Crime and Punishment and other Laws

Sunday, August 25, 2013

Himachal Pradesh High Court

Shyam Lal And Ors. vs State Of H.P. on 1 January, 2002

Equivalent citations: 2002 CriLJ 3178

Author: L S Panta

Bench: L S Panta, A K Goel

JUDGMENT

Lokeshwar Singh Panta, J.

1. Both these appeals have been filed against the judgment and order dated 30-6-2000 passed by Addl. Sessions Judge, Solan in Sessions trial No. 4-S/7/97. By the impugned judgment and order, out of 24 accused, the Addl. Sessions Judge convicted A-1 Shayam Lal, A-2 Ram Das, A-3 Hans Raj and A-15 Manoj Kumar for various offences as under :

1. A-1 Shayam Lal

(a) under Section 452, IPC and is sentenced to undergo simple Imprisonment for five years and to pay fine of Rs. 5,000/-, in default of payment of fine to undergo simple imprisonment for six months more;

(b) under Section 302, IPC for causing the death of Guddu Ram and is sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/-, in default of payment of fine to undergo simple imprisonment for one year more and;

(c) under Section 323, IPC for causing injuries to deceased Guddu Ram and is sentenced to undergo simple imprisonment for one year.

2. A-2 Ram Dass

(a) under Section 452, IPC and is sentenced to undergo simple imprisonment for five years and to pay fine of Rs. 5,000/-, in default of payment of fine to undergo simple imprisonment for six months more :

(c) under Section 323, IPC, for causing injuries to deceased Guddu Ram and is sentenced to undergo simple imprisonment for. one year.

3. A-3 Hans Raj

(c) under Section 323, IPC for causing injuries to deceased Guddu Ram and is sentenced to undergo simple imprisonment for one year.

4. A-15 Manoj Kumar.

(b) under Section 302, IPC for causing injuries to deceased Guddu Ram and is sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/-, in default of payment of fine to undergo simple imprisonment for one year and (c) under Section 323, IPC for causing injuries to deceased Guddu Ram and is sentenced to undergo simple imprisonment for one year.

2. They were acquitted for offences under Sections 147, 148 and 149 of the Indian Penal Code. All the sentences imposed upon them shall run concurrently.

2A. A-4 Bhupender Kumar, A-5 Susheel Kumar, A-6 Sudhir Kumar, A-7 Rajinder Kumar, A-8 Jai Pal, A-9 Suresh Kumar, A-10 Rakesh Kumar, A-11 Kuldeep Chand, A-12 Kamaljeet, A-13 Ramesh Chand, A-14 Ashok Kumar, A-16 Smt. Sheela Devi, A-17 Smt. Shobha Devi, A-18 Ram Kali, A-19 Sewati Devi, A-20 Smt. Reeta Devi, A-21 Smt. Shyama, A-22 Smt. Roop Dei, A-23, Smt. Ram Dei and A-24 Smt. Sampati Devi were acquitted under Sections 147, 148, 149,452, 302 and 323 of Indian Penal Code.

3. Against the said judgment and order A-1 Shayam Lal, A-2 Ram Dass, A-3 Hans Raj and A-15 Manoj Kumar have preferred Criminal No. 364/2000.

4. The State has preferred Criminal Appeal No. 558/2000 against the acquittal of A-1, A-2, A-3 and A-15 under Sections 147, 148 and 149, IPC and against remaining 20 accused under Sections 147, 148, 149, 452, 302 and 323, IPC.

5. It was the prosecution version that on 21-6-1994 at about 11-30 a.m. at village Badhol, in Tehsil Kasauli, District Solan 24 accused persons constituted unlawful assembly and in prosecution of common object of their unlawful assembly they assaulted Guddu Ram son of Nakhru Ram with deadly weapons like stones and 'Dandas' and in prosecution of that common object committed the offences of rioting, house-trespass by entering into the dwelling house of Guddu Ram, having made preparation to cause hurt to him and committed his murder. All the accused persons also caused injuries to Smt. Kalawati (PW-13) wife of Guddu Ram; Krishan Kumar (PW-14) son of Guddu Ram and one Smt. Krishna Devi. Sohan Lal (PW-12) son of Guddu Ram reported the incident to Police at Police Post Kuthar vide rapat roznamcha No. 8 dated 21-6-1994 mark Ext. PW-10/A which was received at Police Station, Kasauli, District Solan on the same day. On the basis of the said report formal first information report Ext. PW-12/A under Sections 147, 148, 149, 452, 307 and 323, IPC was registered by Inspector Om Prakash (PW-15) Station House officer, Kasauli. PW-15 Om Prakash visited the place of occurrence on the same night but inspected the spot on 22-6-1994. He prepared site plan Ext. PW-15/B. In the meantime, Guddu Ram died because of the injuries sustained by him at the hands of the accused and the offence from Section 307, IPC was converted to 302, IPC in addition to other abovesaid offences. PW-15 got the dead body of Guddu Ram photographed from Prem Raj Sharma (PW-3) who placed on record photographs Exts. PW-3/A to PW-3/H. Inquest report Ext. PW-15/C was also prepared. Application Ext. PW-1/D was prepared and signed by PW-15 requesting the doctor of District Hospital, Solan to conduct the post mortem on the dead body of Guddu Ram. Injured PW-13 Smt. Kalawati and PW-4 Krishan Kumar were also got medically examined. On the same day in the presence of PW-12 Sohan Lal and one Mohan Dass soils tained with blood was lifted from the kitchen of deceased Guddu Ram. Blood stained stones from the spot; one blood stained "Khesi" (bed sheet) which was put by deceased Guddu Ram on himself and blood stained plastic Gunny bag were also taken into possession vide memo Ext. PW-12/B and they were sealed in a parcel with deal 'OP', A-1, A-2, A-3 and A-15 produced one 'Danda' each to the Investigating Officer in the presence of PW-12 Sohan Lal and Mohan Dass which allegedly were used by them in the commission of the crime. The weapons of offence were taken into possession vide memo Exts. P-12/C, PW-12/D, PW-12/E and PW-12/F and were sealed in parcels with seal impression 'OP' which after use was handed over to Mohan Dass. Medico Legal Certificates of injured PW-13 Smt. Kalawati, PW-14 Krishan Kumar and Smt. Krishan Devi Mark Exts. PW-2/A, PW-2/B and PW-5/8 respectively were taken from the doctors of Primary Health Centre, Dharampur who medically examined them. Medico Legal Certificates of A-15 Manoj Kumar and A-16 Smt. Sheela Devi mark Exts. PW-12/A and PW-12/B respectively were also procured by PW-15. Post Mortem report of deceased Guddu Ram Ext. PW-1/A was also taken from the doctor who conducted post mortem on his person. Statements of the witnesses were also recorded. All the accused were arrested on 22-6-1993 and 23-6-1993 respectively. On receipt of the Chemical Analyst report mark Exts. PW-1/B, PW-9/A and PW-/9B investigation was completed and charge-sheet was prepared and submitted before the Court below.

