State of H.P. vs Gian Chand and Others

V.K. Sharma, J.—The State is in appeal against the judgment, dated 23.3.1998, of the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., whereby the Respondents, who shall here-in-after be referred to as ''the accused'' (in short ''A1'', ''A2'', ''A3'' and ''A4'', respectively) were tried for the offence, u/s 302 read with Section 34 of the Indian Penal Code and were ultimately acquitted.

In brief, the prosecution case is that on 15.9.1992 at 9.00 a.m., the complainant, Shri Mohar singh (PW-1), a member of Gram Panchayat, Karar, accompanied by Shri Khyali Ram (PW-6), Pradhan of the said Gram Panchayat lodged Daily Diary Report (DDR), dated 15.9.1992, Ext. PW1/A with the police at Police Post, Anni, District Kullu to the effect that on the previous day (14.9.1992), he was present at his house, when at about 7.00 p.m., he heard loud noise emanating from the path passing through the village. On this, he and other villagers came out and saw that a verbal duel was going on between Gian Chand, son of Shetu Ram (''A1''), Mohar Lal, son of Shri Shetu Ram (''A2''), residents of Pokhri and Ranjit, son of Paras Ram (''A3''), resident of Tippal and Ghum Dassi ''A4'' on the one hand and Salig Ram (the deceased) on the other, regarding Nautor land. At that time, ''A2'' Mohar Lal was carrying a DANDA (handle of ''Kudali'') and other accused were wielding thick branches of ''Rai''. When the verbal altercation between the accused and the deceased continued for considerable time, ''A2'' Mohar Lal armed with the aforesaid DANDA and ''A1'' Gian Chand and ''A3'' Ranjit, who were armed with the aforesaid branches of ''Rai'' led an attack on the deceased. As a result, the deceased suffered injuries on his head and after some time, he breathed his last on the spot. When the villagers after lifting the dead body of the deceased were taking the same to his house, the complainant asked them not to do so.

According to the complainant, ''A1'' Gian chand, ''A2'' Mohar Lal and ''A3'' Ranjit had attacked the deceased with DANDAS due to land dispute and as a result the deceased had died and the accused had fled away from the spot. The complainant further stated to the police that ''A4'' Ghum Dassi had given beatings to the wife of the deceased (PW-5 Smt. Devki Devi) and children with a DANDA. Since he could not come to lodge report on the previous day, as it was already late in the night (Samay Begah Hone Ke Karan), he had come to the Police Post for lodging report. He prayed for action in the matter.

On the basis of DDR Ext. PW-1/A, formal FIR Ext. PW-1/B was registered. The investigation commenced. The weapons of offence, DANDA Ext. P1, branches of ''Rai'' Exts. P2 and P3 and cap of the deceased Ext.P4, which were lying on the spot nearby the dead body of the deceased, were taken into possession by the police, vide memo Ext. PW-1/C. Ext. PW-14/C is the sketch of DANDA Ext. P1. Similarly, sweater Ext. P5, which ''A1'' is said to be wearing at the time of the occurrence, was produced to the police by his wife Smt. Guddu Devi and was taken into possession, vide memo Ext. PW-1/D. Blood stained soil Ext. P6 was also taken into possession by the police from the spot, vide memo Ext. PW-6/A.

Inquest report Ext. PW-14/D was prepared and the dead body of the deceased was sent for autopsy and report Ext. PW-7/A was obtained, as per which, it was a "Case of Homicide Caused by Blunt weapon head Injury leading to hemorrhage subdural and extra dural and in brain". The medical witness, PW-7 Dr. Tejbir Singh had found the following injuries on the dead body of the deceased and observed as under:

Injuries:

i) Incised looking lacerated wound 6" x 1" x scalp deep on the scalp 6" above left ear,

ii) Abrasion bluish red in colour 2" x 1/2" on right scalp scapula,

iii) Abrasion 1" x 1" bluish read in colour on buttock right side and

iv) Minor abrasions on legs.

