State of H.P. vs Mehar Chand and Another

R.B. Misra, J.—The present Criminal Appeal has come up for adjudication after the grant of leave to appeal u/s 378(3) of the Code of Criminal Procedure has been granted in reference to judgment dated 28.2.1997, passed by Learned Additional Sessions Judge 1, Kangra District at Dharamshala, H.P., in Sessions Case No. 7-K/96., u/s 447 and 307 read Section 34 of the Indian Penal Code, acquitting the alleged accused/respondents.

The prosecution case is that victim/Salochna Devi was earlier jointly residing in an old house but after the construction of new house she had shifted there, whereas, Mehar Chand (accused No. 1), Jeth of the victim, has constructed a new house adjacent to the old house and the partition of old house was in dispute. As per testimony of Smt. Salochna, the old house was in her share and she was in possession of the old house, whereas, the respondent-accused was disputing the partition and possession of Salochna Devi thereof. On 27.4.1995, at about 5-6 A.M., Smt. Salochna Devi (PW.9) went to her old house from her new house alongwith her daughter, she observed that slates were kept in the courtyard, in that portion where Turmeric was sown. Smt. Salochna Devi/victim started collecting the slates and putting the same on the one corner of the courtyard. At that moment, Mehar Chand and Puran Chand came there and accused No. 1 Mehar Chand told his son Puran Chand/accused No. 2 to kill Smt. Salochna, on this, accused-respondent No. 2 struck her head with the slate, whereby she was injured and had sustained two injuries on her head and she was also beaten by danda Ex. P2. Slates were taken into possession subsequently and Danda Ex.P2 was also recovered. Thereafter, the matter was reported to the police, on the basis of which FIR was lodged and accused-respondents were charged for the aforesaid offences.

In order to prove its case, the prosecution has examined as many as 12 prosecution witnesses, whereas, the accused through their statement u/s 313 of Cr.P.C., have shown their innocence and denied the prosecution case.

PW.1, Dr. Atul Mahajan, who gave the opinion Ex. PW.1/A. PW.2 Hans Raj, the Pardhan of Gram Panchayat Dhadamb, PW.3 Munshi Ram an independent witness, PW.4 Lavjeet Kumar, nephew of victim, PW.5 Head Constable Darshan Singh, PW.6 ASI Lajam Singh, PW.7 Dr. Arun Kumar Tenglikal, who observed the injuries on the person of the victim. PW.8 Dr. B.V. Sharma, who took the x-ray of the fracture of PW.9 Smt. Salochna Devi (Victim), PW.10 Joginder Kumar, nephew of accused No. 1, PW.11 Constable Mohinder Singh, PW.12 ASI Kirpa Ram, examined by the prosecution. Whereas, PW.9 Salochna (Victim) herself is a star witness and supported by PW.2 Hans Raj, PW.3 Munshi Ram, PW.4 Lavjeet Kumar and PW.10 Joginder Kumar. Though PW.10 Joginder Kumar and PW.4 Lavjeet Kumar are the interested and relative witnesses, as such, their testimony has to be scrutinized very carefully.

On analysis of the prosecution witnesses and materials on record, we notice that testimony of star witness of the prosecution, namely, Smt. Salochna Devi (victim), is very important from the point of view of the prosecution. PW.9 Smt. Salochna Devi, has stated that accused No. 1 is elder brother of her husband and accused No. 2 is son of accused No. 1 and son of her Jeth Mehar Chand and is as such, nephew of PW.9 Smt. Salochna Devi. As per testimony of PW.9 on 27.4.1995, when she went from the new house to her old house at about 5-6 A.M., accompanied by her daughter, to take the wheat, she noticed that somebody kept slates in the courtyard, where PW.9 had also sown the Haldi crop. PW.9 started picking up the said slates and placing the same in the corner of the courtyard and after taking out third slate for the third time, at that very moment, both accused-respondents came there and accused No. 1 told accused No. 2 to kill Smt. Salochna Devi, as the murder can be executed. Accused No. 2 by giving abuse struck the head of Smt. Salochna Devi with the slate on the back side. PW.9 received two injuries on her head. PW.9 asked accused No. 2 not to call bad names, after this, accused No. 2 gave her beatings with Ex.P2 on her back side, blood started oozing from the injuries received by her on the head. Daughter of PW.9 raised alarm and made a request that his mother has died and so, she should be made scot free. On that day, Lavjeet (PW.4) was also present in her house. The land where the slates were put was owned and in possession of PW.9 for the last 19 years, as the said land was received in partition.

In cross-examination, PW.9 has stated that she was residing in the old house and after the construction of new house she shifted in the new house. She has also stated that in the old house accused No. 1 was also residing with them and the said house was in joint name. PW.9 has further deposed in cross-examination that it is correct that accused No. 1 constructed a new house adjacent to the old house. However, PW.9 in examination-in-chief has not stated that she was hit by Danda, instead, she has stated that Ex.P3 was taken into possession by the police, but she had no where stated that danda was alleged to have been used for assaulting by accused No. 1. Nothing is indicated in the testimony of PW.9 that both the accused came with danda. Whereas, she has simply asserted that when she was about to pick up third slate, both the accused came there.

