State of H.P. vs Budhi Singh and Others

Surjit Singh, J.—This appeal by the State, u/s 378 of the Code of Criminal Procedure, has been filed to seek reversal of judgment dated 24.2.1998, of learned Additional Sessions Judge, Mandi, whereby respondents Budhi Singh, Narinder Singh, Parkash Chand, Soda Ram, Hem Singh, Jai Singh and Achhar Singh, have been acquitted of the charge under Sections 147, 148, 452 read with Section 149, 506 (II) read with Sections 149, 323 read with Section 149, 302 read with Section 149 and 326 read with Section 149 IPC.

We may first notice case of the prosecution which led to the trial of the respondents. PW-12 Beli Ram lived in a house in village Khil, Tehsil Jogindernagar, alongwith his wife Swari Devi, son Netar Singh, PW-1, daughter in law Meera Devi, PW-11 and two grandsons, aged 6 and 4 years. In his neighbourhood, there is house of respondent Budhi Singh. Relations between PW-12 Beli Ram and respondent Budhi Singh were not good. They were not on visiting terms with each other. Several cases, both civil and criminal, had been instituted by them against each other.

On 21.2.1996, marriage of a daughter of Budhi Singh, had been solemnized. Beli Ram and his family members did not attend the marriage. However, deceased Swari Devi and her daughter in law, PW-11 Meera Devi, attended the marriage function at the place of the bridegroom of the daughter of Budhi Singh in a nearby village on 23.2.1996. They participated in a feast arranged at the place of the bridegroom and brought with them food for other members of the family. Around 8 in the evening, when Beli Ram, PW-12, deceased Swari Devi, PW-11 Meera Devi and PW-1 Netar Singh, were taking their meals, respondent Budhi Singh, accompanied by other respondents and seven more persons named in the FIR, who were not challaned by the police, went there. Budhi Singh shouted to Beli Ram, PW-12 and his son Netar Singh, PW-1 to come out. When they opened the door, they saw all the respondents and seven more persons standing outside their house. When they were asked as to why they were there and why they had called PW-1 Netar Singh and his father Beli Ram, PW-12, Budhi Singh and one Devi Dutt, allegedly retorted that they had come to kill PW-12 Beli Ram and all his family members and they would be doing them to death that very evening. Then they started pelting stones. Netar Singh, PW-1 and Beli Ram, PW-12 withdrew to their room and bolted it from inside. Respondents and all other persons, accompanying them, then threw stones at their house. Some of the stones hit the door, as a result of which, the door broke open. All the respondents and the persons accompanying them entered the room. Budhi Singh and Achhar Singh, respondents were armed with axes. Parkash Chand was carrying a Barchha (spear) and other respondents were armed with sticks and dratis. Budhi Singh dealt a blow of axe on the left side of the head of Swari Devi. Thereafter, Narinder Singh also dealt two blows of axe to Swari Devi. She died on the spot.

Beli Ram, PW-12, was dealt a few blows of axes from the reverse side on his face by Parkash and Achhar Singh, as a result of which, he became unconscious. He was also hit on his legs and head with dandas. When PW-11, Meera Devi, pleaded with the respondents and their companions to spare the lives of Beli Ram, PW-12 and Netar Singh, PW-1, they left the house. PW-1 Netar Singh went to report the matter to Biasa Devi, DW-1, Pradhan of Panchayat in village Basai. DW-1 Biasa Devi, advised him to lodge report with the police. Telephone lines were down that day. No bus service was available during night time. Also, no other means of transport could be arranged. So, Netar Singh, PW-1 went to police station, Jogindernagar on foot, covering a distance of about 24 kms. He lodged FIR Ext. PA at 9.30 a.m. on 24.2.1996. A police team, headed by PW-16 ASI Jaisi Ram, went to the spot. He saw Beli Ram, PW-12 lying unconscious with injuries. He arranged to send him to the hospital, where he was medically examined. Said PW-16 ASI Jaisi Ram also found the dead-body of Swari Devi in the house of PW-12 Beli Ram. He conducted inquest and prepared report Ex. PC/1. Dead-body was sent to the hospital at Jogindernagar for post-mortem.