6. The learned Sessions Judge by order dated 20-6-1996 assigned the case for trial to the learned Addl. Sessions Judge. The learned Addl. Sessions Judge framed charges against the accused persons under Sections 147, 148 and Under Section 452 read with Section 149 for committing house trespass of the house of Guddu Ram and under Section 302 read with Section 149, IPC for causing death of Guddu Ram and under Section 323 read with Section 149, IPC for inflicting injuries to PW-13 Smt. Kalawati and PW-14 Krishan Kumar alias Krishan Lal and Smt. Krishnari Devi. All the accused denied the charges framed against them and claimed to be tried.

7. The prosecution in support of its case, has examined 15 witnesses. The accused in their statements recorded under Section 313, Cr.P.C. denied the allegations levelled against them by the prosecution. In answer to question No. 22, all the accused pleaded that all the prosecution witnesses are the members of the same family and they (accused persons) have been falsely implicated in this case due to enmity. In answer to question No. 23 the accused persons have pleaded common defence which reads as under:

On 21-6-94 the quarrel took place between the minor children and Sohan Lal, his father Guddu, mother Kalawatil sister Krishan Devi, Brother Krishan Lal and Ram Rattan came to our residential house at 9-30 a.m. Sheela told that matter would be solved in amicable manner. All the said persons have brought the stones and Sohan Lal inflicted injuries upon Sheela. But Manoj tried to rescue her and Sohan Lal inflicted injuries to Manoj and he sustained head injuries and leg injury by way of stones. I did not do anything and Sheela and Manoj went to Police Station to lodge the report and above stated persons fled to their home. When Sheela and Manoj came from Police Station, then we came to know that Guddu Ram had fall down from hilly slope and Nika Ram told us that deceased Guddu Ram had fell down from hilly slop near his resident house. PW. Sohan Lal was also accused in a murder case and he demanded money from us and when we refused to pay the money he threatened us that he would implead us in a false murder case of his father.

8. The learned trial Court on appreciation and scrutiny of the evidence on record convicted A-1 Shayam Lal, A-2 Ram Dass, A-3 Hans Raj and A-15 Manoj Kumar under Sections 452, 302 and 323 of the Indian Penal Code for causing murder of Guddu Ram and also inflicting voluntarily hurt to him by forcibly entering his residential house and accordingly sentenced them. They were, however, acquitted for the other offences with which they were charged. Other accused persons were acquitted under Sections 147, 148, 149, 452, 302 and 323, IPC by giving them benefit of doubt.

9. Feeling aggrieved against the impugned judgment and order, the accused and State both have filed these appeals.

10. We have heard Mr. T.R. Chandel, learned Counsel for the accused and Mr. M.C. Mandhotra, learned Addl. Advocate General for the State. The first contention of Mr. Chandel was that the trial Judge framed charge No. 4 against the accused as under:

Fourthly, on the aforesaid date, time and place you being member of unlawful assembly committed the murder by causing the death of Shri Guddu Ram son of Shrl Nakhru Ram and thereby committed an offence punishable under Section 302 read with Section 149, Indian Penal Code and within my cognizance.

11. According to the learned Counsel, once the accused are acquitted under Section 149, IPC as no common object was found having been proved by the prosecution against them, their conviction for substantive offence of murder of Guddu Ram is not maintainable without framing substantive charge under Section 302, IPC and their conviction as such is not sustainable. He also contended that for attracting Section 34, IPC there should be finding of common intention or object and in the present case the prosecution has not proved that the accused had common intention or object to murder Guddu Ram, therefore they cannot be even convicted under Section 302 read with Section 34 of the Indian Penal Code. In support of this contention, Mr. Chandel placed reliance in Re : Ranga, AIR 1954 Mysore 75 : (1954 Cri LJ 622); Chlkkarange Gowda, 1956 SC 731 : (1956 Cri LJ 1365); Nanak Chand v. State of Punjab AIR 1955 SC 274 : (1955 Cri LJ 721); Sarman v. State of M. P. 1993 Cri LJ 63 : (AIR 1993 SC 400) and Subran alias Subramanian v. State of Kerala 1993 Cri LJ 1387 : (1993 AIR SCW 1014).

12. Per contra, the learned Additional Advocate General contended that in the absence of framing of charge for substantive offence under Section 302, IPC against the accused by the learned trial Court, the accused can be convicted for the offence under Section 302 read with Section 34, IPC as their common intention was to commit murder of Guddu Ram as no prejudice is caused to the accused for not framing the separate charge for substantive offence under Section 302, IPC. To support his submission he placed reliance on Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116 : (1956 Cri LJ 291).