Observations:

i) Confluent bluish red discolouration on the back of the thigh and neck was present.

ii) Bluish discolouration on cheek and abdomen-front.

iii) No fracture of skull. Dura mater intact. Extra & subdural hemorrhage at the site of wound. Brain matter contested in the region of wound. Rest of brain was normal.

PW-5 Smt. Devki Devi, wife of the deceased, who had also suffered injuries during the occurrence, was sent for medical examination and injury report Ext. PW-7/B was obtained. The following simple injuries were found on her person by PW-7 Dr. Tejbir singh:

i) A lacerated wound about 11/2cm x 1/2 cm x 1/2 cm on left side of forehead, about 11/2" above outer margin of left eye. There was dark red blood clotted on the surface.

ii) A bruise red in colour below the left eye.

iii) An abrasion dark red in colour, 2 1/2" long and 1/2 cm wide on upper lip left side.

Site plans of the place of occurrence, Ext. PW-14/A and Ext. PW-14/B, were also prepared.

Supplementary statement of the complainant Ext. DA was also recorded by the police, u/s 161 Code of Criminal Procedure on the same day, that is, 15.9.1992, wherein he stated that the aforesaid DANDA (handle of ''Kudali'') was being carried by ''A1'' Gian chand and ''A2'' Mohar Lal and ''A3'' Ranjit were carrying thick branches of Rai and that while lodging report Ext. PW-1/A, he had mistakably stated that the DANDA was in the hand of ''A2'' Mohar Lal.

The clue materials as aforesaid were sent for forensic examination and report Ext. PW-14/E was obtained, as per which human blood of group ''A'' was found on ''DANDA'' Ext. P1, branches of ''Rai'' Ext. P2 and Ext. P3 and blood stained soil Ext. P6. Human blood was also found on sweater Ext. P5 of ''A1'' Gian Chand and shirt of the deceased (handed over to the police along with other clothes of the deceased at the time of post mortem examination) but blood group thereof could not be ascertained. Traces of blood were also found on cap Ext. P4 of the deceased which were insufficient for further tests.

On completion of investigation, the accused were sent up to face trial. On being charged, they pleaded not guilty and claimed to be tried. The prosecution evidence followed. It examined as many as 15 witnesses.

On close of the prosecution evidence, the accused were examined u/s 313 Code of Criminal Procedure

While admitting that a dispute was going on between ''A1'' Gian Chand, ''A2'' Mohar Lal and ''A4'' Ghum Dassi on the one hand and the deceased on the other, regarding possession of the aforesaid Nautor land and lodging of report Ext. PW-1/A by PW-1 Shri Mohar Singh at Police Post, Anni on 15.9.1992 at 9.00 a.m., their case in defence is that of innocence and false implication. According to them, the deceased had died at his own house. According to the accused, none of the prosecution witnesses was present on the spot. In reply to the last question of their respective statements, ''A1'' Gian Chand, ''A2'' Mohar Lal and ''A3'' Ranjit have set up the following defence:

''A1'' Gian Chand:

He fell down from a THADA and consequently he sustained death. So called weapons of offence were produced by the villagers who also shifted the dead body to the side of the village path. I went to the Police Station and complained that why a false case has been foisted upon me but I was kept under arrest. There were many people against us so we have been implicated in a false case.

''A2" Mohar Lal:

Salig Ram fell down from a DANGA and consequently he suffered fatal injuries. We also appeared in person before the police but we were implicated falsely.

''A3'' Ranjit Singh:

In fact deceased Salig Ram who was my maternal uncle came to a ''Khaliyan'' jointly owned and possessed by both the parties. I as well as accused persons were present in the ''Varanda'' of the house of accused Gian Chand. The deceased had gone to the ''Khaliyan'' in order to have altercation with accused Gian Chand. The deceased was accompanied by his wife Devki Devi and his sons, namely, Partap Singh and Gumat Ram. The companions of the deceased were catching hold of him so that he may not grapple with the accused party. Suddenly when the deceased was trying to slip from the hold of his companions, he fell down from the DANGA of the KHALIYAN. The height of the DANGA is about 10 feet and he sustained injuries due to fall from height.