PW.7 Dr. Arun Kumar Tenglikal, on medical examination of the victim, observed following injuries on her person:

Lacerated wound present on the left side of the forehead size 4" x 1" into skin deep.

Lacerated wound present on the left occipital region size 1 cm x = cm skin deep.

Advised skull AP/Lateral/View. Final report will be given after X-ray report. X-Ray No. 175 plus 176 dated 28.4.1995 Expert opinion given by Radiologist doctor B.V. Sharma, as communicated fracture of frontal bone on left side is present. According to X-ray report injury No. 1 was found grievous and caused by blunt weapon.

PW.7 in cross-examination has stated that injuries No. 1 and 2 can be caused by both the weapons i.e. Ex.P2 and Ex.P3 (Slate and Danda).

PW.2 Hans Raj has deposed that on 27.4.1995, at about 6.30 A.M. two children of Salochna Devi informed him that both the accused had given beatings to the victim Salochna Devi. When he visited the house of Salochna Devi, he noticed Smt. Salochna Devi lying in an injured condition on the cot, thereafter, PW.2 sent Salochna Devi with Amar Nath, Kartar Chand, Reshma and the son of Salochna Devi, to get her admitted in Dharamshala Hospital. On 28.4.1995, police visited the spot and had taken into possession the blood stained earth from the old house of Salochna Devi, which was duly sealed in a container. The Memo Ex. PW.2/A was prepared which bears his signature and also of Chet Ram. The pieces of slates were also taken into possession which were duly sealed and were taken into possession vide memo Ex. PW.2/B on which PW.2 also put his signature. One stick of Bamboo was also taken into possession by the police.

PW.2 in cross-examination has stated that the old house is joint one and Saran Dass, Mehar Chand (accused) and Madho Ram are its owners. In cross-examination, PW.2 has further stated that earlier to the occurrence, husband of the complainant and his brothers were living jointly in the said old house. PW.2 has also stated that it is correct that Salochna Devi had shifted to the new house five years back but had a objection for placing the slates by Mehar Chand in the old house,on the vacant land which is adjacent to his new house. PW.2 has also stated in cross-examination that PW.9 Smt. Salochna Devi wanted that accused No. 1 should remove the slates and vacate the land encroached by him.

PW.3 Munshi Ram has stated that he had observed the injuries sustained by PW.9 Smt. Salochna Devi. PW.4 Lavjeet Kumar, nephew of Smt. Salochna Devi, has stated that he was student of Kendriya Vidyalya at Bhanala (Kangra), and at the time of incident he was present in the house of Smt. Salochna Devi., as he had gone to see his Massi and when he heard noise of Puran and his father, then PW.4 went to the old house, where both the accused came with an intention to kill Smt. Salochna Devi and accused Mehar Chand told that nothing will happen so, they should kill her. Accused Puran gave blow of the slate on the head of Salochna thrice and Joginder came for the rescue but accused Puran Chand pushed him away. PW.4 has further stated that his Massi i.e. (PW.9) received injuries on her head, blood started oozing consequent upon she sat down. After this, accused Puran Chand gave fist blows on the breast, face and nose and accused Mehar Chand also gave danda blow to PW.9. PW.4 has further stated that Ranjana Devi also accompanied his Massi Salochna Devi to the old house.

In cross-examination PW.4 has stated that his statement was recorded by the police on 28-29.4.1995. From the testimony of PW.4, it appears that he came later on after hearing the noise, however, through his testimony, accused Puran Chand and Mehar Chand came there with an intention to kill his Massi and gave a blow of slate on the head of Smt. Salochna Devi and when Joginder came for the rescue, accused Puran Chand pushed him and Smt. Salochna Devi received injuries on the head and she sat down. Accused Puran Chand also gave a bamboo stick blow on the back and also gave fist blows on the breast face and nose, such statement of PW.4 Lavjeet Kumar contradicts the version of PW.9 of assaulting injuries by the danda, as she has not indicated in her testimony about assaulting the injuries by danda.

PW.5 Head Constable Darshan Singh and PW.6 ASI Lajam Singh, are the official witnesses, who have supported the prosecution case to the extent role assigned to them. PW.10 Joginder Kumar son of the victim, nephew of accused No. 1 and cousin of accused No. 2, in support of the prosecution case has stated that in the courtyard of the old house, they have sown Haldi crop, and when he was in new house alongwith Lavjeet, he heard noise of "Mar Deyo Mar Deyo" and the said sound was uttered by accused No. 1. On this, PW.10 Joginder and PW.4 Lavjeet proceeded to the old house, where accused No. 2 gave blow on the head, forehead as well as the back side of the forehead of Smt. Salochna Devi (PW.9). PW.10 has further stated that accused No. 1 had caught hold the arm of PW.9 and accused No. 2 gave beatings with danda and accused No. 1 gave fist blow on the back of his mother (PW.9), blood oozed out from the injuries sustained by his mother.