13. It is not in dispute that the learned trial Judge acquitted the accused under Sections 147, 148 and 149 of the Indian Penal Code and convicted them for the murder of Guddu Ram under Section 302, IPC without framing a substantive charge under Section 302, IPC and they were charged under Section 302, IPC with the aid of Section 149, IPC. We have considered the respective contentions of the learned Counsel for the parties. In Nanak Chand v. State of Punjab AIR 1955 SC 274 : (1955 Cri LJ 721), three Judge Bench of the Supreme Court has held that the charge for a substantive offence under Section 302 or Section 325, IPC is for a distinct and separate offence from that under Section 302 read with Section 149 or Section 325, read with Section 149. A person charged with an offence read with Section 149 cannot be convicted of the substantive offence without a specific charge being framed as required by Section 233, Code of Criminal Procedure (1898). A wrong conviction under Section 302/34 cannot be converted into one under Section 302. Further it was observed in para 7 of the judgment as under :

7. If there is a conviction for a charge not framed it is an illegality and not an irregularity curable by the provisions of Sections 535 and 537, Cr.P.C. In that case, the irregularity was not curable because the appellant was misled in his defence by the absence of a charge under Section 302. By framing a charge under Section 302, read with Section 149, IPC against the appellant, the Court indicated it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under Section 302, IPC was to convict him of an offence with which he had not been charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case. The Supreme Court has said that there is a clear distinction between the provisions of Sections 34 and 149 and the two sections are not to be confused. The principal element in Section 34 is the common intention to commit a crime. In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation Section 34 provides that each one of them would be liable for that crime is the same manner as if all the acts resulting in that crime had been done by him alone. There is no question of common intention in Section 149. An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled. Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of that offence.

14. In Chakkarange Gowda v. State of Mysore AIR 1956 SC 731 : (1956 Cri LJ 1365), their Lordships observed "the first essential element of Section 149 was the commission of an offence by any member of an unlawful assembly; the second essential part was that the offence must be committed in prosecution of the common object of the unlawful assembly, or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. The common object of an unlawful assembly as mentioned in the charge and as found by the Court was merely to administer a chastisement to the deceased. The charge did not mention that the members of the unlawful assembly knew that the deceased was likely to be killed in prosecution of that common object. The deceased was killed by the fatal injury caused by certain member of the unlawful assembly. The Court convicted the other members who had not caused the fatal injury under Section 302 read with Section 149 and Section 34". In the facts and circumstances of that case it was held that as the finding of the Court was that none of the members of the unlawful assembly had the intention to kill the deceased nor did any of them knew that the deceased was likely to be killed in prosecution of the common object of chastisement and as the charge gave no notice to the accused that they had a separate common intention of killing the deceased different from that of the other members of the unlawful assembly, the conviction of the accused who had not caused any fatal injury of an offence under Section 302 read with Section 149 or Section 34 could not be sustained. In Sarma v. State of Madhya Pradesh 1993 Cri LJ 63 : (AIR 1993 SC 400), it was found on the facts of that case that the accused inflicted simple injuries on non vital parts of the deceased and it could not be said that object of accused was to kill deceased and, therefore, the accused were held liable to be convicted under Section 304-II/149, IPC and not under Section 302/149, IPC. In Subran alias Subramanian v. State of Kerala 1993 Cri LJ 1387 : (1993 AIR SCW 1014), three Judge Bench of the Hon'ble Supreme Court held as under :

11. Since, appellant No. 1 Subran had not been charged for the substantive offence of murder under Section 302, IPC, even the trial Court, which tried the six accused persons, was not justified in recording a conviction against him for the substantive offence of murder punishable under Section 302, IPC after framing a charge against him for the offence under Section 302 read with Section 149, IPC only. A person charged for an offence under Section 302, IPC read with Section 149 cannot be convicted of the substantive offence under Section 302, IPC without a specific charge having been framed against him as envisaged by law. Conviction for the substantive offence in such a case is unjustified because an accused might be misled in his defence by the absence of the charge for the substantive offence under Section 302, IPC. Appellant No. 1, Subran, was never called upon to meet a charge under Section 302, IPC simpliciter and, therefore in defending himself, he cannot be said to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution case during the cross-examination of the prosecution witnesses. Therefore, the conviction of the first appellant for an offence under Section 302 was not permissible....

15. In Re : Ranga, AIR 1954 Mysore 75 : (1954 Cri LJ 622), a Division Bench of Mysore High Court has held that Section 149 may be applicable to cases to which Section 34 does not apply. The essential condition for the operation of either section is that the intention in one case and object in the other should be common and if the act is in excess of or beyond the intention or object of the members, they cannot be constructively liable for it.