In defence, ''A1'' Gian Chand has examined one witness, namely DW-1 Shri Amar Singh. However, no evidence has been led by the remaining accused.

At this juncture, it shall be pertinent to notice that after the defence evidence was closed on 26.8.1998, arguments were heard by the learned trial Judge on 11.9.1997 and the case was posted for orders on 17.9.1997, when the following order was passed:

On analysis of the deposition of Dr. Tejbir Singh (PW-7), who conducted the post-mortem examination of the dead body, I find glaring variance therein viz-a-viz, the contents of the post mortem report (Ext.PW-7/A). Unfortunately, neither during the investigation of the case nor during the examination of the said Medical Officer, any attempt has been made to obtain his opinion to the effect whether or not injuries found on the dead body were sufficient for causing death in an ordinary course of nature? The contention raised by the learned defence counsel is that it is a case of accidental death, whereas a charge of murder has been framed against the accused persons. In order to appreciate the rival contentions in proper perspective, I find it just and expedient in the interest of justice to recall the said Medical Officer, namely, Dr. Tejbir Singh (PW-7) for his examination as Court witness. It is, therefore, ordered that the said witness be summoned through a special messenger, a police official not below the rank of an A.S.I. for 29.9.1997. It is further ordered that copies of the case Diaries retained in the office of the Superintendent of Police, Kullu, relating to this case as well as the relevant Daily Diary, be caused to be sent to this Court....

Consequently, PW-7 Dr. Tejbir Singh was re-examined on 29.9.1997 pursuant to which the accused were further examined u/s 313 Code of Criminal Procedure, wherein they denied that the head injury found on the person of the deceased was sufficient to cause death in the ordinary course of nature. According to them in fact the head injury was sustained by the deceased due to fall from the DANGA. However, no further evidence in defence was led by them.

On conclusion of the trial, all the accused were acquitted by the learned trial Court by extending benefit of doubt to them. Being aggrieved, the State has laid challenge to the impugned judgment, dated 23.3.1998, which is supported by the accused.

We have heard the learned Additional Advocate General for the Appellant-State and the learned Counsel for the Respondents-accused and perused the record.

The learned trial Court has acquitted the accused mainly on the grounds that (i) whereas, in the earliest version about the occurrence stated to the police by PW-1 Shri Mohar Singh, vide DDR Ext. PW-1/A, dated 15.9.1992, he had alleged that the aforesaid DANDA (handle of ''Kudali'') was being wielded by ''A2'' Mohar Lal, later on he took a complete somersault by stating that it was in the hands of ''A1'' Gian Chand; (ii) there are discrepancies and self-contradictions in the version given by other witnesses and (iii) the defence version is quite probable and plausible. However, in our considered view, none of these grounds leading to the acquittal of the accused is made out in the facts and circumstances of the case and the material on record. The reasons to arrive at this conclusion at the very outset are enumerated hereinafter.

In so far as the first ground with regard to variance between the two versions stated by PW-1 Shri Mohar Singh initially to the police, vide DDR Ext. PW-1/A, dated 15.9.1992 and lateron as per his supplementary statement recorded by the police, u/s 161 Code of Criminal Procedure Ext. DA, dated 15.9.1992 and in the Court in his deposition as PW-1, is concerned, it shall be pertinent to observe that the version stated by him to the police, vide the aforesaid DDR on 15.9.1992 at 9.00 a.m. was corrected by him at the first available opportunity on the same day while making supplementary statement Ext. DA, as already noticed, while stating facts of the case.