From the testimony of PW.10 Joginder Kumar, who has alleged to have seen the occurrence, it appears that Smt. Salochna Devi had already received the injuries earlier to the arrival of PW.10 Joginder. It has further come in evidence that PW.10 Joginder came with PW.4 Lavjeet, after hearing the noise of "Mar Deyo Mar Deyo" by accused, apparently we notice minor contradictions in the testimony of PW.4 and PW.10 as well as in the testimony of PW.9 Smt. Salochna Devi, the injured person. The testimonies of PW.4 Lavjeet Singh and PW.10 Joginder Kumar, reveal that PW.9 was hit by danda, whereas, PW.9 has not categorically mentioned about any assault by danda.

Accused Mehar Chand (accused No. 1) in his statement u/s 313 of Cr.P.C. has stated that the parties are closely related to each other and are jointly in possession of the old house and the said house was not partitioned and the accused persons had put slates on the courtyard for quite some time. Accused Mehar Chand had constructed a new house adjacent to the place where the occurrence had taken place. On the fateful day, Salochna Devi (PW.9) came in the old house in the morning and started shouting that the slates which are lying there belonging to the accused and started saying that she would immediately remove those slates and would not allow them to retain the possession of the land. Accused Mehar Chand tried to prevent her from doing it so, when she was being prevented by him, she might have suffered injury from that slate. When she was throwing slates, she fell down on the slates and sustained injuries. Statement of accused Mehar Chand, u/s 313 of Cr.P.C., is totally denial of assaulting injuries, however, only indicative that victim was present at the relevant time on the spot and she removed slates and had suffered injuries, as such aspect has not been denied.

On analysis of the prosecution witnesses and materials on record, keeping in view the testimony of PW.9 Smt. Salochna Devi, we also notice that Smt. Salochna (PW.9) sustained injuries on breast, face and nose and on the bask side of the forehead, whereas, medical report only reveals two injuries out of which one is serious in nature on the forehead. Apparently, there are minor contradictions in the ocular as well as in the medical report, however, as per prosecution as argued by Mr. R.K. Sharma, Senior Additional Advocate General, for the appellant-State, that minor contradictions do not go to the root of the case and do not make the prosecution case doubtful.

Hon''ble Supreme Court has also observed in Jarnail Singh Vs. State of Punjab, that it is no doubt true that conviction can be based on sole testimony of a solitary eye witness but in order to be the basis of conviction, his presence at the place of occurrence has to be natural and his testimony should be strong and reliable and free from any blemish. Similarly view has also been taken by the Supreme Court in Jodh Raj Singh v. State of Rajasthan (2007) 15 SCC 294, Tika Ram v. State of M.P. (2007) 15 SCC 760.

In the facts and circumstances, we also find that the victim was present on the spot and had sustained injuries and in view of testimony of PW.9, the victim/injured herself has stated that she has been assaulted by the accused persons and had sustained injuries on her head, out of which one injury was grievous in nature, however, she had not indicated that danda was used in assault, whereas, other prosecution witnesses PW.4 Lavjeet and PW.10 Joginder indicated that danda was also used in assault but possibility of the circumstances reveal that she was assaulted by accused persons and she was injured and such injury was not repeatedly made in same incident. In these circumstances, the accused cannot be held guilty of offence u/s 307 of the Indian Penal Code as the place where the occurrence said to have taken place is also in dispute, therefore, offence u/s 447 of the Indian Penal Code also not made out.

In view of the facts and circumstances, the accused is not held guilty of the offence punishable u/s 325 of the Indian Penal Code. In our considered view, the sole testimony of PW.9 Smt. Salochna Devi cannot be over looked as the same is inspiring confidence, as such, her testimony is being taken into consideration in support of the prosecution case.

In view of the judgment of the Hon''ble Supreme Court in Dinesh Kumar Vs. State of Rajasthan, Ashok Kumar Chaudhary v. State of Bihar (2008) 12 SCC 173 , Vijay Shankar Shinde and Others Vs. State of Maharashtra, State of Maharashtra v. Tulshiram Bhanudas Kamble (2007) 14 SCC 627, Animireddy Venkata Ramana and Others Vs. Public Prosecutor, H.C. of A.P., , Pantangi Balarama Venkata Ganesh Vs. State of A.P., and Vishnu and Ors. v. State of Rajasthan (2009) 10 SCC 477, the conviction can be based on the testimony of injured witness, though the evidence of such injured witness lends credence as normally he would not falsely implicate a person thereby protecting the actual assailant, though it is true that it is not necessary to invariably accept the version of the injured witness but it is well settled that greater weight has to be given to the testimony of the injured witness. In the facts and circumstances, PW.9 is an injured prosecution witness, whose testimony has to be relied upon.

In the facts and circumstances, both the accused are held guilty of offence punishable u/s 325 of the Indian Penal Code. Accordingly, the convicts shall be given opportunity to be heard on quantum of sentence on 15.11.2010. Both the convicts/respondents shall remain present before this Court on the said date.