16. In the present case the prosecution has examined PWs. 12 and 14 as eye-witnesses. In his deposition PW-12 stated that on 21-6-1994 he was coming from village Kuthar to his residential house in village Baghol at about 11 a.m. His mother PW-13 at that time was working in the field and his brother namely, Ram Rattan and sister Krishna met him on the way who told him that they are given beatings by A-1 at village Baniara. He asked his mother, to find out from A-1 the reason for giving heating to the children and in the meantime, A-1, A-8, A-9, A.-14, A-16 and A-22 also came from the side of 'Ghasni' (grass land). His father Guddu Ram was also called from his residential house by his younger brother and sister. On his father's arrival, A-1, A-15, A-5, A-14 and A-7 threw stones upon his father and mother PW-13. They firstly threw his mother on the ground and then came towards him and his father to give them beatings but due to fear they came to their house. When they reached at their house, A-2, A-3, A-13, A-9, A-18, A-20, A-11, A-12, A-14, A-23 and A-21 jointly came to their house with the intention to quarrel with them, A-1, A-2, A-3 and A-15 were armed with sticks and the other accused were holding stones in their hands. He along with his father, brother and sister went inside the room and bolted the door from inside. All the accused surrounded their house. A-1, A-2, A-3 and A-15 had broken the door of their room whereas A-9, A-14 and A-5 had damaged the upper portion of the roof of their house and started pelting stones upon them. A-1, A-2, A-3 and A-15 forcibly entered their room and had given 'Dandas' blows on the person of his father Guddu Ram and thereafter he was dragged to the courtyard of their house where the accused again had given 'Dandas' and stones blows on his person and then laid him in their kitchen. His father sustained injuries on his arms, fingers, legs, head and other parts of the body. The above said four accused also inflicted 'Danda' and stones injuries on the person of his sister Krishna Devi and brother PW-14. He escaped from the scene of the occurrence and reached police station to lodge a report Ext. PW. 10/A on the basis of which FIR Ext. PW-12/A was recorded. The Police reached at the spot at 6 p.m. on the same day and with the help of Nek Ram, Ramesh Kumar and Ram Dass his father Guddu Ram was taken to hospital in Palki (palangulin) in injuried condition who succumbed to his injuries on the way and his dead body was brought back to their house. The Investigating officer started investigation on the spot and took into possession blood stained earth scattered on the floor of the kitchen where his father was thrown after inflicting injuries by the accused. Site plan of the house was also prepared. In his presence PW-1 produced one stick of pear wood. A-2 also handed over one stick of 'kainth' wood to the Investigating Officer. Similarly, A-3 and A-15 also handed over one stick each of 'Sota' wood and 'Daran' wood respectively to the Investigating Officer with which they had inflicted multiple grievous injuries to his deceased father. Blood stained stones lying at the scene of occurrence were also taken into possession and sealed on the spot. In his cross-examination, the accused failed to discredit his testimony on the vital issues. He categorically named A-2 who struck 'Danda' blow on the head of his father whereas A-15 inflicted nearby the ear portion of the head. He has emphatically denied the suggestion of the accused that his father fell down on the hilly slope adjoining to their house and rolled down as a result thereof he sustained injuries which proved to be fatal to him. Further suggestion that he along with his father, brother and sister had pelted stones from inside their room and courtyard and that accidentally one stone thrown by him hit his father on his temporal region, was categorically denied by him. He also denied the suggestion that false report has been registered by him against the accused as he is in the habit of manipulating such type of cases being registered against innocent persons to extract money from them.

17. PW-13 wife of deceased Guddu Ram has corroborated the testimony of PW-12 about the manner and genesis of taking place of the occurrence. In her deposition, she also stated that A-1, one Babi and Jai Pal had thrown stones upon her resulting causing injuries on her legs. In her cross-examination she denied the suggestion of the accused that her husband Guddu Ram and son PW-12 went to the residential house of A-1 on the day of occurrence armed with 'Danda' and stones and used abusive language to A-1 and his wife A-16. She also denied the next suggestion that the conplainant party after inflicting injuries on the person of A-16 Smt. Sheela Devi wife of A-1, her husband (deceased) fell down at the hilly slope and consequently he died. PW-14 the second eye-witness has also given the ocular account of the incident in his deposition. He specifically stated that A-1, A-2, A-3 and A-15 surrounded their house armed with 'Dandas' and stones. He stated that the accused after breaking open the door of their room had forcibly entered into it and, thereafter, started giving beatings to his father with 'Dandas' on his head and other parts of his person. His father was dragged from inside the room and laid in the courtyard where again he was given 'Dandas' blows on his person by the accused. Thereafter, his father was thrown inside their kitchen. He denied the suggestion of the accused that his father, mother PW-13 and brother PW-12 went to the house of A-1 and quarrelled with him and his wife A-16. In his cross-examination he re-asserted and re-affirmed that A-1, A-2, A-3 and A-15 gave four 'Dandas' blows on the person of his father inside the room after making forcible entry and, thereafter, they' dragged him outside the room and laid him in the courtyard where he was again given 'Dandas' blows by all the four accused. Suggestions of the accused that his father was used to take liquor and further that his father fell down from a hilly slope and consequently died are emphatically denied by him.

18. On 22-6-1994 post-mortem on the dead body of Guddu Ram was performed by PW-1 Dr. A.K. Arora who found Guddu Ram to have sustained the following injuries on his person.

1. Crushed lacerated wound on right parietal region 2" x 1" x 1/2" Clotted blood was present.

2. CLW Soft parietal region 1" x 1/2" x 1/2" with clotted blood.

3. Bruised area right shoulder 2" x 1" Subcutaneous haemorrhage was present, colour was red.

4. Bruised area left lower and lateral part of chest carrying 9th lateral part of chest overlying 9th Red in colour subcutaneous haemorrhage was present. There was fracture of 9th and 10th ribs anteriorly.

5. CLW left elbow 2" x 1" x 1" size. Blood Clot was present.

6. Left hand was swollen bruised area was present on dorsum of hand, red in colour 3" x 2" in size, Subcutaneous haemorrhage was present.

7. Left middle finger of hand terminal and was crushed.

8. Bruished area below left elbow 2" x 1" read in colour.

9. CLW above left wrist 2" x 1" x 1/2" with fracture of lower end of ulna bone.

10. Bruised area 4" x 2" above right wrist with fracture of lower end of radius and ulna. Bruised area was red in colour, and subcutaneous haemorrhage was present.

11. Bruised area left leg below knee 3" x 2" red in colour, subcutaneous haemorrhage was present.

12. CLW middle of right left 4" x 2" x 1" of size clotted blood was present.

19. The probable time between injuries and death was 6 to 8 hours and. between death and post-mortem was within 24 hours. In the opinion of Dr. Arora, Guddu Ram had died due to shock following massive internal haemorrhage. He issued post-mortem report Ext. PW-1/A. On examination of Chemical Analyst report Ext. PW-1/B, he gave his opinion Ext. PW-1/C that injury Nos. 1 and 2 could be caused by stick Ext. P. 1 and injury Nos. 1, 2, 3, 5 and 9 could also be caused by stick Ext. P-3. Similarly, these injuries could be caused by Stick Ext. P-1. Dr. Arora further stated that all the injuries described in the post-mortem report could be caused by stones Exts. P-5 and P-11. During the cross-examination, Dr. Arora further opined that above detailed injuries were possible if a person had a fall on a hilly slope and rolled down. He also opined that injuries found on the person of Guddu Ram could be caused by a particular 'Danda' out of sticks Ext. P-1 to Ext. P-4. He stated that there could be different types of injuries with different types of 'Dandas' even different types of injuries could be sustained by one 'Danda' and it was not always possible that force and shape of weapon of offence will determine or establish connection between weapon of offence and injury.