PW-3, Dr. D.D. Rana, conducted the post-mortem. He noticed an incised wound on the left temporal region 5 cm. in length (horizontally), 2.5 cm. in breadth in the middle and 2 mm. in breadth at both ends. Margins were clean, fresh bleeding and clot were noticed. Depth of the wound was 5 cm. up to the piarchniod matter. Bleeding through the nose was also noticed.

On opening the head, temporal bone was found to have pierced in the same size as the aforesaid incised wound. Membrane and brain tissues were found lacerated, with damage to the parchniod matter. Time gap in the injury and the death was opined to be 5 to 10 minutes.

Medical examination of injured Beli Ram, PW-12 and Netar Singh, PW-1, was also conducted by PW-3, Dr. D.D. Rana, and the following injuries were noticed on their persons:

Injuries noticed on the person of PW-12, Beli Ram

Incised wound in the face on right temporal region (length horizontally) 3 cm; in length and 5 mm. breadth. Margins were clean. No fresh bleeding was there.

Incised wound in the posterior aspect of skull horizontally. Length 4 cm. and 5 mm. in breadth. Margins were clean. No fresh bleeding.

Lacerated wound in the dorsum of right foot. It was 5 cm. in length, 2 cm. in breadth. Margins were ragged. No fresh bleeding was there.

Black eye on right side but eye wall was normal. Fully conscious. Pupil normal. Pulse 82 per minute regular. X-Ray advised and there is right factial palsy. X-Ray No. 108-109, dated 26.2.1996 and the opinion was given as 2, 3, 4 injuries were simple but 1st injury was grievous, in view of X-ray report. Fracture of zygomatic process of the face on right side. Kind of weapon used in 3 and 4 injuries by blunt and 1 and 2 by sharp. Probable duration of injuries between 12 to 24 hours.

Injuries noticed on the person of PW-1, Netar Singh

Abrasion in the right foot on medial aspect, it is 2 cm. in length and 2 cm. in breadth, No fresh bleedings.

Abrasion in the left leg. 6 inches above the left ankle joint. It is 1 cm. in length and 1 cm in breadth. No fresh bleedings.

Slight abrasion on the forehead.

Nature of injuries. All injuries were simple, caused by blunt weapon. Probable duration of injuries is 12 to 24 hours.

On completion of investigation, report u/s 173 Code of Criminal Procedure alongwith the relevant papers, was submitted to the concerned Judicial Magistrate, who after complying with the provisions of Section 207 Code of Criminal Procedure committed the case to the Sessions Court.

Learned Additional Sessions Judge, to whom the case was assigned, charged the respondents with offences under Sections 147, 148, 452 read with Sections 149, 506 (II) read with Sections 149, 323 read with Sections 149, 302 read with Sections 149 and 326 read with Section 149 IPC, and on their pleading not guilty, tried them for the said offences.

Prosecution sought to connect the respondents with the commission of the crime by direct evidence, in the form of testimony of PW-1 Netar Singh, son of the deceased, PW-11 Meera Devi, daughter-in-law of the deceased and PW-12 Beli Ram, husband of the deceased. To seek corroboration to the testimony of the above named three witnesses, prosecution relied upon the medico legal evidence, in the form of testimony of PW-3 Dr. D.D. Rana, who conducted post-mortem of the dead-body of Swari Devi and also medically examined PW-12 Beli Ram and PW-1 Netar Singh, who were having injuries on their persons.

Respondents denied their involvement in the commission of crime. Suggestions, which were thrown to the prosecution witnesses, were to the effect that on the fateful evening, PW-12 Beli Ram consumed liquor and started throwing stones at everyone who came his way and one such stone thrown by him hit the deceased, as a result of which she fell and sustained fatal injuries. To another witness, it was suggested that deceased Swari Devi had accidentally fallen and sustained the injuries.

Learned trial Court acquitted the respondents, holding that there was unexplained delay of more than 12 hours in lodging the FIR, version given in the FIR was embellished, coloured and result of prior deliberations, no independent witness had been examined by the prosecution, though two such witnesses were available, statements of the eye-witnesses were contradictory to each other and also at variance with the FIR and the statements made by them to the police during investigation, no weapon had been recovered from five out of seven respondents, blood trail was seen on the path leading to village Khil, which indicated that the incident had taken place elsewhere.

