinder Singh vs State of Himachal Pradesh

Sanjay Karol, J.—Assailing the judgment dated 5.11.2005, passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P. in Sessions Trial No. 39 of 2003, titled as State vs. Mohinder Singh, whereby the accused-appellant has been convicted for having committed offences punishable under the provisions of Sections 307, 324 and 342 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years and fine of Rs. 5000/- for offence punishable u/s 307 IPC, rigorous imprisonment for a period of six months and fine of Rs. 500/- for each of the offences punishable under Sections 324 and 342 IPC, the accused has filed the present appeal under the provisions of Section 374(2) of the Code of Criminal Procedure, 1973. The challenge to the judgment is on the grounds that the Court below erred in correctly appreciating the testimonies of the relevant prosecution witnesses who have in fact either not supported or proved the prosecution case; testimony of the complainant/injured uninspiring in confidence, conclusively could not establish the guilt of the accused; the trial Court held the accused guilty on mere conjectures and surmises; and proceeded to decide the case, shifting the onus to prove his innocence on the accused.

It is the case of the prosecution that complainant-injured Sh. Man Singh (PW-1) was working for Sh. Jethu Ram (PW-2). The accused was aggrieved of the fact that on his land, PW-1 on behalf of PW-2, had collected stones and grit. Despite requests made by the accused, the same was not removed. On 8.3.2003 at about 9.30 p.m., accused dragged PW-1 to his house and confined him in a room. He was allowed to go away but again brought back. After some time, accused brought an axe (Ext. P-4) from another room and hit PW-1 with the same on the neck. PW-1 fell unconscious and on regaining consciousness returned to his house, after the door of the room where he was confined, was unbolted by someone from outside. In the morning of 9.3.2003 PW-1 went to the house of PW-2, who in turn took PW-1 to the Police Post, Sarahan where Rapt No. 7 (Ext. PW 10/A) was recorded. The matter was investigated by ASI Puran Chand (PW-18) who took PW-1 to the Community Health Centre at Sarahan for medical treatment. Rapt was sent to Police Station Jhakhri where F.I.R. No. 51/2003 dated 9.3.2003 (Ext. PW 14/A) was registered against the accused under the provisions of Sections 324, 342 and 307 of the Indian Penal Code. PW-1 was examined by Dr. Dev Raj Bhandari (PW-13) who issued M.L.C. (Ext. PW 13/A). Police visited the spot of occurrence of crime and collected samples of blood stained mud, sand and cement vide memo (Ext. PW 5/C). The articles were sent for chemical analysis and report (Ext. PW 15/A) obtained. Accused himself produced the weapon of offence. The accused was also got medically examined from Dr. Manjula Gupta (PW-16). Sample of his blood was collected also his clothes were sent for chemical analysis. As per report of chemical examiner (Ext. PW 15/A) no conclusion could be arrived at with regard to the samples of blood. With the completion of investigation, challan was presented in the Court for trial.

Accused was charged for having committed offences punishable under the provisions of Sections 342, 324 and 307 of the Indian Penal Code, to which he did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as eighteen witnesses and the statement of the accused u/s 313 of the Code of Criminal Procedure was also recorded, in which he pleaded false implication.

Appreciating the material placed on record by the prosecution, trial Court convicted the accused for all the charged offences.

Having heard learned counsel for the parties I am of the considered view that the trial court committed grave illegality by not correctly and completely appreciating the testimonies of the witnesses resulting into travesty of justice.

Out of eighteen prosecution witnesses, it be only noticed that there is no independent eye witness to the incident. Prosecution has essentially relied upon the testimony of the victim Sh. Man Singh (PW-1). Also testimonies of other witnesses, namely Sh. Jethu Ram (PW-2), Sh. Ravinder Kumar (PW-3), Sh. Karam Singh (PW-5) and Sh. Ram Singh (PW-6), who are independent witnesses, have been relied upon to establish the guilt of the accused. The remaining are official witnesses.

Dr. Manjula Gupta (PW-16) examined the accused. No injuries were found on his body. Her report (Ext. PW 16/B) is on record to this effect.

Dr. Dev Raj Bhandari (PW-13) examined the complainant (PW-1) and prepared MLC (Ext. PW 13/A). On examination the Doctor found the following injury on his body:-

The injury was incised injury with gaping and blood was oozing out. The wound size was 9 cm in length and 4 cm in depth. The site was behind the right ear and on the base of right side of skull. Muscles deep fascia arteries veins were incised and led to gaping of wound.

The Doctor, on examination of the weapon opined that the injury which was caused 12 to 15 hours prior to medical examination, could be caused with the weapon axe (Ext. P-4), but the length of the wound was more than the length of the blade of the weapon.

The question which needs to be considered is as to whether the weapon belonged to the accused and whether it was he who actually inflicted the injury in question.

The weapon of offence was recovered in the presence of Sh. Karam Chand (PW-5) and Sh. Ram Singh (PW-6), who have not supported the prosecution. They were declared hostile and cross examined by the Public Prosecutor. Careful perusal of testimonies of these witnesses would only reveal that nothing positive could be elicited from them. They have unambiguously deposed that the axe was already in possession of the police and the memos were signed not at the time of effecting any recovery. In fact the memos which were blank were got signed by the police. Apart from this piece of evidence, there is nothing on record to prove that the weapon of offence actually belonged to the accused. In this regard testimony of police officials is uninspiring in confidence.