20. PW-15 Om Parkash, Station House Officer, Police Station, Kasauli investigated the case. He took into possession four sticks produced by A-1, A-2, A-3 and A-15 to him. He denied the suggestion of the accused that sticks Exts. P-1 to P-4 were not handed over to him by the accused but they were in fact handed over by PW-12 Sohan Lal. He corroborated the testimony of PWs. 12, 13 and 14 on all material particulars. However, he admitted in his cross-examination that there is hilly slope towards the western side of the house of the deceased quoted by him in site plan Ext. PW-15/B. He denied the suggestion of the accused that when he prepared . the final report, he impleaded A.C. Dani, Tehsildar and H.C. Balak Ram as co-accused in the present case and explained that Sardari Lal to whom he handed over the papers of the case inadvertently impleaded the names of A.C. Dani, Tehsildar, Kasauli and H.C. Balak Ram in the list of the accused. He also denied further suggestion of the accused that when the investigation of this case was about to be completed, he came to know that Guddu Ram and his family members after taking quarrel with A-15 Manoj Kumar and A-16 Smt. Sheela Devi came back running to their house and in that process Guddu Ram fell down on a hilly slope and received injuries resulting in his death. On re-appraisal and scrutiny of the testimony of PWs. 12, 13 and 14 we find that their evidence is not shattered and impeached by the accused in the cross-examination. The medical evidence corroborates the ocular version of these witnesses to prove that deceased Guddu Ram died because of stick blows given by A-1, A-2, A-3 and A-15 on his person and he received multiple injuries. The opinion of the Doctor is clear and positive that Guddu Ram died due to shock following massive internal haemorrhage and the injuries found on his person could be inflicted by 'Dandas' P-1 to P-4 coupled with stones. The learned Sessions Judge on assessment of the evidence has rightly held that the prosecution has failed to establish that all the accused persons have committed rioting after forming unlawful assembly with common object to commit the offence of murder of Guddu Ram and, therefore, they have been rightly acquitted for the offences under Sections 147, 148 and 149 of the Indian Penal Code.

21. Now the question is whether the accused persons could be convicted under Section 302, IPC without framing substantive charge against them as contended by their learned Counsel. The ratio of the judgments relied upon by the learned Counsel is considered by us and in our view, it cannot be said that the accused are prejudiced in any manner if substantive charge of Section 302, IPC was not framed against each of them independently. The Supreme Court in Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116 : (1956 Cri LJ 291) had considered the provisions of Sections 233, 535 and 537 of the Code of Criminal Procedure (1898) (corresponding to Sections 218, 464 and 465 of the Code of Criminal Procedure, 1973). In that case each of the two accused were charged under Section 302 read with Section 34, IPC and no separate charge was framed against one accused who was convicted by the Court below under Section 302, IPC. On detailed consideration of the facts and circumstances of that case and the relevant provisions of law their Lordships held that, having regard to the nature of the charge framed against the accused the omission to frame a separate charge under Section 302, Penal Code against him was only a curable irregularity which in the absence of prejudice could not affect the legality of conviction under Section 302, Penal Code. The ratio of the judgment in AIR 1955 SC 274 : (1955 Cri LJ 721) and AIR 1955 SC 419 : (1955 Cri LJ 1004) was explained and distinguished and it was held that there was no rare conflict between these decisions. In State of A.P. v. Thakkidiram Reddy (1998) 6 SCC 554 : (1998 Cri LJ 4035), their Lordships while dealing with and considering the provisions of Sections 211, 215, 464 and 465 of Criminal Procedure Code, 1973 held as under:-

9. Before considering the factual aspects of the case, it will be necessary to advert to a question of law relating to the validity of the trial raised by Mr. Arunachalam, the learned Counsel appearing for A-2 to A-5 and A-9. He contended that the charges were not framed against the accused persons in accordance with Section 211 of the Code of Criminal Procedure, in that, in the charge framed under Section 148, IPC, though it was alleged that they were the members of an unlawful assembly, it was not mentioned what its common object was. Besides, he contended, a charge under Section 302, IPC simpliciter was framed against all the accused persons and not with the aid of Section 149, IPC for which they were convicted by the trial Court. He submitted that an accused is entitled to precisely know the exact nature of knowledge, he will be prejudiced in his defence, particularly in a case-as committed by himself but by others with whom he is in company. It is undoubtedly true that the charges suffered from the infirmities pointed out by Mr. Arunachalam but the question is whether the trial, and, for that matter, the convictions recorded against the accused were vitiated thereby.

10. Sub-section (1) of Section 464 of the Code of Criminal Procedure, 1973 ("Code" for short) expressly provides that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact (emphasis supplied) been occasioned thereby. Sub-section (2) of the said section lays down the procedure that the Court of appeal, confirmation or revision has to follow in case it is of the opinion that a failure of justice has in fact been occasioned. The other section relevant for sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the proceedings, unless in the opinion of that Court, a failure of justice has in fact been occasioned. It further provides, inter alia, that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.

11. This Court in Willie (William) Slaney v. State of M. P. (1956 Cri LJ 291) (SC) elaborately discussed the applicability of Sections 535 and 537 of the Code of Criminal Procedure, 1898 which correspond respectively to Sections 464 and 465 of the Code, and held that in judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. Viewed in the context of the above observations of this Court, we are unable to hold that the accused persons were in any way prejudiced due to the errors and omissions in the charges pointed out by Mr. Arunachalam. Apart from the fact that this point was not agitated in either of the Courts below, from the fact that the material prosecution witnesses (who narrated the entire incident) were cross-examined at length from all possible angles and the suggestions that were put forward to the eye-witnesses we are fully satisfied that the accused persons were not in any way prejudiced in their defence. While on this point we may also mention that in their examination under Section 313 of the Code, the accused persons were specifically told of their having committed offences (besides others) under Sections 148 and 302/149, I P.C. For all these reasons we reject the threshold contention of Mr. Arunachalam.