We have heard learned Assistant Advocate General, as also learned Counsel for the respondents, and gone through the record thoroughly.

Incident had taken place in the last week of February, 1996, at 8 p.m. Sun sets around 5.45 p.m. during those days and it is pitched dark at 8 p.m. Place of occurrence is away from road head and as per testimony of the investigating officer of the case, namely PW-16 ASI Jaisi Ram, it takes one hour, if one has to travel from the place of occurrence to the road head, because of the ascent, though while going to the village from the road head, it takes only 35 minutes. From the road head, distance is about 18 kms. Incident had taken place at 8 in the night. No bus service was available in the night during those days on that road, per testimony of PW-1 Netar Singh and that the first bus for Jogindernagar passed through that road at 7.45 a.m. and the last one at 6 p.m. PW-1 Netar Singh stated that after the incident, first he went to the Pradhan of the Panchayat, namely Biasa Devi, DW-1. Her village is 3-4 kms. from the road head in the opposite direction. That means, for one hour, Netar Singh walked from his village to the road head, then he went to the village of Biasa Devi on foot. It also might have taken not less than 45 minutes. From there he returned to his village, again walking for not less than 1- 1/2 hour. Then he walked to Jogindernagar, which, as per FIR is at a total distance of 24 kms. from the place of occurrence. Thus, he could not have reached the police station at Jogindernagar before dawn in any case. He reached the police station before 9.30 a.m., because at 9.30 a.m., report was entered in the Rojnamcha, per column No. 1 of FIR Ex. P-A. In the face of these facts and circumstances, view taken by the learned trial Court that there was unexplained delay of more than 12 hours in lodging the FIR, cannot be upheld.

Undoubtedly, the evidence which has been led during the trial, in the form of testimony of PW-1 Netar Singh, PW-11 Meera Devi and PW-12 Beli Ram, as to the number of assailants, as also the role of individual assailant, is at variance with the earliest version given to the police vide FIR Ex. P-A, which does indicate that an attempt was made by the above named three witnesses to rope in as many members of the family of respondents, as they could. According to the FIR, there were 15 assailants, including the present respondents, but during the course of investigation, only seven of them, that is, the present respondents, were found to have taken part in the assault and, therefore, only they were challaned. Similarly, while according to FIR Ex.P-1, respondents Budhi Singh and Achhar Singh were armed with axes, while respondents Parkash Chand, Soda Ram and Narinder Singh were armed with Drats (scythes) and all other were armed with dandas, as per testimony of PW-1 Netar Singh, Budhi Singh, Achhar Singh and Narinder Singh were armed with axes, Parkash with a Barchha (spear), Soda Ram, with a drat and Jai Singh and Hem Singh with dandas. According to the testimony of Beli Ram, PW-12, respondents Budhi Singh, Narinder Singh and Achhar Singh were having axes, Parkash, a Barchha (spear), Soda Ram, a drat and Jai Singh and Hem Singh, dandas. According to PW-11 Meera Devi, Budhi Singh and Narinder Singh were armed with axes, Parkash with a Barchha (spear), Soda Ram with a drat and about others, she is silent.

It is true that the witnesses, namely Netar Singh, PW-1, Meera Devi, PW-11 and Beli Ram, PW-12 have created a mess while testifying in the Court and have mixed falsity with truth, but the mixing up of falsity with the truth, is not to an extent that truth cannot be separated from falsity. Spot map and photographs, as also the testimony of other witnesses, including that of Biasa Devi, DW-1, examined by the defence with respect to the spot situation immediately after the incident, are helpful tools to separate grain from chaff.

Variation in the FIR and the testimony of the witnesses, as indicated hereinabove, undoubtedly suggest that exaggerations are there even in the FIR. Testimony of the witnesses are also not wholly true. However, the version given in the FIR, as also in the statements of the above named three witnesses with respect to the role played by some of the respondents, is consistent, flawless and without any infirmity. For example, as per FIR, fatal axe blow, on the head of deceased Swari Devi, was given by respondent Budhi Singh. In the Court also, all the three witnesses have testified that first axe blow which caused fatal head injury was given by Budhi Singh.