ASI-Puran Chand (PW-18) who investigated the matter, accepted that accused himself produced the axe. Now this version of his does not inspire confidence for the simple reason that he does not state when, where and at what time the axe was produced. He simply states that the accused was interrogated and the axe was produced. This was done on 10.3.2013. Significantly what did the police do between the time of the registration of the F.I.R. i.e. 9.3.2013 and the recovery of the axe has not been disclosed. Why is it that police did not immediately visit the spot? In fact his version with regard to production of the axe by the accused stands contradicted by PW-5 and PW-6 who in no uncertain terms have deposed that the axe was not produced in their presence by the accused.

When we come to the testimony of the complainant Sh. Man Singh (PW-1), significantly he does not mention the date of occurrence of the incident. In Court his statement was recorded on 7.1.2004. He begins by deposing that "About 5-6 months ago I was sleeping in my room at 9 p.m. accused Mohinder came in my room". Accused who was drunk asked him to lift the grit from the fields. Thereafter accused dragged him to his residential house, switched off the light of the room and again asked him to lift the grit. Complainant told him that the needful would be done the following morning. At that accused directed him not to leave the room. However he brought an axe and gave a blow with the same on his neck. As a result he bled and fell unconscious. When he regained consciousness at 9.30 p.m. he called for help and "somebody" opened the door from outside. Thereafter he "returned" to his house and next day narrated the incident to PW-2 who took him for medical treatment. Complaint was lodged at Police Post Sarahan. He was got medically examined at CHC Sarahan from where he was referred to the hospital at Rampur. His clothes were taken into possession by the police during investigation.

Careful reading and appreciation of his testimony would only reveal that he does not disclose the date of the incident. Contradiction about the timing of the incident, minor in nature, is there. He also does not disclose who opened the door from outside when he shouted for help. Police has also not tried to find out who was this person. If the complainant had sustained bleeding injury, in stead of going to his residence, he would have rather gone to the hospital or sought help. This witness has not explained as to why he waited till the following morning to even approach PW-2. It is not the case of the prosecution that this witness was staying alone or that there was apprehension or fear in his mind that he would be attacked by the accused again or that he was in no position to travel to the nearest police post or that none was available in the village from whom he could have sought help. What renders the prosecution case to be extremely doubtful is the fact that in his cross examination, in no uncertain terms, he has deposed that "when injury was inflicted upon him with axe it was dark". Now if injury was inflicted at the time when it was dark then how can it be said with certainty that it was only the accused who had given a blow with an axe, more so, when this witness himself has deposed about presence of "someone" who had unbolted the door from outside. Presence of third person is proved by him. The fact that the weapon belonged to the accused has also not been conclusively established by the prosecution.

The prosecution case is further rendered doubtful from his statement to the effect that no report was recorded at Police Post Sarahan. This version of his totally contradicts the version of the Investigating Officer.

Though PW-1 states that in the room where the alleged crime took place, there was electricity connection, but this version of his stands contradicted by the uncontroverted testimony of Sh. Karam Chand (PW-5) who in no uncertain terms has deposed that there is no "electricity facility" in the house of the accused. Version of PW-1 cannot be said to be totally inspiring in confidence.

Also PW-1 states that the morning after the incident, axe (Ext. P-4) was seen at the place where clots of blood were found. Now if this were so, then why is it that the police did not recover the axe from the spot the same day? Version of PW-18 that it was the accused who produced the axe stands shattered.

Sh. Roshan Lal (PW-10) who was posted at Police Post Sarahan has deposed that he had recorded rapt on 9.3.2003 when PW-1 came to report the matter which version stands belied by PW-1 according to whom no report was recorded on his behalf.

Sh. Jethu Ram (PW-2) has only deposed that on 9.3.2003 accused came to his house in an intoxicated condition but returned back. He does not state what the accused did. The following morning PW-1 came to his house in an injured condition and was told that the accused had inflicted blow with an axe. Thereafter he took the injured to the Police Post at Jeori and the police officials directed the injured be taken to Police Post Sarahan, where complaint was lodged and the injured was got medically examined from where he was referred to the hospital at Rampur. On the point of recovery of clothes of the accused this witness was declared hostile and cross examined by the Public Prosecutor. Significantly this witness has deposed that the police recorded his statement on 9.3.2003 and 10.3.2003. But record reveals that the same was done on 21.3.2003.

Also there is nothing on record to show that this witness had taken the injured to the Police Post at Jeori. Medical record reveals that the injured was examined only at Sarahan. There is no record with regard to his treatment at Rampur. Even at the time of medical examination, PW-1 did not disclose the name of the accused.

For all the aforesaid reasons, it cannot be said with certainty that it was the accused who inflicted blow with an axe on the body of the complainant. Also the other charges could not be proved. As such, I am of the considered view that the Court below erred in convicting the accused for the charged offences. The onus to prove the commission of crime is on the prosecution and it is not for the accused to prove his innocence.

Prosecution, in my considered view, could not link the weapon of offence to the accused also the fact that the blood samples found on the spot as also on the clothes were that of the accused or the complainant.

The trial Court got swayed with the fact that the complainant had sustained injuries on the vital part of his body. But then one cannot loose sight of the fact that after regaining consciousness, the complainant waited for more than ten hours to seek medical aid or report the matter to the police. He also did not inform anyone in his house, neighbourhood or employer about the incident or the injuries sustained by him.

It cannot be said with certainty that it was the accused who had inflicted blows with an axe to the complainant. Hence for all the aforesaid reasons the present appeal is allowed and the judgment of conviction and sentence passed by the trial Court is set aside and the accused is acquitted of the charged offences. Fine amount, if deposited, be refunded to the accused. Bail bonds furnished by the accused are discharged.

Appeal stands disposed of, so also the pending application(s), if any.