22. In Kammari Brahmaiah v. Public Prosecutor, High Court of A. P. (1999) 2 SCC 522 : (1999 Cri LJ 1134), it is held :

Section 464 in mandatory terms and specifically provides what is to be done in cases where a charge is not framed or there is an error, omission or irregularity in framing of the charge. From the unequivocal terms of the Section, it can be stated that a finding, sentence or order could be set aside only in those cases where the facts are such that no valid charge could be preferred against the accused in respect of the facts proved. Secondly, if the facts are such that a charge could be framed and yet it is not framed but no failure of justice has in fact been occasioned thereby, the finding, sentence or order of the court of competent jurisdiction is not to be set aside on that ground. Thirdly, if there is failure of justice occasioned by not framing of the charge or in case of an error, omission or irregularity in the charge, re-trial of the case is to be directed under Sub-section (2)." The judgment further proceeded to hold : "non-framing of a charge would not vitiate the conviction if no prejudice is caused thereby to the accused. The trial should be fair to the accused, fair to the State and fair to the vast mass of the people for whose protection Penal Laws are made and administered. The Code of Criminal Procedure is a procedural law and is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities." In that case their Lordships have relied upon the case of Ramkishan v. State of Rajasthan (1997) 7 SCC 518 : 1997 SCC (Cri) 1106 : (1998 Cri LJ 54); Willie (William) Slaney v. State of M. P. (1955) 2 SCR 1140 : AIR 1956 SC 116 : 1956 Cri LJ 291.

23. In the light, of the aforesaid decisions of the Apex Court in the facts of the present case we are not persuaded to accept the contention of the learned Counsel for the accused that non-framing of separate charge against each of the accused under Section 302, I.P.C. would vitiate their conviction as we find that no prejudice is caused thereby to the accused. The accused were tried on the prosecution version which was specifically told to them under Fourthly charge (sic) framed by the trial Court. Their statements were recorded under Section 313, Cr.P.C. and they were asked to the fact that they forcibly entered the house of Guddu Ram and inflicted 'Dandas' blows on his head and other parts of his person inside the room of his house and, thereafter, he was dragged out of the room and laid at his courtyard where more injuries were caused to him which resulted his death. The role played by A-1, A-2, A-3 and A-15 has been clearly and plainly stated by PWs-12 and 14 in their evidence and their testimony has been accepted being unblemished and unshattered. Thus, we are of the view that no prejudice has been caused to the accused for not framing separate substantive charge against each of them for the offence punishable under Section 302, I.P.C. and they cannot be held entitled to be acquitted on this sole ground for causing the death of Guddu Ram.

24. The second contention of the learned Counsel that the prosecution could not prove that who inflicted serious individual injury on the person of the deceased is not sustainable. From the scrutiny of the evidence of PWs. 12 and 14 which is reliable, cogent and acceptable, it has been proved that all the four accused inflicted 'Dandas' blows on the head, arms, fingers, legs and other parts of his body and multiple injuries were found by the Doctor on the dead body of Guddu Ram. In the teeth of the reliable and believable oral evidence of PWs. 12 and 14 corroborated by medical evidence, in our view that the accused have been rightly found guilty having caused death of the deceased.

25. The third contention of the learned Counsel that the prosecution has not explained the injuries found on the person of A-15 and A-16 inflicted upon them jointly by Guddu Ram deceased and PWs. 12, 13 and 14 for which daily diary report Exts. DA and DB were lodged by A-15 and A-16 at Police Post, Kuthar on the day of incident at 12.30 p.m. and 3.15 p.m. respectively. On consideration of the material on record, we do not find any substance in this contention. The F.I.R. Ext. PW- 12/A about the occurrence was lodged by PW-12 Sohan Lal at Police Station, Kasauli on 21-6-1994 at 11.30 a.m. prior to the lodging of the daily diary report Exts. DA and DB by A-15 and A-16. PW-11 Dr. Deveshwar Pandey, a Medical Officer of Primary Health Centre, Chandi medically examined A-15 and A-16 on 22-6-1994. He noticed following two injuries on the person of A-15 :

1. Cutless lacerated wound 1 1/2 cms. on scalp over occipital region below occipital protuberance with infection.

2. Abrasion 1/4 cm. over metacarpo phalangial joint of right little finger.

26. On the person of A-16 Smt. Sheela Devi the following injuries were found :

1. Abrasion 1/2 cm. on left lateral side of forehead with clotted blood over injury.

These injuries found on the person of A-15 and A-16 were simple in nature caused within period of 24 to 36 hours. These injuries are minor and superficial in nature and, therefore, no action appears to have been taken by the police on the basis of their reports. It has come in the evidence of PW-12 Sohan Lal that when he was going to Police Station to lodge the report of the incident, A-15 and A-16 on the way tried to prevent him lodging First Information Report and at that place scuffle took place between him and these two accused. A-15 caught him and when he tried to release himself from the clutches of A-15 in that process he pushed A-15 back who fell down on the stone and sustained injuries. In view of this evidence, the prosecution is not further obliged to explain the injuries sustained by A-15 and A-16. In their statements under Section 313, Cr.P.C. all the accused took common plea that Sohan Lal (PW-12) his father Guddu Ram (deceased), mother Smt. Kalawati (PW-13) and Ram Rattan came to the house of A-16 at 9.30 a.m. armed with stones. Sohan Lal inflicted stone injuries upon A-16 and when A-15 tried to rescue to her Sohan Lal inflicted injuries to him on his head and legs. From the medical examination of A-15 and A-16 by Doctor PW-11 it cannot be said that those injuries found on their person were caused by stones inflicted by PW-12 Sohan Lal. The prosecution has proved that the incident had taken place at the house of deceased Guddu Ram and not at the house of A-16 Smt. Sheela Devi as projected by the accused in their statements and defence taken by them. The defence of the accused that Guddu Ram died because of fall near his house from a hilly slope was not stated by the accused in their statements recorded under Section 313, Cr.P.C. and the version of DW-1 Mansha Ram has been rightly rejected by the learned trial Judge as he is not found to be a truthful witness.