Of course, in the Court PW-1 Netar Singh and PW-12 Budhi Singh, stated that Swari Devi was hit with axes by Budhi Singh, Achhar Singh and Narinder Singh and PW-11 Meera Devi stated that Swari Devi was hit by Budhi Singh and Narinder Singh with axes, the fact remains that all of them do say that the first blow of axe, on the head of Swari Devi, was given by Budhi Singh. This part of their statement is separable from the rest of the statements, with regard to the other alleged injuries caused to Swari Devi by other respondents, and the same is corrcborated by the earliest version given by PW-1 Netar Singh to the police, vide FIR Ex. P-A. As already noticed, according to the FIR, Swari Devi was given axe blow on her head by Budhi Singh, as a result of which, she died on the spot. The testimony of the three witnesses, with regard to axe blow on the head of Swari Devi, is further corroborated by medical evidence. PW-3 Dr. D.D.Rana, who conducted post-mortem, found incised wound in the left temporal region, 5 cm. in length, 2.5 cm. in breadth in the center and 2 mm. in breadth at both ends, and 5 cm. deep up to the parchniod matter. According to the doctor, this wound could have been caused with an axe. This was the only injury on the dead-body. That means, the testimony of the witnesses that two other respondents also hit the deceased with axes is nothing, but an exaggeration, which is easily segregable.

Suggestion was thrown to one of the witnesses that Beli Ram, PW-12 had consumed liquor on the relevant day and in intoxicated state, he was throwing stones at everybody, he came across, and one such stone hit deceased Swari and she sustained the injury. To another witness, it was suggested that Swari Devi had a fall on stony surface and sustained the injuries. Of course, suggestions were denied. The fact that inconsistent suggestions were put to the witnesses of the prosecution as to the manner in which Swari Devi sustained injuries, itself suggest that defence plea is false. It may be noticed that respondents are neighbours of Beli Ram, PW-12 and his deceased wife Swari Devi, and therefore, they were supposed to be knowing, how Swari Devi had sustained injuries, especially when the place of occurrence is the house of Swari Devi.

Trial Court was not right in disbelieving the version of the prosecution, on account of non-examination of two independent witnesses, named in the FIR. Persons, named as eye-witnesses in the FIR, are Govind, resident of Chatri and Bahadur, resident of Majair. One of these named persons, was examined by defence as their witness. He is DW-1 Govind. This witness is the son-in-law of respondent Budhi Singh, per his own statement. This person, being a close relative of one of the respondents, was not supposed to have supported the prosecution version and, therefore, prosecution did not examine him. As regards other person, namely Bahadur, he was given up as won over by the defence. In fact, Govind was also given up, having been won over by the accused.

In any case, when the testimony of the above named three witnesses, two of whom sustained injuries in the incident, one having sustained a grievous injury and their testimony was supported by medical evidence, as also by FIR to some extent, trial Court was not justified in doubting the prosecution version on account of non-examination of the aforesaid so called independent witnesses, so far as the charge of murder against respondent Budhi Singh is concerned.

Another reason given by the trial Court for doubting the prosecution version is non-recovery of weapons, allegedly wielded by respondents Parkash, Soda Ram, Hem Singh and Achhru. Non-recovery of weapons from these four respondents could not have been used as a circumstance to disbelieve the entire prosecution story, especially when two axes, allegedly used by respondent Budhi Singh and Achhar Singh had been recovered and the evidence, including medical evidence, established beyond reasonable doubt that Swari Devi died as a result of incised wound on the head inflicted by an axe like weapon. Testimony of Netar Singh, PW-1, Beli Ram, PW-12 and Meera Devi, PW-11, with respect to infliction of head injury to. deceased Swari Devi, was unambiguous and, therefore, it could not have been disbelieved on account of non-recovery of weapons from respondents, other than Budhi Singh, particularly when the FIR corroborated the testimony of PW-1, Netar Singh, that fatal blow was given by respondent Budhi Singh and other two witnesses, Beli Ram PW-12 and Meera Devi, PW-11, also testified that such blow was given by Budhi Singh, respondent.