Further more, even if the contention raised on behalf of the defence that the above variance between the two versions goes to the very root of the case, as has also been held by the learned trial Court, is admitted for a moment for the sake of argument, it would be seen that both ''A1'' Gian Chand and ''A2'' Mohar Lal are real brothers. There could not have been any occasion for the complainant, PW-1 Shri Mohar Singh to have changed his version and thereby absolving one of the brothers, that is, ''A2'' Mohar Lal of the blame for wielding the aforesaid DANDA (handle of ''Kudali'') and thus, being the author of the fatal head injury suffered by the deceased and instead implicate his real brother ''A2'' Gian Chand on this count. We also do not see any lawful cause or basis for such variance other than that it was on account of an inadvertent mistake committed by him which in the facts and circumstances of the case coupled with genesis of the occurrence as stated by PW-5 Smt. Devki Devi and other evidence on record cannot be blown out of proportion.

PW-5 Smt. Devki Devi, who is wife of the deceased and had also suffered injuries during the occurrence, is a material prosecution witness. She has stated about the genesis of the occurrence in the first part of her statement in chief-examination in the following words:

The deceased was my husband and the accused persons are from my village. The dispute was regarding the land which was allotted to my husband in nautor. The accused persons Gian Chand and Mohar Lal were interfering in our peaceful possession by digging our land. My husband asked not to interfere in his possession. This had taken place one day prior to the incident i.e. on 13.9.92. On 14.9.92, when my son had gone with his cattle, he had seen the accused persons, namely, Gian Chand, Mohar Lal and Ranjeet cutting the bushes from our land and had beaten my son Partap Singh. My son Partap Singh returned in the evening and he informed me and my husband about the happening. My husband told to my son that he should report the case. He also told him that the villagers are to be called and the case is to be registered.

This part of the deposition of PW-5 Smt. Devki Devi was not at all challenged during cross-examination and instead a suggestion was put to her, which was denied as correct that the accused have been falsely implicated in this case due to the land dispute between the complainant party and ''A1'' Gian Chand.

Similarly, PW-3 Shri Mohan Lal has deposed as under:

Accused Ghum Dassi was quarrelling with Devki Devi wife of the deceased. The dispute was regarding some land. The land was in possession of Salig Ram deceased and accused persons wanted to take the forcible possession of the land.

Again, this part of the statement of PW-3 Shri Mohan Lal has not at all been challenged during cross-examination.

As already noticed, in their statements u/s 313 Code of Criminal Procedure the accused have categorically admitted existence of such dispute between the parties, excluding ''A3'' Ranjit Singh, relating to ''Nautor'' land. Enmity is a double edged weapon. It can be a cause for causing harm to the enemy as well as for false implication of the opponent. However, in the present case, there is no material on the record to suggest that the land dispute between the parties was the ground for the complainant party to falsely implicate the accused in this case.

It is against the aforesaid background that depositions of the eye witnesses to the occurrence other than PW-1 Shri Mohar Singh viz. PW-2 Shri Paras Ram, PW-3 Shri Mohan Lal, PW-4 Shri Dhian Singh and PW-5 Smt. Devki Devi are required to be considered for arriving at correct inference with regard to the aforesaid variance between the initial and later versions stated by PW-1 Shri Mohar Singh. All of them have categorically stated that ''A1'' Gian Chand was having the aforesaid DANDA (handle of ''Kudali'') and had dealt a blow with the same on the head of the deceased, which led to his almost instantaneous death on the spot.

A combined and harmonious reading of the depositions made by these witnesses would go to show that the same do not suffer from any major contradictions, embellishments or contradictions as has been concluded by the learned trial Judge. In this regard, we can also not be oblivious of the fact that whereas, the occurrence had taken place on 14.9.1992, these witnesses were making statements in the Court on 11.12.1996, that is, after more than four years. Thus, it was not expected out of them to have given a parrot like account of the occurrence. Thus, the second count for basing acquittal of the accused by the learned trial Court also does not subsist.