27. The law as to failure of prosecution to explain injuries sustained by accused has been so stated in a recent decision by the Supreme Court in Takhaji Hiraji v. Thakore Kubersing Chamansing(2001) 6 SCC 145 : AIR 2001 SC 2328 : 2001 Cri LJ 2602 in which it has been observed that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence the prosecution is alleged to explain those injuries in every case. There is no material brought on record to hold that the injuries sustained by A-15 and A-16 were so sustained at the same time and place at which the deceased sustained injuries, that is to say, to hold that the injuries to both the sides were caused during the course of the same incident.

28. Mr. T.R. Chandel, learned Counsel next contended that 'Dandas' Exts. P-1 to P-4 allegedly taken into possession by the Investigating Officers were not connected with the commission of the offence used by the accused as no blood was found on the alleged weapons of offence by the Chemical Examiner as reported in Ext. PW-9/A. On examination of report Ext. PW-9/A, it is stated that one 'Danda' of 'pomigrant' wood was stained with human blood but the blood group could not be determined conclusively. No blood was found on 'Kainth' and Peer wood sticks by the Chemical Examiner. The accused cannot take the benefit of non-sticking of the stains of blood on the sticks used by them which were voluntarily produced by them to the Investigating Officer during the investigation of the case lodged against them. PW-12 has categorically stated that sticks Ext. P-1 to P-4 were the same which were used by the accused at the time of giving beatings to his father. Dr. A.K. Arora has also stated that the injuries sustained by deceased could be caused by the said 'Dandas'. In the teeth of the positive evidence led by the prosecution on this point, it cannot be said that the link evidence is missing in this case and 'Dandas' Exts. P-l to P-4 were proved to be the same used by the accused in the commission of the crime.

29. It was also contended by Mr. Chandel that all the witnesses examined by the prosecution are related and interested and their testimony cannot be relied upon as the parties are inimical to each other. In support of this submission he has relied upon the judgment of the Supreme Court in Sevi v. State of Tamil Nadu AIR 1981 SC 1230 : (1981 Cri LJ 736). In that case their Lordships have held that if the entire evidence is of partisan character the impartial investigation can lend assurance to the Court to enable it to accept such partisan evidence. But where in a murder case, the investigation itself was found to be tainted, in the sense that the original FIR was suppressed by the Police, it becomes difficult for the Court to sift the evidence, and the evidence of partisan eyewitnesses could not be accepted. In the facts of that case the accused were acquitted of the charge of murder. In the present case, the eye-witnesses are the sons of the deceased and there is no evidence on record to prove that besides the family members of deceased Guddu Ram there was only other independent person on the spot who had witnessed the occurrence. The accused with common intention came to the house of the deceased armed with sticks and stones and on seeing them deceased Guddu Ram, his sons and daughter out of fear bolted themselves inside a room and the accused persons forcibly broken open the door of the room and instantaneously started giving beatings to Guddu Ram with sticks. The testimony of eye-witnesses cannot be discredited merely on the ground that they are partisan and interested witnesses, as we find that they are truthful witnesses and have given true account of the occurrence and their evidence is not found to be unworthy of credence. In Madhusudan Das v. Smt. Narayani Bai AIR 1983 SC 114 it has been held that it is not open to the Court to reject the evidence without anything more on the mere ground of relationship or favour or possible prejudice. In State of Punjab v. Wassan Singh AIR 1981 SC 697 : (1981 Cri LJ 410) their Lordships held :

in a murder case the mere fact that the witnesses had succeeded in escaping unhurt or that there are discrepancies in the statements of the two witnesses as to whether they had gone to Amarkot with the deceased on the very day of occurrence or a day earlier, is no ground for jumping to the conclusion that the witnesses were not in the company of the deceased or near about the scene of occurrence when the deceased persons were shot dead.

30. The decision further proceeded to hold that persons with questionable antecedents were not necessarily untruthful Witnesses. Nor mere relationship with the deceased was a good ground for discarding their testimony, when their presence at the scene of occurrence was probable. All that was necessary was to scrutinize their evidence with more than ordinary care and circumspection with reference to the part or role assigned to each of the accused. An effort should be made to sift the grain from the chaff; to accept what appeared to be true and to reject the rest. The High Court did not adopt this methodology in appreciating their evidence. Instead, it took a short-cut to disposal, and rejected their evidence wholesale against all the accused, for reasons which were manifestly untenable. On re-appreciation of the evidence of the relative or interested witnesses, the acquittal of the accused Wassan Singh and Mukhtiar Singh by the High Court was set aside and they were convicted for the offence under Section 302 read with Section 34, I.P.C. for the murder of Hazara Singh. In Jangir Singh v. State of Punjab (2000) 10 SCC 261, it has been held that the testimony of injured eye-witness the wife of the deceased cannot be disbelieved and discarded merely on the ground that she was an interested witness. Thus, in the present case the testimony of the relative witnesses cannot be disbelieved and discarded merely on the ground of their interestedness. Once they are proved to be truthful witnesses, their evidence has been rightly accepted by the learned trial Court. This contention of the learned Counsel therefore, cannot be accepted.