Trial Court also observed that place of occurrence appeared to be different from the house of PW-12 Beli Ram, because the investigating officer of the case, namely PW-16, Jaisi Ram, ASI, admitted that he had noticed marks of blood on the passage leading to village Khil. There is nothing in the statement of the witness, indicating that the marks of blood noticed by him, were far away from the house of PW-12, Beli Ram, or that the marks were so large in number that they suggested that the incident had taken place there. In any case, it could not have been presumed that the marks were of human blood, much-less the blood of the deceased, or the injured. Photographs, Exts. P-7 to P-25 proved by PW-16, Jaisi Ram, ASI, show that articles were lying helter skelter in a room of PW-12 Beli Ram. Plates with some food still in them were also there. Pieces of broken window panes were also there, per testimony of even DW-1 Biasa Devi. Spot map Ext. PW-16/C, also depicts the aforesaid condition of the room. So, there cannot be any doubt in concluding that incident had taken place inside a room of the house of Beli Ram, PW-12. .

It was argued that a function at the house of Budhi Singh was going on in connection with the marriage of his daughter on the relevant evening and it was quite unlikely and unnatural that he would have planned a bloody attack on his neighbour. Incident took place on 23.2.1996. Marriage of Budhi Singh''s daughter had been solemnized on 21.2.1996. Therefore, it cannot be said that any function was going on at Budhi Singh''s place. In any case, even if it be assumed that some gathering was there at his place that evening, that by itself, would not render the prosecution story unbelievable, particularly when one death had taken place and one person sustained grievous injuries.

Another submission made on behalf of the respondents was that conduct of PW-1 Netar Singh was unnatural, because he went to the house of DW-1 Biasa Devi, Pradhan, at a walking distance of 4 kms. to inform her about the incident, leaving his unconscious father unattended. It has come in evidence that Meera Devi, PW-11, wife of PW-1 Netar Singh, was present in the house to take care of her father-in-law. When mother of PW-1 Netar Singh had died, as a result of fatal axe blow given to her on the head, and his father had also been brutally assaulted, it was but natural for him to have immediately informed the Pradhan of the Panchayat, so that action was taken against the assailants, by calling the police.

Another submission made on behalf of the respondents was that Biasa Devi, Pradhan of the Panchayat, examined by the defence as DW-1, did not support the prosecution version. Biasa Devi was given up by the prosecution as won over. Accused examined her as their own witness. She testified that on 23.1.1996, PW-1 Netar Singh came to her place in village Basai, which is at a distance of 4 kms. from his village Khil and told that Devi Dutt had been quarreling with his parents. She stated that he did not name any respondent having accompanied said Devi Dutt, or having quarreled with his parents. She stated that Netar Singh did not tell that any of the respondents had caused any injury to his parents.

Testimony of the witness appears to be false on the face of it. Had it been a case of a simple quarrel by one person, Netar Singh, PW-1 would not have taken the trouble to go to the house of this witness at the dead of night, covering a distance of 4 kms. on foot. Further, if it were a simple case of quarrel, the witness would also not have advised Netar Singh to report the matter to the police. The very fact that she, per her own testimony, advised Netar Singh PW-1 to report the matter to the police, suggests that Netar Singh gave her full detail of the incident, as he gave to the police vide FIR Ex. P-A. Therefore, no help can be had by the respondents from the testimony of DW-1 Biasa Devi.

In the light of the above discussion, we hold that the evidence on record, conclusively proves that fatal blow on the head of Swari Devi was given by respondent Budhi Singh, with an axe. The fact that blow was given on the vital part of the body, that is head, with an axe, which is a deadly weapon, with a great deal of force, which caused 5 cm. long, 2.5 cm. broad and 5 cm. deep wound, and the blow pierced through the skull bone, is enough to conclude that respondent Budhi Singh had intention to kill Swari Devi and, therefore, we hold him guilty of the offence of murder, u/s 302 IPC.