Now, the third ground of acquittal survives for consideration. In this regard, it shall be pertinent to observe that the defence version itself is quite contradictory and since all the material prosecution witnesses have categorically denied the same, there is no other evidence, except the sole testimony of DW-1 Shri Amar Singh, who has admitted that "I was also interrogated by the police but the version stated by me was not accepted by the police". When the same is considered in its entirety particularly his response to the Court Question, which is extracted below, the same does not inspire confidence for the reasons to be stated hereinafter:

Court Question: I did not complain to the higher police authorities and to any other superior authority regarding high handedness of the police. The dead body was kept inside the room behind a curtain. After dropping the dead body inside the room of the deceased, I did not go again to see the dead body. On the following day, I did notice that the dead body was removed from the house of the deceased to the scene of occurrence by Mohar Singh and some other persons. The fact of the matter is that all the inhabitants of the village sided against the accused party and as such, a false case was framed against the accused persons. I cannot assign any reason for such unusual disposition of the villagers against the accused persons. I made no written complaint to the police stating therein, the version which I have deposed hereto above.

The defence version suggested to PW-1 Mohar singh and his response to the same is as under:

It is correct that there is one ''Thara'' in the house of deceased Salig Ram. It is correct that the height of ''Thara'' is about 10-11 feet from the path. The path is pucca. It is wrong to suggest that Salig Ram received head injury by a fall from the ''Thara'' on the path.

The above defence version was not put to PW-2 Shri Paras Ram and instead it was suggested to him that the deceased was taking forcible possession of the ''Nautor'' land of ''A1'' Gian Chand. The suggestion has been emphatically denied by the witness, who has further denied that the present case has been falsely registered against the accused persons in connivance with the wife of the deceased.

Though the defence version, as above, was put to PW-3 Shri Mohan Lal yet he has also denied the same in the following terms:

There is no ''Thara'' in the house of Salig Ram deceased. It is wrong to suggest that a pucca village path is going below the house of deceased Salig Ram at a distance of 10 feet. Volunteered that the path is going from one side of the house, which is about 100 feet below. The path is a pucca. It is wrong to suggest that Salig Ram fell down from his house on this pucca path and he received injury. It is wrong to suggest that he died due to injury received by fall on the pucca path.

The defence version was also not put to PW-4, Shri Dhian Singh.

PW-5 Smt. Devki Devi, wife of the deceased has though admitted that their house is above the pucca path yet she has categorically denied that the deceased had received injury due to fall on the pucca path.

The following line of defence was put to the Investigating Officer, PW-14 HC Dalip Singh, which he has categorically denied to be correct:

It is correct that the house of Salig Ram is on the upper side of the path 11-12 feet in height. The village path is not pucca but there is a soling of stones. It is wrong to suggest that it had come in my investigation that Salig Ram had fallen down from his house on this path. It is also wrong to suggest that Salig Ram received the head injury due to fall.

In contrast, the stand taken by the accused in their initial and further statements u/s 313 Code of Criminal Procedure, which stands already noticed, while stating the facts of the case, is in stark contradiction to the defence version suggested to the aforesaid witnesses. Whereas, according to ''A1'' Gian Chand, the deceased had died due to fall from a ''Thada'', according to ''A2'' Mohar Lal, fatal injuries were suffered by deceased due to fall from a ''Danga''. Still further ''A3'' Ranjit singh has altogether shifted the venue in this regard by stating that the deceased had suffered injuries due to fall from the ''DANGA of the KHALIYAN''. Furthermore, DW-1 Shri Amar Singh has stated that "while altercating, Salig Ram moved towards a DANGA of the accused persons from where he fell down", meaning thereby that he has further shifted the venue of the alleged fall of the deceased to the house of the accused.

Thus, it is manifest from the above narrative that four versions are coming from the side of the defence, firstly, that the deceased had died due to fall from the ''Thada'' of his house, secondly, from the ''Danga'' of his house, thirdly, from the DANGA of the KHALIYAN and fourthly from the ''Danga'' of the accused. It being so, the defence version suffers from inherent contradictions which cannot be lightly over-looked and as such, neither it can be said to be ''quite probable and plausible'' as inferred by the learned trial Court nor can be made basis for acquittal of the accused.