31. Mr. Chandel, learned Counsel lastly contended that the prosecution has failed to prove the common intention and object of the accused to commit the murder of deceased Guddu Ram and that there is no evidence to prove that out of the four accused who individually inflicted particular injury upon the person of the deceased resulting his death, therefore, the accused can at the best be convicted under Section 304, I.P.C. read with Section 34, I.P.C. In support of this contention reliance was placed in a case of Jagpati v. State of Madhya Pradesh AIR 1993 SC 1360 : (1993 Cri LJ 1058). In that case their Lordships found that death caused by injuries inflicted on head of deceased in sudden quarrel by the accused having no intention to cause particular injury which was sufficient to cause death. In the facts and circumstances of the case the conviction of the accused under Section 302 read with Section 34 was altered to Section 304, Part II read with Section 34,I.P.C. In Gurdip Singh v. State of Punjab AIR 1987 SC 1151 : (1987 Cri LJ 987), it was held that two accused causing injuries to the victim, one being sufficient in ordinary course to cause death but the material available on record had created doubt whether their intention was to kill the victim or to attack him for taking revenge of his suspected illicit relation with a female of their family, the correct approach on the evidence and other circumstances in that case according to their Lordships was to hold the accused guilty under Section 304, Part-I and their conviction under Section 302, I.P.C. was converted accordingly. In Ram Meru v. State of Gujarat 1993 Supp (1) SCC 315 : (1992 Cri LJ 1265), the common intention to murder the deceased was not established conclusively beyond reasonable doubt by the prosecution and the accused were convicted by Sessions Court under Sections 326/34 and 324, I.P.C. which was found proper and its enhancement to Sections 302/34 by the High Court was not held to be sustainable. In Ram Lal v. Delhi Administration AIR1972 SC 2462 : (1973 Cri LJ 17), the accused was convicted under Section 302, I.P.C. by the Sessions Court and his conviction and sentence was confirmed by the High Court. On appeal by the accused, their Lordships set aside the conviction of the accused under Section 302, I.P.C. and altered it to one under Section 325 read with Section 34.

32. We have discussed the evidence of the eye-witnesses in the earlier part of the judgment and on re-appraisal and scrutiny of the entire evidence on record, the accused have inflicted sticks blows on the head of the deceased, Guddu Ram inside the room of his house and as well as on other parts of his person and, thereafter, the accused dragged him out of the room and laid him in the courtyard where more blows of sticks were given to him by the four accused persons. When Guddu Ram was taken to hospital, he died on the way because of the injuries suffered by him at the hands of the accused. A-1, A-2, A-3 and A-15 facilitate murderous assault with common intention and in furtherance of their common intention, they caused the death of Guddu Ram. In the facts and circumstances of the case, we convict the accused under S.302 read with Section 34. I.P.C. and their conviction in our view cannot be altered to Section 304, I.P.C. as contended by their learned Counsel. The common intention of the accused can be seen from the nature of the injuries caused to deceased Guddu Ram by the accused besides other circumstances narrated hereinabove. The accused persons shall each suffer imprisonment for life and to pay fine of Rs. 5,000 each, in default of payment of fine, each of the accused shall suffer simple imprisonment for one year for offence under Section 302 read with Section 34, I.P.C.

33. The prosecution has proved beyond reasonable doubt that the accused forcibly entered into the house of deceased Guddu Ram; broken open the room bolted from inside and, thereafter, assaulted Guddu Ram. The learned trial Court has rightly convicted and sentenced them for offence under Section 452, I.P.C. So far the conviction and sentence imposed by the learned trial Court upon the accused under Section 323, I.P.C. for causing the injuries to deceased Guddu Ram is concerned, the same is set aside as since no separate charge under Section 323, I.P.C. was framed by the trial Court against the accused and further the accused are convicted for major offence under Section 302, I.P.C. and their conviction under Section 323, I.P.C. is unjustified and unsustainable. The accused are acquitted of the charge under Section 323, I.P.C. Both the sentences imposed upon the accused under Section 302 read with Section 34, I.P.C. and Section 452, I.P.C. shall run concurrently.

34. As far Criminal Appeal No. 558/2000 filed by the State against the acquittal of the accused and other respondents under Sections 147, 148, 149, 452, 302 and 323, I.P.C. is concerned, we do not find any merit in the said appeal. The prosecution has not proved by positive, cogent and reliable evidence that all the accused formed unlawful assembly and committed rioting with common object and intention. PW-13 Smt. Kalawati and PW-14 Krishan Kumar could not prove that the injuries were inflicted on their person by the accused persons by pelting stones and giving 'Danda' blows. Dr. PW-2 Lalit Gupta and PW-5 Dr. Radha Chopra medically examined PW-13 Smt. Kalawati and PW-14 Krishan Lal have found simple injuries on their person which could not be attributed to the accused persons and other respondents caused by them by 'Dandas' Exts. P-l to P-4 or stones as alleged by the witnesses.

35. On re-appraisal and scrutiny of the entire evidence on record, we are of the considered view that the view taken by the trial Court was possible view and if there are two possible views, one taken by the trial Court has to be accepted and the benefit of doubt has to be given to the accused persons. In Awadhesh v. State of Madhya Pradesh AIR 1988 SC 1158 : (1988 Cri LJ 1154), it has been held as under (para 3) :

Although the powers of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against the order of conviction, yet as a rule of prudence, the High Court should always give proper weight and consideration to matters e.g. (i) the view of the trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (iii) the right of the accused to the benefit of any doubt, and (iv) the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. If on appraisal of the evidence and no considering relevant attending circumstances it is found that two views are possible, one as held by the trial Court for acquitting the accused and the other for convicting the accused in such a situation the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial Court. Unless the conclusions of the trial Court drawn on the evidence on record are found to be unreasonable, perverse or unsustainable, the High Court should not interfere with the order of acquittal.

36. We do not find any infirmity, illegality or perversity in the order of the learned trial Court acquitting the accused and other respondents for the offence with which they were charged. The appeal of the State, therefore, is dismissed.

37. No other point is urged by the learned Counsel for the parties.

38. For the foregoing reasons, we partly allow the appeal filed by the accused to the extent indicated above. We would, however, record the benefit of doubt to the respondents in the appeal filed by the State and maintain their acquittal on all counts.

Crime and Punishment and other Laws

Sunday, August 25, 2013

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