As regards the charge u/s 326 IPC, Doctor, who conducted medical examination of PW-12 Beli Ram, namely PW-3 Dr. D.D. Rana, stated that he was having one incised wound, 3 cm. in length and 5 mm. in breadth on the right temporal region, another incised wound in the posterior aspect of skull, 4 cm. long and 5 mm. wide, a lacerated wound on the dorsum of right foot, 5 cm. in length and .02 cm. in breadth and his right eye was also black. Incised wounds were opined to have been caused with some sharp edged weapon, while the rest of the injuries, with some blunt weapon. He opined that incised wounds could have been caused by a weapon like axe, Ex.P-3 and other injuries with dandas. All the injuries were simple, except the incised wound in the face on right temporal region, as the underlying bone was found fractured on x-ray examination. Thus, offence committed against Beli Ram, PW-12 falls within the mischief of Sections 326 and 324 IPC.

Ocular evidence, with respect to injuries caused to Beli Ram, PW-12, is also messy, but not so much that the truth cannot be culled out. As per FIR, injuries were caused to Beli Ram by respondents Parkash and Achhar Singh with an axe due to which he became unconscious. However, while in the witness-box, PW-1 Netar Singh stated that injuries were caused to his father Beli Ram, PW-12, by Narinder with an axe, by Achhar Singh with a drat and by Soda Ram, with axe. PW-11 Meera Devi stated that injuries were caused to Beli Ram by Narinder Singh and Achhar Singh with axes and by Soda Ram with drat. PW-12 Beli Ram himself stated that he was caused injuries by Achhar Singh, with axe and by Soda Ram with drat. No injury on the person of Beli Ram, PW-12 has been opined to have been caused with drat, by PW-3 Dr. D.D. Rana. Narinder Singh was armed with drat, as per earliest version and, therefore, testimony of PW-1 Netar Singh and PW-11 Meera Devi that Narinder was among those who caused injuries to Beli Ram, PW-12 and that he used axe to cause those injuries, cannot be believed. Another reason for not believing the testimony of these witnesses, to this extent, is that PW-12 Beli Ram himself does not say that any injury was caused to him by Narinder.

However, all the three witnesses have stated, with one voice, that Achhar Singh had caused injuries by means of axe on the face of PW-12 Beli Ram and their testimony, to this extent, is corroborated by FIR Ex. P-A, in which it is recorded that injuries were caused to Beli Ram with axes by Achhar Singh and Parkash. Parkash has not been testified to have caused any injury to Beli Ram, PW-12 by any of the aforesaid three witnesses.

In view of the above discussed evidence, it is held that respondent Achhar Singh caused grievous, as also simple injury to PW-12 Beli Ram, by means of axe and, thus, committed offences punishable under Sections 326 and 323 IPC. Though the act amounts to an offence u/s 324 IPC for causing simple injury, Achhar Singh has been held guilty only u/s 323 IPC, because the charge framed by the trial Court is under that Section.

Evidence on record does not prove beyond reasonable doubt involvement of other respondents, nor does it prove that there were five or more persons involved in the attack, hence charge under Sections 147 and 148 IPC, can also not be said to have been proved.

Assault had been made inside the house of Beli Ram, PW-12, therefore, charge u/s 452 IPC, also stands established against Budhi Singh and Achhar Singh. On the basis of evidence on record, it cannot be said that Budhi Singh and Achhar Singh had the common intention to murder Swari Devi or to cause hurts to Beli Ram, PW-12. Therefore, they are liable for their individual acts, that is, Budhi Singh is liable for murdering Swari Devi and Achhar Singh for voluntarily-causing grievous and simple injuries to Beli Ram/PW-12. Both of them are liable for the offence of house tres-pass, punishable u/s 452 IPC.

As a result of the above discussion and findings, appeal is partly accepted. Acquittals of respondents Budhi Singh and Achhar Singh for offences under Sections 452, 302, 326 and 323 IPC are set aside. Respondent Budhi Singh is convicted of offences under Sections 452 and 302 IPC. Respondent Achhar Singh is convicted of offences, under Sections 452, 326 and 323 IPC. Both of them be produced in person on 27.5.2010, for being heard on the question of sentence. Non bailable warrants be also issued against them, returnable for the aforesaid date.

Appeal against rest of the respondents is dismissed.