The case was investigated by PW-14, HC Dalip Singh. He had visited the spot scene on 15.9.1992 and had prepared site plan Ext. PW-14/A. It is stated by him that the site plan, which he had prepared at the instance of the accused, is Ext. PW-14/B. A perusal of site plans Ext. PW-14/A and Ext. PW-14/B reveals that the place of occurrence is away from the house of the deceased. This aspect of the matter further negates the defence plea that the deceased had died due to fall from the ''Thada'' of his house.

In such situation, the incongruity appearing in the prosecution evidence to the effect that whereas PW-1 Shri Mohar Singh has admitted that there is one ''Thada'' in the house of the deceased, PW-3 Mohan Lal has denied existence of any such ''Thada'', would not be of much consequence taking into consideration the positive ocular version about the incident stated by the eye witnesses.

It is for the same reason that the following statement during cross-examination made by PW-7 Dr. Tejbir Singh, which essentially is in the nature of opinion evidence, cannot over-ride the direct ocular version about the incident stated by the material prosecution witnesses:

Injuries in MLC Ext. PW-7/B can be caused by a fall on hard surface. Injury on the head described in MLC Ex. PW-7/A can be caused by fall on a stone from height.

In view of the above, the inescapable conclusion that emerges is that the impugned judgment of acquittal, dated 23.3.1998 cannot be sustained.

Now, arises the question as to what offences are constituted against the accused.

Taking into consideration the nature of the weapons of offence being wielded by the accused at the time of occurrence and the harm caused by them to the deceased and his wife, PW-5 Smt. Devki Devi, facts and circumstances of the case emerging out of the materials on record and on an overall view of the matter, we do not have any doubt in our minds that ''intention'' or ''knowledge'' to cause the death of the deceased cannot be attributed to all the accused and thus, they shall be liable for their individual acts.

We are further clear in our minds that in so far as ''A1'' Gian Chand, who has been found to be author of the fatal blow leading to the death of the deceased is concerned, his act falls within exception 4 to Section 300 IPC as it was ''without premeditation in a sudden fight in a heat of passion upon sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner''.

This inference is deducible albeit the fact that in the opinion of PW-7 Dr. Tejbir singh that the head injury suffered by the deceased during the occurrence alone was sufficient to cause death in the ordinary course of nature, as only one blow was given by ''A1'' Gian Chand to the deceased which incidentally hit him on the head and unfortunately proved to be fatal. It can also not be said that the act of ''A1'' Gian Chand was ''done with the intention of causing death, or of causing such bodily injury as is likely to cause death'' and instead can safely be characterized as ''done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death''. Thus, ''A1'' Gian Chand is liable for the offence u/s 304 Part-II of the Indian Penal Code.

In so far as the respective acts of the remaining accused viz. ''A2'' Mohar Lal, ''A3'' Ranjit Singh and ''A4'' Ghum Dassi, out of whom, the first two, (''A2'' Mohar Lal and ''A3'' Ranjit singh) had given beatings to the deceased with branches of ''Rai'' Exts. P2 and P3 and the third (''A4'' Ghum Dassi) had caused injuries to PW-5 Smt. Devki Devi with DANDA (though not recovered), are concerned, the same fall within the ambit of Section 323 IPC as all other injuries, except the fatal head injury suffered by the deceased during the occurrence, author whereof has been held to be ''A1'' Gian Chand as also those suffered by PW-5 Smt. Devki Devi were found to be simple in nature.

For the reasons stated above, the appeal succeeds and is accordingly allowed. Consequently, the impugned judgment of acquittal, dated 23.3.1998, is reversed and instead whereas ''A1'' Gian Chand is held guilty u/s 304 Part-II IPC, ''A2'' Mohar Lal, ''A3'' Ranjit singh and ''A4'' Ghum Dassi are held liable u/s 323 IPC and convicted accordingly. They be produced on 5.7.2010 for being heard on the question of quantum of sentence. Non-bailable warrant of arrest be issued against convict Gian Chand and bailable warrants be issued against the remaining convicts.